In his response to our post about IJ’s bone-marrow case, Ramesh Ponnuru fails to address the central question: Does the Constitution empower judges to strike down demonstrably arbitrary laws? We believe it does. (In response to his query, the specific constitutional provision is the Due Process Clause of the Fifth Amendment, as noted in the bone-marrow complaint.)
To put the question even more starkly: Would Ponnuru have recourse to the courts if Congress suddenly passed a law forbidding people named “Ramesh” from driving a car or brushing their teeth? We believe he would, even though neither is a specifically enumerated right. As we explained in our post, the Constitution forbids arbitrary deprivations of liberty and requires judges to enforce that prohibition. This has been the Supreme Court’s understanding, as reflected in an unbroken line of precedent dating back more than 200 years. It’s hard to get more originalist than that.
Whether Ponnuru agrees or disagrees with that reading of the Constitution, we still can’t tell.
– Jeff Rowes and Clark Neily are senior attorneys with the Institute for Justice in Arlington, Va.