States' Right to Initiative: Medicinal Marijuana
Normal 0 false false false MicrosoftInternetExplorer4 st1\:*{behavior:url(#ieooui) } Competition between state and federal government has been shaping American society for centuries. Interesting enough, the battle has recently set medical marijuana as the new battleground. California state law and Federal law collide in the 2005 Supreme Court case, Gonzales v. Raich , in which the court used the Commerce Clause to affirm federal authority. Much controversy and confusion has arisen from this decision, and my paper serves to analyze the reasoning behind the decision and its repercussions. I first explore the subject matter of this case, medical marijuana. After reviewing its medical history and consulting professional medical opinion, I establish and weigh the value of medical marijuana in contemporary society. I combine my findings with the legal analysis to show the circumstances surrounding Gonzales v. Raich in a new perspective. Using opinions ranging from the Supreme Court justices’ to law journal reviews, I decide whether the jurisprudence behind Raich was applied correctly. I hope my paper will not only detail the most recent controversy between state and federal government, but also examine an equally controversial subject, medical marijuana, as an example of the trends that exacerbate changes in the fabric of our society.
Gonzales V. Raich: Federalism as a Casualty of the War on Drugs
The Supreme Court's recent decision in Gonzales v. Raich marks a watershed moment in the development of judicial federalism. If it has not quite put an end to the Rehnquist Court's "federalism revolution," it certainly represents a major step in that direction. In this Article, I contend that Raich represents a major - possibly even terminal - setback for efforts to impose meaningful judicial constraints on Congress' Commerce Clause powers. Raich undermines judicial enforcement of federalism in three interlocking ways: by adopting an essentially limitless definition of economic activity thereby ensuring that virtually any activity can be aggregated to produce the "substantial effect [on] interstate commerce" required to legitimate congressional regulation under United States v. Lopez and United States v. Morrison; by making it easier for Congress to impose controls on even non-economic activity by claiming that it is part of a broader regulatory scheme; and finally, by restoring the so-called rational basis test, holding that "[w]e need not determine whether [defendants'] activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding." The Supreme Court's recent seemingly pro-federalism decisions in Gonzales v. Oregon and Rapanos v. Army Corps of Engineers actually do little or nothing to mitigate the impact of Raich. I also contend that the Raich decision is misguided on both textual and structural grounds. The text of the Constitution does not support the nearly unlimited congressional power endorsed in Raich. Such unlimited power also undercuts some of the major structural advantages of federalism, including diversity, the ability to "vote with your feet," and interstate competition for residents. Raich's undercutting of federalism by upholding the power of Congress to ban the possession of homegrown medical marijuana closely parallels legal developments during the Prohibition era of the 1920s. In both periods, the establishment of a nationwide prohibition regime greatly eroded decentralized federalism, in part because the Supreme Court accepted the government's claims that the power to regulate a market in prohibited substances necessarily required comprehensive regulation of virtually all sale or possession of the commodities in question. The future of judicial federalism may depend not just on the precise doctrinal impact of Raich, but on the possibility that liberal jurists and political activists may come to recognize that they have an interest in limiting congressional power. A cross-ideological coalition for judicial enforcement of federalism would be far more formidable than today's narrow alliance between some conservatives and libertarians. Ironically, the Raich decision, in combination with other recent developments, may help bring about such a result.
Judicial Review, Socio-Economic Rights and the Human Rights Act
INTRODUCTION 1 THE ROLE OF COURTS IN THE PROTECTION OF SOCIO-ECONOMIC RIGHTS: INTERNATIONAL AND DOMESTIC PERSPECTIVES I. The Indivisibility of Human Rights II. The Protection of Socio-economic Rights in Domestic Courts III. Conclusion 2 THE REGIONAL PROTECTION OF SOCIO-ECONOMIC RIGHTS: EUROPE I. Introduction II. The European Convention on Human Rights (ECHR) 1950 III. The Protection of Socio-economic Rights in the ECHR IV. The Protection of Socio-economic Rights in EC/EU Law V. Conclusion 3 COURTS, THE UK CONSTITUTION AND THE HUMAN RIGHTS ACT 1998 I. Introduction II. Reading and Giving Effect to ECHR Rights in UK Courts III. Conclusion 4 JUDICIAL REVIEW: DEFERENCE, RESOURCES AND THE HUMAN RIGHTS ACT I. Introduction II. The Constitutional Foundations of Judicial Review III. Public Law, Deference and the Human Rights Act IV. Conclusion 5 FROM NEED TO 'CHOICE' IN PUBLIC SERVICES: THE BOUNDARIES OF JUDICIAL INTERVENTION IN PRIORITISATION DISPUTES I. Introduction II. NHS Rationing: The Role of Courts in Disputes over Access to Medical Services III. Local Authority Resource Allocation Disputes IV. Interpreting Local Authority Statutory Duties Post-HRA V. Conclusion 6 ARTICLES 3 AND 8 ECHR: FAILURE TO PROVIDE AND POSITIVE OBLIGATIONS IN THE SOCIO-ECONOMIC SPHERE I. Introduction II. Anufrijeva, Article 8 ECHR and Maladministration in the Provision of Welfare III. Article 3 ECHR: Respect for Dignity IV. Conclusion 7 ARTICLE 14 ECHR AND THE UNEQUAL DISTRIBUTION OF PUBLIC GOODS AND SERVICES IN THE UNITED KINGDOM I. Introduction II. Socio-economic Entitlements and the Limits of Substantive Fairness in Article 14 ECHR III. Carson's Case: Refusal of Up-rated Payments to Pensioners Abroad 283 IV. Reynolds' Case: The Intensity of Scrutiny in Other 'Status Disputes' V. Equality and Human Rights VI. Conclusion 8 ARTICLE 6 ECHR: JUDICIAL REVIEW, DUE PROCESS AND THE PROTECTION OF SOCIO-ECONOMIC RIGHTS I. Introduction II. What is a Civil Right for the Purposes of Article 6 ECHR? III. The Quality of Administrative Justice: The Scope of Article IV. Conclusion