Stuff You Should Know, 1928 Edition

Via lawprof Gerard Magliocca at Concurring Opinions, the dissenting opinion by arch-conservative Justice James McReynolds in Casey v. United States, 276 U.S. 413 (1928).

I accept the views stated by Mr. Justice BUTLER. With clarity he points out the unreasonableness of the construction of the statute advocated by counsel for the United States. But I go further.

The provision under which we are told that one may be presumed unlawfully to have purchased an unstamped package of morphine within the district where he is found in possession of it conflicts with those constitutional guaranties heretofore supposed to protect all against arbitrary conviction and punishment. The suggested rational connection between the fact proved and the ultimate fact presumed is imaginary.

Once the thumbscrew and the following confession made conviction easy; but that method was crude and, I suppose, now would be declared unlawful upon some ground. Hereafter, the presumption is to lighten the burden of the prosecutor. The victim will be spared the trouble of confessing and will go to his cell without mutilation or disquieting outcry.

Probably most of those accelerated to prison under the present act will be unfortunate addicts and their abettors; but even they live under the Constitution. And where will the next step take us?

When the Harrison Anti-Narcotic Law became effective, probably some drug containing opium could have been found in a million or more households within the Union. Paregoric, laudanum, Dover’s Powders, were common remedies. Did every man and woman who possessed one of these instantly become a presumptive criminal and liable to imprisonment unless he could explain to the satisfaction of a jury when and where he got the stuff? Certainly, I cannot assent to any such notion, and it seems worthwhile to say so.

Still have that Paregoric on the shelf?  I remember it there in my parents’ medicine cabinet when I was a kid.  We were all criminals once. Maybe more than once. Maybe three times a day.  Our parents were too, apparently, and even an arch-conservative justice understood that was wrong.

4 comments on “Stuff You Should Know, 1928 Edition

  1. Brett Middleton

    No Paregoric, but I do have an old composition book from a couple of generations back in my family. It’s full of cooking recipes, reminders of family birthdays and anniversaries, tradesman addresses, and other such incidentals. Mixed in with all that are a number of recipes for home remedies, most of which call for some amount of laudanum.

    While the book is a delightful bit of family history, I sometimes wonder if I should burn it. Possessing such recipes probably makes me a criminal of some sort these days, providing evidence of my intent to manufacture or something.

    1. SHG Post author

      Be radical. Save the old composition book and tell anyone who complains you come from a long line of dope fiends.

      1. Brett Middleton

        That branch of the family tended to die young, and I never met any of them. Word is, however, that they were all upright, churchgoing, pillar-of-the-community sorts. Amazing how American society could once be upheld by dope fiends with free access to any drugs they desired without need of prescription, tax stamps, etc. I wonder if the mothers or wives of the members of that court had similar recipe collections?

        It looks like the dissenting conservatives in Casey had a number of understandings that we’ve forgotten since 1928. I’m sure any modern drug warrior would be flabbergasted at Justice Butler’s assertion that “Mere purchase or possession of morphine is not crime. Congress has not attempted, and has no power, to make either an offense.” Must have been a civilization on the verge of collapse, with dogs and cats living together, human sacrifice, and mass hysteria.

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