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‘The Constitutional Guarantee of Liberty Deserves More Respect’

But how much more?

12:00 AM, Apr 20, 2012 • By ADAM J. WHITE
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The closest she has come to staking a position on this critical question seems to have been in her 2003 Senate confirmation hearing, when Senator Dick Durbin pressed her on the issue:

I’m not saying that you could never regulate property. Property has been regulated since ... the beginning of this country. I’m not saying that you could never have laws that say that people who are in a business that you regulate have to behave in a certain way. California has a very long history of anti-discrimination laws that says if you are a commercial establishment, you have to treat everybody the same. I don’t think there’s any problem with that at all.

Yet that description of economic rights seems little different from the pitifully low "rational basis" standard that Judge Brown decried then and now. If traditional state economic regulations, such as California's, would survive under Judge Brown's view of constitutional property rights, then it is hard to see what regulations would not pass constitutional muster; it certainly is hard to see why the federal Milk Regulatory Equity Act would be obviously unconstitutional under such a standard. Again, at the outset of her opinion, Judge Brown suggests it would have been "simpler" to argue that the Milk Regulatory Equity Act "impermissibly collectivized" the farmers' enterprises, violating the farmers' constitutional property rights. But even if you accept her position that the Constitution protects economic liberty no less than other Constitutional rights, the still-answered questions are far from "simple."

And there is one more wrinkle. Judge Brown's and Chief Judge Sentelle's call for heightened protection of property rights casts an interesting light on another controversial case decided by the D.C. Circuit just four years ago. In Abigail Alliance v. Eschenbach, the D.C. Circuit—the full court, not just an ordinary three-judge panel—held that the Constitution does not protect terminally ill patients' right to access experimental drugs that have not yet received full FDA approval. More specifically, the Court's majority—including Brown and Sentelle—agreed that the asserted right to obtain such drugs would be subject only to scrutiny under the "rational basis" standard that Brown and Sentelle decried in last week's opinion. If, as they explain in their new opinion, the right to "property" is owed heightened scrutiny because it appears alongside "liberty" in the Constitution's right to due process, then shouldn't the right to "life" receive the same heightened scrutiny? (Two of their colleagues dissented in that case, concluding that this right to life deserved the heightened protection afforded by "strict scrutiny.")

To be clear, none of this is to say that Judge Brown and Chief Judge Sentelle did not take a laudable first step in questioning whether property rights deserve greater protection than FDR's Supreme Court was willing to provide at the height of the New Deal. They are making a very important point—especially in an era when Tea Party conservatives seem increasingly willing to embrace judicial activism in defense of constitutional rights. But they would do no less a service by pressing the point further, explaining what sort of judicial standards of review would be necessary to actually protect constitutional property rights in practice. These are not "simple" questions, but they are indispensable ones—today more than ever.

Adam J. White is a lawyer in Washington, D.C. 

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