Reefer Madness

March 15, 2007

Randy Barnett, OpEd, Wall Street Journal

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 claimbut 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.

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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.



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