IJ’s Bone Marrow Case: Rational Basis Test

In the past two posts, I outlined the Institute for Justice’s constitutional challenge to the bone marrow provision of the National Organ Transplant Act.  In short, our clients want to use strategic incentives such as $3,000 scholarships to incentivize more lifesaving bone marrow donations, but doing so is considered criminal organ-selling.

Today, I’ll discuss the standard of review that applies to the bone marrow case, called the “rational basis test,” and critique the constitutional philosophy known as judicial minimalism.  Tomorrow, I’ll talk about how principled judicial engagement works (as opposed to judicial activism, which is a legitimate, though overblown, concern).

The bone marrow case is about unenumerated rights so before getting to the rational basis test, let’s briefly discuss unenumerated rights.  Among some conservatives, unenumerated rights are met with glib dismissal, often along the lines of “Last time I checked, the Constitution didn’t say anything about [asserted right X].”

But no one seriously disputes that unenumerated rights exist, although there is considerable debate over their nature and scope.  Who doubts that we have the right to travel or vote or raise children?  The right to earn an honest living in the lawful occupation of your choice was among the first unenumerated rights the Supreme Court recognized and that right has an undeniable basis in the Privileges or Immunities Clause of the Fourteenth Amendment (see Randy Barnett’s outstanding scholarship).

In terms of the bone marrow case, the right at stake is the right to defend human life through safe, effective, lifesaving, and otherwise legal medical treatment.  Is there serious doubt that this right exists?  Suppose Congress passed a law forbidding doctors from providing medical treatment to the sickest or oldest Americans in an effort to control healthcare costs.  Wouldn’t that obviously violate the rights of doctors and patients?  Until Congress enacted NOTA in 1984, the right of a parent like our client Doreen Flynn to secure otherwise legal medical treatment for her girls had never been conditioned on someone doing something for free.

The history of the Constitution supports unenumerated rights.  Madison presciently warned against enumerating rights because he foresaw what has become a cornerstone of the judicial-minimalist worldview: the argument that the only rights we have are enumerated ones.

Inordinate emphasis on protecting only the relatively few enumerated rights cannot be squared with the Constitution as a whole.  The Bill of Rights was part of a constitutional scheme that was both intended and understood to have created a government of limited, enumerated powers.  Had the authors of the Constitution known that what I’ll call “legislative activists” in the elected branches would, with the eventual approval of the courts, repudiate any structural limitations on their power, then we would likely have a much different Bill of Rights, one that presumably would have expressly identified a much larger set of liberties.  Judicial minimalists should understand that the enumeration of certain rights does not reflect a decision by the Constitution’s ratifiers that the federal government is supposed to be, to borrow Randy’s metaphor, a vast sea of government power with tiny islets of liberty.

Unenumerated rights are in the Constitution.  But here’s something that isn’t:  the rational basis test.  Applying the rational basis doctrine to unenumerated rights emerged out of a series of 1930s cases, particularly Carolene Products and its infamous footnote four, which collectively stand for the proposition that legislation will be upheld as long as there is a rational basis for it.  In an economic liberty case in 1955, Williamson v. Lee Optical held that a law need only have a “conceivable” rational basis, meaning that the actual purpose and effect of the law, and the facts of the case, supposedly don’t matter much.  (Justice Douglas, who wrote Williamson, conveniently forgot about the rational basis test a decade later when he came across an unenumerated right he liked in Griswold v. Connecticut: privacy in the context of contraceptive use).  In modern rhetoric, social and economic legislation subject to an unenumerated rights challenge will be upheld unless the plaintiff can “negative every conceivable rational basis for it,” whatever that means.  Conventional wisdom holds that this is really just code for the government always wins.

This slicing and dicing of rights into different categories with different standards of review, and placing an extraordinarily onerous burden on certain rights, is pure judicial invention.  Conservative-leaning judicial minimalists should reflect on the irony that their philosophy is rooted in the big-government agenda of the New Deal Era, and that among the Supreme Court’s most “minimalist” decisions—in the sense of showing extreme deference to the elected branches—are its most activist ones such as the refusal to enforce essentially any structural limits on federal power (Wickard, Raich).

There is no reason why the government’s legitimate functions—like protecting public health and safety—necessitate a standard of review in which courts are required to ignore pro-citizen facts, invent pro-government facts, and actively try to imagine reasons to uphold anything a legislature has done.  Why is the truth antithetical to constitutional adjudication?

Not even the Supreme Court believes its own rhetoric about blind deference to legislatures.  In the context of rational basis review, the Court pretends that legislative acts embody popular will and were created through a deliberative legislative process that must be respected at all costs.  But in the campaign finance context, the Court uncritically accepts the premise that legislatures are corrupt or seem corrupt, and thus upholds massive restrictions on the First Amendment.  How can the Court possibly reconcile its view of politics in the campaign finance context with its Pollyanna-perspective on legislatures in other contexts?  (For the record, the solution to corrupt and activist legislatures is constitutional limits on their power, not campaign “reform” laws that vitiate rights to speak, assemble, and petition the government).

And if the rational basis test is so great, why not have it for everything?  Pick a right you like and then think about what it would mean for that right to get rational basis review?

Fortunately for liberty and our clients in the bone marrow case, the Supreme Court also doesn’t believe its own rhetoric about the rational basis test.  After all, if the standard were truly that government power will be upheld unless the citizen can “negative” every “conceivable” justification, then citizens would never win rational basis cases. 

But they do.  The Supreme Court has invalidated at least a dozen laws under the rational basis test.  And there are literally hundreds of federal and state trial and appellate decisions doing the same in an array of contexts.  They don’t do it often enough to provide our liberty with the protection it deserves, but courts certainly do protect citizens from irrational, arbitrary, and otherwise illegitimate uses of government power.

Tomorrow, I will discuss principled judicial engagement in the context of the bone marrow case and how to avoid falling into the trap of judicial activism.