The Emerging Awareness Approach to Due Process in Lawrence and Raich

So let's see here. The pdf of the Ninth Circuit's opinion today in Raich is here.

Over at the Volokh Conspiracy, where he is a regular blogger, Raich's attorney Randy Barnett has some thoughts on the opinion, calling it "far more than an otherwise losing party had any right to expect."

Why is the opinion not a total disaster? Primarily because the court goes out of its way to acknowledge that there may be an "emerging awareness" of the virtues of medical marijuana and practically apologies for not giving this perspective more play:

For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.

All this ties into the "emerging awareness" approach to due process arguments that really stems from the 2003 case of Lawrence v. Texas. That case struck down Texas' law against gay sodomy. It did so not because the Anglo-American tradition has such a deep tradition of protecting gay sodomy but rather because, in Justice Kennedy's words, there is "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Therefore, depending on how you evaluate the extent of that emerging awareness, and depending on how you define the scope of the right that is being asserted, due process rights may apply more broadly than one might suppose.

But are due process protections really so mutable that they turn on the number of states that approve of medical marijuana, as the Ninth Circuit seems to suggest? In some ways, though I agree with the result the court seems to be suggesting, the wording of the opinion feels a little loose to me on this point.