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

November 5th, 2009

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.