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Judicial Deference & the Rights to Life and Health:
Yesterday, I had an op-ed entitled In Re: Life or Death in the Wall Street Journal on the issue of judicial deference (available here for 7 days). It addresses the following question: When the fundamental rights of life and health are at stake, should judges defer to Congress or to "the people themselves"? This issue is raised in two pending lawsuits involving the decisions of patients and their state-licensed physicians, who are supported in their decisions by either the results of Phase I clinical trials for safety or by a substantial body of medical authority. Here is an excerpt describing the cases.
Much discussion of "judicial restraint" or deference overlooks a crucial question: deference to whom — the legislature or the individual? This fundamental question is posed by two potentially landmark cases.

In Abigail Alliance v. von Eschenbach, a three judge panel of the D.C. Circuit Court of Appeals ruled that, when a drug passed Phase I trials establishing its safety, a terminally ill patient has a right to try the drug before its efficacy is established, provided the patient has no other FDA-approved drug available for treatment. However, two weeks ago the circuit granted the government's motion for an en banc rehearing before all the members of the court. . . .

The natural rights to life and health are also at stake in the "partial birth abortion" cases that were argued to the Supreme Court in October. The Eighth and Ninth Circuit Courts of Appeals both held the federal ban on partial birth abortion was unconstitutional because it lacked an exception for the health of the mother. While this procedure is highly controversial when performed late term, the ban applied throughout the entire pregnancy. Moreover, the statute allows even late term use of the procedure to protect the woman's life (the very same right to life at issue in Abigail Alliance).
Guess which form of judicial deference I favor.

(Civil comments only please.)

Related Posts (on one page):

  1. The Ninth Amendment Means What it Says:
  2. Judicial Deference & the Rights to Life and Health:
E. Conan Mclelland:
It seems that deference to the wishes of the individual in FDA exemption cases like this pose much less of a danger of "every man a law unto himself" situations than things like religiously motivated requests for exemptions.
12.10.2006 1:53pm
Justice Fuller:
Is it so hard to imagine a conservative justice siding with a patient, her doctor and a substantial body of medical authority, over the highly politicized opinion of Congress?

Yes, it is to me. One of the core principles of conservative legal thought is that Justices do not just pick who they like or who they trust and rule that way. I believe this is how the liberal Justices think about these things, though.

As for the idea of "judicial deference to the individual," it's clever rhetoric but just a recipe for lawlessness. If I decide I want to steal my neighbor's car, the law may punish me: It seems strange to say that the Courts should defer to my individual decision and strike down theft laws. Now, I realize that there is lot of of finely-tuned political theory to say that crimes with a victim are different somehow. But I'll bet dollars to donuts that whoever endorses these fine distinctions really just thinks that theft laws are good as policy but these other laws are bad as policy.
12.10.2006 1:59pm
ReaderY:
Implicit in the idea that people cannot be trusted to make their own laws is an elitism which fundamentally disrespects the ability of ordinary people to make and participate in decisions about themselves and their communities and would give such decisions over to Nietzchian ubermenschen who presubably know better.

Claiming that the ubermenschen are "respecting the individual" when they utterly disrespect individuals' decision to enact laws only rubs the wounds with a bitter irony. Free people govern themselves. The right to self-government is the right to be wrong and make mistakes.
12.10.2006 2:02pm
ReaderY:
I fundamentally disagree with the very idea that there is ever such a thing as a victimless crime. Every law has supporters who find the conduct involved harmful. There are crimes where people disagree whether the claimed harm is really a harm, but this is not at all the same thing. Rhetoric that, taken with even a single grain of salt, essentially proclaims that anyone the speaker disagrees with with should be regarded as a nobody undeserving of the law's respect or protection does not sound nearly as nice as it does when recited in an echo chamber.
12.10.2006 2:11pm
Randy Barnett (mail) (www):
ReaderY,

I am very familiar with your position on "freedom." It boils down to this: legislatures, a collection of a few hundred individuals who were elected by a majority of voters in their districts are the functional equivalent of "the people" and are therefore "free" to make mistakes when coercing nonconsenting individuals by, for example, depriving them of potentially life saving drugs or medical procedures. On your view, actual "ordinary" individuals have no such freedom to govern their own lives and assume the risk of their own mistakes unless a majority of these (ubermenschen?) legislators allow them. Their only real freedom is to vote every couple of years. Your position is entirely coherent, though is premised on the fiction that an elected legislature is the people themselves. But perhaps I have misunderstood your point.
12.10.2006 2:18pm
crane (mail):

I fundamentally disagree with the very idea that there is ever such a thing as a victimless crime.


If I take a drug of unproven efficacy, knowing that it is unproven but hoping that it may do something about my otherwise uncurable disease, who are my victims?
12.10.2006 2:20pm
lucia (mail) (www):
Crane,
I wondered exactly the same thing about ReaderY's claim. I tried to be creative one I could think of is:

Some legislators wish to bend you to their collective will, which the enacted through a law. These legislators are deprived of getting what the wish. This deprivation is "the harm".

I might then concede "the harm" (should one insist on calling it that) But then, I'd think, "Well... ok, but so what if we can't "avoid harm" when harm is defined to include that?

There were a few other "harms" I could think of, but I could envision better ways to overcome those than depriving a sick person of potentially life saving medical treatment.

I'm hoping ReaderY identifies the harm the life-or-death case Randy described. If he or she does, we can then consider them and argue for or against them.
12.10.2006 2:38pm
steven lubet (mail):
I read the oped yesterday, and it left me with a question: Why is the FDA Phase I finding of safety the appropriate threshhold for deferring to the decision of a terminally ill patient. If the point is that certain rights are reserved to individuals (no matter what the statutes say), why shouldn't a terminally ill patient be entitled to gamble even on an unsafe drug?

In other words, Randy, you say that individuals should be allowed to gamble on medication that has been shown safe (Phase I), even if it's not proven effective (Phase II). But how is it that a constitutionally reserved right kicks in only after a bureaucratic Phase I finding? Sounds like a "reasonableness" judgment. But if so, isn't that a job for legislatures rather than judges?

Just wondering . . .
12.10.2006 2:43pm
PersonFromPorlock:
This just raises the nanny state paradox again: if the individual is incompetent to make this or that decision, how is he competent to vote for those who will make those decisions for him? And if he is incompetent as a voter, what legitimacy does the state have?
12.10.2006 2:45pm
LotharoftheHillPeople:
PersonFromPorlock,

I don't understand this "nanny state paradox" you mention. I don't know how to repair my car, but I know how to find someone to repair it for me. Similarly, I don't know what the law is, but I know how to find a good lawyer. Why is it different with representatives in government?
12.10.2006 3:00pm
Randy Barnett (mail) (www):
Steve:

Well, for one thing, I was writing about the facts of the cases being decided. To fully answer your question would require more space than is appropriate for a comment board. Suffice it to say that the right does not "kick in" at this "threshold." It is always there but is not absolute. The issue is who bears the burden of justification: the individual or the government. The existence of the right to preserve one's life and health supports deference to the individual if his or her decision is supported by a "rational basis." The existence of objective support for the individual's choice (e.g. physician's recommendation that is itself supported either by Phase I trials or a substantial body of medical authority) provides a rational basis for the decision to which courts should defer unless overcome by a compelling argument by the government to the contrary. Blind deference to the legislature or regulators is insufficient to meet this burden. Characterizing a decision as a "reasonableness" one does not dictate who bears the burden of proof, the individual or the government.

All the best,

Randy
12.10.2006 3:09pm
HLSbertarian (mail):

Now, I realize that there is lot of of finely-tuned political theory to say that crimes with a victim are different somehow. But I'll bet dollars to donuts that whoever endorses these fine distinctions really just thinks that theft laws are good as policy but these other laws are bad as policy.


Shall I tell you where to Paypal your dollars?
12.10.2006 3:25pm
OrinKerr:
Randy,

Can you explain a bit more about how your rational basis review is different from reasonableness? If I follow your view correctly, a regulation is constitutional only if there is no "objective support for the individual's choice" to violate it. But this sounds a lot like reasonableness to me. Can unreasonable support count as objective support?
12.10.2006 3:41pm
godfodder (mail):
What is strange about the "partial birth abortion" debate is the assumption that there is no alternative to this procedure in cases where the mother's life is at risk. It's just a red herring, intended to confuse the ignorant, and create the impression that partial birth opponents don't care if pregnant women die.

There are plenty of medical/surgical alternatives to partial birth abortion in those unusual cases where the health of the mother is at stake. For instance, what did OB/GYN's do before partial birth abortion?

Banning it prevents the procedure from being used routinely for the purpose of aborting very large, developed fetuses. We all want that... don't we?

Also, I can't imagine that this is an uncommon example of the government intruding into the practice of medicine. Anyone remember silicon breast implants? Lobotomies? DDT?
12.10.2006 3:41pm
Chris Bell (mail):
Your account reads like a positive right in several places, and that seems scary.

For example, imagine that the drug company doesn't want to give the drug to the patient. Doesn't the patient's "right to life" trump the minisclue violation of property laws?

If the right to life can trump one law (no drug shall be marketed which has not been proven safe &effective) then why can't it trump another one (no one shall be forced to give their property to another)?
12.10.2006 3:45pm
Randy Barnett (mail) (www):
Comment of mine that Chris found to be uncivil deleted.
12.10.2006 3:59pm
lisamarie (mail):
LotharoftheHillPeople,
Here's the difference. Imagine your car breaks down. You take it to a mechanic. They tell you "X is wrong with it and it will cost $2500 to fix." If the mechanic were like government, you would then not be allowed to decide you don't feel like fixing your car, nor would you be allowed to take it to another mechanic for fixing. Once you chose this mechanic and he told you what was wrong and the cost of fixing it, you would be required, on pain of criminal prosecution, to pay him the amount he demanded to do the work he claims you need. That is the difference between choosing services in a market and being forced to choose people to govern you.
12.10.2006 4:18pm
Malvolio:
I don't understand this "nanny state paradox" you mention. I don't know how to repair my car, but I know how to find someone to repair it for me. Similarly, I don't know what the law is, but I know how to find a good lawyer. Why is it different with representatives in government?
But under nanny-state assumptions, you don't know how to select a lawyer or a mechanic. You can only pick from a state-selected and -monitored slate of candidates.

If the government were to only allow you to vote for pre-approved candidates, the way you can only hire licensed mechanics and lawyers, the fascistic aspects of nannyism would become too obvious.
12.10.2006 6:30pm
PersonFromPorlock:
LotharoftheHillPeople:

We all hire people -- from mechanics to lawyers to lawmakers -- to do things we can't do ourselves. But when the state says you can't even try something that's unapproved, regardless of the help you've hired, it's saying that you and they (collectively, "the People") are absolutely unqualified to have a say in the matter.

When this becomes the default position of government, as it does with the nanny state, the notion of popular sovereignty is no longer supportable and we drift into government by the elite.
12.10.2006 6:54pm
Hans Bader (mail):
It might be more palatable to some justices, like Justice Breyer, if you couched it as deference to a patient's physician, not to the individual patient.

Thus, the deference is due the physician of the patient who seeks an experimental drug that the FDA's cumbersome and slow approval process is delaying, despite evidence that it is effective and not unduly risky.

(Many physicians agree that the FDA is much too slow to approve life-saving drugs; and one survey showed 60 percent of physicians believed they should be able to prescribe medications even if the medication was not approved by the FDA).

So, yes, individuals can be entitled to deference, but choose the individual you argue should be entitled to deference with care.

I agree with you that Abigail Alliance's position is easier to defend that partial-birth abortion.

Multiple, competing lines of cases supports its position.

The Supreme Court's end-of-life decisions are one line of supporting authority.

The Supreme Court's abortion decisions are another.
12.10.2006 6:59pm
PersonFromPorlock:
Lothar:

Let me try to illustrate the nanny state paradox with a less theoretical example. Maine, like many other states, has a mandatory annual motor vehicle safety inspection law. Your car must be inspected annually whether you think it needs it or not.

Therefore, a charge of 'operating an unsafe vehicle' would go to trial before a jury composed entirely of citizens whom the state has already determined are unable to tell whether a vehicle is safe or not. That's the nanny state paradox in a nutshell.
12.10.2006 7:20pm
LotharoftheHillPeople:
PFP,

I don't get the paradox. We require safety inspections in part because we know some people would be happy to externalize the risk of a dangerous vehicle: they don't care if their brakes don't work well and they are risking other people's lives that they might crash into. The safety inspection simply doesn't reflect a state determination of incompetence to identify a safe vehicle.
12.10.2006 7:43pm
byomtov (mail):
Therefore, a charge of 'operating an unsafe vehicle' would go to trial before a jury composed entirely of citizens whom the state has already determined are unable to tell whether a vehicle is safe or not. That's the nanny state paradox in a nutshell.

Not very convincing, I'm afraid.

Such a law could be justified by the fact that a minority of drivers were driving unsafe cars, either because they didn't know better or because they didn't care, or because their idea of acceptable risk is high.

An unsafe car is dangerous to people other than the driver. Why is it unreasonable for the state to require that cars meet certain standards with regard to brakes, lights, etc. in order to be driven?
12.10.2006 7:53pm
Ken Arromdee:
Therefore, a charge of 'operating an unsafe vehicle' would go to trial before a jury composed entirely of citizens whom the state has already determined are unable to tell whether a vehicle is safe or not.

The charge would be something like "operating an uninspected vehicle". The claim that uninspected vehicles aren't safe is the *justification* for the law, but you don't need to know it to determine if someone follows the law.
12.10.2006 8:03pm
Oren Elrad (mail):

In other words, Randy, you say that individuals should be allowed to gamble on medication that has been shown safe (Phase I), even if it's not proven effective (Phase II). But how is it that a constitutionally reserved right kicks in only after a bureaucratic Phase I finding? Sounds like a "reasonableness" judgment. But if so, isn't that a job for legislatures rather than judges?


Assuming that behavior in question involves only private parties (I think that the discussion of gov't forcing companies to hand over drugs is a red herring), the line between deference to the individual will vis-a-vis state the ought to be drawn at the point where the conduct at question starts to be a tangible threat to others and a burden on society. This is implicit in the concept of limited government (or ordered liberty, if you prefer that catchphrase).

Selling unsafe drugs harms the community in numerous ways - it discourages trust in the medical system while creating novel health problems of its own. Promoting a drug as curative of a disease when the scientific evidence is ambiguous is likewise burden on society because it clutters the market in ways that the consumer is unlikely to be able to disentangle (doctors would have to keep up on the primary literature for every drug they wished to prescribe!)

On the other hand, a drug that is sold to a patient under the advisement of a competent physician where the company has come clean about the scientific merit at hand cannot really be said to be harming anyone.


PFP, the jury need not determine whether the vehicle is safe or not - nobody asked them. Instead, they are asked to decide whether the defendant did indeed operate a vehicle without the requisite paperwork as defined by the legislature. That is a question that, with help from a judge, a jury can answer with no knowledge whatsoever of how car works. In this case, of course, there is no big ethical conundrum since the roads are built and maintained by the state you have no claim to drive on them how you see fit. This is not (as in the first part of my post) about regulation of transactions between two individuals but between the individual and the state.
12.10.2006 8:04pm
Ken Arromdee:
If I take a drug of unproven efficacy, knowing that it is unproven but hoping that it may do something about my otherwise uncurable disease, who are my victims?

That uses a naive idea of harm--it only considers direct harm to be harm. It's like asking "well, if using information gained by torture allows a traffic violator to be convicted, why not use it?" The torture has already been committed and just using the information cannot possibly hurt anyone (except by convicting a guilty person).

The answer, of course, is that while using the evidence does not itself hurt anyone, it encourages more people to obtain evidence that way, and that *does* hurt people.

If you take an unproven drug, it may not hurt you, but allowing you to take an unproven drug also means allowing other people to take other unproven drugs, which will result in harm
12.10.2006 8:13pm
Jerri Lynn Ward (mail) (www):
How would this analysis apply in the context of laws which give hospitals and doctors immunity for implementing futility protocols in order to withhold or withdraw life-sustaining treatments (dialysis, anh, respirator, turning off pacemakers, etc.) from patients and their families who want the treatments, like the Texas Futile Care Law?
12.10.2006 8:27pm
PersonFromPorlock:
Lothar:


I don't get the paradox. We require safety inspections in part because we know some people...

But we require safety inspections of all people. Whatever happened to punishment after the fact, charging drivers whose negligence actually causes accidents, but not presuming negligence on all drivers' parts?

Oren Elrad:


PFP, the jury need not determine whether the vehicle is safe or not - nobody asked them. Instead, they are asked to decide whether the defendant did indeed operate a vehicle without the requisite paperwork as defined by the legislature. That is a question that, with help from a judge, a jury can answer with no knowledge whatsoever of how car works.

When Maine speaks about its inspection program it's about safety, not paperwork. It may be different where you are.
12.10.2006 8:28pm
RainerK:
Justice Fuller,

"But I'll bet dollars to donuts that whoever endorses these fine distinctions really just thinks that theft laws are good as policy but these other laws are bad as policy."

Yes, quite probably. On the other hand, for me as a citizen the judge is the last bulwark between my liberties and the political legislatures running all over me.
12.10.2006 8:35pm
Cornellian (mail):
Implicit in the idea that people cannot be trusted to make their own laws is an elitism which fundamentally disrespects the ability of ordinary people to make and participate in decisions about themselves and their communities and would give such decisions over to Nietzchian ubermenschen who presubably know better.

So the US Constitution is an elitist document which fundamentally disrespects the ability of ordinary people to make and participate in decisions about themselves and their communities? So the Framers considered themselves Nietzchian (sic) ubermenschen? The Constitution is, after all, filled with provisions preventing majorities of one kind or another from enacting various types of laws.
12.10.2006 8:39pm
byomtov (mail):
Whatever happened to punishment after the fact, charging drivers whose negligence actually causes accidents, but not presuming negligence on all drivers' parts?

Whatever happened to "an ounce of prevention is worth a pound of cure?"

What good does punishment after the fact do for someone killed or crippled in an accident? What good does it do to hold someone liable for damages when they lack the resources to pay up?

If you want to understand why libertarianism does not have a wider following part of your answer is in absurd, out-of-touch-with-reality arguments like PFP's.
12.10.2006 9:37pm
Kevin P. (mail):

If you take an unproven drug, it may not hurt you, but allowing you to take an unproven drug also means allowing other people to take other unproven drugs, which will result in harm

Behold, the nanny state!

If this is your definition of harm, then anything that anybody does is harmful to you.

I would go far in the opposite direction and say the government has no business whatsoever interfering in the right of the individual to choose his doctor, treatment and medication. Any terminally ill patient has the inalienable right to life, and depriving such patient of potentially effective treatment amounts to depriving him of his right to life.
12.10.2006 9:38pm
Kevin P. (mail):

Whatever happened to "an ounce of prevention is worth a pound of cure?"

Of course, the way government works, the ounces of prevention rapidly add up to several immovable tons of bureaucratic statis.

It is unconscionable that it takes the FDA the better part of a decade, and sometimes even longer to approve a drug. The lives of individual patients are ruined and sometimes lost while the government slowly stacks up your ounces of prevention. This is a cost that the media never speaks about whenever they talk about the latest pharmaceutical "outrage" that the FDA did not prevent.
12.10.2006 9:42pm
byomtov (mail):
Kevin P.,

My comment was addressed to the issue of vehicle safety inspections.
12.10.2006 9:51pm
ReaderY:

If I take a drug of unproven efficacy, knowing that it is unproven but hoping that it may do something about my otherwise uncurable disease, who are my victims?


There is a very clear harm. There are a finite number of people who are available to take a drug during the time available for clinical trials. Clinical trials consist of giving some people the drug and some people a placebo and/or or the best available alternative.

If everyone has a right to the drug itself, and no-one could be forced to take a placebo, then future generations to the end of time will never be able to know if the drug actually works or not, or whether or not it is actually safe. Only if there is no personal right to the drug, if society has the right to assign drug or not randomly -- arbitrarily -- is scientific knowledge about the drug possible. The only way asociety can permit the scientific study of medicine is to require individuals to subordinate their "right" to have medicine to the greater social good. It's an excellent example of a crime that can be thought of as "victimless", but only if one puts on blinkers that keeps one from seeing the context.

(Society is filled with "whole is not the sum of the parts" situations. Another example is antibiotics, which can result in mutations much more dangerous to society if overprescribed or improperly used. Here again, each improper use of antibiotics might be said to cause no visible harm and to be nobody else's business, but harm occurs to society as a whole from the totality of the conduct).

Perhaps everyone ought to have a personal right to the meat of golden-egg laying geese. Perhaps it's nobody's business but ours if we take some. But what will our children do when all the geese are gone?
12.10.2006 10:21pm
ReaderY:
Professor Barnett,

I agree if the idea that democracy and republicanism are nothing more than a fiction, if people's votes have no meaning, if elected officials never have their constitutent's apart, society is indeed in trouble.

But aren't you ever worried that the idea of an independent, benevolent, purely rational judiciary might be something of a fiction as well?

As Benjamin Franklin put it, democracy isn't a particularly good form of government, it's just that all the other forms are worse.
12.10.2006 10:25pm
Kevin P. (mail):
ReaderY:

If everyone has a right to the drug itself, and no-one could be forced to take a placebo, then future generations to the end of time will never be able to know if the drug actually works or not, or whether or not it is actually safe.


This is an interesting argument, but again, the principle could apply to any situation involving any kind of personal liberty.

I doubt that the passage of laws giving the regulation of medicine to the FDA had anything to do with the ability of conducting double-blind trials.

And in any case, I see no reason why you could not still conduct double-blind trials even if the drug were freely available to anyone.
12.10.2006 10:42pm
Debauched Sloth (mail):
The worst nightmare of a statist judge (by which I mean most of the current federal judiciary, liberal and conservative) is that he or she will improperly prevent someone from dictating to other people how to live their lives. The worst nightmare of a judge who takes seriously the notion that not all rights are specifically enumerated in the Constitution is that he or she will improperly allow someone to dictate to other people (who are causing her no harm and not interfering with her own rights in any way) how they must live their lives. Putting aside the incredibly complex issue of abortion and focusing purely on self-medication, I don't see how this is even a close call. I want to take a drug that might save my life -- my doing so won't harm you in any way, but you insist on telling me I can't. If I'm a judge, I'm just going to sleep a whole lot easier letting the sick person do what she wants, even if it means preventing some statist busy-body from micro-managing the life of a terminally ill stranger. Yup, I'm pretty sure I can live with that.
12.10.2006 11:29pm
godfodder (mail):
Just to clear up a small misconception: the "Nanny-state paradox" that PfP refers to is just this:

If the electorate is too stupid/infantile/dependent/lacking judgment/etc to make basic decisions for themselves (hence the need for the Nanny-state), then how on earth can they be trusted to vote in elections?


That's it.
12.11.2006 12:26am
LotharoftheHillPeople:
PFP,

We do have a system of negligence actions for how drivers operate cars. But we also require car insurance to make sure those people are judgment proof. I suppose we could require mandatory insurance for all people who drive, and that could replace drivers licenses and car inspections. But then what we do for ID? ;-)

Thanks for the clarification, godfodder. The problem is that most of the "nanny state" has lots of justifications beyond people being stupid. You decide that they are unpersuasive, but that doesn't make it a paradox.
12.11.2006 12:38am
godfodder (mail):
Wow! You put "bold" and "italics" on something, and it really jumps out at you! Sorry 'bout that. It didn't look so... insane when I previewed it.
12.11.2006 12:52am
Andrew Hyman (mail) (www):
The conclusive refutation to Professor Barnett's argument is smack dab in the middle of the text of the Ninth Amendment. It says that the "enumeration of certain rights" shall not be construed in a particular way. The amendment says zilch about how the enumeration of certain powers shall or shall not be construed.

That is why the Supreme Court held as follows in 1947: "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail." This statement was reaffirmed, for example, in Roth v. United States. Unanimously. And I concur.
12.11.2006 1:18am
Ken Arromdee:
When Maine speaks about its inspection program it's about safety, not paperwork.

No, it's about safety *via* paperwork.

The jury is only asked to judge the paperwork part, not the safety part. Whether the program actually keeps anyone safe is beyond the jury's mandate.
12.11.2006 1:35am
David M. Nieporent (www):
Whatever happened to "an ounce of prevention is worth a pound of cure?"
Nothing. It's a great aphorism for a fortune cookie. It's just a lousy principle of governing in a free society.
What good does punishment after the fact do for someone killed or crippled in an accident? What good does it do to hold someone liable for damages when they lack the resources to pay up?

If you want to understand why libertarianism does not have a wider following part of your answer is in absurd, out-of-touch-with-reality arguments like PFP's.
True. We also ought to lock up all the people who look like they might be rapists; what good does punishment after the fact do for someone who is sexually assaulted?
12.11.2006 1:55am
PersonFromPorlock:

The problem is that most of the "nanny state" has lots of justifications beyond people being stupid. You decide that they are unpersuasive, but that doesn't make it a paradox.

True in part. But each of the justifications is premised on the incompetence of the average person, whether for stupidity or other reasons, and add up to his not being a responsible citizen. The paradox lies between the deference the state claims to have for the People and the statements of popular incompetence implicit in the laws it makes.
12.11.2006 6:24am
PatrickS (www):
I attended an event at the Cato Institute a few summers ago featuring members of Abigail Alliance and their attorney. Their case is highly sympathetic as well as (in my non-lawyer opinion) being legally compelling.

My only concern about the op-ed is that nanny-statists may find this sentence to be a compelling reason to ban skiing:
Does it make any sense to respect the liberty of citizens to strap waxed boards to their feet and slide down snowy slopes with trees whizzing by for the thrill of it (I am not making this up), yet deny the dying access to potentially life saving drugs that have been proven safe?
12.11.2006 10:05am
lucia (mail) (www):
If everyone has a right to the drug itself, and no-one could be forced to take a placebo, then future generations to the end of time will never be able to know if the drug actually works or not, or whether or not it is actually safe.


Here, one sentence seems to spawn so many questions. Would we have difficulty recruiting volunteers? If we would, is this the sort of reason why we would prohibit a patient from taking a potentially lifesaving treatment? Does the FDA even claim this is the reason for their rule? Do physicians absolutely require double blind studies to evaluate the safety and efficacy of treatments?

First: Currently, no one is forced to take the placebo or even participate in trials of any sort. People sometimes volunteer when alternate treatments exist. People volunteer for all sorts of reasons. Despite any lack of compulsion, we manage to find volunteers for double blind trials for all sorts of medicines.

Second: If finding the right to take life saving medicine outside of trials does reduce the number of volunteers, can't we find other ways to entice patients into double blind trials?

We have in the past. Hormone Replacement Therapy trials occurred while HRT was available to those who were already convinced. The trail members got all sorts of free check ups etc. A fair fraction of terminally ill patient would likely risk getting placebo in a trial with a tradeoff of getting otherwise free, excellent medical care.

If free medical care was not enough to bribe the patients to volunteer, we could probably find other bribes: Pharmaceutical companies could fund an insurance policy for participants in certain trials. Some terminally ill patents would choose to risk placebo if it meant their dependents are left some money in the event of their death.

So, it seems more than likely we could recognize the right to preserve one's life and still achieve the common good of double blind trials.

Third: Even if letting terminal patients take the drug imperils phase II trials makes it harder to find volunteers when the enrollment period is open, what of people who need drugs after all positions in Phase II trials have been filled? Or people who are not selected for some other reasons (possibly because they are too ill.)

Letting patients who are barred from Phase II trials take the drug wouldn't imperil Phase II trials. Maybe, after consideration, the Judges could rule that the threshold is Phase I trials are complete and there are currently no slots available in a Phase II trial. (Or a patient was rejected for other reasons.)

Fourth: Even if we absolutely can't figure out a way to get volunteers for trials, is it ok to say individuals must die for the supposedly common good of getting enough volunteers for Phase II trials?

There are only a few common goods where we insist individuals assume a serious risk of death for the common good. The drafting solders during wartime is the one I can think of. Does the common good of double blind trials really rise to the level of defending one's country during war? (Heck, Americans avoid the draft when we can. I suspect if we did draft soldiers we'd already be out of Iraq. Americans really don't like the idea of forcing individuals to risk death for maintaining our state as it is constituted.)

Fifth: Do we often require people to assume any serious risk of physical, bodily harm to achieve a very diffuse common good? (Are they ever required to loose arms? Legs? Eyesight ? Etc.)

Even with most "Nanny State" laws, the goal is to protect the individual from hurting themselves. Where motorcycle helmet laws are enacted, motorcycle helmets are required so "individual A" won't harm "individual A". There may also be some common good effects -- but the "nanny" at least believes the laws are protect someone from themselves; they aren't solely motivated for the common good. (Interestingly, the FDA case seems to spend a lot of time telling us their motive is to protect the cancer patients from the risk of side effects. I didn't see the motive of ensuring enough volunteers for phase II trials anywhere-- though I admit I skimmed.)

Sixth: Do we need double blind trials? While double blind trials have become standard in medicine (and for good reason) lots and lots of science based decisions are made without double blind trials. Outside medicine, the majority likely are. Even in medicine, I believe we approve of various forms of surgery and different types of medical devices without double blind trials. Couldn't the FDA adopt similar evaluation methods for a sub-set of drugs?

Are double blind studies so crucial that we must block possibly lifesaving treatment?

I may be wrong, but I'm just not convinced that we need to block individual access to potentially life saving medicine to permit double blind trials. If the court found the right to access, likely we could find ways to do double blind trials (possibly at greater cost), or we might suddenly discover that sometimes drugs, like surgeries, can be evaluated without double blind studies.
12.11.2006 10:20am
Robert Jackson (mail):
Your position is entirely coherent, though is premised on the fiction that an elected legislature is the people themselves.

Is this a fiction? If so, is it a fiction because the average citizen does not participate as much as he could, or because legislators are corrupt and bribed to ignore the people?
12.11.2006 10:39am
byomtov (mail):
True. We also ought to lock up all the people who look like they might be rapists; what good does punishment after the fact do for someone who is sexually assaulted?

Claiming that there is no difference between locking up people who look like rapists and requiring people to have their cars inspected once a year is yet another example of how libertarians make themselves look like fools.

Look. Libertarian thinking has an important contribution to make to public debate. But when it claims that even simple common-sense rules are a massive and unacceptable infringement on individual liberty it becomes self-parody, and can no longer be taken seriously.
12.11.2006 11:04am
Kevin P. (mail):
byomtov:

Claiming that there is no difference between locking up people who look like rapists and requiring people to have their cars inspected once a year is yet another example of how libertarians make themselves look like fools.
...
But when it claims that even simple common-sense rules are a massive and unacceptable infringement on individual liberty it becomes self-parody

I think that you are talking about inspecting cars, while the blog post and most commenters are concerned about sick and terminally ill patients dying while waiting for their medication. Perhaps you need to stick to the topic of the debate?

Otherwise, claiming that there is no difference between terminally ill patients and requiring people to have their cars inspected once a year might make you look like a fool.
12.11.2006 11:31am
byomtov (mail):
Kevin P.,

My initial comment on this thread addressed PFP's example of how mandatory car inspection was an example of the "nanny-state paradox" and showed that the state regarded people as generally incompetent. I argued that there was no paradox, and that such laws could be well-justified even when assumption that most people behaved sensibly with regard to car safety.

In other words, it was PFP, and not I, who claimed "that there is no difference between terminally ill patients and requiring people to have their cars inspected once a year." If you think that this is an idiotic claim we are in agreement.

PFP then argued that we should wait until someone actually causes an accident, maybe killing someone, before worrying about whether the car was safe. That seemed very unwise to me, given the high and irreparable damages that can result from accidents, and the minor inconvenience of an annual inspection. I claim that, in this instance, prevention was the wiser course.

Then David Nierepont jumped in to conclude that I must also think anyone who looked like a rapist ought to be locked up. I commented that refusing to distinguish between the two cases was foolish. Again, I take it you agree with me.

So I say to you: it was not I who introduced the car inspection topic as analogous to the subject of the post, and it was not I who tried to generalize unsafe cars to "people who look like rapists." It was PFP and Nierepont. Take up your complaints with them.

I happen to agree with Randy Barnett on the subject of access to medication.
12.11.2006 12:29pm
lucia (mail) (www):
Andrew Hyman said> "If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail." This statement was reaffirmed, for example, in Roth v. United States. Unanimously. And I concur.


In Roth vs. Hyman, the granted power was postal authority delegated under. This is delegated to Congress quite explicitly by Art. I, 8, cl. 7 . Anyone can see the relationship between this power and running a postal service.

When operating such a service, the government clearly must make decisions about what may or may not be sent. Can people mail radioactive weapons? Anthrax packages? Heck, must the post office accept and deliver live horses? These are all questions that must be decided. Congress has a very clear, explicitly granted power; they decided.

What's the granted power in the FDA drug case? Interstate commerce? Providing for general welfare? I know the interstate commerce clause is very elastic. We'll see whether or not it is ultimately interpreted to exclude people from taking potentially life saving medication.
12.11.2006 12:48pm
Andrew Hyman (mail) (www):
Lucia,

Yes, I believe that the power at issue in the Abigail Alliance case is the power to regulate interstate commerce. Additionally, the Necessary and Proper Clause (also known as the "Elastic Clause") may be involved.

There could be a legitimate argument that witholding some drugs from dying patients is not "necessary and proper." However, scholars like Randy Barnett apparently don't make that "necessary and proper" argument. Nor do people who rely on the so-called "Liberty Clause" (while ignoring the words "due process" in that same clause).

Why are so many scholars trying so hard to ignore the Necessary and Proper Clause? The reason is probably this: the Necessary and Proper Clause only applies against Congress and does not apply against the states. Ambitious libertarians would like the federal courts to not just slam down Congress, but to slam down fifty state legislatures as well. Unfortunately for them, the Necessary and Proper Clause cannot be used for that ambitious purpose.

The reason why the Necessary and Proper Clause has never been (and should never be) applied against the states is because it augments rather than diminishes federal power (Chief Justice Marshall explained that it "purport[s] to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted." McCulloch v. Maryland, 17 U.S. 316, 420 (1819)). Moreover, the Necessary and Proper Clause is completely irrelevant when Congress enact local legislation for Washington D.C., because Congress has plenary and exclusive power to legislate for the District of Columbia.
12.11.2006 1:37pm
Kevin P. (mail):
Isn't this case about the federal regulation of medical drugs? The defendant in this case is the FDA. It seems that the States and the Necessary and Proper Clause are irrelevant. Perhaps that is why David Bernstein ignores them?
12.11.2006 2:13pm
Andrew Hyman (mail) (www):
Yes, the issue here is federal regulation. Therefore the Necessary and Proper Clause could be very pertinent. As I said, the Necessary and Proper Clause applies to the federal government, and not to the states.
12.11.2006 2:20pm
lucia (mail) (www):
Andrew,
You've totally confused me. I keep rereading and I have managed to construe things several ways. I'm just totally unsure.

What does your "ambitious libertarian" discussion alluding to libertarians supposedly wanting to slam down states have to do with this case which has to do with a federal agency?

Your last paragraph seems to explain to me that if
A) a scholar like Randy tried to tell us the patient should be permitted to take this drug because the Necessary and Proper Clause says States can't interfere in this way, then
B) he would lose because the Necessary and Proper Clause doesn't apply to The States.

Since Randy is not arguing A, surely you aren't simply explaining that if he should replace his actual argument with a spectacularly bad one, and then he'd lose? (I'm not a lawyer, but I don't really need reasons why lawyers avoid really bad legal arguments explained to me. So, you can't mean this, right?)

Or is your complaint that you think libertarian scholars could get a ruling to set aside the FDA restriction and permit the patient to take drugs saying the Feds can't restrict access by using the Necessary and Proper Clause, but they'd rather win using a different argument?

And further, the reason libertarians don't want to use the argument you suggest is they want a powerful federal government that can overule the states?

I guess it's news to me that strong libertarians consistently favor a really, really, really strong Federal government that over rules the states.

(I'm leaning toward this second interpretation. Or, am I so far off, you really have a third meaning?)

In any case, if you are a lawyer and you think the FDA withholding drugs violates the Necessary and Proper clause, why don't you file an amicus brief suggesting that, in addition to Randy's reasons, the FDA can't deny this because the action wouldn't be necessary and proper?

That can be done, right?

If so, this could presumably allay the danger SCOTUS will find "the right to take action to preserve one's life" in the constitution! ( Excuse me if I'm introducing a strawman, but I'm assuming finding that right is a danger you are worried about. )
12.11.2006 2:36pm
Andrew Hyman (mail) (www):
Lucia,

Sorry if my second comment in the thread was confusing. Consider Roe v. Wade, for example. That was a case in which the federal courts slammed down the states. Texas was hauled into federal court and told what kind of "rights" the Texas legislature had to respect. Then those same rights were easily applied against Congress too, once they had been applied against the states. That's what the ACLU-types would like to do in Abigail Alliance, except in reverse. But the principle is the same, and the result is the same: placing restrictions on both the federal and state governments.

For someone who wants to place retsrictions on both the federal and state governments, the Necessary and Proper Clause would be a lousy tool, because it only applies against the federal government. In my opinion, that's why Professor Barnett is focussing instead on the Ninth Amendment, and why the plaintiffs are focussing on Due Process. The Necessary and Proper Clause would be much more relevant and applicable, but it's not the kind of argument that could then be easily applies against the states.
12.11.2006 2:57pm
lucia (mail) (www):
Andrew,
Ok. I now understand you are saying and argument to overide the FDA's rule based on The Necessary and Proper Clause would be more applicable and relevant.

Could you supply the argument and show why it's a winner? (Either yourself or by way of link to someone elses?) Earlier you simply suggested something like "one could be made". I'd be curious to read it. (BTW. I don't mean that in any sarcastic way. I mean it quite literally.)
12.11.2006 3:37pm
Andrew Hyman (mail) (www):
Lucia, I don't know if the Necessary and Proper Clause argument is a winner or not. All I know is that it's more plausible than a due process or Ninth Amendment argument.

I haven't read the briefs in the Abigail Alliance case, so I don't know if the N&P Clause is mentioned there. The DC Circuit dissent of Judge Griffith did allude to the N&P clause while citing the case of Lambert v. Yellowly, 272 US 581 (1926) which involved congressinoal enforcement of the 18th Amendment.
12.11.2006 3:55pm
Kevin P. (mail):
The Necessary and Proper Clause is an argument for the side of the federal government. Why would the plaintiff in this case use the Necessary Proper Clause?

You seem to be erecting some kind of strawman that states that because they don't use the argument that you want, they must be dishonest. (I am loosely paraphrasing you here).
12.11.2006 4:20pm
Andrew Hyman (mail) (www):
Kevin, if denying experimental drugs to dying patients is clearly not necessary, or clearly not proper, then the Necessary and Proper Clause is an argument that could be made successfully by the plaintiff, just as a Necssary and Proper Clause argument was made (unsuccessfully) by the plaintiffs in Gonzales v. Raich.

Justice O’Connor wrote in dissent in Raich as follows:

Congress must exercise its authority under the Necessary and Proper Clause in a manner consistent with basic constitutional principles. Garcia, 469 U. S., at 585 (O'Connor, J., dissenting) ("It is not enough that the 'end be legitimate'; the means to that end chosen by Congress must not contravene the spirit of the Constitution").


Justice Thomas also wrote in dissent in Raich:

Regulating respondents' conduct, however, is not "necessary and proper for carrying into Execution" Congress' restrictions on the interstate drug trade. Art. I, §8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents' conduct.


The Necessary and Proper Clause argument is not a trivial plaintiff's argument. Whether it should succeed or not depends on the facts of the case, and I'm not venturing an opinion about it. However, in contrast, the Ninth Amendment argument (at least all by itself) is very trivial, for the reasons explained in my first comment in this thread.
12.11.2006 4:54pm
lucia (mail) (www):
Andrew,
I'm confused again. Are you saying any of these two things:

a) Randy and lawyer arguing this person should be permitted to use the drug should adopt the legal argument of the dissenting judge who says the patient shouldn't get the drug? (Basically, Randy and the patients lawyers should just tell the guy to give up and draft a good will?)

b) Judge Griffin suggests the FDA's action may not be necessary and proper based on Lambert? (The way I read the footnote, the judge is saying this type of FDA regulation would be necessary and proper. That's why he rules against Abigail.)

c) When this case gets to the Supreme Court, the single judge dissent which aluded Necessary and Proper that goes against abigail is more likely to to prevail over the two judge ruling which appears to be based on Due Process for the client?

and/or

d) that a ruling saying the Feds can prohibit life saving drugs -- regardless of state action -- somehow reduces federal power vis-a-vis states?

I'm trying to wrap my mind around what exactly you are trying to suggest. Based on what I'm reading, I can't see why anyone who thinks the FDAs rule should be set aside would put forth an argument based on Necessary and Proper.

But, of course, if some lawyer thinks it would help, I guess they can file an amicus brief!
12.11.2006 4:58pm
lucia (mail) (www):
Hhmm... my list of two grew to four as I wrote. . .
12.11.2006 4:59pm
lucia (mail) (www):
Andrew responded to KevinP: However, in contrast, the Ninth Amendment argument (at least all by itself) is very trivial, for the reasons explained in my first comment in this thread.


Andrew,
You posted while I was typing, and now I have a question of clarification. In your response to Kevin, you seem to refer to a reason in your first post. That reason seemed to be that the 9th amendment rights argument is bad because the ninth amendment speaks about rights but doesn't speak of powers.

Amendments 1-8 also speaks of rights and not powers. How does the failure to speak of powers make a 9th amendment rights argument is "trivial"?
12.11.2006 5:09pm
Andrew Hyman (mail) (www):
Lucia,

Neither Judge Griffith nor the DC Circuit majority squarely addressed the Necessary and Proper Clause argument. That's because judges normally don't address arguments that the parties neglect to make. Judge Griffith is the only one who even alluded to the Necessary and Proper Clause, and then only in reference to the 18th Amendment (which has since been repealed).

As I said, a Necessary and Proper Clause argument can be made successfully by a plaintiff. Take U.S. v. Lopez, for example (where Congress attemtped to regulate where people can carry handguns).

It's important to keep in mind, by the way, that the Constitution is not a box of chocolates, as I'm sure you're well aware. It does not prohibit everything bad and protect everything good. For example, it does not require Congress or the states to protect citizens against murder, robbery, or rape. If states want to legalize murder, robbery, and rape, then there's nothing unconstitutional about that. The Constitution mainly sets up a structure for the people to govern ourselves. When activists insist on inserting all kinds of tasty chocolates into the Constitution, it (1) ruins the purpose of the document,(2) runs the risk that we might be stuck with some chocolates that some people find tasty while other people find them allergic, and also (3) turns the judiciary into a political football with each side battling for inclusion of its preferred chocolates.

Now, whether the plaintiff's argument in Abigail Alliance treats the Constitution like a box of chocolates, I cannot say for sure. All I'm saying is that I would find a Necessary and Proper argument a lot more compelling than the arguments that the plaintiffs presented to the DC Circuit, and a lot more persuausive than a Ninth Amendment argument.
12.11.2006 5:12pm
Andrew Hyman (mail) (www):
P.S. Lucia, regarding the Ninth Amendment, a good resource is this one. The original Constitution secured rights in two way: (1) by limiting the powers of the federal government, and (2) by creating exceptions to those powers. There is nothing in the text of the Ninth Amendment to suggest that the "other" rights it protected were of the latter type rather than the former type. On the contrary, the legislative history of the Ninth Amendment is focussed on the former type of right, rather than the latter type.

By its plain language, the Ninth Amendment does not limit how broadly the enumerated powers may be construed, except by prohibiting anyone from using the enumeration of rights to bloat up the enumerated powers.
12.11.2006 5:30pm
lucia (mail) (www):
Andrew:
I disagree that plain reading of the ninth amendment is to limit powers. Plain reading says:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Most people would think the "plain language" reading is that it tells us we retain other rights; the idea that it limits powers would be "not plain reading".

As to your earlier mysterious chocolate discussion explaining the inadequacy of "the constitution as box of chocolates analogy": I agree the constitution is not a box of chocolates. It is also not soft marzipan for Andrew Hyman to press into the shape he wishes. It is also probably not a big jelly donut filled with a sweet delicious surprise.

Does raising a strawman analogy and knocking it down an constitute argument for or against anything?

Andrew, I'm not a lawyer. I don't claim to craft or evaluate a legal arguments. But I can tell when someone has presented no argument at all.
12.11.2006 6:41pm
Andrew Hyman (mail) (www):
Lucia,

If you want to believe that the plaintiffs in U.S. v Lopez won that case by presenting "no argument at all" then you may go ahead and continue believing that. I won't stop you, but the fact is that they won the case by making a Necessary and Proper Clause argument.

As for how the framers of the Ninth Amendment understood the words they wrote, I would think that the words of James Madison introducing the draft Bill of Rights ought to be entitled to some weight:

It has been said, by way of objection to a bill of rights....that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government.


As Madison explained, the original Constitution was understood as follows: "retained" rights and "rights of the people" were the residduum left over after granting power to the federal government. That's all I've tried to explain. Evidently to no avail.
12.11.2006 6:52pm
Andrew Hyman (mail) (www):
By the way, Lucia, you quoted the text of the Ninth Amendment:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."


I have a question for you. Does this amendment allow other factors, besides the enumeration in the Constitution of certain rights, to be construed so as to deny or disparage unenumerated rights?
12.11.2006 7:54pm
ReaderY:

This is an interesting argument, but again, the principle could apply to any situation involving any kind of personal liberty.


I believe the principle does apply universally. And this is precisely why I don't believe judges should have a right to strike down laws on the basis of their own personal beliefs about liberty, as distinct from rights that are actually mentioned in constitutional text.

My argument becomes a reductio ad absurdum only if one is willing to assume that judges should do this as an axiom. Otherwise, it's a legitimate argument against, and hence deserves a better answer.
12.11.2006 9:11pm
ReaderY:

First: Currently, no one is forced to take the placebo or even participate in trials of any sort. People sometimes volunteer when alternate treatments exist. People volunteer for all sorts of reasons. Despite any lack of compulsion, we manage to find volunteers for double blind trials for all sorts of medicines.


I don't think this argument is valid. People currently participate in clinical trials, including the risk of getting a placebo, in large part because they want access to experimental drugs they couldn't get any other way. If people could get those drugs another way -- for example, because they had a right to them -- many people likely would not participate in clinical trials.

It's true that there are other reasons as well -- clinical trials, for example, often give out free medical care. But access to the drug is a principle reason.
12.11.2006 9:18pm
Captain Obvious (mail):
Most people would think the "plain language" reading is that it tells us we retain other rights; the idea that it limits powers would be "not plain reading".

Yes, but the larger the scope of rights, the smaller the scope powers. 100% rights means no government powers; 100% government powers means no rights. That is rather plain.
12.11.2006 9:49pm
lucia (mail) (www):
Andrew Hyman responds to me:> If you want to believe that the plaintiffs in U.S. v Lopez won that case by presenting "no argument at all" then you may go ahead and continue believing that.

Andrew: When I described my reaction to you raising and then demolishing your charming "box of chocolates strawman" -- saying I recognized when someone made no argument at all-- I meant you, Andrew were presenting no argument.

I didn't suggest the plaintiffs in Lopez presented "no argument."

Had I discussed Lopez, I would have said Lopez does not support your claim that one can win a case based on the N&P clause. I googled, found the ruling and read it.

Contrary to your suggestion, their win did not seem to be based on the N&P argument. It was based on the idea that the power to regulate local police forces exceeded congress's powers under the commerce clause. (BTW: The closing paragraphs sound more like a 10th amendment justification than any sort of N&P justification.)

The ruling says this:
Held: The Act exceeds Congress' Commerce Clause authority. First, although this Court has upheld a wide variety of congressional Acts regulating intrastate economic activity that substantially affected interstate commerce, the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have such a substantial effect on interstate commerce. Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly those terms are defined. Nor is it an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under the Court's cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce. Second, §922(q) contains no jurisdictional element which would ensure, through case by case inquiry, that the firearms possession in question has the requisite nexus with interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce. To uphold the Government's contention that §922(q) is justified because firearms possession in a local school zone does indeed substantially affect interstate commerce would require this Court to pile inference upon inference in a manner that would bid fair to convert congressional Commerce Clause authority to a general police power of the sort held only by the States. Pp. 2-19.


If you want to explain to me how "plain reading" would reveal this is based on the never mentioned N&P clause, please do so!


Andrew Hyman asks me:> I have a question for you. Does this amendment allow other factors, besides the enumeration in the Constitution of certain rights, to be construed so as to deny or disparage unenumerated rights?


What factors? Actual enumerated powers? Or public dangers? Or what?

Since you aren't specific, I guess my answer is, "sort of". Though even that answer that depends what you mean by "deny". In my non-legal opinion, plain reading of the ninth (as by a voter asked to ratify might understand the very short text) doesn't permit an unenumerated right to be denied any more than an enumerated one. (e.g.: We can deny free speech in the sense that we can't cry fire in a crowded theater and all that. )

Of course identifying an unenumerated right is more challenging than identifying an enumerated one. Plain reading suggests that, once identified, the unenumerated right may be set aside for the types of reasons we use to justify setting aside the rights under the 1st - 8ths. However, we can't set the right aside for other reasons. That would be to disparage the unenumerated rights relative to the named ones.

========

ReaderY responds to me:> I don't think this argument is valid. People currently participate in clinical trials, including the risk of getting a placebo, in large part because they want access to experimental drugs they couldn't get any other way.


Do all people participate to get access to experimental drugs they can't get any other way? I'm pretty darn sure some volunteers participate for other reasons!

When I said people participate in double blind trials even when they can get the drug outside of trials, I should have said not only "people do" but more specifically, "my mother and many, many other women did".

"People" includes a very large diverse group. "People" participate for many reasons and many do so even when the drugs are available to them.

And even if some only participate to get drugs that are otherwise unavailable, why couldn't we adopt a few of the other options I suggested? Like funding insurance policies for the participants survivors? Given the unproven efficacy of the drug, some people would surely pick the "risk of placebo &insurance" option rather than the "get the drug-no insurance" option.
12.11.2006 11:29pm
lucia (mail) (www):
Andrew Hyman responded to me:> As Madison explained, the original Constitution was understood as follows: "retained" rights and "rights of the people" were the residduum left over after granting power to the federal government. That's all I've tried to explain. Evidently to no avail.


First: Time line.

You do know that quote is Madison explaining why the Constitutions didn't need any bill of rights at all? Others didn't accept his claim, told him they wanted a bill of rights anyway, Madison lost that argument, and those insisting on a bill of rights won? So, that quote can't really explain what the bill of rights guarantees.

It's explaining Madison why we don't need amendments 1-10 at all! (Turns out he was wrong.)

Ultimately, the ninth (and others) were added because people ratifying the constitution feared Madison's view of limited powers wouldn't prevail, and insisted the constitution specifically guarantee rights. The ninth was specifically added becase people ratifying the constitution believed naming 1-8 might cause later congresses and courts to say 1-8 were an complete list and thereby deny unnamed rights?

Second: If all right not listed in powers are retained (as Madison initially suggested), why do you think Randy's argument that one has the right to take life saving medicine is weak? Is there a power saying people can't take that sort of medicine?
12.11.2006 11:43pm
Andrew Hyman (mail) (www):
Lucia,

You're correct that the majority opinion in Lopez didn't explicitly say the words "necessary and proper." Nevertheless, the author of the Lopez opinion subsequently explained as follows:

In Lopez, we considered the constitutionality of the Gun-Free School Zones Act of 1990.... We explained that "Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce"....This power derives from the conjunction of the Commerce Clause and the Necessary and Proper Clause. ....We held in Lopez that the Gun-Free School Zones Act could not be sustained as an exercise of that power.


Anyway, I'm glad you agree that the Ninth Amendment "sort of" allows other factors, aside from the enumeration in the Constitution of certain rights, to be construed so as to deny or disparage unenumerated rights. I submit that the enumeration of powers is one such factor.

For example, the Constitution specifically says that Congress has power to regulate interstate commerce, so that entitles a court to deny a purported right to be free from commercial regulation. The point being: if a statute is authorized by the enumerated powers, then there is no violation of Ninth Amendment rights.

You asked:

If all rights not listed in the [enumerated] powers are retained (as Madison initially suggested), why do you think Randy's argument that one has the right to take life saving medicine is weak? Is there a power saying people can't take that sort of medicine?


The FDA is seeking to justify its power to withold such medicine on the basis of the Necessary and Proper Clause in combination with the Commerce Clause. Randy's argument is weak because he's not disputing that meaning of those two clauses. Instead, he's dragging in the Ninth Amendment, which really would only be relevant if the FDA were claiming that the unenumerated nature of the right in question defeats the right in question.
12.12.2006 12:46am
David M. Nieporent (www):
If you want to believe that the plaintiffs in U.S. v Lopez won that case by presenting "no argument at all" then you may go ahead and continue believing that. I won't stop you, but the fact is that they won the case by making a Necessary and Proper Clause argument.
No, they didn't. (Only one judge, Thomas, in a concurrence, even mentioned the N&P clause, and that only to reject such an argument.) In fact, it's not even clear to me what you think "a Necessary and Proper Clause" argument would be. As you yourself pointed out, McCulloch states that the N&P clause is an enlargement of federal power, not a restriction on it. How can someone arguing for a restriction on federal power make an argument based on the existence of additional federal powers? The Necessary and Proper Clause would be an argument raised by opponents of Randy's position, not advocates of it.

Lopez was decided upon the notion that carrying guns near schools was entirely outside the scope of the Commerce Clause. To the extent that the N&P clause had any relevance, it would be to defeat that notion, not to support it.

The FDA is seeking to justify its power to withold such medicine on the basis of the Necessary and Proper Clause in combination with the Commerce Clause.
Exactly! That's the FDA's argument. Why on earth would Randy want to make such an argument?
12.12.2006 6:26am
PersonFromPorlock:

In other words, it was PFP, and not I, who claimed "that there is no difference between [forbidding] terminally ill patients [access to potential cures] and requiring people to have their cars inspected once a year." If you think that this is an idiotic claim we are in agreement.

I hardly claimed that; I did claim that both acts are grounded in an assumption that the 'average' person can't be expected to act wisely and that this assumption is hard to square with the nominal deference to 'the People' asserted by lawmakers.

On another issue: doesn't the 'Necessary and Proper' clause require that any act under the Constitution be effective? Granted, the Court will lean over backwards to accommodate Congress but it is absurd to claim that a law which accomplishes nothing, even if nominally in support of a delegated power, is 'necessary'.
12.12.2006 10:43am
lucia (mail) (www):
Andrew:
First: For the record, you seem to alternate between suggesting a) the plaintiff should get his medicine based on a rather unusual N&P limitation claim or b) the patient should not get his medicine based on the commerce clause.

On the one hand, your opinion on the final outcome doesn't really affect the falsity or oddity of your claims. On the other hand, the fact that you don't state your position is making it very difficult to understand what you think the commerce clause, the N&P clause and the ninth amendment do or say.

Now: Are you seriously now trying to prove the meaning of Lopez using O'Conners dissent in the writ of certiorari from Raich? Surely if the other justices had agreed with that interpretation of N&P when signing the Lopez ruling, then O'Connor would have inserted that language in the Lopez ruling. Surely, if they'd agreed with her N&P theories, they'd have agreed with her in and not granted the writ. Or, had the writ been granted, they would have agreed with her in Raich. In that case, her N&P idea and language would now be in a ruling, not a dissent.

Randy's argument is weak because he's not disputing that meaning of those two clauses. Instead, he's dragging in the Ninth Amendment, which really would only be relevant if the FDA were claiming that the unenumerated nature of the right in question defeats the right in question.

Oh? Wouldn't Randy's argument be both relevant and necessary if the FDA absolutely denies the right in question exists at all? Which they do?

Randy doesn't fill his argument with long paragraphs descrbing a legal argument that has been introduced but never prevails and you tell us that makes Randy's argument "weak"?

Andrew wrote> "I submit that the enumeration of powers is one such factor.

For example, the Constitution specifically says that Congress has power to regulate interstate commerce, so that entitles a court to deny a purported right to be free from commercial regulation. The point being: if a statute is authorized by the enumerated powers, then there is no violation of Ninth Amendment rights. "



Andrew. We did this before. I asked before: What does this point have to do with this case?

The FDA isn't claiming the right to medical self defense doesn't exist because of the commerce clause. No one is claiming that. They are claiming the right doesn't exist, period. Nothing to do with the commerce clause.

As to the case you cite to support your view about what's not in the ninth amendment: when I read the text of that ruling it suggests something rather narrow.

In the postal regulation-porn case you cite, the enumerated power was to establish a postal system; this would seem to imply the power to make rules governing that postal system.

SCOTUS also found the porn did not have free speech protection. Once freedom of speech was set aside, the claimed "right" would seem to be "the individual liberty to ignore rules and regulations governing the US Postal Service."

It's perfectly logical to say, "Well, since people delegated the power to establish a postal system along with postal rules and regulations, then those same people writing and ratifying the ninth amendment must not have thought the individual liberty to ignore postal rules was one of the 'unenumerated' rights."

So yes, if a power is granted very explicitly, the right to be free from that power must not be one of the unenumerated rights.

How does that morph into: "Since people ratified a constitution delagating the power to regulate interstate commerce, they must not have thought the right to take life saving medicine is one of the 'unenumerated rights'"? (My answer: it doesn't.)
12.12.2006 11:24am
Andrew Hyman (mail) (www):
Unfortunately, I probably won't have any more time to discuss this today. I'll now respond briefly to the recent comments.

David Nieporent, in Lopez the plaintiffs argued that a statute telling people where they can carry handguns was not "necessary and proper" in order for Congress to regulate interstate commerce. Although the Court's opinion in Lopez didn't explicitly mention that N&P clause, that's what was at issue. Chief Justice Rehnquist subsequently explained as much, and I quoted him in the comment immediately preceding yours, which you surprisingly don't acknowledge. He said:

[P]ower derives from the conjunction of the Commerce Clause and the Necessary and Proper Clause. ....We held in Lopez that the Gun-Free School Zones Act could not be sustained as an exercise of that power.


If you want to insist that the N&P Clause had nothing to do with Lopez, then fine. The plaintiffs in Abigail Alliance could instead argue that yanking experimental drugs out of the hands of dying patients is not part of the express power to regulate interstate commerce, and I'd agree with them about that. Surely you'd agree that that plaintiff's argument prevailed in Lopez.

The point is, when the feds argue that they have power to do something, a plaintiff can argue that the enumerated powers do not include such power. It's rather straightforward. This argument was also made by the dissenters in Raich, and if that argument was good enough for those dissenters then I don't see why it's not good enough for the plaintiffs in Abigail Alliance.

Lucia, I never suggested that "the patient should not get his medicine based on the commerce clause." On the contrary, I don't think the express Commerce Clause is sufficient to justify the position of the FDA in Abigail Alliance. That's why I think the FDA would have to rely (if possible) on the N&P Clause. I don't understand why you would attribute to me the idea that "the patient should not get his medicine based on the commerce clause." I never said or implied that.

Likewise, you spent several paragraphs discussing a postal/porn case that you say I cited. But Lambert involved the 18th Amendment, Lopez involved firearms, and Raich involved pot. Perhaps you are you referring to one of the cases that one of the justices cited, but it wasn't a case that I know anything about.

Regarding Justice O’Connor, Lucia, you ask, “Are you seriously now trying to prove the meaning of Lopez using O'Conners dissent in the writ of certiorari from Raich?” Again, you’re putting words in my mouth that I never said. I think you must be confused about what a writ of certiorari is. I quoted above from Justice O’Connor’s dissent in Raich, not from a dissent from the granting of a writ of certiorari. It seems like, again and again, you’re attributing to me things I didn’t say. You say, “Surely if the other justices had agreed with that interpretation of N&P when signing the Lopez ruling, then O'Connor would have inserted that language in the Lopez ruling.” I specifically said above that I was quoting from a dissent in Raich --- NOT quoting from a ruling of the Court, and NOT quoting from an opinion about whether to grant cert. In the same comment, I quoted Justice Thomas in the same way. And, the writ WAS granted in Raich, contrary to what you said.

Anyway, there's much other stuff I have to do today, so I probably won't be commenting further.
12.12.2006 12:48pm
lucia (mail) (www):
Andrew: Your Renquiet quote is actually written by O'Connor. The fuller quote says:


This power derives from the conjunction of the Commerce Clause and the Necessary and Proper Clause. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 585—586 (1985)


NB: Garcia v San Antonio is not the same as "Lopez"!

The point is, when the feds argue that they have power to do something, a plaintiff can argue that the enumerated powers do not include such power. It's rather straightforward.

Yes. And it's not an argument that "Necessary and Proper" restricts that power!

This argument was also made by the dissenters in Raich, and if that argument was good enough for those dissenters then I don't see why it's not good enough for the plaintiffs in Abigail Alliance

I do: Because the plaintiffs wish to prevail not lose!

That's why I think the FDA would have to rely (if possible) on the N&P Clause. I don't understand why you would attribute to me the idea that "the patient should not get his medicine based on the commerce clause." I never said or implied that.


Firt: I was not attributing that view: I was asking.

Second: So you, David and I all all agree the FDA would want to use the N&P clause to support its case the plaintiff should not get the drugs. What is not at all clear is how you think the N&P clause would be used to buttress the case the plaintiff gets the drugs.

At times you do seem to suggest that he would be blocked by the commerce clause and do not explain how the N&P clause overcomes the commerce clause in this case. (Plus, you posted that whole mysterious "box of chocolates things" which suggested you were trying to imply may be the plaintiffs don't get what they wan't.)
12.12.2006 2:06pm
Andrew Hyman (mail) (www):
Pardon me. C.J. Rehnquist concurred in (rather than authored) the statement that I blockquoted at 12:48pm.
12.12.2006 2:19pm
lucia (mail) (www):
Shoot! I hit post when I wanted to hit block quote. Sorry for the more than usual number of typos above and the break.


Andrew asked me:

Likewise, you spent several paragraphs discussing a postal/porn case that you say I cited. But Lambert involved the 18th Amendment, Lopez involved firearms, and Raich involved pot. Perhaps you are you referring to one of the cases that one of the justices cited, but it wasn't a case that I know anything about.


No. You also cited Roth as your justification for your interpretation of the ninth amendment: see your comment.

I quoted above from Justice O’Connor’s dissent in Raich, not from a dissent from the granting of a writ of certiorari.


Yes, you're right. Sorry, I misunderstood a heading. I had to google to find the text of this comment in a dissent by O'Conner. The document includes the words
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
. It's likely true I probably don't have a clue what a writ is -- I only know "a writ" is not a ruliing. I assumed if the document says "On Writ Certiori", it was about the writ of certiorary not a ruling on the case. Sorry about that!

It seems like, again and again, you’re attributing to me things I didn’t say.

Andrew, I don't mean to attribute things you didn't say, and honestly other than one mistake, I don't think I did.

You cited Roth, You forgot you did so. That doesn't mean you didn't say it.

I did mistake the dissent from the ruling for a writ because the words "writ" appeared.

I know you claim you said where the quote came from and so, assume I must be confused in bad faith. However, if you scroll up, you'll read what you really said was, "Nevertheless, the author of the Lopez opinion subsequently explained as follows:" (The quote follows".

For all I knew, she said it in a television interview! I had to google the quote to find it. Once I found it, I thought "Says writ. Is writ." Dumb mistake, but a natural one for a non-lawyer.

I agree earlier you did post another O'Connor quote well back in comments, but when I said "now", I was commenting on your most recent comment-- not one way, way back on the thread.

For the record, I don't think I said a writ was not granted in Raich. I said O'Connor wrote a dissent to the writ. ( It would not surprise me to learn I was incorrect there, since I mistoke the ruling for the writ for reasons I already explained.)

Anyway, I'm not trying to be a butthead (though I may be succeeding.) I am trying to intepret some of the arguments you are making. If it's wasting your time, I understand, and thank you for taking the time to make them.
12.12.2006 2:52pm
Andrew Hyman (mail) (www):
OK, Lucia, I think we've pretty well exhausted the topic. Thanks for the discussion. I see now that you were referring to Roth (it's always helps to say the name of the case when you talk about it).
12.12.2006 3:05pm
lucia (mail) (www):
Andrew:
I agree this has likely run it's course! Thanks for your patience responding as much as you did.
12.12.2006 3:22pm