REEFER MADNESS

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.