Forgive my frivolity, but the 10th Amendment has become so meaningless these days that there is little point in resorting to serious arguments that it should still mean something. There is a broad, bipartisan consensus that it does not.

So all I can do is wax nostalgically, like some libertarian kook who lacks the sense to get with the bigger modern consensus and deserves to be swept into the Ron Paul dustbin of ridicule.

Anyway, back in the days when the 10th Amendment still meant something, Congress passed the 1914 Harrison Narcotics Act. While the law purported to be a tax on opium, it also gave — or seemed to give — what were then considered unconstitutional powers to the federal government. In 1916, in the first case dealing with its constitutionality (United States v. Jin Fuey Moy), the Court saved the law by refusing to construe it in a manner which would have given the federal government unconstitutional police powers.

It also seemed to shock Justice Oliver Wendell Holmes that Congress could conceivably have criminalized possession of substances:

While the Opium Registration Act of December 17, 1914, may have a moral end, as well as revenue, in view, this Court, in view of the grave doubts as to its constitutionality except as a revenue measure construes it as such.

Every question of construction is unique, and an argument that might prevail in one case may be inadequate in another.

Only definite words will warrant the conclusion that Congress intended to strain its powers, almost, if not quite, to the breaking point, to make a great proportion of citizens prima facie criminals by mere possession of an article.

The words “any person not registered” in § 8 of the Opium Registration Act of 1914 do not mean any person in the United States, but refer to the class dealt with by the statute — those required to register — and one not in that class is not subject to the penalties prescribed by the statute.

That majority was not to last long. The above opinion proved unpopular with a wartime public, the government whipped up public opinion during Prohibition hysteria, and the Internal Revenue Service took it upon itself to declare that addiction was not a disease.

Not surprisingly, the Supreme Court caved, and reversed its stance in a 5-4 * ruling a mere three years later. In United States v. Doremus, the Court held that Congress could use revenue-raising powers to do things in addition to raising revenue (including making criminals out of doctors who prescribe for addicts, and addicts who obtain drugs with what the Court called “illegitimate” prescriptions).

Considering the full power of Congress over excise taxation, the decisive question here is: have the provisions in question any relation to the raising of revenue? That Congress might levy an excise tax upon such dealers, and others who are named in § 1 of the act, cannot be successfully disputed. The provisions of § 2 to which we have referred aim to confine sales to registered dealers and to those dispensing the drugs as physicians, and to those who come to dealers with legitimate prescriptions of physicians. Congress, with full power over the subject, short of arbitrary and unreasonable action which is not to be assumed, inserted these provisions in an act specifically providing for the raising of revenue. Considered of themselves, we think they tend to keep the traffic above-board and subject to inspection by those authorized to collect the revenue. They tend to diminish the opportunity of unauthorized persons to obtain the drugs and sell them clandestinely without paying the tax imposed by the federal law. This case well illustrates the possibility which may have induced Congress to insert the provisions limiting sales to registered dealers and requiring patients to obtain these drugs as a medicine from physicians or upon regular prescriptions. Ameris, being, as the indictment charges, an addict, may not have used this great number of doses for himself. He might sell some to others without paying the tax — at least Congress may have deemed it wise to prevent such possible dealings because of their effect upon the collection of the revenue.

We cannot agree with the contention that the provisions of § 2, controlling the disposition of these drugs in the ways described, can have nothing to do with facilitating the collection of the revenue, as we should be obliged to do if we were to declare this act beyond the power of Congress acting under its constitutional authority to impose excise taxes. It follows that the judgment of the district court must be reversed.

In other words, an “addict” is not in the category of “patient,” simply because he might sell to others, so his prescription is not a prescription!

Never mind that the law says nothing about that.

Nothing contained in this section shall apply –”

[…]

“(b) To the sale, dispensing, or distribution of any of the aforesaid drugs by a dealer to a consumer under and in pursuance of a written prescription issued by a physician, dentist, or veterinary surgeon registered under this act: Provided, however, that such prescription shall be dated as of the day on which signed, and shall be signed by the physician, dentist, or veterinary surgeon who shall have issued the same: And provided further, that such dealer shall preserve such prescription for a period of two years from the day on which such prescription is filled in such a way as to be readily accessible to inspection by the officers, agents, employees, and officials hereinbefore mentioned.”

Whether wartime and Prohibition era hysteria offers an excuse or not, I think this is a remarkable early example of the Supreme Court simply legislating from the bench. They decided — on their own — that keeping an addict comfortable did not constitute the practice of medicine, even though the statute in question was a revenue measure, and even though Congress had not made any such determination.

If they could do that, then they could do anything (especially when Congress has taken it upon itself to define and regulate medical practice).

Four members of the court dissented, however. They said the law was an unconstitutional exercise by Congress of the police power, which was reserved to states.

THE CHIEF JUSTICE dissents because he is of opinion that the court below correctly held the act of Congress, insofar as it embraced the matters complained of, to be beyond the constitutional power of Congress to enact because, to such extent, the statute was a mere attempt by Congress to exert a power not delegated — that is, the reserved police power of the states.

MR. JUSTICE McKENNA, and MR. JUSTICE VAN DEVANTER and MR. JUSTICE McREYNOLDS concur in this dissent.

I find myself wondering why the dissent didn’t slam the majority for compounding the problem by inventing new law on its own to define the practice of medicine. (As well as for cowardice in the face of public pressure.)

Lest there be any doubt about what it was doing, in an accompanying case (Webb v. United States), the Court went out of its way to make it abundantly clear that it was specifically holding that prescribing drugs to keep addicts comfortable is not legitimate medical practice. This unprecedented, court-ordered edict to doctors as to what constitutes the practice of medicine was grounded in the court’s belief that to allow doctors to prescribe narcotics in order to keep addicts comfortable would pervert the meaning of the word “prescription.”

“3. If a practicing and registered physician issues an order for morphine to an habitual user thereof, the order not being issued by him in the course of professional treatment in the attempted cure of the habit, but being issued for the purpose of providing the user with morphine sufficient to keep him comfortable by maintaining his customary use, is such order a physician’s prescription under exception (b) of § 2?”

[…]

As to question three, to call such an order for the use of morphine a physician’s prescription would be so plain a perversion of meaning that no discussion of the subject is required. That question should be answered in the negative.

Again, the same four members dissented:

For the reasons which prevented him from assenting in No. 367, THE CHIEF JUSTICE also dissents in this case.

MR. JUSTICE McKENNA, MR. JUSTICE VAN DEVANTER, and MR. JUSTICE McREYNOLDS concur in the dissent.

What’s amazing to me is that the Supreme Court got to define the practice of medicine in this country, with barely a whimper.

I guess the lesson is when the fix is in the fix is in.

* At some point historians may acknowledge that what really gave birth to the war on drugs was a 5-4 Supreme Court decision purporting to define the practice of medicine. Tens of thousands were imprisoned in the decade that followed, and the federal prisons swelled with people who would never have previously been considered criminals.

MORE: While the irony might be lost on many conservatives today, it is worth noting that three of the four justices who voted to hold the Harrison Narcotics Act unconstitutional — Chief Justice White, and Van Devanter, McReynolds — were solid conservatives, while the fourth (Justice McKenna) was a centrist who nonetheless believed in limited federal power.

It was a different world in those days.