The Presumption of Liberty and the Public Interest: Medical Marijuana and Fundamental Rights

Abstract

As part of this lecture series on lawyering in the public interest, I decided to talk about my pro bono involvement in the medical cannabis case of Gonzales v. Raich, which I and three other lawyers brought on behalf of Angel Raich and Diane Monson. There are three topics I want to discuss: the first is how I got involved in doing this, which is a question I get asked all the time; the second is to describe the theory we took to the Supreme Court, which prevailed in the Ninth Circuit but was ultimately rejected by the Court on a vote of six to three; and finally, because the case still continues, I want to explain our current claims, which are based on the Due Process Clause of the Fifth Amendment and on the Ninth Amendment. In particular, I want to talk to you about how our current theory relates to what you have all learned or should be learning in your constitutional law classes. I think the problems we face in our case illustrate the weakness of the current approach to using the Due Process Clause to protect liberty—that I am compelled, as a litigator, to remain within—and why a “presumption of liberty,” which I have argued for in my scholarship, would be preferable to the current approach.

Keywords

Marijuana -- Therapeutic use, Citizen suits (Civil procedure), Due process of law, Interstate commerce clause (Constitutional law), Medical marijuana, Presumptions (Law), United States

Share

Authors

Randy E. Barnett (Georgetown University Law Center)

Download

Issue

Publication details

Dates

Licence

All rights reserved

Peer Review

This article has not been peer reviewed.

File Checksums (MD5)

  • pdf: cf358dcf5a7e4f19f523cedcb86e36da