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Harassing Life and Liberty

Tuesday, March 20, 2007

The other day, I read an editorial by Fred Foldvary titled U.S. Judges Kill the Ninth Amendment. Mr. Foldvary claims that by it's ruling, the Ninth Circuit has made the Ninth Amendment null and void. I sent an email to Mr. Foldvary and requested a link to the case so that I could read it for myself. I'm glad I did. The conclusion he reached concerning the Ninth Amendment was a little dramatic, in my opinion.

Most of Mr. Foldvary's editorial hinges on the argument that Angel Raich has a common law right to use marijuana to help with her medical conditions. In reading the court papers, I discovered that the court said that she, in fact, does have standing to bring a case seeking injunctive relief... if she'd been charged. Unfortunately, she has not been charged with violating any federal laws under the Controlled Substance Act, therefore she has no standing to seek injunctive relief from the court. In other words, it's the wrong argument for this type of case. Strange as it sounds, she would have been better off if the DEA had arrested and charged her with possession of a controlled substance.

So, where does this decision leave Angel Raich? This is what I imagine will happen: She will continue to need marijuana to maintain her lifestyle. She will either grow it herself or get it from the two John Does referenced in the court papers. The feds will probably show up unannounced at random times and confiscate their marijuana plants in the name of king and country, but will never levy a single charge against them. They will claim that possession of the plants violates the Controlled Substance Act and because the courts have given the federal government jurisdiction under their expansive interpretation of the Commerce Clause, they now have the authority to seize these plants from anywhere inside state boundaries.

The court, by not taking a proactive stance against federal overreach, has set up Angel Raich--and anyone else in a similar position--to be continually harassed be overzealous DEA agents. Fred Foldvary was correct to think the government was up to no good. While I disagree with his conclusion that they've gutted the Ninth Amendment, I do agree that the U.S. government has lost its remaining moral authority. This is another clear example of federal authorities harassing and otherwise making private citizen's lives hell, but never going so far as to step over that imaginary line where the courts would be able to step in and make them stop. That's what I think Angel Raich was seeking relief from.

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Blogger Fred Foldvary said...

In my editorial at and also, I stated my viewpoint that the federal court ruling regarding medical marijuana violates the 9th Amendment. From what I have read about this Amendment, it does not just recognize common-law rights but also natural rights, according to some legal scholars. In this viewpoint, by ruling that the federal government may implement laws prohibiting medical marijuana despite some people needing it to maintain their life, the judges have disparaged our natural right to life, contrary to the 9th Amendment.

Fred Foldvary

6:54 AM  
Blogger Mark said...

The Supremes have a tool called the Root-O-Meter, by means of which they can measure whether an asserted right is “deeply rooted in this Nation’s history and tradition.” Using their Root-O-Meter, they determined that the right to use marijuana to treat an illness isn't deeply enough rooted in our history. It turns out that only the Supremes have access to this wondrous invention. Too bad for the rest of us.

The Supremes also have 2 other categories of rights: those enumerated in the Bill of Rights and those not so enumerated, which they call "mere liberty interests". The latter rights, because they are not spelled out, are to be easily overridden by law; i.e., a compelling state interest.

Isn't it fun to live in a free country?

2:20 PM  
Blogger Don Bangert said...

Fred, I agree that this ruling ultimately diminishes our 9th Amendment protection, but the problem is the court said that until the law is used against her specifically, their hands were tied. They even went so far as to say the moment charges were filed against her she should file a suit seeking injuctive relief.

Mark, funny thing about your parting comment. I was explaining this to my wife over dinner. Her parting comment: Ain't it great to be an American? (And not in the nice way, either.)

8:06 PM  

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