The Corner

Re: Organ Donations and Judicial Activism

Ramesh, I don’t think IJ’s lawsuit against the ban on bone-marrow donation is asking for judges to be policymakers. It’s only asking courts to impose a narrow constitutional constraint on what the government may do: I.e., it can’t prevent people from obtaining life-saving medical care without a rational basis. Maybe you think that it gives judges too much discretion to let them determine when a law lacks a rational basis (although judges routinely make determinations of reasonableness in almost every area of law). And maybe you don’t think the bone-marrow statute constitutes a deprivation of liberty without due process of law, which the Constitution disallows. But in any event, the judicial practice of striking down irrational laws that infringe on core liberty interests falls far short of the legislative role of policymaking. For one thing, the negative practice of striking down laws is much less susceptible to abuse than the positive practice of making new laws. Conservatives and libertarians who favor limited government might support the judicial practice, since its purpose is to act as a check against big government — to safeguard individual rights against the tyranny of the majority.

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