In the early 2000s, a widow named Sandy Meadows was demoted from her job in a supermarket floral department because of a Louisiana requirement that she possess a state florist’s license. In 2001, Abigail Burroughs, a young woman with cancer, died after repeatedly requesting—and being denied—the opportunity to try a new treatment under review at, and later approved by, the FDA. Martin Luther King wrote his Letter from a Birmingham Jail after being arrested for “parading without a permit.”
The Permission Society is full of such frustrating, at times devastating, stories about government callousness, ineptitude, and cynicism. But wherein, exactly, lies the problem? There are two forces at work in Timothy Sandefur’s answer: He presents a well-documented and persuasive case against ineffective regulation from unaccountable bureaucracies, absurdly restrictive licensing requirements, and other damaging laws. He also seeks to tie valid criticisms of such policies—based on their annoying-to-tragic outcomes—to the idea that they undermine or violate the Constitution. This argument mirrors an ongoing debate, mainly on the right, over the correct interpretation of originalism: Should justices seek to protect our “natural rights” or simply interpret the Constitution as a legal statute like any other?
Sandefur claims that the “Constitution promises more” than what he refers to as a permit system, or “permission society.” He rejects the notion that citizens should be required to request permission for any number of things: to try a new medicine, build on one’s property, or work in the field of one’s choosing. A compelling claim, but one which raises the question of how, exactly, the Constitution makes such a promise, and what that promise entails.
Sandefur seems to conflate two arguments: that the permit system is bad policy, and that any laws or regulations that could be construed as permit systems ought to be overturned by courts. (The latter argument is more implied than argued outright.) Similarly, he appears to combine a philosophical opposition to permit systems—arguing that they infringe on natural liberty—with the idea that permit laws almost always yield tangibly negative results.
The book effectively highlights insidious problems with any number of overly restrictive laws or regulations. But while Sandefur makes the fair, albeit broad, argument that many of these policies “[clash] with freedom,” some of his prescriptions grant sweeping powers to the courts. And if courts have the final say on what rights, privileges, or permissions are or are not warranted, then citizens no longer have the same ability to debate them in the political sphere. This is not an expansion of freedom.
Sandefur also appears to equate permit requirements that are different in kind, such as those from federal and state governments. This doesn’t quite work, for while all these policies may stifle innovation and lead to negative outcomes, they are not in the same constitutional category and shouldn’t be viewed or dealt with in the same way.
When talking about the FDA, Sandefur’s arguments operate well in each respect: The FDA’s policies frequently have negative outcomes; it is a federal agency and clearly a federal concern; the “permissions” it requires might conflict with natural liberty; and there is merit to the argument that a number of its policies violate the Constitution. For example, Alfred Caronia, a sales representative for Orphan Medical, was convicted of a crime when he recommended an FDA-approved drug for uses other than those sanctioned by the FDA. Caronia’s recommendation was commonplace; physicians do the same thing every day, as many drugs have multiple uses. Yet while Caronia’s conviction was overturned on First Amendment grounds, the FDA continues to attempt to censor off-label drug promotion. Sandefur’s reasoning that such policies are unconstitutional and ought to be overturned in federal courts is persuasive.
But other stories, while upsetting, are less compelling. The case of Sandy Meadows, the florist who was demoted for failing to obtain a proper florist’s license, certainly seems ridiculous and unjust. There is no doubt that, as Sandefur argues, the law had “deleterious effects.” But his disappointment that the Louisiana law was upheld by a federal trial judge seems misplaced: Bad state laws that are not unconstitutional should be identified as bad by the people affected, who can and should make their feelings known to their state representatives. ¨
Devorah Goldman is an assistant editor at National Affairs.
