Newton law professor in middle of medical marijuana debate

December 28, 2004

Bernie Smith, Daily News Tribune

The intersection of an obscure but far-reaching aspect of the U.S. Constitution and the desire for some people to use marijuana for medical reasons can be found in the resident of one unassuming house in Auburndale.
     Randy Barnett, who moved to Newton in 1993, may be the most important figure the medical marijuana movement has ever had.
     Last month, Barnett was the lead lawyer arguing in front of the U.S. Supreme Court on behalf of two California patients who suffer debilitating diseases and whose doctors say they need marijuana to get better, and even to live.
     And while California -- as well as 10 other states -- has passed a 'compassionate use' law, authorizing physicians to prescribe marijuana to patients where circumstances demand, the federal government considers the practice a direct, that is illegal, affront to the country's drug control laws.
     So how does a Boston University law professor who specializes in contracts and constitutional theory get entangled in this reefer racket?
     'This was never my dream. I never really aspired to this at all,' Barnett said. 'Years ago...I would have said this was preposterous.'
     Barnett became interested in law at the age of 10 as a big fan of the television drama 'The Defenders.'
     'It was a stupendous show. When I saw that show, I realized that's what I wanted to do with my life,' said Barnett, who grew up in Chicago.
     After graduating from Northwestern University and then Harvard University's School of Law in 1977, Barnett served as a county prosecutor for more than a decade in Illinois. But the lure of the classroom beckoned, and in 1993, Barnett moved with his wife, Beth, and their two kids, Laura and Greg, to their new home in Auburndale, to take a position on Boston University's staff.
     Barnett became interested in the implications of the Constitution's Ninth Amendment, which states, 'The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.' He became a scholar on the somewhat obscure subject in the 1980s.
     The medical marijuana case the Supreme Court is now debating -- known as Ashcroft v. Raich after one of the defendants, Angel Raich -- hinges less on the medical value or dangerousness of marijuana, but on what, if any, the limitations are of Congress' policing powers over the states.
     'Originally, the Constitution defined islands of governmental power in a sea of liberty rights. Due to (a series of) rulings from the Supreme Court over 200 years, it's been turned into a system in which there are islands of liberty rights in a sea of governmental power,' Barnett said, a trend he finds troubling and which he sees at work again in the Raich case.
     While federal law trumps state law when the two conflict, the Constitution does not provide Congress with any policing powers, with one exception. The Commerce Clause gives limited powers to the federal government 'to regulate commerce with foreign powers, and among the several states.'
     That provision has been expanded over the years, making nearly every activity, in some form or another, related to interstate commerce, and therefore under the jurisdiction of the federal government.
     In two recent cases, however, the Supreme Court has ruled that there are limits to the Commerce Clause. Those limits are now being tested after federal agents raided the home of Diane Monson's home, the other defendant in the Raich case, and seized her six marijuana plants on Aug. 15, 2002.
     The Raich case 'will either strongly reaffirm the court's federalism cases that limit the commerce powers of Congress, or it will unavoidably undermine those cases, and expand Congress' power,' Barnett said, if the court rules on the case's merits.
     The court could find a technicality in the case which would relieve it from ruling one way or the other. But some have said that the Raich case is sufficiently black-and-white to avoid some of those technicality obstacles.
     'Many cases that go to the Supreme Court are complex in terms of the specific facts,' wrote Peter Guither, in a supplement to the Internet magazine Salon.com. 'The nice thing about Raich is that it's really quite pure. Nothing was sold. Every part of the activity was in-state, so there's no direct activity that is in any way 'interstate' or 'commerce.''
     The case has attracted defenders from ideologues on both sides of the political aisle. While some liberal groups have contested the Draconian approach the federal government has taken towards the medicinal properties of marijuana, many conservatives fear the continuing erosion of states' rights.
     The state of Alabama, for instance, filed a 'friend of the court' brief on behalf of Raich and Monson, arguing that although Alabama does not support legalizing medical marijuana for its own citizens, that decision should nonetheless be made at the state level, not by Congress. The conservative National Review magazine published an article praising Barnett's reasoning in the case.
     'It's quite amazing. It seems like everybody is rooting for us,' Barnett said. 'People accuse the Supreme Court of being political. If they were, they'd rule for us. But I don't think they're political in that sense. What they will actually do is anyone's guess.'
     Although Barnett was reserved about hypothesizing which way the court would rule, he was willing to make one prediction.
     'However they rule, commentators (afterwards) will describe the decision as inevitable,' he said.
     The Supreme Court is expected to issue its decision in late spring.

( Bernie Smith can be reached at besmith@cnc.com. )


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