Pubdate: Sun, Apr 11 1999 Source: Oregonian, The (OR) Copyright: 1999 The Oregonian Contact: 1320 SW Broadway, Portland, OR 97201 Fax: 503-294-4193 Website: http://www.oregonlive.com/ Forum: http://forums.oregonlive.com/ Author: andy E. Barnett, a former prosecutor, is an adjunct scholar at the Cato Institute, a Boston University law professor and author of "The Structure of Liberty: Justice and the Rule of Law." CASE SHOULD GIVE NINTH AMENDMENT NEW LIFE State marijuana effort provides court strong test case for rights On Tuesday, the 9th U.S. Circuit Court of Appeals will help determine the future of the Ninth Amendment when it hears oral argument in the case of Oakland Cannabis Buyers' Cooperative v. United States. The amendment, long ignored by the courts, reads, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Fortunately, the City of Oakland, in a friend-of-the-court brief on behalf of the cooperative, offers the court a "safe and effective" way to revive this provision, a practical way that can be embraced by both liberals and conservatives. In November 1996, California voters passed the Medical Marijuana Initiative, which allowed patients to grow and use marijuana when a doctor recommended such treatment. The Oakland co-op was one of several dispensaries formed to provide marijuana under the initiative, but the Clinton administration brought suit to shut this experiment down, claiming that even such medical use violates federal law. Who should win? The conventional answer argued by the government's lawyers is that federal law trumps the right declared by the people's vote and that's that. Washington wins; the voters of California lose. Next case. But what about the Ninth Amendment's protection of unenumerated rights? Oakland's brief argues that the people have reserved the power to enact popular initiatives. When the people pass an initiative protecting a particular liberty, judges should respect this unenumerated liberty as they would an enumerated right. In other words, the initiative process enables the voters of each state to decide themselves if a liberty is fundamental, rather than leave that decision solely to judges. While popular initiatives that restrict personal or economic liberties should be given the same constitutional scrutiny as any other state law, in California (Prop 215), Alaska (Prop 8), Arizona (Prop 300), Nevada (Question 9), Oregon (Measure 67) and Washington (Initiative 692) the people decided to protect a liberty. When deciding whether such a liberty is fundamental, federal judges are required by an appropriate judicial conservatism to respect the people's judgment. Government can still restrict marijuana use. The language means only the federal government would have the burden of establishing that its current prohibition on medical marijuana is truly "necessary" (which it has yet to do) and showing that such a prohibition is "proper" or within one of its enumerated powers. Does this mean that, if the people of the states voted to protect the liberty to use recreational drugs, or view child pornography, the courts should defer to their judgment? The simple answer is yes, though it is hard to imagine a successful initiative on behalf of child pornography. And that is one reason why the initiative process is such a practical "conservative" way to identify fundamental unenumerated rights. Courts have, with rare exception, been reluctant to use the Ninth Amendment in large measure for fear of opening a Pandora's box of alleged rights. This judicial neglect of the Ninth Amendment could end, however, if the Ninth Circuit simply recognizes the people's initiative power to designate fundamental liberties, thereby shifting the burden of proof onto the federal government to show that restrictions on liberty are both necessary and proper. - --- MAP posted-by: Richard Lake