Bad Policy, But Good Law

The en banc DC Circuit holds that there’s no constitutional right for the terminally ill to take experimental but potentially life-saving drugs while they are being tested for safety and effectiveness by the FDA. This decision is bad public policy, but it’s good law; it’s clear from reading the arguments made for the plaintiffs that there was no way to describe the right that would even remotely resemble a guarantee protected by the Constitution.
In the process, the court discusses but rejects an idea that has long intrigued me – that unenumerated rights protected by the Ninth Amendment are those rights that government has never previously invaded, as opposed to things that were widely prohibited at the time the Ninth Amendment was adopted:

True, a lack of government interference throughout history might be some evidence that a right is deeply rooted. But standing alone, it cannot be enough. If it were, it would be easy to employ such a premise to support sweeping claims of fundamental rights. For example, one might argue that, because Congress did not significantly regulate marijuana until 1937, relatively late in the constitutional day, see Gonzales v. Raich, 545 U.S. 1, 11 (2005), there must be a radition of protecting marijuana use. Because Congress did not regulate narcotics until 1866 when it heavily taxed opium, a drug created long before our Nation’s founding, see United States v. Moore, 486 F.2d 1139, 1215-16, 1218 n.50 (D.C. Cir. 1973) (Wright, J., dissenting), it must be that individuals have a right to acquire and use narcotics free from regulation. Or because speed limits are a recent innovation, we have a fundamental right to drive as fast as we deem fit. But this is most certainly not the law. A prior lack of regulation suggests that we must exercise care in evaluating the untested assertion of a constitutional right to be free from new regulation. But the lack of prior governmental regulation of an activity tells us little about whether the activity merits constitutional protection: “The fact that powers long have been unexercised well may call for close scrutiny as to whether they exist; but if granted, they are not lost by being allowed to lie dormant, any more than nonexistent powers can be prescripted by an unchallenged exercise.” See United States v. Morton Salt Co., 338 U.S. 632, 647 (1950). Indeed, creating constitutional rights to be free from regulation based solely upon a prior lack of regulation would undermine much of the modern administrative state, which, like drug regulation, has increased in scope as changing conditions have warranted.

Slip op. at 22-23. I’d agree with the court that the mere absence of prior regulation is not by itself enough to create an unenumerated right, but I do think this particular point merited more thoughtful consideration than the Court gave it – the fact that an argument makes “much of the modern administrative state” unconstitutional may be reason to invoke stare decisis and avoid overturning such widespread and settled practices, but it is not a basis for saying that the argument is wrong. Experimental drugs didn’t really exist in 1789 in the way we think of them today – but plenty of other things unregulated by the government at the time did, and a serious effort to make sense of the Ninth Amendment requires a better explanation of why it was not meant to restrict new and novel forms of government intrusion.