I have an op-ed in today’s Wall Street Journal on the Raich case that the editors entitled, Reefer Madness (link good for 7 days). I explain why
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.
Naturally, I would recommend reading the whole thing. (I will open comments on my next post, so today’s comments on Raich are in one location.)
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