IJ’s Bone Marrow Case: Judical Engagement, Not Activism

Jeff Rowes has a fantastic new Post on Volokh: IJ’s Bone Marrow Case: Judical Engagement, Not Activism.

Judicial engagement provides meaningful rational basis review (call it rational basis with “bite,” if you’d like) without opening the door to activism, amorphous “privacy”-type rights, or any other personal preferences of judges.

The constitutional interest at stake in the bone marrow case is rooted bothin the natural liberty the people retained in ratifying the Constitution and in the longstanding historical practices of Americans.  Until 1984, it had never been illegal to participate in safe, accepted, lifesaving medical treatment just because someone involved received compensation.  No one has to squint at penumbras cast by, or emanations from, the various enumerated rights to identify the right our clients are asserting in the bone marrow case.  Not only is there a substantial historical basis for this very specific constitutional interest (as opposed to nebulous “rights” that could lead to anything), its existence is consistent with the intuitions of most people about what legitimate constitutional interests look like.  As I said yesterday, most of us would surely agree that there would be a constitutional aspect to a law criminalizing safe, effective, lifesaving medical treatment for the aged or the seriously ill as part of an effort by government-run healthcare to cut costs.

IJ’s win in Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) illustrates judicial engagement.  Tennessee violated the right of our clients to earn an honest living (an unenumerated right long recognized by the Supreme Court and protected by the Privileges or Immunities Clause of the Fourteenth Amendment) by restricting casket sales to licensed funeral directors.  The state proffered a host of purported health and safety interests this restriction might serve.  But the facts showed that the law didn’t plausibly advance any of those and all the law accomplished was protecting a cartel of funeral directors from competition.  Public power for purely private gain isn’t a legitimate government interest and that law was rightly invalidated.  Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), is similar in that the facts showed that the government’s pretextual prohibition of a permit for a group home for the mentally handicapped did not credibly advance any legitimate government interests the city proffered.

Let’s apply judicial engagement to the bone marrow case.  We should begin with a strong presumption of constitutionality, but that should be tempered by a willingness to look at the facts and measure the government’s justifications against a standard of at least basic plausibility.  What are the legitimate government interests NOTA is trying to advance?  We know a few for sure.  Congress didn’t want living donors getting compensated for invasive organ surgery because doing so puts people at what Congress decided is too much risk.  Congress also didn’t like that organs don’t regenerate.  Finally, Congress didn’t want organ markets.


I discuss applications of rational basis with bite in my forthcoming article, titled Equal Protection from Eminent Domain. IJ has been promoting the notion of judicial engagement, as opposed to the pejorative judicial activism. I buy the distinction.

Posted in Institute for Justice, Olech, Eminent Domain. Comments Off on IJ’s Bone Marrow Case: Judical Engagement, Not Activism

NAMUDNO Is Over SCOTUSBlog Reports

Lyle Denniston at SCOTUSBlog Reports NAMUDNO case is over

A three-judge U.S. District Court this week approved an agreement to end a broad constitutional challenge to the Voting Rights Act’s Section 5 — a challenge that at one time had appeared likely to succeed in the Supreme Court.  By attaching their signatures to a proposed consent decree on Tuesday, the three judges put into effect an agreement that allows a small Texas utility district to come out from under Section 5 coverage, and scuttles, for now at least, its constitutional arguments against that provision.  No objections to the agreement had been filed since it was put before the District Court Oct. 7.

A post discussing the consent agreement is here. In U.S. District Court, the case is Northwest Austin Municpal Utility District No. One v. Holder (06-1384).

Section 5 requires state and local government units that had a priority history of racial discriminaton in voting to get clearance in Washington to make any changes in their election laws or procedures.  The Texas utility district (sometimes known as “NAMUDNO,” took its constitutional challenge to the Supreme Court last Term; the Court decided it by giving a broader reading to the provision that allows some government units to “bail out” from Section 5.  That is what NAMUDNO has now been allowed to do, after government findings that it has not discriminated in voting at least for the past ten years.

The three-judge Court was composed of Circuit Judge David S. Tatel and District Judges Paul L. Friedman and Emmet G. Sullivan.   That Court had rejected the constitutional challenge to Section 5; the case then went on to the Supreme Court, ending without a constitutional ruling.

I suppose we will have to wait until the Supreme Court actually takes on this issue, rather than punting it on avoidance grounds.

Posted in Uncategorized. Comments Off on NAMUDNO Is Over SCOTUSBlog Reports

Greenbag Strikes Again! Chief Justice Roberts Baseball Card

For those of you unfamiliar with the Greenbag 2d. it is a fantastic publication run by Professor Davies at George Mason. Perhaps even cooler than the articles are the chachkas! They make Supreme Court Bobbleheads!

And now, a commemorative baseball card of Chief Justice Roberts!


Posted in Uncategorized. Comments Off on Greenbag Strikes Again! Chief Justice Roberts Baseball Card

New Justice Scalia Biography- American Original. The Life and Constitution of Supreme Court Justice Antonin Scalia, by Joan Biskupic

Check it out on  Amazon. It will be released on November 10, 2009!

I just pre-ordered my copy.

Posted in Uncategorized. Comments Off on New Justice Scalia Biography- American Original. The Life and Constitution of Supreme Court Justice Antonin Scalia, by Joan Biskupic

Note to Conservatives: If ObamaCare is Unconstitutional, so are most Federal Drug Laws

It really irks me that Conservatives have suddenly discovered the doctrine of enumerated powers, now that the Federal Government is about to impose a huge Liberal agenda.

The same powers Congress will use to justify Obamacare authorize all federal drug laws.

If you think that health care is not interstate commerce, then growing marijuana plants in your backyard is certainly not interstate commerce. See Gonzales v. Raich.

With the exception of drugs that are actually transported interstate, banning the possession of narcotics is no less “interstate commerce” than mandating health care. State drug laws are constitutionally fine.

Conservatives like drug laws, but are opposed to health care mandates. I would like consistency from the Right, but I doubt it is possible.

What does G-Mail know about you? Check the Google Dashboard

Now Google allows you to figure out all of the pieces of information they know about you through your Google Dashboard.

I predicted about 2 years ago that Google would be a driving force in aggregating all information about a  person’s Internet persona. This is exhibit A.

While it is currently private, I’m sure some Web 2.0 Exhibitionists would not mind making some of their social prowess public.

I had also predicted that Google could search through its Street View application, and by using simple facial recognition technology ,locate a user in their maps database. Though Google ultimately blurred faces, I can imagine this technology could easily be used to accomplish this end.

Check out this YouTube video explaining it.

Posted in Omniveillance. Comments Off on What does G-Mail know about you? Check the Google Dashboard

Podcast: Posner and Breyer on Shakespeare

From the University of  Chicago:

The University of Chicago Law School’s “Shakespeare and the Law” conference brought together thinkers from law, literature, and philosophy to investigate the legal dimensions of Shakespeare’s plays. Participants explored the ways in which the plays show awareness of law and legal regimes and comment on a variety of legal topics, ranging from general themes, such as mercy and the rule of law, to highly concrete legal issues of his time. Other papers investigated the subsequent influence of his plays on the law and explored more general issues concerning the relationship between law and literature.

The keynote session of the conference featured Justice Stephen Breyer, Judge Richard Posner, Ernst Freund Distinguished Service Professor of Law and Ethics Martha Nussbaum, and Frank L. Sulzberger Distinguished Service Professor Richard Strier (English, University of Chicago). It was recorded May 15th, 2009.

Download the podcast here.

Posted in Uncategorized. Comments Off on Podcast: Posner and Breyer on Shakespeare