Anniversary of Leary v. United States

Today marks the 48th anniversary of the decision in Leary v. United States, and often forgotten Supreme Court case from 1969 that effectively legalized marijuana on the federal level with the declaration that the 1937 Marijuana Tax Act violated the fifth amendment of the United States Constitution.

Supreme Court

The Case[1]
The facts behind the case are interesting to say the least. On December 20th 1965 Doctor Timothy Leary; a famous professor, psychologist, and political activist, left on a road trip from New York to the state of Yucatan in Mexico with his two adult children, and two others.

On December 22nd, the group reached the border town Lerado, Texas and tried to cross the international bridge into Mexico. Upon being denied entry on the Mexican side, the group turned around and stopped at an American inspection point to explain the situation and stated they had nothing to declare from Mexico. The boarder agent asked to search the vehicle, and upon inspection discovered what appeared to be marijuana seeds. Upon further inspection, small amounts of marijuana were found on the floor of the vehicle, and in the glove box. A personal search of Mr. Leary’s also produced a small silver snuff box with three partially burned joints.

Due to Dr. Leary possessing marijuana at a federally controlled international border, he was charged under federal law for violating the Marijuana Tax Act of 1937. Dr. Leary was charged and convicted on federal trafficking charges in violation of the Tax Act for failing to pay the import tax on the marijuana he possessed.

However, Dr. Leary was a smart man, and well connected. He appealed to the fifth Circuit Court of Appeals arguing the Marijuana Tax Act violated the fifth amendment[2]. The court however, affirmed his conviction. He then successfully brought his case to the Supreme Court in 1968.[3]

The Marijuana Tax act of 1937
The wording of the Marijuana Tax act became key to Leary’s case for a fifth amendment violation. The Marijuana Tax Act required that to comply with federal tax law, one was required to have a tax stamp; much like those on cigarette packages, in order to possess marijuana. However, the act required that for one to receive the tax stamp, you had to produce the marijuana that would receive the tax stamp. This wording created a cyclical logical lop that made receiving the stamp impossible. One needed a tax stamp in order to possess marijuana, but in order to have the tax stamp, one had to possess marijuana that by definition, did not have a stamp and was therefore illegal. Further compounding the logical trap of the Marijuana Tax Act was the structure of federalism, as Texas also had a law that made it a crime to possess marijuana. In fact, at the time all fifty states had laws making possession of marijuana a crime.

The Argument
Dr. Leary, and his lawyers argued that the federal law violated the fifth amendment of the constitution which bars mandatory self-incrimination. The argument was that in order for Dr. Leary to obtain the tax stamp required under federal law, he would have to produce marijuana to be taxed at the border. If Dr. Leary produced marijuana however, he would be in violation of Texas state law which prohibited the possession of marijuana. Thus, the Marijuana Tax Act required him to violate state law and incriminate himself to government officials in order to be in compliance with federal law.

In a unanimous decision with five in the majority opinion and three concurrences the Supreme Court held that the Marijuana Tax Act did violate Dr. Leary’s fifth amendment right against self-incrimination, and thus was unconstitutional. The majority opinion pointed out the absurdity of the law and the cyclical nature of the reasoning in the law. The three concurrences focused on different issues such as due processes violations. The decision effectively ended federal marijuana prohibition in 1969 with the striking down of the Marijuana Tax Act.

Ramifications at the time, and for the future
Dr. Leary’s astounding legal success was short lived however. The Supreme Court gave its final judgment on May 19th 1969, However, just a year and a half later on October 27th 1970 President Richard Nixon signed the Controlled Substances Act of 1970[4]. The Controlled Substances Act, stands as the current federal law prohibiting the possession, sale, or use of marijuana.

While Dr. Leary’s success was short lived, his case is notable for what it means about marijuana law on the federal level. The Supreme Court showed a willingness to admit the mistakes of prohibition, with the majority writing a scathing opinion about the absurdity of the law itself. Dr. Leary showed that a well argued case, and the right set of circumstances was all it takes to end marijuana prohibition through the courts.

The judgment showed by the Warren court is something to be applauded, and an example that should be followed by our current Supreme Court. Unfortunately, the Supreme Court in recent decades has shown either an unwillingness, or disdain for current attempts to end federal prohibition through the court. Specifically, with the disastrous decision of Gonzales v. Raich[5]; which allows federal agencies to raid legal state marijuana operations. The Supreme Court has missed an opportunity for clarity in federal marijuana policy with regards to state programs in Oklahoma and Nebraska v. Colorado[6].

On the Anniversary of Leary, let us all reflect that many of the federal laws we live under may indeed be unconstitutional. With the proper argument, a passionate lawyer, and a courageous Supreme Court, even marijuana laws can be changed.

[1] Fahey, David M.; Miller, Jon S. (2013). Alcohol and Drugs in North America: A Historical Encyclopedia [2 volumes]:

[2] USCS Const. Amend. 5

[3] Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532 (1969)

[4] See Pub. L. No. 91-513, 84 Stat. 1236, 1292 (October 27, 1970). See also Lynn v. West, 134 F.3d 582 (4th Cir. 1998).

[5] Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195 (2005)

[6] Nebraska v. Colorado, 136 S. Ct. 1034 (2016)

Written by Hunter White