Tomorrow I am speaking at what looks like an excellent conference on "A New Constitutional Order?" being held on Friday and Saturday at Fordham University School of Law. You can find details of the program here. My panel (from 3:45pm-5:00pm) is entitled, "Calls for Restoration of the Lost Libertarian Constitution: Is the Constitution a Charter of Negative Liberties or a Charter of Positive Benefits?" I have not had a chance to post my paper. "Welfare and Liberty," to SSRN but will link to it when I do.

Unfortunately, I have to leave the conference early to fly to LA for the oral argument in Gonzales v. Raich, which is on remand to the Ninth Circuit. The hearing is on Monday at 1:30pm in Pasadena. Those who are interested in the briefs in the case can find them here (scroll down).

I have been wanting to post on the arguments we are making but have been too busy with all sorts of things to do so. Maybe next week after the argument. Among other claims that survive is our assertion of the fundamental rights to preserve one's life and to avoid pain and suffering that are protected by the Due Process Clause of the Fifth Amendment and the Ninth Amendment. Here is the thrust of our Due Process Clause argument from our opening brief:

It is improper for Congress to use its enumerated powers to violate fundamental rights. The Fifth Amendment's Due Process Clause and the Ninth Amendment preclude the federal government from applying the CSA to prohibit Appellants' activities. The Supreme Court has held "[i]n a long line of cases," Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997), the most recent of which is Lawrence v. Texas, 539 U.S. 558 (2003), that neither the rights enumerated in the Constitution nor "the specific practices" that were approved at a particular time in our nation's history "marks the outer limits of the substantive sphere of liberty" that the Due Process Clause protects, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 848 (1992) (citing U.S. Const. amend. IX); see also Richmond Newspapers v. Virginia, 448 U.S. 555, 579 (1980) (relying in part on the Ninth Amendment to protect an unenumerated right of access to public trials).

The Supreme Court's opinions in this "long line of cases" establish that Mrs. Raich has fundamental liberty interests in making life-shaping medical decisions that are necessary to preserve the integrity of her body, avoid intolerable physical pain, and preserve her life. As applied here, these broader fundamental liberty interests protect Mrs. Raich's decision to take the medication she needs. No longstanding historical prohibition suggests otherwise. To the contrary, the federal government and the States have historically left such decisions to seriously ill patients and their physicians. Moreover, there is an emerging awareness that "liberty" protects such decisions in cases where, as here, a seriously ill patient's physician has determined that no other medication can save her from intolerable pain and death.

Under the "undue burden" standard set forth in Casey, prohibiting Mrs. Raich from taking cannabis -- which is what the federal government threatens to do -- would violate the Due Process Clause. (Prohibiting her from taking cannabis would also violate the Ninth Amendment. However, because the Supreme Court has relied primarily on the Due Process Clause when protecting unenumerated rights, for simplicity Appellants will refer only to that constitutional provision for the remainder of this brief.) Stringent regulations of medical cannabis use, however, are consistent with Mrs. Raich's fundamental liberty interests. So long as such regulations are "not designed to strike at the right itself" and do not have the "effect" of creating "a substantial obstacle" to its exercise, Casey, 505 U.S. at 874, 877, nothing in the Constitution prevents the federal government from requiring extensive safeguards to ensure that medical cannabis is not diverted or abused.

For instance, it would not violate the Due Process Clause to require that, after a licensed physician has recommended cannabis for a seriously ill patient, she must obtain a similar recommendation from one or more other licensed physicians before she can use or cultivate the medication. Compare Health Canada, FAQ - Medical Use of Marihuana (June 13, 2005) (requiring declaration from treating physician and confirmation from specialist). The Due Process Clause would also allow a requirement that a physician cannot recommend medical cannabis for a patient unless she has tried to obtain relief from a reasonable number of mass-produced synthetic medications.

The constitutional permissibility of such regulations -- and of other, more demanding regulations -- shows that the federal government can exercise its powers to promote its interests in preventing abuse and diversion of medical cannabis without trampling on Mrs. Raich's fundamental liberty interests. Recognizing those interests forecloses only laws that completely prohibit or unduly burden their exercise, unless such laws are narrowly tailored to advance a compelling government interest. That is the only line this Court must draw.

Readers should keep in mind that (believe it or not) this lawsuit is still in its pre-trial preliminary phase so there has yet to be an adjudication of the facts. At this juncture, the court is supposed to accept the uncontested facts in the complaint as true; and the government has not contested the fact that Angel Raich is likely to die of a wasting disease and will suffer great physical pain from a variety of disorders if she does not use cannabis, which is the only drug that has been effective in her particular case. If we prevail on our constitutional claims, we must then prevail on these factual claims at trial.