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.)

The Ninth Amendment Means What it Says: Whenever I blog about the Ninth Amendment, there are always respondents offering contrary interpretations. In response to my Rule of Law column, In RE: Life or Death, in Saturday's Wall Street Journal, several commenters disputed the relevance of the original meaning of Ninth Amendment to a federal regulation restricting access to experimental drugs to terminally ill patients. So did two contributors to National Review On-Line, Ed Whelan and Matthew Franck. While their interpretations are not unreasonable, I believe they do not line up with the available evidence. Ed relies on Tom McAffee's entry in The Heritage Guide to the Constitution.

Resolving this dispute over original meaning highlights the limitations of blogging and the need for long-form legal scholarship. The competing models of original meaning must be carefully defined and then comprehensively compared with the available evidence of original meaning to see which model or models is supported and which is undercut by the available evidence. There I do consider McAffee's interpretation and show how it is directly contradicted by the evidence.

Fortunately, I have done just this is a newly published article in the Texas Law Review, The Ninth Amendment: It Means What it Says. You can download it here. Here is the abstract:

Although the Ninth Amendment appears on its face to protect unenumerated individual rights of the same sort as those that were enumerated in the Bill of Rights, courts and scholars have long deprived it of any relevance to constitutional adjudication. With the growing interest in originalist methods of interpretation since the 1980s, however, this situation has changed. In the past twenty years, five originalist models of the Ninth Amendment have been propounded by scholars: the state law rights model, the residual rights model, the individual natural rights model, the collective rights model, and the federalism model. This Article examines thirteen crucial pieces of historical evidence that either directly contradict the state law and residual rights models, undercut the collective rights model, or strongly support the individual natural rights and federalism models. Evaluating the five models in light of this evidence establishes that the Ninth Amendment actually meant at the time of its enactment what it appears now to say: the unenumerated (natural) rights that people possessed prior to the formation of government, and which they retain afterwords, should be treated in the same manner as those (natural) rights that were enumerated in the Bill of Rights. In short, the Amendment is what it appears to be: a meaningful check on federal power and a significant guarantee of individual liberty.

I will add one cautionary note to avoid confusion. The article primarily concerns the original meaning of the text. It is not directly about judicial review. Unsurprisingly, none of the amendments in the Bill of Rights directly mentions judicial review, although the Ninth Amendment comes very close, given that it provides a rule of construction ("shall not be construed") that, presumably, is directed at all branches and levels of government, including the courts. If you are interested in the issue of judicial review you should look at my piece, The Original Meaning of the Judicial Power.

(civil comments only please)