JURIST - Hotline: Medical marijuana ruling is troubling

Allen St. Pierre [Executive Director, NORML, Washington, DC]: "[The recent Ninth Circuit ruling in Raich v Gonzales (part II)] is troubling on a few different levels. One, from a lay person’s point of view, it appears that the court has ruled that the supremacy of the federal government's law making abilities trumps individual's freedoms, liberties and abilities to engage in medical self-preservation.

Second, the United States Supreme Court, along with the Ninth Circuit Court of Appeals in this case, appears to have created a great impediment for individual citizens to effectively challenge government actions or law-making that deprive citizens of property, access to medicine or life itself unless the aggrieved citizen can prove that their liberty (or potential loss of such therein) is in fact a “fundamental” liberty or one that is derived from “ordered liberty.”

The definition of ‘fundamental’ by judges is subject to extremely broad or very narrowly constructed interpretations. One can argue that ‘Raich’ grants far too much judicial subjectivity regarding individual judges’ definition of the word ‘fundamental’ and how that interpretation casts the citizen’s constitutional claims against an over-zealous government.

Also, the court erred in constructing the legal history of medical cannabis in its attempt to demonstrate that the medicinal use of cannabis was not "deeply rooted in the nation's history or traditions."

The Ninth Circuit Court of Appeals wrongly asserts that between 1970 and the passage of California’s Prop 215 in 1996 there was a dearth of concern in America and in the medical profession in researching and employing medicinal cannabis.

The court failed to recognize the well-documented history of legal challenges (NORML v. DEA), administrative proceedings (Gettman, NORML, et al v DEA) and states’ legislative efforts to effectively end the federal government’s mis-scheduling of cannabis in the Controlled Substances Act of 1970. The court failed to recognize that medical cannabis was only made illegal in 1937; the federal government was successfully sued by medical cannabis patient Robert Randall, which led to the federal government creating the Compassionate Investigative New Drug program in 1976, a program that to this day supplies selected medical patients with over 300 pre-rolled cannabis ‘joints’ per month; 35 state legislatures between 1982-1994 passed legislation requesting the federal government re-schedule cannabis for medicinal purposes or, pending amending legislation in Congress, re-scheduled cannabis at the state level; and the legislative history in California between 1992-1996 where two medical marijuana bills passed the legislature, but were vetoed by then Governor Wilson.

Again, it appears as if the court has effectively told Ms. Raich and other seriously sick Americans that the federal government and its courts can arrest sick, dying and sense-threatened medical patients, even when those actions and prohibition of their physician-recommended medicine are known to harm individuals and/or their health.

Rightly, confusion abounds in the legal and medical communities post-Raich because Lawrence v. Texas in 2003 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."

One wonders how Ms. Raich, a seriously ill medical patient, who, with her physician’s recommendation, needs immediate access to medicinal cannabis, does not qualify for the same individual protections (and liberties) aptly described in Lawrence v. Texas or the “careful”, not narrow, description of the asserted fundamental liberty interest described in Washington v. Glucksburg (1997)?"