Forbidden Fruit and the Tree of Knowledge An Incquiry into the Legal History of American Marihuana Prohibition, Bonnie and Whitebread, USA (1970) VIRGINIA LAW REVIEW VOLUME 56 OCTOBER 1970 NUMBER 6 THE FORBIDDEN FRUIT AND THE TREE OF KNOWLEDGE: AN INQUIRY INTO THE LEGAL HISTORY OF AMERICAN MARIJUANA PROHIBITION Richard J. Bonnie* & Charles H. Whitebread, II** 'Assistant Professor of Law, University of Virginia. B.A., 1966, Johns Hopkins University; LL.B., 1969, University of Virginia. "Assistant Professor of Law, University of Virginia. A.B., 1965, Princeton University; LL.B., 1968, Yale University. Mr. Snell. What is the bill? Mr. Rayburn. It has something to do with something that is called marihuana. I believe it is a narcotic of some kind. Colloquy on the House floor prior to passage of the Marihuana Tax Act. Introduction We wish to express our sincere appreciation to the students who assisted us in the preparation of the tables at Appendix A. Because the drug statutes of the several states are particularly confusing and difficult to find, and because so many jurisdictions have recently changed their drug laws, the preparation of the chart required long, tedious work which so many were kind enough to perform. To them, our most sincere thanks. We should like to thank especially Michael A. Cohen, John F. Kuether, W. Tracey Shaw, Alan K. Smith, and Allan J. Tanenbaum, all students at the University of Virginia School of Law, whose research assistance and tireless effort were invaluable. We are particularly indebted to Professor Jerry Mandel who supplied us with much of the raw data used in the historical case studies in this Article. In his excellent article on drug statistics in the Stanford Low Review, Problems with Official Drug Statistics, 21 STAN. L. REV. 991 (1969), Professor Mandel suggested in a footnote that someone should attempt a history of the passage of anti-marijuana legislation. We have followed his suggestion and earnestly hope that our product will fill this gap. A modified and expanded version of this Article will be published in book form in the spring of 1971. 1. INTRODUCTION Law may be rooted in fiction as well as fact. Indeed, a public policy conceived in ignorance may be continuously reaffirmed, ever more vehemently, so long as its origins remain obscure or its fallacy unexposed. Yet once a spark of truth ignites the public opinion process, the authority of time will not stay the flames of controversy. In stable times the policy may soon be reversed or modified to comport with reality. In volatile times, however, a single controversy may lose its urgency. Fueled by flames generated by related public issues, the fire may spread; truth may again be consumed in the explosive collision of competing cultural ideologies. So it has been with marijuana.' Suppressed for forty years without significant public attention, the "killer weed" has suddenly surfaced as the preferred euphoriant of millions of Americans. Hardly a day passes without public exposure to propaganda from one side or the other. Hardly a day passes without arrests of newsworthy figures for violations of marijuana laws. Before legislatures and courts, the law is attacked and defended with equal fervor. Sociological, medical and police testimony regarding the drug's effects is delivered feverishly to an attentive public. Yet, apart from some expedient peripheral actions, little has been done. Detailed studies have been commissioned, but there has been no significant reconsideration of basic assumptions. Because the marijuana issue has become ensnared in broader social polemics, it has been stalemated. Stability and change, defiance and repression, hippieism and middle- Americanism, "law and order" and protest politics define the cultural milieu of which the marijuana issue is viewed as but a symptom. This Article is motivated by twin concerns: that the flagrant disregard of marijuana laws bespeaks a growing disenchantment with the capacity of our legal system rationally to order society, and that the assimilation of the marijuana issue into larger social conflicts has consigned the debate to the public viscera instead of the public mind. Through a historical analysis of the marijuana laws we hope to refocus the debate. An understanding of the origins of the laws might modulate the challengers' hostile accusations and at the same time promote in legislators an awareness of their own responsibility. For the purposes both of description and evaluation, law is inseparable from the process by which it is adopted and the values it manifests. Accordingly, our history focuses both on the public policy formation process and on evolving patterns of our culture. With respect to policy, formation, marijuana's legal history is a significant illustration of the interaction of the public opinion, legislative and judicial processes, and, in a broader sense, the relation between folkways and gateways. With respect to its value-content, the evolution of marijuana policy reflects quite precisely emerging cultural attitudes toward pluralism, privacy and individual pursuit of pleasure in an increasingly mechanized and depersonalized technological society. 1Throughout its tumultuous history, the common name of the cannabis drug has been spelled in numerous ways-marihuana, meriguana, marijuana, marijuana. We will use the last spelling because it appears most often in modern publications and conforms more nearly to the Spanish. II. THE ANTECEDENTS: CRIMINALIZATION OF NARCOTICS And ALCOHOL The restrictive public policy with respect to marijuana, initiated in the late twenties and thirties and perpetuated to the present day, has never been an isolated phenomenon. At each stage of its development marijuana policy has been heavily influenced by other social issues because the drug has generally been linked with broader cultural patterns. Particularly at its inception, nationwide anti-marijuana legislation and its fate in the courts were inseparably linked with the earlier anti-narcotics and prohibition experiences. In fact, the facility with which marijuana policy was initiated directly related to the astoundingly sudden and extreme alteration of public narcotics and alcohol policy between 1900 and 1920. In 1906 there were only three dry states, and judicial precedent abounded for the proposition that the right to possess alcohol for private consumption was an inalienable right. Yet, by 1917, twenty states had enacted prohibitionary legislation and most others were contemplating it. Two years later the eighteenth amendment and the Volstead Act had been enacted, and it was a federal crime to possess alcohol even for the purpose of drinking it within the home. Similarly, in 1900 only a handful of states in any way regulated traffic in narcotic drugs-opium, cocaine, morphine and heroin-even though all but heroin had been available for a decade or more. Yet, by 1914, all states had enacted some type of prohibitionary legislation, and the national government had enacted the Harrison Narcotic Act. There were many major differences between the temperance and anti-narcotics movements. The temperance movement was a matter of vigorous public debate; the anti-narcotics movement was not. Temperance legislation was the product of a highly organized nationwide lobby; narcotics legislation was largely ad hoc. Temperance legislation was designed to eradicate known evils resulting from alcohol abuse; narcotics legislation was largely anticipatory. On the other hand, there were striking similarities between the two movements. Both were first directed against the evils of large scale use and only later against all use. Most of the rhetoric was the same: These euphoriants produced crime, pauperism and insanity. Both began on the state level and later secured significant congressional action. Both ultimately found favor with the courts, provoking interchangeable dissenting opinions. We do not propose to unearth new truths about the events of this period. However, we do believe that a familiarity with the political and judicial response to the alcohol and narcotics problems is essential to an understanding of the eventual suppression of marijuana. We believe further that an understanding of the relation between public opinion and any sumptuary law is germane to a discussion of the predicament of current marijuana legislation. Finally, since much of the current debate about marijuana is focused on its harmful effects as compared with those of narcotics and alcohol, the evolution of public policy in those areas is particularly material. A. A Review of the Temperance Movement Although aggressive prohibition campaigns had been mounted in every state in 1851-69,1 and again in 1880-90, in 1903 only Maine (1884), Kansas (1880) and North Dakota (1889) were completely dry states.2 Ernest Cherrington, the chronicler par excellence of the Prohibition movement, blamed the failure of the first thrust in part on the intervention of the slavery question, which siphoned the moral fervor of the people from the temperance movement .4 The failure of the second campaign he attributed to the inability of the prohibition activists to compete politically with growing liquor interests that dominated state and local governments.5 By 1906, however, the progress of the anti-saloon arm of the temperance movement in local option contests" and the adoption of alcohol prohibition by the people of Oklahoma in a provision of their constitution ratified upon admission to statehood 7 signalled a new crusade for state prohibitionary legislation. The Oklahoma vote so "electrified the moral forces of other states" 8 that by 1913 six additional states had enacted statewide prohibition, and half of the remaining states were contemplating action.9 Perhaps the most significant development during this period occurred on the national level. The Supreme Court had earlier declared the police powers of the states, under which state prohibition laws were enacted, impotent to prevent importation of liquor from a wet state, of which there were still many, into a dry state and to stay the sale and delivery of such liquor to the buyer while in the original package." After a congressional attempt to deal with the decision in 1890 aborted in the courts," the buyer of liquor shipped in interstate commerce still had the right to receive and therefore to use such liquor. But in 1913 Congress, by the Webb-Kenyon Act, 12 filled the gap by prohibiting the shipment of liquor from one state to another to be used in violation of the laws of the latter; dry states could thus enforce their prohibition laws The mere passage of this law, according to against imported liquor.13 Cherrington, committed Congress to a policy that recognized the liquor traffic as an outlaw trade and indicated congressional desire to assist the dry states. 14 By November 1913, the tide had decidedly turned. More than half the population and 71 percent of the area of the United States were under prohibitionary laws.", Accordingly, the Fifteenth National Convention of the Anti-Saloon League of America unanimously endorsed immediate passage of National Constitutional Prohibition, whereupon the National Temperance Council was formed to combine the forces of the various temperance organizations toward this end. 16 By April 4, 1917, when a joint resolution was introduced in the Senate proposing an amendment to the Constitution prohibiting the manufacture, sale or transportation of intoxicating liquors within the United States for beverage purposes, 17 eighty percent of the territory of the United States was dry." Adopted by the constitutional majorities of both houses on December 18, 1917, the eighteenth amendment was ratified by the thirty-sixth state on January 16, 1919, and became effective on January 16, 1920.19 The Volstead Act," passed on October 28, 1919, pursuant to section 2 of the eighteenth amendment, outlawed possession of intoxicating liquor and therefore went significantly beyond the amendment itself. The National Commission on Law Observance and Enforcement (the Wickersham Commission) attributed the passage of the eighteenth amendment not to public opposition to use of intoxicating beverages," although this was indeed the view of many of the leaders of the movement, but rather to antipathy to three major related evils: excessive consumption, political corruption and licensed saloons .22 Excessive use increased with the commercialization of production and distribution, and the expansion of saloons. Public resentment against the corrupting influence of the large liquor dealers in local politics, especially in the larger cities, tended to focus public attention on removing a cancer from the body politic. Finally, the institution that most strongly aroused public sentiment against liquor traffic was the licensed saloon, itself the symbol of intemperance and corruption. Owned or controlled by the large brewers or wholesalers, centers of political activity, homes of commercialized vice, the saloons were the betes noires of middle-American public opinion. Because public opinion was largely opposed only to the socio-political consequences of massive liquor traffic, the enforcement of total abstinence under the eighteenth amendment became increasingly difficult. By 1931 it was an accepted fact that the upper and middle classes were "drinking in large numbers in quite frank disregard of the declared policy" of the Volstead Act." The difficulties of securing compliance in such circumstances were aggravated by an inadequately designed enforcement strategy, 24, public resentment of the lawless tactics of prohibition agents, 25 and the lack of any sustained attempt at public education.26 For twelve years, however, millions of dollars were spent by federal and state governments in a fruitless effort to secure compliance with the law. Contemporary legal observers were particularly incensed by the dilution of constitutional protections, especially those provided by the fourth amendment, which was sanctioned by the courts in response to the "felt needs" of securing compliance through enforcement alone.27 Although many plans were advanced for changing the prohibition laws to mitigate the lawlessness rampant during this period, as late as 1931 even its most vigorous opponents felt that repeal of the eighteenth amendment was politically unfeasible.28 By 1932, however, public opinion had become so inflamed that the Democratic National Convention included repeal in the party platform."' Proposed by Congress on February 20, 1933, the twenty-first amendment was ratified by the thirty sixth state on December 5, 1933. B. Anti-Narcotics Legislation to 1914 For our purposes, the major feature of temperance history is the responsiveness of the political process to public opinion. Whether or not a majority of Americans ever favored prohibition and whether or not the thrust of public opinion was ever accurately assessed, the public opinion process was attuned to the question for half a century. The alleged evils of alcohol abuse were matters of public knowledge; the proper governmental response was a subject of endless public debate; enactment and repeal of Prohibition were attended by widespread public participation. In contrast, the early narcotics legislation was promulgated largely in a vacuum. Public and even professional ignorance of the effects of narcotic drugs contributed both to the dimensions of the problem and the nature of the legislated cure. The initial legislation was attended by no operation of the public opinion process, and instead generated a new public image of narcotics use. Only after this creation of a public perception occurred did the legislative approach comport with what we shall call latent public opinion. 1. Narcotics Use at the Turn of the Century: A Growing Problem Although estimates have varied widely regarding the number of persons regularly using cocaine, opium, morphine and heroin during the pre-criminalization period, a sufficiently accurate figure can be drawn from a composite of contemporary surveys30 conducted between 1878 and 1924 .31 Estimates range from 182,215 (1884) to 782,118 (1913). We can safely estimate that there were between one-quarter and one-half million Americans addicted to narcotics around the turn of the century, comprising at least one percent of the population." This rather large addict population included more females than males,33 more whites than blacks," and was confined neither to particular geographical regions nor to areas of high population concentrations Its most significant characteristic was its predominantly middle- class composition. Such attributes contrast starkly with the overwhelmingly black, lower-class male addict population that today inhabits our major urban centers. Nineteenth century narcotics addiction was generally accidental. It is widely believed that medical addicts far outnumbered "kicks" or pleasure" addicts.37 Medical addiction stemmed from many sources. The first was overmedication. Civil War hospitals used opium and morphine freely and many veterans returned addicted to the drugs." Overmedication continued long after peace had been restored, due to the ready availability of these drugs with and sometimes without prescription. Since physicians were free to dispense these drugs as painkillers, persons given morphine first for legitimate therapeutic purposes often found themselves addicted. 39 This problem was exacerbated by the absence of restrictions upon druggists in refilling prescriptions containing extensive amounts of morphine and other opiates40 and by the introduction of the hypodermic syringe." The danger of overmedication increased in 1884 when cocaine was first introduced into the practice of medicine, and again in 1898 when an advance in German chemistry produced heroin, a partially synthetic morphine derivative. 42 For a time recommended as a treatment for morphine addiction ,43 heroin was also widely used for medicinal purposes. A second source of accidental addiction was the use and popularity of patent medicines. Exotically labeled elixirs were advertised as general cures for- ills ranging from snake bite to melancholia. By containing up to thirty or forty percent morphine or opiates by volume, most patent medicines fulfilled their cure-all promises. However, a heavy price was exacted for such cures. In the absence of a requirement that contents be printed on the label, many an unsuspecting person became addicted without ever knowing the medicine that worked so well contained dangerous narcotics.44 Thus, careless prescription, incessant dispensation and hidden distribution of harmful drugs, the addictive effects of which were unknown until too late, fostered a large addict population which continued to increase in the early twentieth century. The increase in narcotics consumption, and therefore addiction, is well illustrated by the fact that 628,177 pounds of opiates were brought into this country in 1900, three times the amount imported thirty years earlier." Governmental and medical default explains the innocent nature of nineteenth century narcotics addiction and therefore its predominantly middle-class, nationwide character. Not all addiction was accidental and private. It has been suggested that both medical knowledge and governmental regulation occurred only when each narcotic drug achieved a significant degree of "street" use. Our research supports this thesis, especially when "street" use is identified with the poor and with racial minorities. For example, opium, the drug first determined addictive and first identified with " pleasure" use, was the earliest prohibited. Legislation was first passed in the west coast states with newly immigrated Chinese populations among whom its use was prevalent. Heroin early achieved a widespread nonmedical or "street" use, especially in large urban centers among lower-class males."' Nevertheless, addiction, even to opium, was predominantly involuntary until 1900. Professional attention was not focused directly on! Street" use until after two developments had significantly reduced the: possibility of medical addiction. First, the passage of the Pure Food and Drug Act48 in 1906 led to the demise of the patent medicine industry,: one of the primary causes of medical addiction. The labeling requirements of the Act, coupled with the later regulation of the production and distribution of the opiates, protected the public from the dangers of ignorance and virtually put the patent medicine industry out of business.49 Second, the discovery of new nonaddictive pain killers and anesthetics reduced the likelihood of post- operative addiction since physicians no longer needed to rely so heavily on morphine and opium. preparations to reduce and control pain. 2. State Legislative Response Before 1914 Although many states regulated narcotics indirectly through their general "poison laws" before 1870,50 the first anti-narcotics legislation did not appear until the last quarter of the nineteenth century. Most of the early legislation focused primarily on crime prevention" and public education regarding the dangers of drug use." The spread of opium smoking, especially in the western states with high oriental populations,53 provoked legislation in eighteen states between 1877 and 1911 designed to eradicate the practice either by preventing the operation of opium dens or by punishing the smoking of opium altogether. 54 As the addictive qualities of opium, cocaine, morphine and later heroin became known, primarily through observation of "street" use, concerned physicians finally began to agitate for stricter regulation than that provided by the "poison laws," even though such laws included opium and cocaine. Nevada enacted the first law prohibiting the retail sale of opiates for nonmedical purposes in 1877.55 In 1887, Oregon prohibited sale of cocaine without a prescription,"" and seven states followed suit by the turn of the century57 as did thirty-nine more by 1914.58 However, only twenty- nine states had included opiates in their prohibitionary legislation by 1914.59 With the exception of the Oregon schemes nineteenth century narcotic laws did not attempt to restrict or prohibit possession of narcotics, and were directed solely at distribution and sale. By 1913, only six states had prohibited the mere possession of restricted drugs by unauthorized persons .61 Three additional states prohibited possession with intent illegally to dispense such drugs .62 3. Watershed: The Passage of the Harrison Act The first national legislation designed to regulate narcotics distribution, the 1909 "Act to Prohibit Importation and Use Of Opium"' 63 barred the importation of opium at other than specified ports and for other than medicinal use. The law further required the keeping of import records. The main force behind the passage of this statute was a desire to bring the United States into line with other nations that had signed international conventions against the use of the drug. 64 However, as state anti-narcotics legislation began to take on crusade proportions, pressure was generated for federal regulation of the importation of opium for medicinal purposes and of the interstate trade in cocaine, morphine and heroin. Consequently, the Harrison Act, until this year the foundation of federal law controlling narcotic drugs, was passed in 1914.65 The Harrison Act, a taxing measure, required registration and payment of an occupational tax by all persons who imported, produced, dealt in, sold or gave away opium, cocaine or their derivatives. The Act required all legitimate handlers of these narcotics to file returns setting forth in detail their use of the drugs. Each legitimate handler was required to use a special order form in making any transfer of narcotics. Since the Act also provided that only legitimate users could register and no one but a registered user could obtain the specified form, any transfer by an illegitimate user was a violation of the Act. For those failing to comply with its registration requirements, the original Harrison Act provided penalties of not more than $2,000 in fines or more than five years imprisonment, or both. The passage of the Harrison Act was the culmination of increasing concern in the medical profession66 about the freedom with which physicians prescribed and druggists dispensed addictive drugs, primarily morphine and heroin. During the period of little or no regulation, the innocent addicts were regarded as victims of an unfortunate sickness in need of treatment; usually they could find a friendly physician or druggist willing to sustain their habits. The passage of the Harrison Act, however, by imposing a stamp of illegitimacy on most narcotics use, fostered an image previously associated primarily with opium that of the degenerate dope fiend with immoral proclivities. As the regulation of physicians and druggists became more stringent, especially after the Supreme Court held that prevention of withdrawal was not a legitimate medical use that a prescription to an unregistered person,67 this image fulfilled itself. All addicts, whether accidental or pleasure-seeking, were shut off from their supply and had to turn underground to purchase the drugs. Inflated underground prices often provoked criminal activity and this activity in turn evoked in the public a moral response,, cementing the link between iniquity and. drug addiction.68 The early clinical experiments dealing with narcotics addiction were inevitable victims of enforcement of the Act." The concept that underlay the clinical effort-that addiction was a medical problem to be dealt with by sustaining the addict cheaply while trying to induce gentle withdrawal-was antithetical to the attitude provoking the criminal classification of unlawful possessors of narcotic drugs." Clinics were run .in such cities as New York, Shreveport and Jacksonville," but by 1923 all were closed, thus removing still another legitimate source of supply for the addict. Again, the crimes committed to enable these people to tap I the illicit sources increased public hysteria and misunderstanding 72 about the link between the opiates and crime. Another result of the physicians' resignation to pressure was that addicts to the opiates began to commit petty crimes in order to secure the drugs which could prevent their suffering. These inevitable law-induced crimes greatly accentuated the general public belief that opiates had some inherent sinister property which could change normal people into moral perverts and criminals. In addition to redefining the public conception of narcotic addiction in a way that would not be seriously challenged for half a century, the Harrison Act also provided a strange model for the administration of narcotics laws which would significantly affect future developments' Drafted as a tax law rather than an outright criminal statute, the Act was intended to do indirectly what Congress believed it could not do directly-regulate possession and sale of the opiates. Indeed, congressional caution was justified. A five-to-four decision by the Supreme Court in the 1903 Lottery Case73 suggested what later became fact-the Court, as self- appointed arbiter of the federal system, would plant the tenth amendment in the path of congressional regulation of "local" affairs. That direct regulation of medical practice was indeed considered beyond congressional power under the commerce clause is clearly indicated in contemporary opinions. First, in its 1918 decision in Hammer V. Dagenhart,74 the Court held the Child Labor Act unconstitutional. Second, the Court ultimately upheld the Harrison Act as a valid exercise of the taxing power 75 only by a five-to-four margin. Finally, there is some fairly explicit language about congressional regulation of medical practice in subsequent Harrison Act opinions.76 This indirect regulation of narcotics traffic under the pretext of raising revenue had a number of significant consequences. First, since the Act could not penalize users or addiction directly, there was an immediate need for complementary residual state legislation in order to deal effectively with the drug problem. Second, the enforcement of the Act was necessarily assigned to the Internal Revenue Service in the Treasury Department. The first enforcement agency for the Harrison Act was the Narcotics Division of the Prohibition Unit of the Internal Revenue Service created in 1920.77 This division was incorporated in the Prohibition Bureau which was created in 1927 .78 In 1930, the enforcement of the narcotics laws was severed from the Bureau of Prohibition and established as the separate Bureau of Narcotics in the Treasury Department .79 The existence of this separate agency anxious to fulfill its role as crusader against the evils of narcotics has done as much as any single factor to influence the course of drug regulation from 1930 to 1970." Although the impact of the Bureau on the passage of the Uniform Narcotic Drug Act and the Marihuana Tax Act will be explained in detail in subsequent sections, it is important here to note that the existence of a separate bureau having responsibility only for narcotics enforcement and for educating the public on drug problems inevitably led to a particularly prosecutorial view of the narcotics addict. Moreover, this creation of the Bureau separate from the newly created FBI in the justice Department unnecessarily bifurcated federal law enforcement operations in this area. C. The Judicial Role and the Constitutional Framework: The Police Power and Intoxicant Prohibition to 1920 It is not novel to suggest that the fate of contemporary constitutional challenges to marijuana prohibition depends in part on a judicial reading of public opinion as well as on the availability of a constitutional peg on which to hang an "activist" judicial inquiry. Since contextual pressure and analytical conflict were also central elements of the 'Judicial response to alcohol and narcotics prohibition between 1850 and 1920, it is worthwhile to trace that response. As in today's court battles over marijuana laws, the clash then was between two polar constitutional concepts-the police powers of the state and allegedly "fundamental" personal constitutional rights. The conflict opened on state constitutional grounds and was continued in the realm of the fourteenth amendment. On the issues of alcohol and "hard" narcotics, the police power was triumphant. In the light of the comparisons drawn in current constitutional arguments among marijuana , alcohol and narcotics, an inquiry into the long struggle is informative. 1. Phase One: Prohibition of Sale and Manufacture of Alcohol During the first wave of prohibitionist legislation in the 1850's, thirteen en states outlawed manufacture" and sale of intoxicating beverages." The constitutionality of such laws under the commerce clause of the Federal Constitution had been presaged in the License Case83 in 1847, where in six separate opinions the Supreme Court upheld Massachusetts, New Hampshire and Rhode Island laws regulating wholesale and retail sales of liquor. Chief Justice Taney's famous dictum stated: And if any State deems the retail and internal traffic in ardent spirits injurious to its citizens, and calculated to produce idleness, vice, or debauchery, I see nothing, in the constitution of the United States to prevent it from regulating and restraining the traffic, or from prohibiting, it altogether, if it thinks proper.84 Armed with this pronouncement, the courts of eight states rebuffed challenges under their own constitutions." Some of these decisions gave scant attention to the constitutional argument but simply defined the police power broad terms86 and perhaps cited the Taney dictum. However, the rationale and rhetoric of those decisions squarely rejecting the constitutional objections merit a detailed comparison with that of two decisions, in New York88 and Indiana89, declaring the statutes void. Even the opponents of the laws acknowledged the potential public evils of intemperance90crime, pauperism and vice-the eradication of which was the objective of prohibitionary legislation. Yet they argued that the means employed to accomplish this end- prevention of sale was beyond the police power. Alcohol had admittedly beneficial use91 and was harmful only when abused.92 In order to eliminate it from channels of commerce, thereby depriving its owners of a -fundamental incident of ownership-the right to sell93 -a more pernicious character had to be shown. 94 Accordingly, the public benefit did not justify the restriction of private rights. The criminalization of sale of alcohol beverages constituted a deprivation of "property" without due process;95 or, failing that, it constituted an infringement of the inalienable right of 1ife, liberty And the pursuit of happiness rooted in the precepts of natural justice that the people reserved to themselves when they entered into the social compact.96 New York, in Wynehamer v. People,97 accepted .the due process argument, at least with respect to alcohol lawfully acquired, and Indiana endorsed the inalienable rights argument in Beebe v. State.98 The virtues of judicial restraint were vehemently defended in the decisions rejecting these arguments: The courts uniformly refused to interfere with the discretionary exercise of the police power in the absence of a specific constitutional prohibition. The Vermont Supreme Court view was typical: The legislature in passing the law in question doubtless supposed that the traffic and drinking of intoxicating liquors went hand in hand ... and that, by cutting off the one, the other would also fall with it. Whether the drinking of intoxicating liquors tends to produce intemperance and whether the intemperance is a gangrene, tending to corrupt the moral health of the body