The Marihuana Tax Act: A Fifth and Fourteenth Amendment violation to Property Rights

The origins of America’s cannabis regulatory scheme lie in the early twentieth century, when shifting attitudes toward narcotics prompted both state and federal lawmakers to expand their reach. While cannabis had been listed in the U.S. Pharmacopeia since the 19th century and was widely used in patent medicines, it attracted little federal attention compared to opiates and cocaine. Regulation in the 1910s and 1920s came primarily through state “poison laws” and pharmacy controls, often lumping cannabis together with other substances deemed dangerous or requiring professional oversight.

The federal government first experimented with control through taxation, a strategy it had successfully deployed with the Harrison Narcotics Tax Act of 1914. That statute did not criminalize opium or coca products outright but imposed a strict tax-and-registration framework that effectively curtailed legal commerce. This model became the blueprint for cannabis regulation, setting the stage for a similar scheme that would follow two decades later.

In 1937, Congress enacted the Marihuana Tax Act, the first comprehensive federal statute directed specifically at cannabis. Championed by Federal Bureau of Narcotics Commissioner Harry Anslinger, the Act required anyone who dealt in cannabis to register with the federal government, pay a transfer tax, and obtain official order forms. Because the tax was prohibitively high and the paperwork deliberately burdensome, compliance was virtually impossible, turning possession and distribution into de facto federal crimes. Although framed as a revenue measure, the Act functioned as a ban cloaked in the language of taxation.

The Marihuana Tax Act thus marked the beginning of a national prohibitionist policy. While some states had already restricted cannabis, this was the first coordinated federal framework to regulate — and effectively criminalize — its use and distribution. The scheme lasted more than three decades until the Supreme Court, in Leary v. United States, 395 U.S. 6 (1969), struck it down as unconstitutional. The Court held that the Act violated the Fifth Amendment’s privilege against self-incrimination, since compliance required individuals to incriminate themselves under state laws that already banned cannabis. With Leary dismantling the Tax Act, Congress responded by enacting the Controlled Substances Act of 1970, which placed cannabis in Schedule I and ushered in the modern era of federal prohibition.

Ownership v. Use: The Modern Misinterpretation

Legal language is the weakest link of every citizen today. The goal of the Third Branch of FLCan is to educate our members how to use legal language to ensure that we have the right to “acquire, possess, and protect property.” These are rights long recognized under the Civil Rights Act, and reaffirmed in Lynch v. Household Finance Corp., 405 U.S. 538 (1972). When the government takes our property ownership and converts it to public “use,” we have an immediate 5th and 14th Amendment “Takings Clause” claim against the officials and the State.

The Supreme Court of the United States has recently affirmed that, the moment the State uses the toehold of a regulation, debt, or a tax, to convert our private property to “public use,” we have the ability to bring a 42 U.S.C. § 1983 civil rights claim against the government official. See Tyler v. Hennepin County, 598 U.S. 631 (2023) and Knick v. Township of Scott, 588 U.S. 180 (2019). Regulatory schemes regulate “use and distribution” (see Marihuana Tax Act), not ownership, which has been conflated with “possession with intent to use.”

It is up to us to develop our mental muscle memory to protect our rights from being categorized as a public privilege. By using the correct “affirmative defenses” with legal language, the moment a State official begins to impede our rights, we can protect ourselves further in Court.