The Presumption of Liberty and the Public Interest: Medical Marijuana and Fundamental Rights

19 Pages Posted: 16 Mar 2012 Last revised: 30 May 2012

Date Written: March 15, 2012


As part of this lecture series on lawyering in the public interest, the author decided to talk about his pro bono involvement in the medical cannabis case of Gonzales v. Raich, which he and three other lawyers brought on behalf of Angel Raich and Diane Monson. There are three topics discussed in this lecture: the first is how the author got involved in doing this, which is a question he is asked all the time; the second is to describe the theory they took to the Supreme Court, which prevailed in the Ninth Circuit but was ultimately rejected by the Court on a vote of six to three; and finally, because the case still continues, the author explains their current claims, which are based on the Due Process Clause of the Fifth Amendment and on the Ninth Amendment. In particular, he discusses how our current theory relates to constitutional law class teachings. The author argues that the problems faced in his case illustrate the weakness of the current approach to using the Due Process Clause to protect liberty and why a "presumption of liberty," which he has argued for in his scholarship, would be preferable to the current approach.

Keywords: Marijuana, Constitutional interpretation, Due Process of Law

JEL Classification: K00, K1, K2, K3

Suggested Citation

Barnett, Randy E., The Presumption of Liberty and the Public Interest: Medical Marijuana and Fundamental Rights (March 15, 2012). Washington University Journal of Law and Policy, Vol. 22, 2006; Georgetown Public Law Research Paper No. 12-049. Available at SSRN:

Randy E. Barnett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)


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