[scanned] WSJ 3/23-24/2013 pA11
The Fifth U.S. Circuit Court of Appeals on Wednesday struck down a Louisiana law that made it crime for the Benedictine monks of St. Joseph Abbey to sell their handmade caskets. The decision sets up what may become a historic confrontation at the U.S. Supreme Court over one of the most important unresolved questions in constitutional law. May state governments enact economic regulations simply to protect politically connected special interests from competition?
This story begins 1,600 years ago when Benedict of Nursia founded an order of monks and instructed them to put bread on their table through the labor of their own hands. Following this dictate, the entrepreneurial brothers of St. Joseph Abbey—a century-old monastery in Covington, La—opened a tiny business on All Souls’ Day in 2007 to sell the unadorned wooden caskets that they have made for generations.
That is when their ancient ways collided with modern America. The monks had not sold a single casket before the Louisiana State Board of Funeral Directors—acting on a complaint from a government-licensed funeral director— shut them down. In Louisiana, the government had made it a crime to sell caskets In the state without a license. To do so, the monks would have had to transform their monastery into a funeral home, including building an embalming room, and at least one of the monks would have had to leave the order to spend years becoming a licensed funeral director. All of that just, to sell a wooden box.
It didn’t take a divine revelation to recognize that funeral directors were using the law, the government licensing entity they controlled, and their political clout to monopolize the lucrative casket market. Lacking the worldly guile of their adversaries, the monks put their faith in democracy, petitioning state legislators in 2008 and 2010. Each time, the funeral-industry lobby mobilized to kill the monks’ common-sense reform proposals.
After that civics lesson, the monks turned to the federal courts to vindicate their right to earn an honest living. Louisiana sought to have the case thrown out on the grounds that Constitution does not forbid the state from picking winners and losers in business.
That may seem like a preposterous legal position, but in 2004 the 10th US Circuit Court of Appeals has upheld a similar Oklahoma law by observing that "dishing out special economic benefits to certain in-state industries remains the favored pastime of states and local governments." In ruling for the monks however, the Fifth Circuit held that the Constitution prohibits laws that amount to “naked transfers of wealth” to industry cartels. It is this disagreement among the federal courts that may propel the monks to the U.S. Supreme Court.
Though seemingly just a disagreement over the constitutionality of economic protectionism, the split between the federal courts also illustrates a clash over the role of judges. It presents a vivid illustration of why the decades-old debate over judicial activism is misguided.
In contemporary parlance, “judicial activism” is simply an all-purpose epithet that the right and left invoke to discredit a decision they don’t like politically. The throat of being denounced as activist has cowed many courts into “judicial abdication.” Louisiana felt it could argue with a straight face that government power may constitutionally be used for others’ raw private gain because the state was hoping for judicial abdication: a court so fearful of being called activist that it wili entertain even absurd justifications for a challenged law. Instead, what is needed in the courts today is judicial engagement, which the Fifth Circuit embodied in ruling for the monks. The court did begin by presuming that the restriction on casket sales was constitutional, and the court considered even hypothetical purposes for it
But once it was clear that the law lacked any plausible connection to a legitimate government purpose, the court enforced the monks’ right to earn an honest living by striking the law down.
The brothers of St. Joseph Abbey, clad in their plain monastic habits, never contemplated that nailing together pine boxes would begin a journey toward the Supreme Court. But they are prepared to walk that path if called to do so in order to secure the blessings of economic liberty for all Americans.
IIRC, some outfit that specializes in pro Bono for religious orders is handling this case for the monks.
The Fifth U.S. Circuit Court of Appeals on Wednesday struck down a Louisiana law that made it crime for the Benedictine monks of St. Joseph Abbey to sell their handmade caskets. The decision sets up what may become a historic confrontation at the U.S. Supreme Court over one of the most important unresolved questions in constitutional law. May state governments enact economic regulations simply to protect politically connected special interests from competition?
This story begins 1,600 years ago when Benedict of Nursia founded an order of monks and instructed them to put bread on their table through the labor of their own hands. Following this dictate, the entrepreneurial brothers of St. Joseph Abbey—a century-old monastery in Covington, La—opened a tiny business on All Souls’ Day in 2007 to sell the unadorned wooden caskets that they have made for generations.
That is when their ancient ways collided with modern America. The monks had not sold a single casket before the Louisiana State Board of Funeral Directors—acting on a complaint from a government-licensed funeral director— shut them down. In Louisiana, the government had made it a crime to sell caskets In the state without a license. To do so, the monks would have had to transform their monastery into a funeral home, including building an embalming room, and at least one of the monks would have had to leave the order to spend years becoming a licensed funeral director. All of that just, to sell a wooden box.
It didn’t take a divine revelation to recognize that funeral directors were using the law, the government licensing entity they controlled, and their political clout to monopolize the lucrative casket market. Lacking the worldly guile of their adversaries, the monks put their faith in democracy, petitioning state legislators in 2008 and 2010. Each time, the funeral-industry lobby mobilized to kill the monks’ common-sense reform proposals.
After that civics lesson, the monks turned to the federal courts to vindicate their right to earn an honest living. Louisiana sought to have the case thrown out on the grounds that Constitution does not forbid the state from picking winners and losers in business.
That may seem like a preposterous legal position, but in 2004 the 10th US Circuit Court of Appeals has upheld a similar Oklahoma law by observing that "dishing out special economic benefits to certain in-state industries remains the favored pastime of states and local governments." In ruling for the monks however, the Fifth Circuit held that the Constitution prohibits laws that amount to “naked transfers of wealth” to industry cartels. It is this disagreement among the federal courts that may propel the monks to the U.S. Supreme Court.
Though seemingly just a disagreement over the constitutionality of economic protectionism, the split between the federal courts also illustrates a clash over the role of judges. It presents a vivid illustration of why the decades-old debate over judicial activism is misguided.
In contemporary parlance, “judicial activism” is simply an all-purpose epithet that the right and left invoke to discredit a decision they don’t like politically. The throat of being denounced as activist has cowed many courts into “judicial abdication.” Louisiana felt it could argue with a straight face that government power may constitutionally be used for others’ raw private gain because the state was hoping for judicial abdication: a court so fearful of being called activist that it wili entertain even absurd justifications for a challenged law. Instead, what is needed in the courts today is judicial engagement, which the Fifth Circuit embodied in ruling for the monks. The court did begin by presuming that the restriction on casket sales was constitutional, and the court considered even hypothetical purposes for it
But once it was clear that the law lacked any plausible connection to a legitimate government purpose, the court enforced the monks’ right to earn an honest living by striking the law down.
The brothers of St. Joseph Abbey, clad in their plain monastic habits, never contemplated that nailing together pine boxes would begin a journey toward the Supreme Court. But they are prepared to walk that path if called to do so in order to secure the blessings of economic liberty for all Americans.
IIRC, some outfit that specializes in pro Bono for religious orders is handling this case for the monks.
