This case presents the question whether the Constitution provides terminally ill patients a right of access to experimental drugs that have passed limited safety trials but have not been proven safe and effective. The district court held there is no such right. A divided panel of this Court held there is. Because we conclude that there is no fundamental right “deeply rooted in this Nation’s history and tradition” of access to experimental drugs for the terminally ill...we affirm the judgment of the district court.The quotation is from a post by Jonathan Adler at The Volokh Conspiracy. Adler's "conspiratorial" colleague, David Bernstein, vents his rage in a later post. He begins with a passage from the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.Bernstein continues:
The right to life, then, is indeed a "fundamental" right, recognized as such at the nation's birth. Our founding document states that government exists to secure this right, and that any government that becomes destructive to this right is illegitimate. You can't get much more "fundamental" than that.Which is about a logical as saying that a vacation in Tahiti is a fundamental right because it brings Happiness.
Seriously, Bernstein's excesses aside, I'm sympathetic to the view that the majority in Abigail Alliance ought to be drawn and quartered.
Actually, who ought to be drawn and quartered are those majorities of the U.S. Supreme Court that beginning in 1905 -- and especially during the New Deal -- upheld the power of the central government to regulate just about anything done anywhere by anyone (unless it involves abortion and homosexuality). The source of that power is -- you guessed it -- the so-called Commerce Clause (Article I, Section 8, Clause 3 of the Constitution), which reads
The Congress shall have Power...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes....And so it goes. The D.C. Circuit simply followed precedent, as all "good" subordinate courts must do.
Related post: The Erosion of the Constitutional Contract
