On Monday, November 29th, 2004, at 10:30 a.m., I rose to argue the case of Gonzales v. Raich in the Supreme Court on behalf of Angel Raich and Diane Monson. On Monday, June 6th, 2005, at 10:00 a.m., the Court announced its decision. Even today it is painful to read the opinions in the case. I am saddened for my clients, and the thousands like them, whose suffering is alleviated by the use of cannabis for medical purposes, as recommended by their physicians and permitted by the laws of their states, but who are nevertheless considered criminals by the federal government. I am saddened for the millions of voters in the ten states who enacted compassionate relief laws to allow these seriously ill persons to obtain cannabis without becoming criminals, at least under state law. And I am saddened for the Constitution, which established a system of limited and enumerated powers that had been virtually eliminated since the 1940s before being partially revived in the cases of United States v. Lopei and United States v. Morrison. . . . with its decision in Raich, six justices at once dashed the hopes of medical cannabis users and those who believe in the value of federalism to protect individual liberty. Given this setback, what hope is left for the principle of limited national power, so staunchly endorsed by the late-Chief Justice Rehnquist in his opinions in Lopez and Morrison? Will the New Federalism survive the demise of its greatest champion? The superb articles in this Symposium do little to raise hopes. They argue alternatively that Lopez and Morrison never comprised a serious federalism revival, that the doctrines announced by these cases were too unstable to have lasted, or that little, if anything, of these cases survives the Court's ruling in Raich. In this Foreword, I do not mean to take issue with any of these contentions, except perhaps the last, and I urge serious students of the Constitution to read each and every article in this issue. Instead, I intend to describe how a future majority of the Supreme Court, once again willing to apply the "first principles,,6 announced by the Chief Justice in Lopez and reaffirmed in Morrison-principles that no Supreme Court in our history has ever expressly disclaimed--can limit the Court's decision in Raich. Where there is a will to do so, there is certainly a way.
9 Lewis & Clark L. Rev. 743-750 (2005)
Scholarly Commons Citation
Barnett, Randy E., "Limiting Raich" (2005). Georgetown Law Faculty Publications and Other Works. 47.