Commentary

When a law is unconstitutional, judicial restraint is no virtue

by Katelynn McBride

The Constitution creates a system of checks and balances where the function of judges is to review laws and ensure that those laws pass constitutional muster. When legislatures try to impose regulations beyond what the Constitution authorizes -- as they often do -- the role of a properly engaged judge is to enforce constitutional limits on government power.

In Minnesota, it is currently legal for casket retailers to sell their product directly to consumers without a license, but the law isn't clear enough and leaves room for new regulations in the future. When an effort was made to clarify Minnesota's Mortuary Science statute to make plain that anybody can sell a casket in Minnesota, the Legislature refused to do so. The Legislature's attitude demonstrates why judicial engagement is so important. At the end of the day, legislatures are subject to interest group pressures and concerns over reelection, making it difficult for them to focus on the preservation of individual liberties.

Minnesota should look to another state where recently a judge struck down a protectionist state ban on unlicensed casket sales and ensured that the monks of St. Joseph Abbey in Covington, La., could sell their simple, handmade wooden caskets without fear of going to jail. A casket is simply a wooden or metal box, and it is no longer a crime to sell caskets there without a government-mandated license.

Like many occupational licensing schemes, Louisiana's casket sales law was designed to protect funeral industry insiders from competition. The process for becoming a state-licensed funeral director is incredibly burdensome and requires applicants to complete a year-long apprenticeship at a funeral home and pass an exam that includes nothing about selling caskets.

All too often, judges turn a blind eye to blatant economic protectionism of this kind and defer to legislatures without any meaningful scrutiny of the challenged law. Unfortunately, judges are frequently applauded for showing such blind deference to legislatures and praised for exhibiting "judicial restraint." On the other side, judges who engage in a thorough analysis and declare as unconstitutional laws that lack any plausible justification are frequently denounced as "activists."

Critics of so-called "judicial activism" often miss that it is a judge's responsibility to assess the constitutionality of laws and rein in legislatures that pass unconstitutional laws. Striking down an unconstitutional law is not "judicial activism," it is judging.

When presented with a challenge to this blatantly anti-competitive law, the judge did exactly what judges are supposed to do: He judged. The state argued that casket sales create public health and safety concerns. The evidence showed, however, that there was no requirement that bodies even be buried in caskets. Nor do caskets serve any health or safety purpose. Furthermore, the monks just wanted to sell caskets; they would not get involved in handling dead bodies.

The judge evaluated the evidence and arrived at the only conclusion an engaged judge could arrive at: Selling caskets does not implicate any genuine health or safety issues, and the state's assertions to the contrary were utterly baseless.

Elected officials often push past the boundaries of what the Constitution authorizes. That is one of the reasons our Constitution provides for a judiciary. As a result, a judiciary that refuses to even question whether the legislature has exceeded its authority fails to fulfill its constitutional purpose. Engaged judges are the only way of ensuring that our system of law is faithful to the Constitution. When judges consistently refuse to question irrational laws, individuals' rights are violated. This is why Minnesota needs judges who will preserve our liberties when legislatures trample them.

It was a judge who stood up for the monks' right to sell caskets, not the Legislature. As the monks' plight proves, without judicial engagement, legislatures are left free to make it illegal to sell a box.

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Katelynn McBride is an attorney with the Institute for Justice Minnesota Chapter. The organization describes itself as the nation's only libertarian public interest law firm.