That is how Cato’s Roger Pilon frames the issue today in a column on NRO.
The occasion for Pilon’s piece is the dispute over the correctness of the D.C. Circuit’s en banc decision last week overturning its earlier decision that there is a fundamental right to use potentially life-saving medicines even if they haven’t received government approval. Pilon is taking issue with a number of conservatives who think that finding such a right is unauthorized judicial activism that tortures the meaning of “due process.”
I think Pilon’s position is sound, but in my view this dispute should not get as far as the meaning of “due process” or anything else in the Bill of Rights. The right way to settle the matter is this: Does Article I, Section 8 give the federal government the authority to prevent the sale and use of any medicine? No such power is enumerated. The Court had to torture the meaning of “general welfare” back in the 1930s in order to create the powers exercised by dozens of federal regulatory agencies, including the Food and Drug Administration.
The problem resides not in the “activism” of the judges on the DC Circuit who think that desperately ill people should be at liberty to try potentially life-saving medicines, but in the activism of the justices long ago who demolished the constitutional framework of restraints on federal power that the Framers envisioned.
