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George F. Will: A casket cartel's comeuppance?

Published: November 15, 2012
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Since then, courts have retreated from protection of economic rights — the right to earn a living without arbitrary and irrational government hindrances. Courts have complacently allowed any infringements of those rights for which governments offer any “rational basis” — such as, the supposed good done by conferring economic benefits on favored factions.

In 2002, the 6th U.S. Circuit Court of Appeals, overturning a Tennessee law requiring a license to sell caskets, said the law did not protect the public from harm but protected licensed funeral directors from competition. But in 2004, the 10th Circuit upheld an Oklahoma law forcing online casket retailers to have funeral director's licenses, which in Oklahoma, too, involve expensive and time-consuming requirements. The court acknowledged that the law is protection for funeral directors but said “dishing out special economic benefits” to favored interests is equivalent to “the national pastime” of — and a prerogative of — state and local governments. The 10th Circuit believes this should continue undisturbed by judicial supervision, although it injures the public and abridges individuals' rights.

When circuit courts disagree, the Supreme Court should referee. The monks' lawyers — libertarians from the Institute for Justice — want the court to confront the consequences of its 1873 mistake. So, the monks' problem is much more than just another example of dumb bullying by government in cahoots with powerful interests. Last month, the 5th Circuit rejected Louisiana's casket nonsense, saying “neither precedent nor broader principles suggest that mere economic protection of a pet industry is a legitimate governmental purpose.” And: “The great deference due state economic regulation does not demand judicial blindness to the history of a challenged rule or the context of its adoption nor does it require courts to accept nonsensical explanations for naked transfers of wealth.”

If courts once again become properly impatient with nonsensical explanations, much of what government does will become untenable. It is lovely that revitalized protection of the individual rights of property and striving may owe much to an abbey where all property is communal.

George Will's email address is georgewill@washpost.com.

WASHINGTON POST WRITERS GROUP