George Will

WASHINGTON -- Shortly before 123 million voters picked a president, 38 Louisiana monks moved the judiciary toward a decision that could change American governance more than most presidents do. The monks' cypress caskets could catalyze a rebirth of judicial respect for Americans' unenumerated rights, aka privileges or immunities.

In 2005, Hurricane Katrina damaged the trees that the monks of Saint Joseph Abbey near Covington, La., harvested to support their religious life. So they decided to market the sort of simple caskets in which the abbey has long buried its dead. Monasteries in other states sell caskets, but these Louisiana Benedictines were embarking on a career in crime.

In 1914, Louisiana created the State Board of Embalmers and Funeral Directors. Its supposed purpose is to combat "infectious or communicable diseases," but it has become yet another example of "regulatory capture," controlled by the funeral industry it ostensibly regulates. Nine of its 10 current members are funeral directors.

In the 1960s, Louisiana made it a crime to sell "funeral merchandise" without a funeral director's license. To get one, the monks would have to stop being monks: They would have to earn 30 hours of college credit and apprentice for a year at a licensed funeral home to acquire skills they have no intention of using. And their abbey would have to become a "funeral establishment" with a parlor accommodating 30 people, and an embalming facility even though they just want to make rectangular boxes, not handle cadavers.

This law is unadulterated rent-seeking by the funeral directors' casket-selling cartel. The law serves no sanitary purpose: Louisiana does not stipulate casket standards or even require burials to be in caskets. And Louisianans can buy caskets from out of state -- from, for example, Amazon.com (it sells everything). A complaint filed against the monks by a funeral director said: "Illegal third-party casket sales place funeral homes in an unfavorable position with families." That is, the bereaved become angry when forced to buy caskets from the funeral homes' cartel.

In a sense, the monks' troubles began 16 years before their monastery was founded in 1889, across Lake Pontchartrain in New Orleans. In the 1873 Slaughter-House Cases, the U.S. Supreme Court upheld, 5-4, New Orleans' government-created butchers cartel. This effectively expunged this clause from the 14th Amendment: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The court effectively expunged the phrase "privileges or immunities," construing it so narrowly it disappeared from constitutional law.

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.

(c) 2012, Washington Post Writers Group