No, Judicial Restraint Isnt Progressive

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Over at the Huffington Post, the Institute for Justices Evan Bernick jumps into an ongoing debate about the proper exercise of the judicial power. On one side, libertarian constitutionalists (like Bernick and Damon Root) disparage judicial deference and encourage judicial activism on behalf of (what they think are) constitutional rights. On the other side, conservatives (like me and Ramesh Ponnuru) contend that judicial deference or restraint is appropriate because it is the kind of exercise of the judicial power that the American founders endorsed.

Bernicks defense of Roots position adds a potentially helpful clarification of the issues. At the same time, however, I would say that his argument in the end simply adds more evidence that conservatives should reject the libertarian constitutionalists judicial activism as inconsistent with the Founders Constitution.

To review the argument: Root contends that the judicial deference championed by modern judicial conservatives can be traced to the Progressives of about 100 years ago, who also defended judicial deference. I, on the other hand, contend that judicial deference can in fact be traced to the Founders and can be seen, for example, in the great opinions written for the Supreme Court by Chief Justice John Marshall.

Bernick argues in defense of Root by way of a distinction. According to him, the specific kind of deference defended by conservative jurists (like Robert Bork) is actually rooted in the thought of Progressives like James Bradley Thayer, and not in the jurisprudence of John Marshall. Thayer held that the Constitution is often unclear, and that where it is unclear the Legislature has a right to adopt whatever interpretation it wants, so long as it is rational. In contrast, Marshall believed that the Courts job was to try to render the Constitution clear through the standard tools of judicial interpretation.

This is a potentially helpful distinction because it may well be that the kind of judicial review advocated by Thayer is excessively deferential to the Legislature. Certainly I would agree with the idea that contemporary conservatives should take their understanding of the proper use of the judicial power from Marshall, and the founders more generally, rather than from the restatements of it (and perhaps reinterpretations of it) offered by later commentators like Thayer.

Nevertheless, this distinction does not take us as far as Bernick would like. In the first place, his argument still does not show the invalidity of a certain kind of judicial deference, properly understood. If Thayer argued for an excessive deference, it does not follow that there is not an appropriate kind of judicial deference or judicial restraint, such as is found in the work of John Marshall.

Bernick tries to discredit my claim that judicial deference can be traced to Marshall by noting that the same claim was made by Thayer. But even if Thayer did not understand Marshall as precisely as he should have, it is still the case that Thayer could make this claim precisely because there is evidence to support it. As I noted, and as Bernick notes in summarizing my argument, Marshall, in Fletcher v. Peck, said for the Court that judges should seldom if ever declare a law to be unconstitutional in a doubtful case. This is undoubtedly an endorsement of judicial deference, and Bernick does not even bother to deny it. In this passage, Marshall says that there will be doubtful cases, cases in which it may not be possible to render the Constitution perfectly clear, and that in such cases the Court should seldom if ever declare a law unconstitutional which is as much as to say that the Court should defer to the interpretation of the Constitution on which the Legislature acted when it made the law unless there is a clear argument for doing otherwise.

Moreover, we should also keep in view that the libertarian constitutionalists are not merely criticizing judicial restraint but advancing an alternative: judicial activism in defense of a libertarian understanding of rights. This activism, they say, should be guided not by a presumption of constitutionality the traditional approach associated with judicial deference but instead by a presumption of liberty. But even if we were to grant that the progressives took a too narrow view of the judicial power, this would not do anything to justify the sweeping power for Courts that the libertarian constitutionalists want to unleash by positing a presumption of liberty. Every law impedes somebodys liberty. Therefore, beginning from a presumption of liberty is the same thing as beginning from a presumption of unconstitutionality for every law that is passed.

I can see why, as a policy matter, libertarian constitutionalists would advocate this presumption of liberty. They want as little government as possible, and it would be hard to think of a better tool for accomplishing this than a presumption of liberty in the hands of judges. Ill even agree that it would be good for legislators to keep this presumption in mind. They often seem to want to legislate just for the sake of being able to claim some political accomplishment. They should instead start from a presumption of liberty and ask whether society really needs the laws that they are often itching to write.

This is very different, however, from saying that courts should start from a presumption of liberty when judging the constitutionality of laws that have been enacted. Their job, in constitutional cases, is simply to give force to the Constitution. And the Constitution is not designed to guarantee that libertarian policy preferences will prevail.

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No, Judicial Restraint Isnt Progressive

ICRC first aid training in Ein el-Helweh refugee camp – Video

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ICRC first aid training in Ein el-Helweh refugee camp
The ICRC conducts first-aid sessions for members of different factions living in the Palestinian refugee camp of Ein El Helwe, in the Lebanese city of Sidon. The training is combined with informati...

By: International Committee of the Red Cross (ICRC)

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ICRC first aid training in Ein el-Helweh refugee camp - Video

Conversations with Tyler: Peter Thiel on the Future of Innovation – Video

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Conversations with Tyler: Peter Thiel on the Future of Innovation
Peter Thiel and Tyler Cowen, both New York Times bestselling authors, are among today #39;s top global thought leaders and influential innovators. Watch as these two engage in a serious dialogue...

By: Mercatus Center

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Conversations with Tyler: Peter Thiel on the Future of Innovation - Video

What China Can Teach The World About Successful Health Care

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A "barefoot doctor" listens to the heartbeat of a fetus. These community health workers dramatically improved maternal health in China during the 20th century. World Health Organization/U.S. National Library of Medicine hide caption

A "barefoot doctor" listens to the heartbeat of a fetus. These community health workers dramatically improved maternal health in China during the 20th century.

Over the past six decades, China has been experimenting with radically different forms of health care systems.

As the country struggles to figure out the best way to get health care to 1.3 billion people, the rest of the world can learn from its past successes and failures, researchers wrote Wednesday in The New England Journal of Medicine.

Back in 1949, health care was free to everyone in China. The communist state operated all clinics and hospitals, and it employed all doctors, nurses and health workers.

Then in 1984, the government started implementing free-market reforms. People lost their free medical care. And by 1999, only 7 percent of those living in rural regions had health insurance.

Hospitals began to act like for-profit companies. Doctors and nurses were often rewarded for increasing hospital profits. So they started acting like entrepreneurs.

To patients, it seemed like everyone was just out to make a buck or a yuan. And the public became increasingly angry and distrustful of doctors.

In 2008, the government began to abandon a system based largely on free-market principles and made a commitment to providing affordable health care for all by 2020. About 95 percent of the population had health insurance in 2012.

A community worker teaches fishermen about staying healthy. World Health Organization/U.S. National Library of Medicine hide caption

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What China Can Teach The World About Successful Health Care

Vanguard Health Care Fund's Undervalued Stocks

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Vanguard Health Care Fundis managed by Edward Owens that has worked in investment management for over 30 years. He has managed the Vanguard Health Care Fund(Trades, Portfolio) since its inception in May 1984. Owens received a B.A. from the University of Virginia and an M.B.A from Harvard Business School.

Owens invests primarily in health care companies (94.6% of Stocks are from that sector). His strategy is characterized by a long-term focus and careful attention to valuations.

The Fund has 89 stocks on its portfolio, with a total value of $42,636 Mil. And Edwards Lifesciences Corp(EW), Walgreens Boots Alliance Inc (WBA), Aetna Inc. (AET), Express Scripts Holding Co. (ESRX) are the top 4 Undervalued companies in Vanguard Health Care Funds Portfolio

Edwards Lifesciences Corp(EW)

The company, with a market cap of $15,173 M, is the manufacturer of heart valves and repair products used to replace or repair a patient's diseased or defective heart valve. It is also a global leader in hemodynamic monitoring systems used to measure a patient's cardiovascular function in the hospital setting.

The Fund started to buy this stock on 2013 Q4 and is currently holding 3,402,670 shares (3.16% of outstanding shares) at an average price of $67.63. So far this investment returned a +108%

Over the last year the stock performed a +90%

On the last 5 years the revenue and the book value grew by 13.80% and 12.80% and EBITDA rose by 28.00%.

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Vanguard Health Care Fund's Undervalued Stocks

MN health providers fall short on digital records

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Minnesota officials say thousands of health care providers are violating the state's new rules requiring electronic patient health records but there isn't much they can do about it.

State regulations that took effect Jan. 1 call on all providers to use sharable electronic health records. But while all hospitals and nearly all primary care clinics are complying, the state Health Department says many dentists, mental health professionals and chiropractors are not.

The department argues the digital rules make health care safer and more efficient. Some providers, however, say converting from conventional paper record keeping is too expensive. Others say they worry about patient privacy.

Some state lawmakers are paying attention. A bill moving through the Minnesota House would let providers with seven or fewer caregivers opt out of electronic record keeping. That would exempt about 80 percent of clinics from the mandate and defeat the purpose of the rule, officials say.

"There are very strong patient benefits to electronic health records," said Diane Rydrych, director of the Health Department's policy division. "The reason why we have a mandate is because we want to make sure that those benefits are shared with all patients."

The federal government also has a new requirement for electronic health records, and if health care providers fail to comply they will see reduced Medicare payments. But providers who don't depend on a lot of federal money have less of an incentive to comply with the federal mandate.

When doctors and clinics keep electronic records that can be shared with other medical professionals, their patients get better care, Rydrych said. That was the reason lawmakers passed legislation eight years ago calling for the digital records conversion by the start of 2015.

"If I go to see my doctor or any caregiver that I might have, it's important for them to know about things like allergies, other tests that I've had, other conditions that I have so that they can be providing appropriate care for me," Rydrych said.

Some health care professionals worry about the privacy of electronic records. It's a particular concern in practices such as psychotherapy, said St. Paul psychologist Peter Zelles.

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MN health providers fall short on digital records

New genetic clues emerge on origin of Hirschsprung's disease

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Genetic studies in humans, zebrafish and mice have revealed how two different types of genetic variations team up to cause a rare condition called Hirschsprung's disease. The findings add to an increasingly clear picture of how flaws in early nerve development lead to poor colon function, which must often be surgically corrected. The study also provides a window into normal nerve development and the genes that direct it.

The results appear in the April 2 issue of the American Journal of Human Genetics.

About one in every 5,000 babies is born with Hirschsprung's disease, which causes bowel obstruction and can be fatal if not treated. The disease arises early in development when nerves that should control the colon fail to grow properly. Those nerves are part of the enteric nervous system, which is separate from the central nervous system that enables our brains to sense the world.

The genetic causes of Hirschsprung's disease are complex, making it an interesting case study for researchers like Aravinda Chakravarti, Ph.D., a professor in the Johns Hopkins University School of Medicine's McKusick-Nathans Institute of Genetic Medicine. His research group took on the condition in 1990, and in 2002, it performed the first-ever genomewide association study to identify common variants linked to the disease.

But while Chakravarti's and other groups have identified several genetic variants associated with Hirschsprung's, those variants do not explain most cases of the disease. So Chakravarti and colleagues conducted a new genomewide association study of the disease, comparing the genetic markers of more than 650 people with Hirschsprung's disease, their parents and healthy controls. One of their findings was a variant in a gene called Ret that had not been previously associated with the disease, although other variations in Ret had been fingered as culprits.

The other finding was of a variant near genes for several so-called semaphorins, proteins that guide developing nerve cells as they grow toward their final targets. Through studies in mice and zebrafish, the researchers found that the semaphorins are indeed active in the developing enteric nervous system, and that they interact with Ret in a system of signals called a pathway.

"It looks like the semaphorin variant doesn't by itself lead to Hirschsprung's, but when there's a variant in Ret too, it causes the pathway to malfunction and can cause disease," Chakravarti says. "We've found a new pathway that guides development of the enteric nervous system, one that nobody suspected had this role."

Chakravarti notes that the genetic puzzle of Hirschsprung's is still missing some pieces, and no clinical genetic test yet exists to assess risk for the disease. Most of the genetic variants that have so far been connected to this rare disease are themselves relatively common and are associated with less severe forms of the disease. The hunt continues for rare variants that can explain more severe cases.

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Other authors on the paper are Qian Jiang, Stacey Arnold, Betty Doan, Ashish Kapoor, Albee Yun Ling, Maria X. Sosa, Moltu Guy, Krishna Praneeth Kilambi, Qingguang Jiang, Grzegorz Burzynski, Kristen West, Seneca Bessling, Jeffrey J. Gray and Andrew S. McCallion of The Johns Hopkins University; Tiffany Heanue and Vassilis Pachnis of the MRC National Institute for Medical Research; Paola Griseri and Isabella Ceccherini of the Istituto Gaslini; Jeanne Amiel and Stanislas Lyonnet of the French National Institute of Health and Medical Research and Paris Descartes University-Sorbonne Paris Cite; Raquel M. Fernandez and Salud Borrego of the University of Seville; Joke B.G.M. Verheij of the University of Groningen; and Robert M.W. Hofstra of the University of Rotterdam.

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New genetic clues emerge on origin of Hirschsprung's disease