I take Anthony Dick to be gently suggesting that I haven’t made a full-dress argument for the view that striking down the federal ban on compensating bone-marrow donors would be an act of judicial activism. He’s right. My points were narrower. The first is that we can’t jump from the idea that allowing compensation would be a good policy to the conclusion that the Constitution compels it. The second is that most conservatives are going to be hesitant to make that jump.
But since Anthony has expanded the discussion, let me note that he is also right to assume that I am not a fan of rational-basis tests, which I think have played an important role in the growth of judicial power beyond its constitutional dimensions. For more on this topic, I’d recommend Robert Nagel’s excellent book Constitutional Cultures.
Update: Just saw this e-mail on the topic from reader P.M.
With the rational basis argument made by IJ in this case, here’s the key analysis. Most would agree that government could ban the sale of, say, a heart from a living donor, since that would result in physician-assisted suicide, at best. At the other end of the spectrum, few could imagine government banning the sale of blood, plasma, or semen, as they are so trivially easy to obtain, at essentially zero risk of harm to the donor. Where, on the spectrum between those two, does it become “irrational” for government to ban the sale of some body component? Medicine is now capable of performing transplants of faces and hands. Can government ban the sale of human hands from living donors? If I decide that my family would be better off with me with a horribly disfigured face of scar tissue and $2 million paid by some rich man whose face was horribly damaged by fire or a dog attack or whatever, can the government ban that?
For the sake of argument, let’s say that government’s authority to ban the sale of certain organs is based on the risk of harm to the donor the removal of that organ would pose. The removal of the heart would pose a 100% risk of death. The donation of sperm is a 0% risk of harm, the donation of blood perhaps a .00005% risk of even minor harm. The risk of kidney donation poses maybe a 1% risk of harm to the donor. . . . I think that, because the risk of harm is such a vague question, dependent on a review of any number of scientific studies of varying degrees of decision, and because the resolution of the issue effects any number of other public policy issues, it is the legislature which should make the determination about where to draw the line.
The IJ lawsuit says that it’s the proper role of the court to decide where that line. The weakness of their argument is that they won’t (and cannot) say what the rule of law is, to determine where Congress has freedom to act and where it doesn’t. They won’t say that, for example, if the risk of harm is less than 1%, Congress may not regulate the sale, but if it is between 50% and 1%, Congress is free to act as it sees fit. As you say, all the “rational basis” test comes down to, in the end, is whether the judge does or does not agree with the policy decision.
Anyway, glad you stuck up for consistency within the conservative movement on judicial activism. The IJ lawsuit should also be opposed on life grounds; human body parts should never be treated as commodities to be bought or sold, because that cheapens human life itself.