Pubdate: Wed, 22 Dec 2004
Source: Newton Tab (MA)
Copyright: 2005 Newton Tab
Contact:  http://www.mapinc.org/media/3619
Website: http://www2.townonline.com/newton/
Author: Bernie Smith, Staff Writer
Cited: Raich v. Ashcroft http://www.angeljustice.org
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)
Bookmark: http://www.mapinc.org/people/Angel+Raich (Angel Raich)

AN UNLIKELY GENERAL IN THE POT WARS

The intersection of an obscure but far-reaching aspect of the U.S.
Constitution and the desire for some people to use marijuana for
medical reasons can be found in the resident of one unassuming house
in Auburndale.

Randy Barnett, who moved to Newton in 1993, may be the most important
figure the medical marijuana movement has had since, well, ever.

Last month, Barnett was the lead lawyer arguing in front of the U.S.
Supreme Court, on behalf of two California patients who suffer
debilitating diseases and whose doctors say they need marijuana to get
better, and even to live. And while California (as well as 10 other
states) has passed a "compassionate use" law, authorizing physicians
to prescribed marijuana to patients where circumstances demand, the
federal government considers the practice a direct - an illegal-
affront to the country's drug control laws.

So how does a Boston University law professor who specializes in
contracts and constitutional theory get entangled in this reefer racket?

"This was never my dream. I never really aspired to this at all,"
Barnett said in a recent interview. "Years ago ... I would have said
this was preposterous."

Barnett became interested in law at the age of 10 as a big fan of the
television drama "The Defenders."

"It was a stupendous show. When I saw that show, I realized that's
what I wanted to do with my life," said Barnett, who grew up in Chicago.

After graduating from Northwestern University and Harvard University's
School of Law in 1977, Barnett served as a county prosecutor for more
than a decade back in Illinois. But the lure of the classroom
beckoned, and in 1993, Barnett moved with his wife, Beth, and their
two kids, Laura and Greg, to their new home in Auburndale, to take a
position on Boston University's staff.

Barnett became interested in the implications of the Constitution's
Ninth Amendment, which states, "The enumeration in the Constitution of
certain rights shall not be construed to deny or disparage others
retained by the people." He became a scholar on the somewhat obscure
subject in the 1980s.

The medical marijuana case the Supreme Court is now debating - known
as Ashcroft v. Raich after one of the defendants, Angel Raich - hinges
less on the medical value or dangerousness of marijuana, but on what,
if any, the limitations are of Congress' policing powers over the states.

"Originally, the Constitution defined islands of governmental power in
a sea of liberty rights. Due to [a series of] rulings from the Supreme
Court over 200 years, it's been turned into a system in which there
are islands of liberty rights in a sea of governmental power," Barnett
said, a trend he finds troubling and which he sees at work again in
the Raich case.

While federal law trumps state law when the two conflict, the
Constitution does not provide Congress with any policing powers, with
one exception. The Commerce Clause gives limited powers to the federal
government "to regulate commerce with foreign powers, and among the
several states." This provision has been expanded over the years,
making nearly every activity, in some form or another, related to
interstate commerce, and therefore under the jurisdiction of the
federal government.

In two recent cases, however, the Supreme Court has ruled that there
are limits to the Commerce Clause. Those limits are now being tested
after federal agents raided the home of Diane Monson's home, the other
defendant in the Raich case, and seized her six marijuana plants on
Aug. 15, 2002.

The Raich case "will either strongly reaffirm the court's federalism
cases that limit the commerce powers of Congress, or it will
unavoidably undermine those cases, and expand Congress' power,"
Barnett said, if the court rules on the case's merits.

The court could find a technicality in the case which would relieve it
from ruling one way or the other. But some have said that the Raich
case is sufficiently black-and-white to avoid some of those
technicality obstacles.

"Many cases that go to the Supreme Court are complex in terms of the
specific facts," wrote Peter Guither, in a supplement to the Internet
magazine Salon.com. "The nice thing about Raich is that it's really
quite pure. Nothing was sold. Every part of the activity was in-state,
so there's no direct activity that is in any way 'interstate' or
'commerce.'"

The case has attracted defenders from ideologues on both sides of the
political aisle. While some liberal groups have been contested the
draconian approach the federal government has taken towards the
medicinal properties of marijuana, many conservatives fear the
continuing erosion of states' rights.

The state of Alabama, for instance, filed a "friend of the court"
brief on behalf of Raich and Monson, arguing that although Alabama
does not support legalizing medical marijuana for its own citizens,
that decision should nonetheless be made at the state level, not by
Congress. The conservative National Review magazine published an
article praising Barnett's reasoning in the case.

"It's quite amazing. It seems like everybody is rooting for us,"
Barnett said. "People accuse the Supreme Court of being political. If
they were, they'd rule for us. But I don't think they're political in
that sense. What they will actually do is anyone's guess."

Although Barnett was reserved about hypothesizing which way the court
would rule, he was willing to make one prediction.

"However they rule, commentators [afterwards] will describe the
decision as inevitable," he said.

The Supreme Court is expected to issue its decision in the late
spring.