CASE SHOULD GIVE NINTH AMENDMENT NEW LIFE

State marijuana effort provides court strong test case for
rights

On Tuesday, the 9th U.S. Circuit Court of Appeals will help determine
the future of the Ninth Amendment when it hears oral argument in the
case of Oakland Cannabis Buyers' Cooperative v. United States.

The amendment, long ignored by the courts, reads, "The enumeration in
the Constitution of certain rights shall not be construed to deny or
disparage others retained by the people."

Fortunately, the City of Oakland, in a friend-of-the-court brief on
behalf of the cooperative, offers the court a "safe and effective" way
to revive this provision, a practical way that can be embraced by both
liberals and conservatives.

In November 1996, California voters passed the Medical Marijuana
Initiative, which allowed patients to grow and use marijuana when a
doctor recommended such treatment. The Oakland co-op was one of
several dispensaries formed to provide marijuana under the initiative,
but the Clinton administration brought suit to shut this experiment
down, claiming that even such medical use violates federal law.

Who should win?

The conventional answer argued by the government's lawyers is that
federal law trumps the right declared by the people's vote and that's
that. Washington wins; the voters of California lose. Next case.

But what about the Ninth Amendment's protection of unenumerated
rights? Oakland's brief argues that the people have reserved the power
to enact popular initiatives. When the people pass an initiative
protecting a particular liberty, judges should respect this
unenumerated liberty as they would an enumerated right. In other
words, the initiative process enables the voters of each state to
decide themselves if a liberty is fundamental, rather than leave that
decision solely to judges.

While popular initiatives that restrict personal or economic liberties
should be given the same constitutional scrutiny as any other state
law, in California (Prop 215), Alaska (Prop 8), Arizona (Prop 300),
Nevada (Question 9), Oregon (Measure 67) and Washington (Initiative
692) the people decided to protect a liberty. When deciding whether
such a liberty is fundamental, federal judges are required by an
appropriate judicial conservatism to respect the people's judgment.
Government can still restrict marijuana use. The language means only
the federal government would have the burden of establishing that its
current prohibition on medical marijuana is truly "necessary" (which
it has yet to do) and showing that such a prohibition is "proper" or
within one of its enumerated powers.

Does this mean that, if the people of the states voted to protect the
liberty to use recreational drugs, or view child pornography, the
courts should defer to their judgment? The simple answer is yes,
though it is hard to imagine a successful initiative on behalf of
child pornography. And that is one reason why the initiative process
is such a practical "conservative" way to identify fundamental
unenumerated rights.

Courts have, with rare exception, been reluctant to use the Ninth
Amendment in large measure for fear of opening a Pandora's box of
alleged rights. This judicial neglect of the Ninth Amendment could
end, however, if the Ninth Circuit simply recognizes the people's
initiative power to designate fundamental liberties, thereby shifting
the burden of proof onto the federal government to show that
restrictions on liberty are both necessary and proper.