Bench Memos

Abigail and Activism

Today’s Wall Street Journal features an op-ed by Steven Walker, co-founder of the Abigail Alliance, which is petitioning the Supreme Court to review a ruling by the D.C. Circuit that declined to inject judges into public policymaking on the availability of drugs not yet approved by the FDA.  Last summer I had a set-to with the Cato Institute’s Roger Pilon regarding this case, and I won’t recap all the arguments here.  (Interested readers can see our exchange by clicking here first, then these second, third, fourth, fifth, and final links.)

Today I will just quote Walker’s heart-tugging but question-begging central argument and offer a rejoinder:

No matter one’s judicial philosophy, it is inconceivable that the framers of the U.S. Constitution intended unelected, tenured career bureaucrats to hold absolute power over American lives without prospect of challenge in the courts. The framers understood that the pursuit of life is an inalienable right that should not be abridged without due process of law.

In the framers’ own judicial philosophy, contra Walker, it was inconceivable that unelected, life-tenured judges should hold absolute power to compel other public officials to make public policy according to judicially contrived standards of legislation, rooted in no constitutional principles.  As for Walker’s “pursuit of life,” he has, alas, confounded (deliberately or not) the Declaration of Independence with the Constitution.  The due process clause’s protection of life has to do with those occasions when the government takes affirmative steps to kill an individual at the hands of public power–i.e., execute him.  That is not the Abigail Alliance case, no matter how much air you blow into the balloon of the due process clause.


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