Bench Memos

Libertarianism vs. the Constitution

Friday’s Wall Street Journal ran a long op-ed by the Cato Institute’s Roger Pilon (reprinted here at Cato’s site), in which he criticicized an en banc ruling handed down by the D.C. Circuit last Tuesday.  In Abigail Alliance v. von Eschenbach (PDF here) the court ruled 8-2 that no constitutional “right to life” entitled people, however ill they may be, to have access to drugs that have not yet been approved as safe and effective by the FDA.  The plight of the terminally ill is a serious business, and a serious argument can be made as a matter of just public policy that perhaps the FDA’s strictures could be relaxed in some instances to permit such access.  But as Judge Thomas Griffith wrote for the Court, such questions “certainly . . . can be aired in the democratic branches.”   What is entirely another matter is constitutionalizing such issues in the judiciary, which entails “injecting the courts into unknown questions of science and medicine.” 

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.  Pilon in his article, and Judge Judith Rogers in her dissent (joined by Judge Douglas Ginsburg), prefer instead to talk in sonorous vagaries about the “fundamental” right to life.  The imprecision gets them no nearer to constitutional law.

The hinge of the case is the due process clause of the Fifth Amendment, which forbids the federal government to deprive anyone of life, liberty, or property without due process of law.  For the framers, what this clause meant was that no one could be executed, imprisoned or restrained, or deprived of any material possession without the deprivation proceeding on the basis of a duly promulgated statute, providing notice, a hearing, and an opportunity in a fair forum to challenge the deprivation.  That’s it.  What has come to be called “substantive due process”–the idea Pilon prefers, which enshrines affirmative limits on the kinds of public policy the government may adopt–is a later excrescence on the Constitution that has been employed to defend property in slaves, exploitation of labor, and most notably in our own time, a “right” to abortion. 

In the regulatory regime for the approval of drugs, the government is taking no one’s life.  It may be that people will die who would be saved if the FDA changed its policy.  It may also be that more people would die if the FDA made the changes advocated by the plaintiffs in this case.  But the “right to life” in the Fifth Amendment has only to do with those occasions when the government takes affirmative steps to end the life of a particular individual.  That’s just not happening here, and excursions into the common-law right of self-defense, or “the tort of intentional interference with rescue,” are simply extended non sequiturs. 

The Ninth Amendment, of which Pilon makes so much, is no help either, on its original understanding, which contemplated no judicial enforcement.  (Judge Rogers, in her one wise choice, at least avoids the embarrassment of relying on the Ninth in her argument.)  Inviting judges to enforce “rights retained by the people” that the Constitution never identifies is simply an invitation to government by judiciary.

Pilon has one thing right–sort of.  He writes disparagingly of “what passes today for ‘constitutional law.’”  But it is Pilon who has signed on with the expansive modern conception of the judicial function, with its creation of rights that it purports to dig up in our “history and traditions.”  He is right to lose patience with the kabuki dance of lower court judges trying to make sense of Supreme Court precedents on which rights are “fundamental” and which are not.  But he is wrong to think that the solution is to set judges even more at liberty to “infer” rights from the Constitution that they then enforce against the policymaking branches of government.

Haven’t we had enough of such creative inferences?  Judge Rogers complains in her dissent (in a passage Pilon quotes approvingly), that the rights “to marry, to fornicate, to have children, to control the education and upbringing of children, to perform varied sexual acts in private, and to control one’s own body [i.e., abortion] have all been deemed fundamental, but the right to try to save one’s life is left out in the cold despite its textual anchor in the right to life.”  Yes, six bad ideas justify a seventh!

Roger Pilon says he stands for limited government.  Somehow he has forgotten that the courts are part of the government.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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