The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
“Amendment X” is one of the most important sentences of English ever written. While Amendment IX obviously does not create federally enforcable rights and Amendment XI corrects a Supreme Court powergrab on technical grounds, Amendment X works to directly limit the power of the national government. This passage protects our federal experiment from interest group tyranny, from some powerful sect enacting their morally pure laws throughout our land.
Volokh’s bright but controversial idea–which is soon to be published in the Harvard Law Review and was recently presented at the American Enterprise Institute–is that there is a constitutional right to what he terms “medical self-defense.” The basic concept is that the government may not throw substantial obstacles in the path of medical treatments that might protect against death or serious harm. If accepted by the Court, this would mean that the government could not prevent a sick individual from using an experimental drug not yet deemed effective by the Food and Drug Administration. It would also invalidate the federal ban on payments for organ donations. And, of course, it could be applied in any number of other circumstances, limited only by the inventiveness of lawyers and the imagination of judges.
I agree with this completely. But at the same time, such an right to medical self defense should not give judges the right to legislate from the bench. We have states governments to experiment, to try this and that, to come up with the best solutions through an evolutionary process.