an in-depth look

The Raich Appeals Court Ruling

Good News / Bad News

Cannabis Does Have Medical Value /

Inalienable Rights Are Subject to Public Opinion

             The Federal Ninth Circuit Court of Appeals is the first federal government entity to officially say it:  The medical value of cannabis has been proven!  Even though the Court stated that it had no meaning in the context of Raich’s appeal, they said that Raich had made the case that cannabis is the only thing to keep her alive and greatly reduce her suffering, and that she met the requirements to claim a medical necessity defense for using cannabis.   

            The Court also ruled on Raich’s appeal that her medical use of cannabis is constitutionally protected. The Court refused to accept her claim as stated:  Raich asserts that she has a fundamental right to “mak[e] life-shaping medical decisions that are necessary to preserve the integrity of her body, avoid intolerable physical pain, and preserve her life.” The Court rejected Raich's claims in what must constitute a gross misunderstanding of the constitution and individual rights. 

           This is the same Appeals Court that ruled in favor of Raich, only to see the ruling overturned by the Supreme Court.  The Ninth Circuit had ruled that because there was no interstate commerce involved with Raich, the Controlled Substances Act does not have jurisdiction.  The Supreme Court ruled that intra-state use might influence interstate commerce, and therefore they gave jurisdiction to federal law enforcement, on that basis.  However, the Supreme Court sent the case back to the Ninth Circuit to review more basic issues of constitutionality that were not examined the first time.  Courts always try to avoid basic constitutional issues when other ways of ruling are available.  In fact, this is the first time that constitutionality and medical cannabis has been looked at in depth in federal court. 

            The fact that cannabis has medical value is common knowledge to most people with eyes and ears.  However, it has been prohibited up to now in federal courts, because DEA, FDA, and even Congress have ruled that cannabis has no medical value, and you can’t discuss it in court, even if it is directly relevant.  Hence, many people have gone to prison for using cannabis as a medicine, or for providing it to sick people. 

            The Supreme Court, in their Raich ruling, stated that Congress could change the laws.  They didn’t seem inclined to play their Constitutionally-mandated role as a check and balance to the other branches of government, which in this case would mean striking down the law, because it is based on fraud.  And it is a fundamental right.   

The term “fundamental rights” is the modern legal lingo for what was called “unalienable rights” in the Declaration of Independence.  The Constitutional Amendments enumerate many of these, but the Ninth Amendment specifically says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”   

The Ninth Circuit, in the current Raich ruling, reviewed the history of the Courts with respect to “unenumerated” fundamental rights. They said (emphasis added): 

(“As Justice Harlan put it over forty years ago: [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.  

The Supreme Court has a long history of recognizing unenumerated fundamental rights as protected by substantive due process, even before the term evolved into its modern usage.   … But the Court has cautioned against the doctrine’s expansion.  

The Court admits it is reasonable to claim an unenumerated right. However, in exercising the caution, it appears they are over-cautious.  They did this partly by changing her unenumerated right so they could deny it in a “politically correct” (but otherwise totally wrong) way. 

 Raich’s Asserted Fundamental Interest:  Raich asserts that she has a fundamental right to “mak[e] life-shaping medical decisions that are necessary to preserve the integrity of her body, avoid intolerable physical pain, and preserve her life.” We note that Raich’s carefully crafted interest comprises several fundamental rights that have been recognized at least in part by the Supreme Court…. 

We note that the Court notes the several already-recognized fundamental rights being asserted by Raich.  

Yet, Raich’s careful statement does not narrowly and accurately reflect the right that she seeks to vindicate. Conspicuously missing from Raich’s asserted fundamental right is its centerpiece: that she seeks the right to use marijuana to preserve bodily integrity, avoid pain, and preserve her life.  ...The right must be carefully stated and narrowly identified before the ensuing analysis can proceed. Accordingly, we will add the centerpiece — the use of marijuana — to Raich’s proposed right. 

Accordingly, the question becomes whether the liberty interest specially protected by the Due Process Clause embraces a right to make a life-shaping decision on a physician’s advice to use medical marijuana to preserve bodily integrity, avoid intolerable pain, and preserve life, when all other prescribed medications and remedies have failed.  

Nation’s History and Tradition” and “Implicit in the Concept of Ordered Liberty”:  We turn to whether the asserted right is “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Glucksberg, 521 U.S. at 720-21.

[14] It is beyond dispute that marijuana has a long history of use — medically and otherwise — in this country. Marijuana was not regulated under federal law until Congress passed the Marihuana Tax Act of 1937, Pub. L. No. 75-348, 50 Stat. 551 (repealed 1970), and marijuana was not prohibited under federal law until Congress passed the Controlled Substances Act in 1970. See Gonzales v. Raich, 125 S. Ct. at 2202. There is considerable evidence that efforts to regulate marijuana use in the early-twentieth century targeted recreational use, but permitted medical use. 15

[16] We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is “fundamental” and “implicit in the concept of ordered liberty.” See Glucksberg, 521 U.S. at 720-21 (citations omitted). For the time being, this issue remains in “the arena of public debate and legislative action.” Id. at 720; see also Gonzales v. Raich, 125 S. Ct. at 2215.

[17] As stated above, Justice Anthony Kennedy told us that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Lawrence, 539 U.S. at 579. For now, federal

law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering. 

Conclusion:  Although changes in state law reveal a clear trend towards the protection of medical marijuana use, we hold that the asserted right has not yet gained the traction on a national scale to be deemed fundamental. 

The Court seems to have lost track of the meaning of fundamental right.  The term is used in place of unalienable right.  Unalienable rights are “self-evident” and “endowed by the Creator.”  The right to use any plant, put on the earth by Creator, for a medicine is self-evident.   The Court admitted they changed the right to emphasize cannabis as the centerpiece, rather than the saving her life and relieving tremendous pain and suffering as the centerpiece.  It is self-evident that if only cannabis saves your life, and your doctor recommends or prescribes it, you have a right to use it.   

Then the Court left out the one most important fact that would have changed the ruling.   They said, Marijuana was not regulated under federal law until Congress passed the Marihuana Tax Act of 1937.   

Actually, factually, cannabis was widely used and available in any corner drug store during the 1800’s and into the 1900’s.  In 1906, the Pure Food and Drug Act was passed to protect the public against actual dangerous drugs, including opiates, barbiturates, and cocaine.  Cannabis was grandfathered into the initial US Pharmacoepia along with other widely used drugs/herbs, including digitalis, aspirin, and cortisone.  This is a form of regulation.  It was regulated in the most liberal and free manner.   

The Court admits that even in the first efforts of regulation of cannabis at the state level, medical use was always permitted. 

This, use of cannabis is “deeply rooted in this Nation’s history and tradition.”  To continue with the Court’s own words, use of cannabis as a medicine is “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”  There is no liberty or justice with current Federal law. 

Unalienable rights do not depend on public opinion.  Free speech and freedom of religion do not depend on public opinion.  To think otherwise of an unalienable right is to violate the constitution.  The right to use any medicine to save your life, FDA approved or not, cannot be taken away without violating unalienable rights.   

In the Court’s own words, wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental is here today.  It is the Court’s responsibility to proclaim it today.  It is the Court’s Constitutional responsibility to strike down laws that are unreasonable, arbitrary, and capricious.