Bush's Judges Matter to Jane and Joe Sixpack

Last month, a New York Times Magazine cover story took an in-depth and valuable look at judicial radicals. Like Janice Rogers Brown and other court nominees George W. Bush and Bill Frist are trying to ram through the Senate, these professors and think-tankers pass themselves off as conservatives. Yet they are leading what the writer called an "increasingly active" movement that seeks deregulation "in a manner not seen since before Franklin D. Roosevelt's New Deal." It's a movement that even Supreme Court Justice Antonin A. Scalia couldn't abide.

The article was impressive, partly because of the many quotes gathered from the radicals by George Washington University law professor Jeffrey Rosen. But at the risk of being accused of complaining that he didn't write the article I would have written, I'll say that very real issues of life and death for vast numbers of Americans were lost or obscured in the article despite the spaciousness of 7,265 words.

The judicial radicals want to abolish federal regulatory agencies. If they succeed, the consequences would not long be tolerated by a civilized and democratic society: ideologically imposed, needless, massive, and continuing death, injury, sickness, and environmental destruction. Yet in the article, these consequences were submerged, if not drowned in a sea of abstractions.

In arguing my case, I will focus on the Food and Drug Administration. But similar cases could be made regarding numerous other agencies, including the Occupational Safety and Health Administration, the National Highway Traffic Safety Administration, and the Environmental Protection Agency.

I was troubled, too, because Rosen, who is also legal affairs editor at The New Republic, didn't so much as mention a 19th-century Supreme Court ruling on which the judicial radicals implicitly rely. No wonder; it's an extreme example of judicial activism.

First, though, a brief recap of the "extreme thesis" that Rosen, wrote, derives from a "legal philosophy far more radical in its implications than anything entertained by Antonin Scalia, the court's most irascible conservative."

The thesis: "[A]ll individuals, [my italics, for reasons to be made clear] have certain inherent rights and liberties, including economic liberties, like the right to property [that] are protected by the United States Constitution." An individual's [my italics] right to property can be violated in various ways. One is "governmental regulation that reduces its value" without the "just compensation" required by the Constitution's Takings Clause.

The thesis and the philosophy are those of Richard A. Epstein, a University of Chicago law professor and a leader of the Constitution in Exile movement. His "simple theory of governance," Epstein wrote in an autobiography, "could be expanded to cover ... all regulations [my italics]. ... It is also the recipe for striking down the New Deal."

A final preliminary note: Rosen recalled that Epstein and Scalia had clashed in 1984. Scalia "defended the view that judges should restrain themselves from overturning legislation in the name of rights or liberties not clearly and expressly enumerated in the Constitution," Rosen wrote. '''Every era raises its own peculiar threat to constitutional democracy,' he said. 'The reversal of a half-century of judicial restraint in the economic realm' -- Epstein's stated project -- 'comes within that category.'''

In the late 1930s, 107 Americans died after drinking "Elixir of Sulfanilamide," a chemical relative of a radiator antifreeze marketed as a medicine. As a result, the U.S. Congress enacted the Food, Drug, and Cosmetic Act of 1938. Thereafter, anyone wanting to sell a prescription drug had first to demonstrate safety for its intended use. If the FDA would not be persuaded, the drug that might have become a property of high value became a property of far lesser value. Thus did the law legalize government "takings" of a drug manufacturer's property. Public health and safety trumped private compensation.

Shouldn't Epstein tell us straight out whether, had he been
around, he would have opposed the 1938 law? Same question for Janice
Brown, Bush's candidate for the Court of Appeals for the District of
Columbia, who has called the New Deal a "socialist revolution." Same
question for William Pryor Jr. , William Myers III, and other Bush
court nominees. Same question for other advocates of striking down
the New Deal, and for two allied groups, each funded almost entirely
by corporations, right-wing ideologues, and their foundations.

The first allied group consists, Rosen wrote, of "dozens of self-styled 'freedom-based' public-interest law firms that bring cases in state and federal courts, including the Supreme Court." The second consists of multitudinous think tanks that tirelessly sell -- to the press and public -- happy-talk propositions with dubious links to real life. One they've hawked for decades is: New drugs are better because they're new. Another Brooklyn-Bridge notion was pushed by Michael Greve of the American Enterprise Institute. Quoting Rosen: "The 'modern, vibrant, mobile' and global economy of the 21st century, he [Greve] argued, is competitive enough to regulate itself in most areas." The pharmaceutical industry regulating itself? The oil industry? (ExxonMobil, by the way, gave AEI $960,000 between 2000 and 2003, and its chairman and CEO is vice chairman of AEI, Mother Jones reports in its current issue.)

Twenty-two years after the Food, Drug, and Cosmetic Act became law, the U.S. licensee of a German drug maker applied to the FDA for approval to market thalidomide, a prescription sedative-tranquilizer widely used in other countries. Stubbornly doubting its safety, and resisting fierce pressures from the licensee, an agency medical officer, Dr. Frances Kelsey, used the law to prevent sale of thalidomide. Later, it was discovered that several thousand foreign women who swallowed thalidomide during the first trimester of pregnancy gave birth to infants without arms, legs, or any limbs at all. Meanwhile, in a promotional stunt, the licensee had given physicians away 2.5 million so-called "experimental" thalidomide pills, causing 10 American infants to be born with seal-like flippers instead of arms and legs.

Congress responded by enacting the Kefauver-Harris Amendments of 1962. These required substantial pre-marketing scientific evidence of effectiveness as well as safety in the proposed use. This further deprived a drug manufacturer of property without compensation.

An additional deprivation resulted from the amendments' limitation on speech. Specifically, advertising and promotion of an approved medicine had to conform to the official labeling (speech the government had vetted or censored). Absent this requirement today, for example, ads for Vioxx, which has caused an estimated 88,000 to 139,000 heart attacks and strokes, could assert that the painkiller does not cause heart attacks and strokes. Thus did the requirement reduce the value of value of the manufacturer's property -- again, without compensation.

Will the judicial radicals, corporate-funded law firms, and think tanks say flat-out whether they would have opposed, and would now repeal, Kefauver-Harris?

The amendments did not reach medical devices, even those designed to do what drugs do. For example, Kefauver-Harris covered oral contraceptives but not intrauterine contraceptive devices. In 1971, a manufacturer began to sell an IUD called the Dalkon Shield. It would be implanted in an estimated 2.2 million American women. The manufacturer advertised and promoted the Shield to physicians and women as "modern, superior"; "second generation"; and "safe." Actually, it was so unsafe as to cause a catastrophe without precedent in medicine and law. Hundreds of thousands of women suffered needlessly. In my 1985 book At Any Cost/Corporate Greed, Women, and the Dalkon Shield, I wrote:

Nearly all suffered life-threatening forms of infections known as pelvic inflammatory disease (PID). In the United States alone, PID killed at least eighteen women who had been wearing Shields. Most of the infections impaired or destroyed the women's ability to bear children.

Not only was the Shield unsafe, it was surprisingly ineffective. The number of wearers who became pregnant with the devices in place was on the order of 110,000, or 5 percent -- a rate nearly five times the one claimed in advertising and promotion to physicians and women, and a rate sharply higher than that for many other IUDs.

More than 300,000 women filed claims in the resulting bankruptcy proceedings. In the 1990s, nearly $3 billion was awarded to more than 200,000 of them.

While the FDA couldn't block defective medical devices from entering the market, it did have authority to seek a court order to block their shipment in interstate commerce and thus to seize property without compensation. Knowing this legal sword was hanging over it, and long before the full toll became known, the manufacturer had "voluntarily" -- and belatedly -- withdrawn the Shield from sale.

Congress, behind the curve as usual, responded. To regulate medical devices much like medicines -- meaning, to legislate yet more "Takings" -- Congress enacted the Medical Devices Amendments of 1976. Will the judicial radicals and the law firms and think tanks tell us plainly whether they would have opposed, and would now repeal, the Medical Device Amendments? Would they have left the door open more takings of life, health, and safety to prevent more takings of property?

The judicial radicals find it convenient to avoid discussion of a Supreme Court interpretation of the Fourteenth Amendment, upon which their case depends. It was an interpretation that Justice Hugo L. Black would term "revolutionary." Ratified in 1868, the amendment declares that no state shall deprive "any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Eighteen years after ratification, the Supreme Court had before it Santa Clara County v. Southern Pacific Railroad. The issue was whether the Amendment's guarantee of equal protection barred California from taxing property owned by a corporation differently from property owned by a human being. The Court ruled that a corporation -- a paper entity -- is a "person" or, as the judicial radicals often have it, an "individual."

Chief Justice Morrison R. Waite announced the birth of corporate personhood with a thunderbolt proclamation:

"The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a state to deny any person the equal protection of the laws, applies to these corporations. We are all of the opinion that it does."

In 1938, Black eviscerated Waite's rationale, albeit in a dissenting opinion. "Neither the history nor the language of the Fourteenth Amendment justifies the belief that corporations are included within its protection," Black wrote in Connecticut General Life Insurance Co. v. Johnson. He continued:

"Certainly, when the Fourteenth Amendment was submitted for approval, the people were not told that [they were ratifying] an amendment granting new and revolutionary rights to corporations. The history of the Amendment proves that the people were told that its purpose was to protect weak and helpless human beings and were not told that it was intended to remove corporations in any fashion from the control of state governments. The Fourteenth Amendment followed the freedom of a race from slavery. ... Corporations have neither race nor color."

Nearly 90 years after Santa Clara, the high court took a polar-opposite approach to Roe v. Wade. The justices were fully briefed. They heard oral arguments. They long deliberated. In the end, they decided that in the first trimester of pregnancy a fetus is not a "person" within the meaning of the Fourteenth Amendment.

"Originalists," Rosen wrote, "don't like interpreting the Constitution in light of present-day social developments and are generally skeptical of constitutional rights -- like the right to have an abortion -- that don't appear explicitly in the text of the Constitution." This being the case, will the originalists, judicial radicals, and others who are denouncing Roe three decades after it was handed down reconcile their denunciations with their silence on Santa Clara?

In the 1980s, the Senate rejected President Ronald Reagan's nomination of Judge Robert H. Bork to the Supreme Court. Bork denounced Roe as "a wholly unjustified usurpation of state legislative authority." Was Santa Clara a wholly unjustified usurpation of state legislative authority? The Senate Judiciary Committee did not ask Bork that question. And it's a question rarely raised, either, by those who elevated Bork to enduring martyr-hero status.

My point is not that corporations don't have certain rights; they do, and should have. Nor does it matter to my argument whether Santa Clara was essential to the country's economic growth or whether Roe was rightly or wrongly decided. Rather, the problem is that the judicial radicals persist in defining a corporation as a person -- an individual -- while almost never admitting two things.

First, they are relying on the judicial arrogance that drew no distinction between the "life, liberty, and property" of a corporation and the "life, liberty, and property" of flesh and blood. Second, a corporation is not owed every right accorded to a human.

What drives the judicial radicals? Is it protecting the property of a real person? Or is it protecting the property of an "individual" who can neither go to bed hungry nor wear a soldier's uniform? Will they claim that corporate personhood was the intent of the Framers of the Fourteenth Amendment? They should tell us.

A final important matter the judicial radicals don't care to talk about. In the preamble to the Constitution, the Founding Fathers, seeking "to form a more perfect Union," set out fundamental goals of "We the People of the United States." One was to "promote the general Welfare."

To promote the general welfare is truly conservative. Yet judicial radicals promote the private welfare of corporations as if it and the general welfare of the people were, nearly always, one and the same. They are nothing of the kind.

Morton Mintz, a former chair of the Fund for Investigative Journalism, reported the thalidomide and Dalkon Shield stories for The Washington Post and, also for the newspaper, covered four terms of the Supreme Court. He is a former chair of the Fund for Investigative Journalism.