Bench Memos

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Roger Pilon’s Due Process Follies


On NRO today, Roger Pilon responds to my criticism of his recent WSJ op-ed, in which he argued that the “right to life” under the due process clause should guarantee terminally ill patients access to experimental drugs that have proceeded only part of the way to FDA approval.

For starters, he doesn’t like my “tone,” which he describes as “more pugnacious than thoughtful.”  I like to think that I supply a judicious combination of thought and pugnacity for the enjoyment of Bench Memos readers.  We all have our off days, so Pilon may be right.  But readers can see for themselves that in his original piece Pilon characterized the opinion of Judge Thomas Griffith for the 8-judge majority of the full D.C. Circuit as being of “poor quality,” and then implicitly attributed the same opinion of Griffith’s reasoning to Judge Judith Rogers’ dissent–”’startling,’ said the dissent,” is how Pilon puts it, though you will find the word “startling” in Rogers’ opinion just twice (pp. 2 and 14 of her dissent found here), neither time sneering at the “poor quality” of Griffith’s opinion, as Pilon implies.  Who is it that has the “tone” problem?

Pilon’s history is a string of “just so” stories, I’m afraid.  He tells us that the Bill of Rights “reiterated the libertarian principles of the Declaration, especially through the Ninth and Tenth Amendments, thereby securing ratification by the states.”  Later this is modified slightly, with Pilon saying that “[b]efore [the founding generation] would ratify the document, after all, they insisted that a Bill of Rights be added.”  That’s a little better, but still a half-truth.  The Constitution was ratified by several states initially without much concern for the addition of a bill of rights.  None of those calling for such an addendum, in the later state conventions, succeeded in making it a condition of ratification itself.  Some of the states indicated the sorts of amendments they would prefer in their instruments of ratification, but those lists of proposed amendments were not binding in any way–and included ideas for structural change to the Constitution as well, which interested many of the Anti-Federalists more than stated rights guarantees.  When the first Congress met, most Anti-Federalist members were still more interested in such structural changes, and when James Madison proposed what became the bill of rights, they didn’t like it much.  Our “Madisonian” friend Roger Pilon might be interested to know that Madison had mixed feelings about the whole project himself.  He thought no bill of rights was necessary to “improve” the Constitiution, but thought it might be useful as a political device for unifying the country around a charter that had been very controversial during the ratification season.  (For insight into all the above, see Robert A. Goldwin’s 1997 book, From Parchment to Power.)

Pilon also claims that “the Civil War Amendments . . . completed the Constitution by incorporating at last the grand principles of the Declaration, providing federal remedies against state violations of our rights.”  Thanks to his characteristic way of conflating the Declaration of Independence with the Bill of Rights, it is difficult to know which of “our rights” Pilon thinks were secured by “federal remedies against state violations” by which of the “Civil War amendments.  Perhaps he means to claim that the Fourteenth Amendment, in some clause or clauses of its first section, “incorporat[ed]” the provisions of the first ten amendments, which originally protected us only against the federal government, so that now those older amendments applied as well in federal courts against state governments.  Readers should be aware that “incorporation” theory remains controversial among legal scholars.  My own view is that the more substantial scholarly weight lies against the claim of that theory.  Pilon is free to treat it as given, but not to insist that the rest of us do.

But these are asides.  We have a “Bill of Rights” (I use the quotations because this is not the language of the Constitution), however we got it, and its terms certainly apply to the federal government, as in the Abigail Alliance case.  The essential thing is the due process clause, and here we encounter a third just-so story.  On due process Pilon does no more than to cite Bernard Siegan “and many others” as having “shown” that “due-process clauses have been substantive at least since Magna Carta.”  Sorry, they may have argued this, but they have “shown” no such thing.  And Pilon follows it with a parade of horribles that, if I am right about due process, do not follow at all: “exposing one and all to the unbridled will of the king, the aristocracy, the democratic majority . . .”  Not so.  As I argued in a lecture on due process last fall (not in print but viewable from a link here), the only thing remotely “substantive” about due process from Magna Carta onward was that it required government to rule by law and not by decree.  The latter would be the “unbridled will” of those with power, for it would mean the government takes life or liberty or property lawlessly–without promulgating a statute of general application duly notifying us of the rules to which we must conform, and instead simply picking persons or classes of persons to suffer penalties because of who they are, not what they have done under a law.  Daniel Webster put it this way in an argument to the Supreme Court:

The meaning [of due process] is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society.  Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land.  If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man’s estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land.

If this was “substantive due process,” it was a “substantive” guarantee only that legislatures would pass laws that honored the procedural requirements of due process.  What Pilon prefers is something that made its first Supreme Court appearance in the Dred Scott case–the assertion that due process limits the range of policy choices a legislature can make, even if it satisfies all of Webster’s requirements of a law of general application, fairly enforced.

Now to the Ninth Amendment, and Pilon’s fourth just-so story.  He claims that if the Ninth Amendment is held to contain (as I say) no judicially enforceable rights, it becomes “mere surplusage.”  But this begs the biggest question in constitutional law, namely, how much of the Constitution consists of judicially enforceable principles?  Three general answers are available: none of it (i.e., no judicial review at all), all of it (i.e., judicial review becomes judicial supremacy), or some parts and not others.  Few hold the first position (perhaps Lino Graglia); Pilon appears to hold the second; I hold the third.  If you do not believe the entire Constitution is available for courts to “enforce,” then you have to make an argument for why certain clauses are “in” and others are “out” where judicial review is concerned.  But it wouldn’t follow that judicially unenforceable provisions are consequently “surplusage.”  If I am wrong about Pilon’s view–if he is not a judicial supremacist but, like me, thinks some provisions and not others are to be enforced in courts of law–then it is incumbent on him to explain why and how a content-free statement of “rights retained by the people” is to be enforced authoritatively by judges as against the people’s own sense (democratically expressed) of what those rights are and are not.  If I am right about Pilon–if he is a judicial supremacist–then he is no “Madisonian.”

What did Madison think?  Pilon is fond of quoting Madison’s statement in the Congress that the courts will be an “impenetrable bulwark” in defense of the Bill of Rights.  Here’s a fuller version of that statement:

[I]ndependent tribunals of justice . . . will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.

Perhaps Pilon can tell us what “rights expressly stipulated for” are contained in the Ninth Amendment.  That which stipulates no express rights at all is hardly a source of business for courts of law.

Pilon also faults me for saying that, inasmuch as the Fifth Amendment’s “right to life” is only about those circumstances when government is bent on taking life directly itself, he and Judge Rogers are off on “extended non sequiturs” when they discuss the right of self-defense or the tort of interference with rescue.  “Logic 101″ is missing from my education, he claims, for I do not see that getting from “government may not take life without due process” to “government must grant ill people access to unapproved drugs” is a mere “deduction,” a “move from the general to the particular.”  Why, it’s just like saying that free speech includes flag burning!  Even if free speech did include flag burning (not so easy itself), the comparison would not be apt.  Flag burning is arguably a form of expression.  Denying people drugs not yet approved as safe and efficacious is not even arguably a form of execution at the hands of the state.  This is not a move from genus to species.  It is a move from one genus to another.

Finally, Pilon says I “give the game away” when I criticize the right to marry or to direct one’s children’s upbringing as “bad ideas.”  Under the right circumstances, marrying and raising children are assuredly good things.  As constitutional rights, I’m not even sure these are ideas, good or bad.  Do I disapprove of Loving v. Virginia or Pierce v. Society of Sisters?  Well, Loving was an equal protection case, so let’s not change the subject.  Pierce was indeed wrongly decided, a classic instance of the due process clause being dragooned into service for which it is not fitted.  That doesn’t imply anything about whether I approve of the law struck down in Pierce

Maybe, as in Pierce, an injustice has been inflicted on a weaker party in the political process.  When the Constitution provides no judicial remedy–and many, many times it doesn’t–the hard truth of the matter is that you just have to try again, in the same political process.

Pilon never responds at all to this passage in my original post:

The Abigail Alliance wanted the court to decide that when a new experimental drug has passed “Phase I” of FDA testing and been found to meet a bare threshold of safety in human subjects sufficient to proceed to a “Phase II” of highly controlled clinical trials to establish its efficacy, the FDA is required by the Constitution (under rules the court would force the agency to promulgate) to release the drug “under some circumstances” to certain persons afflicted with conditions the drug might ameliorate.

To describe this “constitutional right” precisely, as above, is to refute its existence.

Now who’s given the game away?


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