Dispatches from the Creation Wars

Raich Goes On

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.

Comments

  1. #1 Hyperion
    November 22, 2005

    Just out of curiosity, how does the Supreme Court reconcile Raich and Lopez? Or do they simply ignored the obvious contradictions?

  2. #2 raj
    November 23, 2005

    Raich is irreconcilable with anything. Not the Lopez case. Not the Violence Against Women Act (VAWA) case. Not even Wickard vs. Filburn (the wheat case) from the early 1940s.

    I suppose that Barnett is going to pursue the matter in the 9th circuit on his 5th Amendment “liberty” argument that he used so well in Lawrence vs. Texas, but I doubt that that will go very far. I doubted that in Lawrence, too, but it ultimately prevailed. More power to him.

  3. #3 Hyperion
    November 23, 2005

    Not to mention cases like E.C. Knight, where a sugar company which controlled ninety-some percent of the industry was not engaged in “interstate commerce” at the production level.

    Reminds me a bit of Hardwick, where they made a ruling that was quite obviously more about personal prejudices than established case-law.

    And I think that Barnett should have decent luck with the 9th circuit, certainly better than he’d have here in the 4th. The real question is whether SCOTUS would uphold it again. Something tells me that they’re not going to be overjoyed to have to re-apply Lawrence. Of course, if Roberts still votes against them, he should be investigated to lying under oath to the Senate.

  4. #4 Ed Brayton
    November 23, 2005

    raj wrote:

    I suppose that Barnett is going to pursue the matter in the 9th circuit on his 5th Amendment “liberty” argument that he used so well in Lawrence vs. Texas, but I doubt that that will go very far. I doubted that in Lawrence, too, but it ultimately prevailed. More power to him.

    Just for the record, Barnett did not argue the Lawrence case, though I believe he did write a brief, possibly on behalf of the Cato Institute, in the case.

  5. #5 raj
    November 23, 2005

    Ed, from what I read over at the Volokh site a while ago, Randy Barnett did, indeed, file an amicus brief in the US SupCt basically arguing the “liberty” issue. I don’t know on whose behalf he filed the brief. He also had published a rather lengthy law review article on the subject.

    You are correct that Randy did not represent Lawrence and Garner before the SupCt. I do not know who did and couldn’t access the LII collection at Cornel to find out who did.

  6. #6 Ed Brayton
    November 23, 2005

    Lawrence and Garner were represented by Paul Smith from the law firm Jenner and Block, on behalf of Lambda Legal. And Barnett did indeed file an amicus brief on behalf of the Institute for Justice. That can be read here.

  7. #7 raj
    November 23, 2005

    Ed, thanks for the link to the brief by Randy Barnett. I had not read it before, but it appears that the majority opinion was almost taken exactly from his brief.

    I clicked onto Randy’s home page at Boston University. It appears that his law review article that I was referring to is not on-line–at least he doesn’t have a link to an on-line version of it.

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