I must admit that I messed up.

In my coverage of the federal hearing on the constitutionality of the continued classification of cannabis under Schedule I of the Controlled Substances Act, I misreported the hearings as a debate about science and the meaning of the word ‘medicine.’ That wasn’t wrong, exactly — after all, the question of whether cannabis is a medicine dominated the testimony taken at the hearings. My mistake was rather failing to see through all of the testimony about science to see the true significance of the debate.

The hearings, at their core, are about race.

I can partly be forgiven the oversight on the basis that the debate appears, at least on its face, to be about racially neutral questions. For reasons which I’ve detailed in a previous post, the logical lynchpin of the purported constitutionality of Schedule I status for a herbal product which never killed anyone rests on the debate about the meaning of the word ‘medicine.’ In essence, the fact that cannabis is demonstrably nontoxic does not necessarily mean that Schedule I status is irrational if — and the importance of this if must not be underestimated — it is rational for the DEA to adopt a standard for ‘medicine’ which categorically excludes drugs like cannabis on the basis of their chemistry.

In her testimony, government expert witness Dr. Bertha Madras presented a full-throated apology for just such a standard, arguing that on the sole basis that the chemistry of cannabis was not ‘known and reproducible,’ it should therefore be categorically rejected as medicine. Such a definition may fly in the face of common sense, but, as Madras pointed out, it was the definition adopted by the FDA. What is so irrational about relying on the wisdom of the FDA?

In a historical vacuum, this point of view seems logical; but these are the United States, where there’s been a lot of water under the bridge. In particular, one of the principal themes of our storied history has concerned the subject of race — so it should come as little surprise to learn that the very standard of ‘medicine’ advanced in court by Dr. Madras has quite a contentious racial history. On this point my oversight has no excuse, because I’ve written about this extensively before.

As I noted in that AlterNet Drugs article, both the concept of ‘known and reproducible chemistry’ and the dichotomy between ‘medical’ and ‘recreational’ use of pharmacologically active agents were adopted by US federal policy under circumstances which were undeniably racist: white populations on the west coast around the turn of the 20th century became violently hostile to Chinese immigrants who had competed with them in a scarce job market, forcing national governments to respond.

The response, by national governments in both Canada and the United States, was to blame the victims — asserting that the Chinese community had brought the violence upon themselves by permitting opium dens in their communities, the Canadian Anti-Opium Act of 1908 and American Harrison Narcotics Act of 1914 made the sale of opium a criminal offense, which opened the way for law enforcement to reduce employment competition by locking up the ethnic minorities who might have taken white jobs.

The strategy had only one flaw (from the white supremacist’s point of view): white people used opium too. In fact, at the time of the passage of the Harrison Act, the number one demographic for consumption of opium in the US were middle-class white women, who overwhelmingly preferred to take their opiates purified as morphine and injected discreetly into the thigh through a personal hypodermic syringe. The practice was so common among the middle class of Victorian times that Sir Arthur Conan Doyle even opened one of his Sherlock Holmes novels with a scene in which Watson confronts the famous sleuth about his intravenous drug use:

“Which is it to-day?” I asked,–“morphine or cocaine?” He raised his eyes languidly from the old black-letter volume which he had opened. “It is cocaine,” he said,–“a seven-per-cent. solution. Would you care to try it?” – (From The Sign of the Four)

The solution which policymakers devised at the time is still in use today: find some sort of rational basis for classifying the use of drugs by affluent white people as ‘medicine,’ while classifying the use of the same drugs in a culturally different way by racial minorities and immigrants as ‘recreational use’ or simply ‘abuse.’ The qualities of morphine and cocaine extolled by Holmes in his typical Victorian fashion – known and reproducible chemistry, precise to the percent – were easily adopted as legitimate ‘medical’ use, since they were the means predominantly favored by the rich elites anyway (and indeed, both morphine and cocaine may still be legally prescribed by US doctors to this day). Everyone else, starting with Chinese immigrants, was going to jail.

The rest of the history, of how the pharmacological double standard became more widely adopted to oppress members of additional minority groups until the drug war became the new Jim Crow, has been well documented elsewhere. But although most Americans are aware that racial minorities are nearly 4 times as likely to be arrested for cannabis crimes than their white peers (who still use just as many drugs as minorities do), even most reform advocates fail to realize that when they call for ‘medical’ marijuana, they are participating in a century-old narrative born out of intolerable racism — despite having predominantly compassionate intentions.

Whether Judge Mueller realizes the truth behind this history remains to be seen. NORML attorney Heather Burke, who co-authored the argumentative briefs prepared by the defense for the Sacramento hearings, told me that Mueller is at least aware that race was an issue at the time of the Controlled Substances Act’s passage, because early briefs filed by her team indicate contemporary statements by Richard Nixon indicating a racist intent behind the law (unfortunately Nixon’s statements, which were introduced by the testimony of Prof. James Nolan, were excluded from the record on a hearsay technicality). When she reveals her ruling some time in December or January, we will find out whether she agrees that there is any rational basis for affirming a theory of medicine which has been used as a political weapon against minorities for over a hundred years.

[Note: Judge Mueller has granted a motion from the defense for extended briefings on the constitutionality of cannabis’ scheduling. The move will probably delay any decision from Judge Mueller until late winter or early spring of 2015. – Ed.]