Reefer Madness

Reefer Madness
Posted by CN Staff on March 16, 2007 at 08:02:01 PT
By Randy E. Barnett 
Source: Wall Street Journal
California -- On Wednesday, the Ninth Circuit turned away another constitutional challenge to the federal ban on using cannabis for medical purposes. Its decision revealed a glaring weakness in how the Supreme Court protects liberty under the Constitution. Angel Raich is a seriously ill 41-year-old mother of two who, in 2002, sought an injunction allowing her to use cannabis to alleviate intense pain, and relief from a life-threatening, wasting syndrome. She prevailed in the Ninth Circuit Court of Appeals.
But the Supreme Court in 2005 rejected her argument that the application of the federal Controlled Substances Act (CSA) to the personal cultivation, possession and use of state-authorized cannabis for medical purposes was unconstitutional because it exceeded the power of Congress to "regulate commerce . . . among the several states." Justices O'Connor and Thomas, joined by Chief Justice Rehnquist, passionately dissented. On remand, Ms. Raich renewed her alternate theory that the CSA's complete ban on the medical use of cannabis also violated her fundamental right to preserve her life, as protected by the Due Process Clause of the Fifth Amendment. This week, the Ninth Circuit rejected this claim -- but held out some hope that, if criminally prosecuted, Ms. Raich qualified for the defense of "necessity." According to this doctrine, when a person is forced to choose between her life and disobeying a criminal law, she may not be punished for preserving her life. Though not entitling Ms. Raich to an injunction against the CSA, the court strongly indicated she could assert a necessity defense to any future federal criminal prosecution. The Ninth Circuit thereby offered a potential lifeline to other criminal defendants who can prove that they, like Ms. Raich, have no other choice but to use cannabis to save their lives. Nevertheless, the rejection of Ms. Raich's constitutional claim highlights a serious problem with the Supreme Court's current approach to protecting liberty under the Due Process Clauses of the Fifth and Fourteenth Amendments. Ever since the New Deal, the Court will only consider challenges to a law if the liberty being restricted is a "fundamental right." Unless the liberty is characterized by the Court as "fundamental," it will not evaluate or "scrutinize" the government's claim that its restrictions are truly necessary. With laws restricting mere "liberty interests" not deemed fundamental, the Court will blindly accept the government's claim that its restriction is "reasonable." In short, to get into "Scrutiny Land" -- where the government is forced to justify its restrictions on liberty -- a person such as Ms. Raich must jump through the hoop of showing that the liberty she claims is fundamental. Otherwise she automatically loses. So what, you ask, makes some liberties fundamental and others not? According to the Supreme Court, either the right must be "implicit in the concept of ordered liberty" or it must be "deeply rooted in the Nation's history and traditions." Under either formulation, however, how a right or liberty is defined makes all the difference. Because the very same act may be accurately defined either narrowly or broadly, a court's choice of definition will dictate the outcome of the case. Here's how. Angel Raich contended that using the CSA against her infringed her right to preserve her life. If any right is fundamental, this one is: the right to "life" is specifically mentioned in the Due Process Clause itself, and even the federal Partial Birth Abortion Act, like the abortion law struck down in Roe v. Wade, includes an exception to its ban when the procedure is necessary to protect "the life of a mother." So if the right at issue in Ms. Raich's case is the right to preserve her life, she has jumped through the fundamental rights hoop and entered Scrutiny Land. How does the government respond to this? By claiming that the liberty in question is the right to use cannabis for medical purposes, which it denies is either "implicit in the concept of ordered liberty" or "deeply rooted in the nation's history or traditions." Setting aside the embarrassing historical facts that marijuana was completely unregulated in the United States until the mid-20th century, and was widely used as a medication for most of our history, it is still obviously much harder to claim that a right to use cannabis for medical purposes meets either of these tests, at least as compared with a right to preserve one's life. Given that everything turns on the description of the right, which one is correct? The dirty little secret of constitutional law is that they are both right. Ms. Raich is preserving her life and she is using cannabis for medical purposes. Because whether a liberty gets protected under the Due Process Clause depends on which accurate description a court chooses to accept, a court may rule however it wishes simply by choosing how to describe the right. When the Ninth Circuit accepted the government's description of the right in question, the outcome followed like night follows day -- because a "right to use cannabis for medical purposes" is not deeply rooted, etc., it was not fundamental. Because it was not fundamental, Ms. Raich could not enter Scrutiny Land, and her challenge failed. Had the court chosen her description of the right in question, Ms. Raich would still need to show at trial that she must use cannabis to survive. Since the court accepted the government's description, she won't get that chance. Case closed. Why accept the government's description rather than Ms. Raich's? The Ninth Circuit relied on the 1997 right-to-die case of Washington v. Glucksburg, which, according to the Ninth Circuit, "instructs courts to adopt a narrow definition of the interest at stake" ( emphasis added ). Not so. Actually, Glucksburg requires a "careful description of the asserted fundamental liberty interest" ( emphasis added ). And in the 2003 case of Lawrence v. Texas the Supreme Court defined the liberty unconstitutionally infringed by anti-sodomy laws quite broadly, as "a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals." The Ninth Circuit is not alone, however, in ignoring Lawrence when interpreting Glucksburg and equating "careful" with "narrow." But see how this loads the dice? Because a "narrow" right is unlikely to be found to be deeply rooted in history or tradition, the Supreme Court has cleverly devised a way to avoid scrutinizing the reasonableness of most restrictions on liberty. And so Angel Raich lost her claim. The Ninth Circuit did suggest that, because it would be supported by what Lawrence called an "emerging consensus," even a narrowly defined right to use medical cannabis might one day be found to be fundamental if more states allow medical cannabis: "For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last 10 years 11 states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering." The last sentence is the court's, not mine. Mr. Barnett is a professor at Georgetown University Law Center and the author of "Restoring the Lost Constitution: The Presumption of Liberty" ( Princeton, 2004 ). He represents Angel Raich.  Source: Wall Street Journal (US) Author: Randy E. Barnett Published: March 16, 2007Copyright: 2007 Dow Jones & Company, Inc. Contact: wsj.ltrs Website: Related Articles: Dying Woman Loses Appeal on MJ as Medication Says U.S. Can Ban Medical Marijuana 
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Comment #8 posted by FoM on March 16, 2007 at 20:00:08 PT
When my husband and I were having dinner I mentioned about Marc Emery to him and it could possibly throw his case out in my opinion. If nothing else it might make Canada think this thru better.
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Comment #7 posted by Wayne on March 16, 2007 at 19:24:27 PT
Re: Paul
Paul you mentioned the Rove/US Attorney scandal. I've been noticing something here for the last day or two. I've been watching the whole thing unfold on TV, and I noticed that one of the attorneys that got canned was John McKay, US Attorney for Seattle, WA.Is this the SAME John McKay that has been trying to get Marc Emery extradited to the US to serve prison time?If so, what does this mean for the future of the case against Marc? Will the Feds still try to nab him, or was this McKay's baby and is Marc home free? Has anyone heard any comments from him?
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Comment #6 posted by The GCW on March 16, 2007 at 13:28:24 PT
Thanks for that insight.
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Comment #5 posted by paulpeterson on March 16, 2007 at 12:31:01 PT
sometimes progress seems lost, but it is here
True, Angel lost the case for an injunction, but she may just have taken the most clear step for liberty here, by losing.Notice that buried in the decision, is the prospect, that if she is prosecuted, she "may" be able to foment and present a "necessity" defense.In that regard, please recall that just a few short years ago, another hero, Ed Rosenthal, was convicted, and half a dozen jurors said they were duped-because they were refused the opportunity to know that Ed was a medical guy, recall? He was refused leave to foment and present a "necessity" defense, and/but he was found guilty, and got about a one day sentence.Elsewhere, folks, please note that Judge Breyer just rekindled and stoke the flames of justice, by blowing some smoke right up the place where the sun don't shine-by dismissing money laundering charges & tax details, stating that the feds did a little ditty called "Vindictive Prosecution", ie: Ed pleaded that those charges were discriminatory and vindictive, which the court stated meant then, under the concept of "Political Defendant" stattus (cleared the US Supreme Court a many years ago, in US v. Batchelder under the argument of "due process" violation with the "vindictiveness" wording & US v. ARmstrong under the "equal protection" argument of "selective prosecution", both of which arguments have the same elements-some 5-6 steps, depending which scholar you are quoting, which have BOTH DUE PROCESS AND EQUAL PROTECTION ISSUES packaged together in this "super" shield, and people, DON'T LEAVE HOME WITHOUT IT), further adopted in the 7th Circuit in US v. Falk), sorry, I didn't bring the cites with me, but I probably should keep them in my wallet, like some people keep a condom there, for emergencies, and stuff, you know-so I could blow up this here condom in the face of some officer that wants to get his chain chunked, by violating my rights, with some antique half-baked unconstitutional bunk, and thats that.So, to get back to the ranch and all, Angel, by taking her affirmative injunctive plea all the way, and losing, just did the slam dunk, that Ed started, when he walked into the courtroom, with riot picket lines, lined with protestors, that wanted the world to know about the "medical marijuana" defense, but lost, and some got arrested, then released, because they were "vindictively prosecuted (even though that wording didn't get any light of day), but because those brave little jurors came forward to the press and said they were duped, and got the courts thinking, just in time, it seems, now the "SETUP" that Ed set up, by going through that gauntlet, allowed the pass to get tossed to Angel, who STUFFED IT ACROSS THE NET, AND PROBABLY MADE A BIG POINT, that apparently nobody has seen yet, ie: big things get lost in the wording of "loss", because this is big stuff, stuffed down the throats of the feds, and that's that.And no federal prosecutor wants to go home and tell his bosses he got yelled at for "Vindictive Prosecution", especially where Rove is out roving, and looking for scapegoats, because our friend, (yes, he is our friend) Patrick Fitzgerald, that go getting prosecutor that nailed Scooter Libby to the cross, with three PERJURIES AND ONE OBSTRUCTION CHARGES, nailed the Whitehouse to the cross.And by the way, why do you think our roving Rove wanted to "fire all the lawyers" back in early 2005? Because that way, they could have taken out Patrick Fitzgerald, the go getter that go got Rove's man, and that's that. It is sort of like some real criminal, that does a dirty deed, and then burns the house, to hide the evidence of the other crime. But Patrick, the guy that go-got Reublican Governor George Ryan, for corruption and fraud, and put him up the river for 6 1/2 years, had already been appointed to get Rove, so it was too late to fire him-because that would have caused a bigger fire to be lit, for a "Special Independant Prosecutor" to do the dirt, so they couldn't really nix him then.And now with the FBI flap, about Patriot Act violations, and Scooter, of course, and that "Vindictiveness" thing, with Ed's case, nobody has yet seen the crack of light that has just shined down, from Angel's case, God protect her, of course, and thanks for the chance to see the lucky confluence of all these things, and by the way, we have groundfires burning all over this land, with news just around the corner from NM, Ct., Vt., Minn., Ill., and Great Britain, where they have just announced the unthinkable-to finally update the Magna Carta, so as to MAKE THE LORDS ALEEPING STOP SLEEPING-those guys are going to have to go out and campaign for their dinner-which used to be given to them with a silver spoon.Can you believe it? The House of Lords will no longer be an inheritence house! All because Blair got caught laboring with a scandal, selling spots in the Lords for campaign bribes! So folks, here is the formula-you gotta have a scandal to get stuff done, which is what I am cooking up right now, and I don't do nothin wrong (so I am not the scandlee, I am the scandler, if that makes sense).And I'm done now, and thanks for listening. PAUL PETERSON, somewhere behind enemy lines, in the Heartland.
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Comment #4 posted by whig on March 16, 2007 at 11:56:05 PT
I'm not trying to be overbearing, just giving a non-lawyer's legal opinion.
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Comment #3 posted by whig on March 16, 2007 at 11:55:03 PT
chronic pain
A doctor can certainly testify to the lifesaving necessity of treating chronic pain, by the way.
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Comment #2 posted by whig on March 16, 2007 at 11:48:17 PT
There are real problems with the justice system, but it cannot be changed quickly because the nature of it is to deliberate for a long time, even over many generations. The courts are fundamentally conservative in their own system, and should be corrected by liberal legislation.In other words, if someone is accused of a statutory crime, it is hard for the court to disregard the statute, and it has to be very carefully done lest the court be overthrown by a lack of perceived adherence to the law itself.
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Comment #1 posted by Max Flowers on March 16, 2007 at 11:08:50 PT
The "saving one's life" defense
According to this doctrine, when a person is forced to choose between her life and disobeying a criminal law, she may not be punished for preserving her life.The only problem with this legal theory in my view is that it's inherently unfair to say that this person over here who needs to save his or her life can be allowed a defense, but that person over there who needs it not to save his/her life necessarily, but to avoid pain and suffering for the rest of their life, cannot be allowed the same defense. If the law is going to be compassionate enough to allow the former, it needs to also be compassionate enough to allow the latter, or it is in direct conflict with itself.This has been one of the huge problems the "justice system" has had with this issue... they want to say "okay to cancer and AIDS" but "not okay" to multiple sclerosis, migraine headaches, Crohn's, etc.The "justice system" is so afraid that some teenagers are going to try pot (as if they won't anyway, ha ha!) if they allow it for sick people, that they can't muster any compassion for the sick people. It's pathological neurosis and illogical thinking on a mass scale.
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