And here is why, despite Prof. Zywicki’s behavior, I continue to read Volokh every day. For legal scholars like Randy Barnett and the kind of information that can be gotten only from blogs like that. Barnett writes that the case of Gonzales v Raich, last year’s infamous medical marijuana ruling, is still alive in the courts. I had no idea. Barnett explains why:
Yes, the case goes on. The Supreme Court only ruled on the Commerce Clause theory we won on below. This left us on remand to the Ninth Circuit to reassert our claim that the application of the Controlled Substances Act to Angel Raich (and others like her) violated her fundamental rights (and some other nonconstitutional claims as well).
Barnett was the lead counsel in that case, which lost on the broadest claim last year when the Supreme Court asserted, rather absurdly, that the interstate commerce clause grants Congress the power to regulate activities that are neither interstate nor commerce. He also points to an upcoming issue of the Lewis and Clark Law Review that is a symposium on the subject of federalism after the Raich decision. The papers in that symposium, in pre-published form, can be read here. Well worth reading for those of us who want to keep the Federal government within at least the most obvious constitutional limits.