CJE Powers

Though it is sometimes easy to forget, constitutional cases have real-world consequences for the lives of real people.  When judges abdicate their responsibilities, the consequences for individuals are frequently dire—homes and livelihoods are destroyed, voices are censored, and victims are left with no meaningful recourse.  But the results of judicial engagement are equally important.  When judges properly engage with the facts and the law of each case, there are direct benefits for individual rights—and a striking absence of the sorts of dire consequences often promised by the proponents of judicial abdication.

Powers v. Harris

CONTEXT:  In the spring of 2001, Kim Powers, of Ponca City, Okla., and Dennis Bridges, of Knoxville, Tenn., launched Memorial Concepts Online, a company that provided high-quality caskets to consumers across the nation at a discount price.  But Oklahoma is one of a half-dozen states that shuts out competition by requiring anyone who sells caskets and other funeral-related merchandise to be a government-licensed funeral director—even if the would-be casket retailer, like Powers and Bridges, performs no funeral services of any kind.  But none of the burdensome requirements necessary to become a funeral director have anything to do with selling a casket—which is, all industry-generated exaggeration and hyperbole aside, nothing more than a simple box.  Instead, the only thing the law accomplishes is the creation of a cartel for casket sales, which enriches funeral directors at the expense of consumers and entrepreneurs.

Amazingly, in refusing to strike down this law, the court did not dispute the purely protectionist nature of the law—in fact, it endorsed it.  “[W]hile baseball may be the national pastime of the citizenry,” the court wrote, “dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.”

This idea—that the government can pass laws simply because it wants to give a competitive advantage to one (politically connected) group of people, like state-licensed funeral directors, at the expense of people who lack that political influence—is the distilled essence of judicial abdication.

CONSEQUENCE:  Kim moved from Oklahoma to Tennessee, where a properly engaged court had already struck down a nearly identical state law.  Her thriving business now employs more than 100 people—none of whom works in Oklahoma.  (For more information on Kim’s fight, visit:  www.ij.org/3423.)


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