As I mentioned yesterday, the petitioner’s brief in McDonald v. City of Chicago written by Alan Gura asks the Supreme Court to overrule The Slaughterhouse Cases and adopt a very different interpretation of the Fouteenth Amendment’s Privileges or Immunities Clause. The obvious question is, how many Justices will agree? My guess: only one. In this post, I want to peer into my crystal ball and see how each of the Justices (or group of Justices) will react to Gura’s argument.
1) Justice Thomas. I suspect Justice Thomas is Gura’s only vote. Justice Thomas more or less took Gura’s position in his dissent in Saenz v. Roe a decade ago. He’s likely on board today.
2) Justice Scalia. In contrast to Justice Thomas, Justice Scalia probably won’t agree with the Gura brief in light of stare decisis. In speeches about originalism and stare decisis, Scalia often uses the 14th Amendment incorporation doctrine as an example of a line of cases that he thinks was wrong but that he won’t overrule because of all the reliance interests built up around it over the years. If Scalia won’t overturn the 50-year old incorporation doctrine even though he thinks it was wrong, I doubt he’ll want to overturn the 116-year old Slaughterhouse Cases even if the brief convinces him they were incorrect. That’s particularly true because the Gura brief advocates a version of privileges or immunities that is so vague it would vest tremendous new discretion in judges (more on that below). I just don’t think Scalia is going to want to do that.
3) Chief Justice Roberts and Justice Alito. Chief Justice Roberts and Justice Alito are also sympathetic to originalism, and may harbor the sense that Slaughterhouse and the incorporation cases were both wrong as an original matter. But I don’t think they’re revolutionaries, and the brief calls for a revolution.
To see this, it helps to realize exactly what life the brief aims to breathe into the Privileges or Immunities clause. At various points in the brief, the brief lists the following new rights that the Fourteenth Amendment should be read to protect beyond what it already protects under the Due Process and Equal Protection clauses:
a) “a broad array of pre-existent natural rights believed secured by all free governments.” (p.10)b) “What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.” (p.17) (quoting Corfield, 6 F. Cas. at 551.)
c) “The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state . . . [and] the elective franchise” (p.17) (quoting Corfield, 6 F. Cas. at 551.)
d) “Natural rights which are those rights common to all men, and to protect which, not to confer, all good governments are instituted.” (p.24) (quoting Bingham)
e) Rights that “are not and cannot be fully defined in their entire extent and precise nature.” (p.25) (quoting Howard)
f) “The right to contract” (p.25) (quoting Rogers).
g) “The natural, fundamental rights, believed to fall under Article IV, Section 2, and the rights codified in the first eight amendments.” (p.26)
Are Chief Justice Roberts and Justice Alito (and Justice Scalia, for that matter) going to want to give the federal judiciary a new power to strike down legislation because it is inconsistent with “natural rights,” including “the right to obtain happiness and safety,” with some of those natural rights undefinable “in their entire extent and precise nature”? I just can’t see that. From their perspective, the Ninth Circuit already makes up lots of stuff as it is. Do you really wanna give them this loosey-goosey undefinable natural rights stuff and let them run free with it? I don’t think so.
I think Roberts and Alito are particularly unlikely to agree with the Privileges or Immunities argument in light of basic judicial restraint principles. The Due Process argument here is pretty straightforward: Heller itself has enough language to make the case that the 2nd Amendment is incorporated under Due Process. It would be a huge break from any traditional concept of judicial minimalism to decide the case by overturning Slaughterhouse.
4) Justice Kennedy. Justice Kennedy is not an originalist, and he basically likes the Court’s existing Due Process jurisprudence. I think he’s a solid vote for incorporation via Due Process, but I don’t see him wanting to change the law in such a radical and far-reaching way under the P or I clause. It’s just not his style.
5) Justices Stevens, Ginsburg, Breyer, and Sotomayor. I suspect the Justices on the more liberal half will read the Gura brief and conclude it’s just trying to resurrect Lochner. The Gura brief envisions a Privileges or Immunities Clause that would include “the right to contract,” the right “to take, hold and dispose of property, either real or personal,” and the right to “an exemption from higher taxes or impositions than are paid by the other citizens of the state.” That sounds like Lochner, which to them is the very epitome of a wrong turn in constitutional law. Plus, they presumably realize that overturning Slaughterhouse is a major goal of libertarian legal activists like the folks at the Institute for Justice who want to resurrect P or I as a way to attack the modern regulatory state. I don’t expect them to help.
Mark Field says:
As a prediction, I think this is spot on. The interesting thing to me is that there’s a contingent on the left (Jack Balkin, for example) who favor the PoI clause, making strange bedfellows with the libertarian right. But while those two otherwise disparate camps agree on this, I get the sense that they’ve yet to convince many in the middle.
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November 17, 2009, 11:55 pmGainesvilleGuest says:
I’m going to go on record and predict 2 votes to overturn Slaughterhouse and incorporate through P or I: Thomas and Alito.
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November 17, 2009, 11:56 pmJeffH says:
I said in an earlier thread that I think the court will vote in favor of incorporation on 2/3/4 lines. 2 in favor of incorporation under PorI, 3 in favor of incorporation under DP, and 4 against incorporation.
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November 18, 2009, 12:02 amNakku says:
I also predict one vote Thomas to overturn slaughterhouse. Kennedy, Roberts, Alito and Scalia for incorporation under DP. The rest against incorporation.
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November 18, 2009, 12:06 amJ. Aldridge says:
I think the BIG problem here is Gura fails to recognize the distinction between United States citizens and citizens of a state. Bingham: “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”
Bingham again: “The words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the nation as they existed under the original Constitution.”
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November 18, 2009, 12:21 amyankee says:
I haven’t read the brief, and therefore didn’t realize that they’re promoting such a broad view of the privileges or immunities clause. But I wonder if they’re serving their client well by doing that rather than pushing a narrower reading of PorI. This stuff about natural rights, the right to obtain happiness, the right to freedom of contract, and the right to a flat tax* isn’t going to win them any votes and is guaranteed to alienate many of the Justices.
* At least that’s what I think “an exemption from higher taxes or impositions than are paid by the other citizens of the state” means. Perhaps it means something else but I’m at a loss to say what.
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November 18, 2009, 12:26 amreadery says:
Why not a liberal P&I — a P&I that is mostly about sex and doesn’t see business or property (or for that matter speech or intellectual pursuits generally) as being particularly natural or important to most people?
Why assume the leftward 4 would accept a binary of either P&I as libertarians see it or nore at all?
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November 18, 2009, 1:10 amreadery says:
A constitutional right to a flat tax? And these guys aren’t joking?
How do they make this stuff up?
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November 18, 2009, 1:13 amno relation says:
Doug Kendall is in favor too. He believes that Roe should have been resolved on alternate grounds — and that P or I is the vehicle for that (and other stuff, like ssm).
Thomas may be inclined to overturn Slaughterhouse, but he is unlikely to buy into the expansive vision advocated by the brief.
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November 18, 2009, 1:59 amNunzio says:
Why did they grant cert on the P I issue if only one justice is in favor?
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November 18, 2009, 2:08 amGuy says:
This is kind of silly, substantive due process essentially is the Privileges and Immunities Clause as advocated by Gura (his interpretation may be more expansive, but only insofar as it recognizes new fundamental rights that could just as easily, or with just as much difficulty, be incorporated into substantive due process). I see no reason to think courts wouldn’t come to substantially the same jurisprudence under the new framework.
J. Aldridge,
Without having read the brief yet, I’m not sure he fails to understand the distinction. I think this position could be justified just by having a broader conception of what the privileges and immunities of U.S. citizens are. If one believes in natural rights, it’s reasonable to say they ought to be included.
“The words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the nation as they existed under the original Constitution.”
This may be an arguable point, but I’ve always thought it’s rather dense to say that the 14th amendment wasn’t intended to alter the relationship between the states and the federal government, at least just a little bit, if not radically.
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November 18, 2009, 2:15 amDNJ says:
I agree with readery. Jack Balkin’s vision of the P or I clause certainly wouldn’t look much like this brief’s one. While the liberal justices are certainly unlikely to embrace petitioner’s vision of the clause, the might well adopt something similar to Balkin’s.
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November 18, 2009, 2:38 amOrin Kerr says:
ReaderY, DNJ,
Just to be clear, the question in the post is how many Justices will vote to overrule The Slaughterhouse Cases in this case and then use that new P or I rule to strike down the Chicago gun ban as violating P or I, as Gura is specifically asking. It may be true that there are some Justices who can imagine a privileges or immunities clause that they might personally like better than the one that exists now. But I think that’s a separate question.
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November 18, 2009, 2:48 amHadur says:
Again:
What do libertarians hope to get from P&I that they couldn’t already get from substantive due process?
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November 18, 2009, 4:37 amGene Hoffman says:
Two things.
1. An actual original textual basis for civil rights and in so doing create a much more historically important opinion incorporating the Second.
2. A textual originalist basis for economic rights.
Since Kennedy wrote Lawrence and P or I would more honestly support that holding, isn’t it a bit early to assume he’s out.
Also, there is an old age that is very apropos: you can’t get what you don’t ask for.
–Gene
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November 18, 2009, 4:57 amVisitor Again says:
Orin, of course, is right about the scope of the question, particularly since he’s the one who posed it! Nevertheless, in view of the scope of reader comments above, I note three things.
First, some state constitutions contain some of the rights that Alan Gura talks of in his brief, and yet rarely, if ever in modern times, have we seen free-wheeling judicial interpretations of those provisions that would give nightmares to advocates of judicial restraint.
Second, it’s extremely unlikely that overruling the Slaughterhouse Cases would resurrect Lochner. The problem with Lochner was that it gave an extreme reading to the right of contract, that it failed to recognize legitimate state interests in limiting its sway. It’s not an either-or situation—-either an absolute right of contract or no right of contract. And for that reason, I doubt very much that the so-called liberal justices would conclude that the Gura brief constitutes an effort to resurrect Lochner. They ought to be given more credit–for their intellect as well as for their integrity–than that. They might point out that in the wrong hands, the Gura approach could achieve disastrous results, but that says nothing, for any legal doctrine may lead to disastrous consequences in the wrong hands. The point is that I doubt these justices would view resurrection of Lochner as a serious threat.
Third, I went to law school in the middle of the Warren Court “revolution.” Then, as now, there was strong sentiment that the Slaughterhouse Cases had been wrongly decided, yet even at the heighth of what has been branded the Warren Court’s judicial activism, the prevailing view among legal observers was that overruling the Slaughterhouse Cases was not an option to be seriously entertained. In fact, it was because overruling the Slaughterhouse Cases was not regarded as a serious option that the Warren Court brought to a high state of development the doctrine of “incorporation” of the Bill of Rights through the Fourteenth Amendment’s due process clause, an invocation of substantive due process that was highly dubious whether or not the incorporation was selective.
Note that I recognize that the incorporation doctrine did not originate with the Warren Court. By “high state of development,” I mean the notion that most of the amendments known as the Bill of Rights were mechanically incorporated by the Fourteenth Amendment so that, with rare exception (see the right to jury trial), they applied against the states in exactly the same way they applied against the federal government.
What my third point boils down to is that it would be strange, indeed, if the Roberts Court, much more attuned to the dangers of judicial activism, were to overrule the Slaughterhouse Cases when the Warren Court, at the time it was overruling precedent at an unprecedented level, considered overruling the Slaughterhouse Cases out of the question. And yet the Slaughterhouse Cases stand out as a huge blunder in United States Supreme Court history. Historical integrity–which embodies loyalty to the intent of the framers of the Fourteenth Amendment–has its claims, too.
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November 18, 2009, 5:03 amDavid Bernstein says:
I don’t really see why overruling the Slaughter-House holding that virtually NO rights are protected by P or I means that the Court (or any individual Justice) would have to buy into an otherwise expansive version of P or I. For example, several Justices could conclude that there is ample evidence that the Framers of the 14th Amendment thought that the right to bear arms was a liberty protected by the Amendment, and that they thought that the P or I Clause would be the source of that right. There would be no reason for them to go beyond that and discuss whether any other rights are protected by P or I that are otherwise unprotected under D.P.
I certainly agree with Orin that it’s very unlikely that Scalia would vote with the Petitioner; Scalia uses originalism when it’s convenient, but is much more committed to his own version of judicial restraint when the chips are down, and especially to a version that blanches at any argument that may give even a patina of respectability to Roe v. Wade.
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November 18, 2009, 5:12 amDavid Bernstein says:
That’s a commonly held view, and completely wrong. There was no absolute right of contract under Lochner, the vast majority of restrictions on contract that were challenged in court were upheld between 1905 and 1934 as appropriate police power measures (and the vast, vast majority were never challenged to begin with), and the “absolute” right of contract was far more limited than, for example, the right to free speech or the right to abortion as delineated under modern jurisprudence. What you have today, meanwhile, is no right of contract.
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November 18, 2009, 5:19 amKharn says:
Scalia twice mentions Cruikshank being bad law in Heller, page 47 (48?) he quotes The Day Freedom Died, and Footnote 23 goes into further detail. I wouldnt count him out.
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November 18, 2009, 5:57 amVisitor Again says:
To David Bernstein:
Orin said the so-called liberal justices will view Gura’s brief as an attempt to resurrect Lochner. I said there is no reason to fear a resurrection of Lochner because the choice is not between the extreme absolutist view of the right of contract in Lochner and no right of contract, that recognition may be given to legitimate state interests in regulating freedom of contract. You say there is nothing to fear from a resurrection of Lochner because Lochner did not embody the extreme absolutist view of the right of contract and that the courts under Lochner upheld most restrictions on the right of contract. We agree to the extent that both of us say raising fears of a resurrection of Lochner is unjustified (albeit for completely different reasons).
I have read your blog submissions on Lochner, but not your book. Your views go against the accepted view, as you seem to recognize. As an advocate’s response to fears that Gura’s approach will resurrect Lochner, my judgment is that my approach is the more effective both because it does not take on the commonly accepted view of Lochner and because it is much more quickly and readily made. Your views, however scholarly, are not uncontroversial at the moment; they may win the day eventually. But I would not make them part of an argument in a brief contesting the contention that Gara’s view of the privileges or immunities clause would resurrect Lochner–at least not beyond a footnote.
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November 18, 2009, 6:28 amBob from Ohio says:
Libertarian = anarchist.
Under Gura’s view, the government can’t do anything because it will affect somebody’s right to do something.
How this actually gets a win for the client is beyond me.
Is a S/C brief the proper place for pushing personal views at the expense of your client’s interest?
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November 18, 2009, 7:51 amJoseph Slater says:
Re DB’s post, there were literally hundreds of worker-protective (wage, hour, union rights, child labor, etc.) statutes passed by democratic majorities that were struck down in the late-19th to early-20th century. This was a very big deal to the folks (presumably majorities in the various states and jurisdictions that passed the hundreds of laws) that favored those laws and eventually became a real problem for the legitimacy of the court.
DB is entitled to think those decisions were correct — that the laws struck down were not only bad ideas, but affirmatively unconstitutional. But if I read his “the majority of laws affecting contracts were upheld,” to mean “so Lochner-era rules weren’t all that restrictive,” I strongly disagree, at least as far as employment laws go. Courts in that era were frequently rejecting workplace regulations that majorities wanted. Those sorts of laws (and some going further) became even more popular in the New Deal and are even more popular now. Outside libertarian ciricles, the constitutionality of basic wage & hour, anti-discrimination, and labor laws is not seriously questioned, and again, huge majorities of the public favor such laws.
This is not an argument about the P & I clause. But if Orin is correct that the “liberal” justices would suspect that using that vehicle would be a mechanism to bring back Lochner-era jurisprudence, then that certainly would be a reason that those justices would — rightly, for many reasons — resist that approach.
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November 18, 2009, 8:23 amDjDiverDan says:
While I doubt that there will be more than 2 votes, 3 at the most, to overrule Slaughterhouse, I think the more interesting question is whether any Justice will undertake a reasoned defense of Slaughterhouse on the merits, or just fall back on stare decisis and say “116 years — it’s now too deeply imbedded in our Constitutional law to overrule, regardless of its merits.”. As an aside, is anyone aware of any recent (i.e., after say 1940) scholarly work which defends the reasoning or result of Slaughterhouse?
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November 18, 2009, 8:28 amDjDiverDan says:
BTW, can anyone explain why, if Slaughterhouse was wrongly decided (as seems to be the near unanimous consensus), it should nevertheless survive on the basis of stare decisis, while Plessy v. Ferguson should not? If the only answer is politics, then the only conclusion is that the notion that we are a nation of laws and not of men is pure delusion.
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November 18, 2009, 8:32 amBart DePalma says:
The Court could simply hold that the P&I Clause incorporates the entire Bill of Rights and leave the issue of interpretation of the Ninth Amendment to another day. Given that nearly all of the Bill of Rights is already incorporated through the DPC, I am unsure that this is so much a practical revolution as simply clearing away the last of the Reconstruction era error.
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Joe says:
Can anyone explain why, if Slaughterhouse was wrongly decided (as seems to be the near unanimous consensus), it should nevertheless survive on the basis of stare decisis, while Plessy v. Ferguson should not
Overruling is at least partially pragmatic. Substantive Due Process filled in the role for P/I so there is much less of a need. As to originalism, a recent post here noted Alan Gura’s brief cited just such a defense of SDP. Since Presser etc. focused on the P/I argument, SDP also provides a way to decide w/o directly overturning precedent.
As to Bart’s comment, I don’t think they want to incorporate the Grand Jury Clause & overturn the practice in various states. Ditto the 7A to the degree that would apply. The NRA brief suggests they rejected to do this fairly recently.
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November 18, 2009, 8:53 amJoe says:
I think Prof. Kerr’s predictions are reasonable, including respecting the ‘liberal’ four.
Truth is that P/I is really no less tied to more economic rights any more than substantive due process. Many reject Lochner, but not the principle that the courts should closely review laws that might infringe on fundamental rights. Harlan’s dissent shows that opponents of the ruling might even strike down economic legislation (as he did).
As to the libs not supporting incorporation either, maybe, but I don’t see the point. I would not be surprised if one or more support it but Breyer-like argue that a handgun ban (e.g.) is a reasonable regulation. Cf. Gitlow, where the right was incorporated, but he still lost.
The number of liberal leaning scholars supporting incorporation — including those like Sandy Levinson who found Heller promoting dubious history — only helps push one or more in that direction.
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November 18, 2009, 9:07 amDavid Bernstein says:
Visitor Again,
I think we basically agree in that the Court would want no part in resurrecting Lochner, and that Lochner is considered to have taken an absolutist view on liberty of contract. And I’d add that even the non-absolutist right articulated by Lochner wouldn’t get a single vote on today’s Court, even if the Justices understood its limited nature. I just wanted to point out that Lochner was not truly absolutist, left a lot of room for the police power, and that the regulatory reach of both state and local government grew by leaps and bounds even before the New Deal.
And Joe Slater, one has to distinguish between “Lochner” in the Supreme Court, and the more radical version of liberty of contract adopted by some state courts pre–Lochner. Basically, in the USSC almost all employment laws were safe unless they seemed to directly benefit labor unions (Adair, Coppage–and even those were virtually overruled in 1930), or set wages (Adkins). Even hours laws were always upheld, except Lochner (Holden v. Hardy; Muller and other cases involving women; Bunting v. Oregon). The most controversial reform of the day, workers’ comp., was consistently upheld. The many, many, safety laws were almost never even challenged, because they were clearly constitutional. Child labor laws were upheld under Lochner (but not the Commerce Clause). I could go on; professional licensing laws, laws requiring payment of wages in cash, railroad full crew laws, the Railway Labor Act, and so forth and so on).
The few cases invalidating labor laws may have been mistaken, even grossly mistaken, but that’s not because the Court adopted an “absolutist” view of liberty of contract.
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November 18, 2009, 9:12 amp.d. says:
My impression from the brief is that it’s taking pains to secure a Scalia vote, and I would imagine that the vagueness problem to which Orin refers would disappear if Scalia were the one writing the opinion/concurrence/dissent that engages the history. I’m not sure I agree with Orin that incorporation via P or I, or even overturning SlaughterHouse, necessarily entails throwing discretion to the wind or unleashing lower courts to wreck havoc. This might be what Gura et al have in mind, but this doesn’t mean SCOTUS can’t cabin their discretion as much as possible (i.e., enumerated rights or pre-14th A rights ok, imaginary or newfound 20th century rights not ok). My general skepticism about Orin’s skepticism is that Gura’s brief is not a majority opinion he’s requesting that the Justices to join. There’s still the City of Chicago’s brief, and amicus briefs galore. Reviving P or I by overturning SlaughterHouse is achievable without giving much credence to Gura’s view of what substantive or speculative protections it might afford. Then again, maybe I’m giving the Justices too much credit.
As for Roberts and Alito, this brief really throws down the gauntlet. There’s few cases on the books today so wrongly decided as SlaughterHouse, and this case appears an invitation for judicial engagement, not judicial activism or judicial evasion. This case might be minimalism’s greatest test for its tolerance of bad law.
The question I’m still pondering, and would hope Orin or other skeptics might address, is why grant cert on the P or I question when other cases were available to address the incorporation that might not have even open this box (or at least invited petitioners to brief the P or I issue)? One possibility is that this was the only way cert could be granted–for example, if Thomas were the pivotal vote in favor of cert. Then again, the split between the circuits was quite clear and its resolution by SCOTUS inevitable. Having not clerked on SCOTUS and admitting my unfamiliarity with the cert process, is it overreading the Court’s certification of the question mentioning P or I to believe they seek a serious briefing on the issue?
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November 18, 2009, 9:24 amjheath says:
As I recall, the substantive due process reasoning in Roe v. Wade was disturbingly reminiscent of the reasoning in Lochner, which is part of why pro-choice advocates have always felt especially insecure about Roe.
If so, then a supposed implicit affinity between MacDonald and Lochner is not necessarily a negative for the supposed Court “liberals.” It might present an opportunity to buttress Roe while distinguishing personal from economic liberty. No?
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November 18, 2009, 9:33 amDebauched Sloth says:
It’s remarkable that Orin’s predictions about how various justices will vote have nothing whatsoever to do with the strength of the arguments in the brief. There is an essentially universal consensus among knowledgeable academics that the Slaughter-House majority’s interpretation of the Privileges or Immunities Clause is not only wrong, but intellectually indefensible. Probably no single right was more often mentioned in connection with the Fourteenth Amendment than the right to keep and bear arms, and the Privileges or Immunities Clause is by far the most plausible provision in the Amendment for protecting that right as a matter of text, history, and original public meaning.
But Orin suggests — quite plausibly — that the behavior of the Justices will likely have nothing to do with the merits of the arguments for revisiting the Privileges or Immunities Clause, and everything to do with how they personally feel about the implications of doing so. Two reactions: (1) what a depressing (but accurate) commentary on the status of Supreme Court decisionmaking; and (2) what a glaring example of judicial activism.
(But of course, it’s what many consider the “good” kind of activism, the kind where judges impose their personal preferences for majoritarianism on the contrary text of the Constitution.)
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November 18, 2009, 9:44 amSimon Spero says:
Orin: Your prediction is probably right. Thomas’s dissent should be spectacular, though. Maybe it will be a Lochner in reverse, where the dissent became the received wisdom (“The fourteenth ammendment does not enact Mr Roosevelt’s socialist tics”).
Bob from Ohio: “libertarian = anarchist”. Some anarchists are libertarian. Some libertarians are anarchists. Randy Barnett is probably the only Conspirator who would fit an anarchist mould (Spoonerite/Anarchocapatalist). The majority are closer to classical liberalism.
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November 18, 2009, 9:46 amJosh Blackman says:
Orin,
I reply to your predictions in detail here. Also, Ilya Shapiro and I have a fortchoming in the Georgetown Journal of Law & Public Policy, titled Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment. In this article, we deal with a lot of these points.
But here is a brief reply:
First, I think you present a binary choice; incorporate through Due Process OR incorporate through privileges or immunities. The question presented asked about both routes of incorporation. Neither path is by necessity mutually exclusive. As Gura’s brief makes clear, the Court could incorporate through the Due Process Clause, and alternatively recognize that the right to keep and bear arms is also among the Privileges or Immunities of Citizenship. The Court need not displace 100 years of substantive due process jurisprudence with this single case. And from a practical perspective, basically the entire Bill of Rights has been incorporated. So, unless some people start clamoring about states quartering troops in theirs homes, this would be a one time deal. Such a holding would do little to upset the apple cart, or as we put it, open Pandora’s Box.
Second, I think you may over-simplify Scalia’s views on originalism and stare decisis. Our article shows that Scalia, while on the Supreme Court, has never voted in favor of a substantive due process incorporation. The last such case was in 1982. Can Scalia really cite the doctrine that he excoriated in Lawrence, Casey, and elsewhere based solely on reliance interests? It is no secret Scalia likes guns, and he wants to incorporate the 2nd Amendment. But he does not want to enlarge substantive due process. Is he stuck between a rock and a substantively hard place? The Privileges or Immunities Clause provides an alternative method for Scalia. He could write a classic originalist opinion tracing the right to bear arms during Reconstruction, and find that it applies to the State.
Third, the Court does not need to rehabilitate Lochner (another shameless plug for David Bernstein’s forthcoming book). In fact, the Court can take a narrow view of Privileges or Immunities solely as an incorporative methodology, and leave to a later day the protection of substantive rights. But this possibility raises another issue. While you are quite right to say the liberal Justices would be afraid to bring back Lochner, in a different case, the Justices may see the Privileges or Immunities Clause as a means to constitutionalize certain positive rights (welfare, education, health care, etc.). There is a growing body of literature, springing from the Constitution in 2020 project, that aims to use P/I as a means to elevate positive social rights to constitutional rights.
So, while Justice Breyer may not be willing to recognize the right to keep and bear arms as a Privilege or Immunity, the Court in a few years, with a much different composition, may be willing to recognize a constitutional right to health care, for example. While these types of arguments failed under due process and equal protection, privileges or immunities jurisprudence will be written on a clean slate.
For these reasons, and others mentioned in our article, we ask the Court not to punt on P/I for future generations, but rather to assert an originalist jurisprudence; namely, adopt the Washington v. Glucksberg test. By looking at only those rights deeply rooted in our nation’s history, the Court can find the right to keep and bear arms is such a right, and thus incorporate it to the state.
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November 18, 2009, 9:50 amJoe says:
Roe v. Wade was disturbingly reminiscent of the reasoning in Lochner
This boils down to what one found “reminiscent.” Truthfully, the disturbance for many Lochner critics were economic rulings. They are not upset about Meyer v. Nebraska et. al., though Holmes dissented there too.
“which is part of why pro-choice advocates have always felt especially insecure about Roe.”
I find this exaggerated but it’s a common argument. The weakest part of Roe is the trimester scheme, something not really found in Lochner. The basic idea of a right to privacy, particularly one of special concern for women, is not something I or other advocates are “especially insecure” about on principle.
It might present an opportunity to buttress Roe while distinguishing personal from economic liberty.
It can. BTW, it is argued to be “activist” to ignore original understanding etc. in this case. But, part of judging IS precedent. Always has been. Since the alternate route taken, one that already overruled one aspect of the SHC (its concern for a broad based view of the 14A), is even in part backed up by originalism, precedent has even more force.
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November 18, 2009, 9:57 amPaul Griffin says:
http://www.johnlocke.org/lockerroom/lockerroom.html?id=22554
Alan Gura does a great job explaining his position at this event. I asked him around 3/4 the way through the video about this exact problem, to what extent will justices like Scalia be willing to jump on and open up the P or I clause, his explanation was thorough, well thought out, artfully reasoned, and made me a strong believer in what he is doing.
For anyone who has not read this brief, please do, it is amazing.
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November 18, 2009, 9:59 amMark Field says:
Hmmm. In what case, in your view, was the 5th A Takings Clause incorporated?
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November 18, 2009, 10:13 amJosh Blackman says:
I am not sure which case incorporated the takings clause, but I know as far back as 1922, in Penn Coal v. Mahon, the Court applied the takings clause to the State.
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November 18, 2009, 10:16 amDavid Bernstein says:
Josh, not exactly: In Mahon, the Court held that the DP Clause protected property rights from takings, the Fifth Amendment played no role.
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November 18, 2009, 10:29 amJeffH says:
I always wondered when it became acceptable to equate libertarians with anarchists. Libertarians are no more anarchists than Democrats are socialists or Republicans are fascists. Being in favor of less government intrusion is not the same as being in favor of no government at all.
And Mr. Gura’s clients knew what they were getting into when they signed up to have him represent them. If they didn’t want an argument for incorporating the 2nd Amendment under P/I than they could have signed up to let the NRA represent their interests.
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November 18, 2009, 10:32 amJosh Blackman says:
My apologies Professor. See Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897). I think this is the case that incorporates the 5th Amendment Takings Clause.
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November 18, 2009, 10:35 amDavid Bernstein says:
Nope, no mention of the Takings Clause in that case, either. In fact, there are no true incorporation cases until later, these are all D.P. cases that don’t rely on the corresponding federal rights (you can add Gitlow to the mix of cases falsely described as incorporation cases). But don’t feel bad, the USSC makes this mistake all the time.
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November 18, 2009, 10:37 amMark Field says:
Prof. Bernstein is correct on all counts. The reason I raised the issue is that I believe Justice Scalia has, in fact, supported the incorporation of the Takings Clause, though perhaps quite subtly.
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November 18, 2009, 10:59 amJosh Blackman says:
I stand corrected Prof. B and Mark. Mark, do you know which case Scalia supported the incorporation of the Takings Clause. In my research, I focused on cases where the Court actually considered incorporation, but I did not find cases where Scalia may have mentioned it in dicta.
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November 18, 2009, 11:02 amThe Volokh Conspiracy » Blog Archive » Open Comment Thread on McDonald says:
[...] had a feeling that my post predicting the votes in McDonald might draw an disapproving response from Randy, and I see it did. [...]
Hannah says:
Constitutional Accountability Center (Kendall’s group) represented several Fourteenth Amendment scholars in encouraging the Court to overturn Slaughterhouse. You can read our materials (briefs, and a report, entitled “The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment”) here.
Regarding Kerr’s analysis of the P or I Clause’s prospects before the Court, it is not dissimilar from what Kendall and David Gans wrote in The Gem when they acknowledged that making such significant changes to constitutional law entails “risks and uncertainties, as well as rewards,” for both sides of the Court. The problem with Kerr’s analysis, however, is that it doesn’t take into consideration the fact that the Court actively chose to address this question of overturning Slaughterhouse. The Court had two cert. petitions to chose from regarding Second Amendment incorporation — one by the NRA, one by McDonald (Gura’s) — and only the latter discussed P or I. The City of Chicago took the extraordinary position that the Court should grant cert. in the case, but only on the due process question, not the P or I question. The Court, however, chose to grant only in McDonald, to hold the NRA’s petition, and to reject Chicago’s suggestion to narrow the question presented. It is difficult to square the fact that the Court did all this with Kerr’s suggestion that there will be little interest in overturning Slaughterhouse beyond Thomas.
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November 18, 2009, 11:10 amMark Field says:
Let me give a longwinded answer by way of explanation. I phrased my original question somewhat oddly, not because I was being coy but because the Court never has made a definitive statement to the effect “we hereby incorporate the Takings Clause”. Instead, sometime around 2000, they simply stated that the Clause had been incorporated. Scalia signed on to at least one of these opinions, but I’m going to have to find it for you.
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November 18, 2009, 12:27 pmShelbyC says:
Well, if Gura does win, he has to get mad “earth-shaking changes to the constutional order” props. Imagine. The same dude turning the individual RKBA from a crackpot theory into the law of the land, then overturning the Slaughterhouse cases, within the space of five years. The man will be a rock star.
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November 18, 2009, 12:31 pmfwb says:
Question: Just how extensive/inclusive is a privileges and immunities clause that didn’t/doesn’t include something as simple and central as the “right”(actually a privilege) to vote?
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November 18, 2009, 12:35 pmJoseph Slater says:
David: I appreciate the reply. Of course there weren’t hundreds of U.S. Supreme Court cases on labor regulations, and of that set, not every one was on the Lochner contract theory (as you note, the cases striking down child labor laws weren’t). Still, the yellow-dog contract and hours cases were big, big deals, as were the wages statutes that were struck down.
So sure, Lochner was not an absolute rule that would strike down any possible government interference with any possible contract. My point was that if Orin is correct that some Justices would see a newly-invigorated P & I jurisprudence as re-invigorating Lochner that would logically lead them to reject that approach, because even your version of Lochner — laws banning yellow dog contracts and minimum wage laws, e.g., violate the Constitution — is not where they want to go or where they should want to go.
FWIW, I don’t have an informed opinion as to whether that actually is what the justices think, or whether the P & I approach actually would lead there.
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November 18, 2009, 1:15 pmmariner says:
Meg Greenwald informed us (many of us for the first time) that Justice Thomas is surprisingly effective at persuading other Justices to adopt his point of view.
I pray that you and she are both right about him.
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November 18, 2009, 1:20 pmMark Field says:
Ok, the case I had in mind was Palazzolo v. Rhode Island, though in that case (as previously First Evangelical Lutheran Church), the Court did cite to Chicago Burlington & Quincy as “incorporating” the 5th, which it manifestly doesn’t do. Scalia signed on to both Palazzolo and First Evangelical. The way I’d read it is that one of these two cases actually incorporates the Clause. I think Scalia gets away with agreeing to incorporation because the Court pretends that it already had happened.
FWIW, I have no problem with incorporating the Takings Clause; I think the Court was right to do so. I just think Scalia shouldn’t get to duck the issue.
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November 18, 2009, 1:20 pmBob from Ohio says:
Not according to the Gura brief. His view of government power lets it enforce private contracts. That’s about it.
Please tell me what government can do that doesn’t violate one of those two principles. Very, very little.
Not “classical anarchy” maybe but certainly anarchy-lite.
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November 18, 2009, 1:21 pmJoseph Slater says:
Off topic, but meta: I just used the “edit post” function for the first time to remove a typo that would have greatly obscured my meaning (and made me look stupid, or perhaps stupider). So three cheers for adding that capability!
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November 18, 2009, 1:28 pmADF Alliance Alert » How Many Votes To Overrule The Slaughterhouse Cases? says:
[...] Kerr writes at the Volokh Conspiracy: “As I mentioned yesterday, the petitioner’s brief in McDonald v. City of Chicago written [...]
mariner says:
JeffH:
I submit it was when believers (Dem and Repub) in big government realized libertarian principles might be attractive to too many people, and so decided to smear libertarians instead of engaging their ideas.
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November 18, 2009, 1:45 pmxqqme says:
This analasys, and Gura’s brief were both excellent and entertaining reading, but one issue seems to me to be completely left out of all the originalist arguements:
In Heller, the court ruled that the 2nd Amendment did indeed apply to the federal government. Illinois, and most of the current states were not in existence at the time of the adoption of the Constitution, but were at some point, federal “territories”.
As territories, under the ruling in Heller, the 2nd would apply to those citizens, and they would indeed be citizens of the United States. The quandry comes from this question:
Did the citzens of the United States Territories, by becoming citizens of a State formed from said territories, forfeit or extinguish their constitutional rights?
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November 18, 2009, 1:48 pmJosh Blackman says:
Thanks Mark. I just added that point to my article. You are quite right, and it seems the Supreme Court sub silentio kinda incorporated the takings clause there.
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November 18, 2009, 2:00 pmPubliusFL says:
Is your position that a case doesn’t actually incorporate a provision of the Bill of Rights unless it actually uses the words “made applicable to the states by the 14th Amendment” or “incorporated against the states by the 14th Amendment”? Because that’s not the approach the Court itself takes when referring to Chicago Burlington & Quincy, Gitlow, etc.
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November 18, 2009, 2:09 pmPubliusFL says:
Nope. Let’s take the example of states admitted after the adoption of the Constitution but before the adoption of the 14th Amendment. Say Kentucky. Before statehood, Kentuckians had a right to be free of Congressional infringement of their freedom of speech under the 1st Amendment. After statehood, they had the same right. The fact that a new level of government was created, bound by a separate constitution, did not serve to forfeit or extinguish that right. But that doesn’t mean that the new government necessarily had the same powers and limitations.
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November 18, 2009, 2:27 pmMark Field says:
No, I don’t think it has to go that far though, in all other cases it has used that language AFAICR. Even in Palazzolo and First Lutheran, it does use those exact phrases (near enough), it just backdates the “incorporation” to a time when it didn’t actually happen. I’m just noting that backdating.
You’re certainly welcome (and very gracious too). I’m glad blog comments serve some real world purpose besides annoying our hosts.
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November 18, 2009, 4:16 pmPubliusFL says:
I’m curious about how this meshes with our conservatism v. activism discussion in the open thread. It seems that you allow the Court less leeway in declaring what its own previous rulings mean than in declaring what the Constitution means. The Court says that the takings clause was incorporated in Chicago Burlington & Quincy.
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November 18, 2009, 4:44 pmJ. Aldridge says:
It breaths no life into the P&I argument for the simple reason it was universally understood the P&I’s of United States citizens had no application towards citizens of their own state.
It is not a P&I for someone within another state to claim a right to own a gun.
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November 18, 2009, 7:04 pmMark Field says:
A fair question, though I suppose I could turn it around on you in the same way.
My suspicion is that the Court simply made a mistake (though it’s possible there was a deliberate fudge of the point). The substantive question — the incorporation of the Takings Clause — isn’t in doubt, so all that’s left is the explanation. If that explanation ever becomes the substantive issue in a case (it sometimes does) and the Court reaffirms it with full briefing, we can re-visit the issue.
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November 18, 2009, 8:17 pmBob from Ohio says:
There is absolutely no evidence for libertarianism being “attractive to too many people”. In fact, the evidence is overwhelming to the contrary. Unless you mean less than 5% of the population as “too many”.
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November 18, 2009, 9:16 pmreadery says:
Aliens could lose big-time.
They get strict scrutiny against the states under Due Process and Equal Protection, zippo under P&I. Since P&I itself excludes aliens, it would be much harder to argue that the 14th Amendment intended to prohibit states from treating them differently.
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November 18, 2009, 11:23 pmMark Field says:
I agree that they might lose out to some extent. But it’s not quite as bad as you suggest since they still get DP and EP under the 14th A (both apply to “persons”).
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November 18, 2009, 11:36 pmSolomon Grundy says:
Hey, if we can suddenly find a new right in the Second Amendment after 200 plus years, why the heck can’t we revisit the P/I clause? Con Law classes would be a lot duller if the SCt didn’t change the rules every so often.
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November 19, 2009, 12:40 amThursday Round-Up | SCOTUSblog says:
[...] v. Chicago, the Second Amendment incorporation case. The Volokh Conspiracy has three new posts: Orin Kerr speculates that there is only one vote on the Court to overturn The Slaughter-House Cases of 1873 [...]
ShelbyC says:
What 200 years? We only lost the right about 80 years ago.
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November 19, 2009, 11:56 am2aHawaii says:
I just wanted to say thanks for a good read (in the article and comments) and for a different view on how McDonald v Chicago may turn out.
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November 20, 2009, 1:00 amJoe says:
We only lost the right about 80 years ago.
1929?
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November 29, 2009, 12:13 amDan Goodman says:
To all,
I wish to state that the Supreme court, in the Slaughterhouse Cases, held that because of the Fourteenth Amendment there were now two separate and distinct citizens under the Constitution of the United States; a citizen of the United States, under the Fourteenth Amendment and a citizen of the several States, under Article IV, Section 2, Clause 1 [FOOTNOTE]:
“We think this distinction and its explicit recognition in this Amendment (the 14th Amendment) of great weight in this argument, because the next paragraph of this same section (first section, second clause), which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several states. The argument, however, in favor of the plaintiffs, rests wholly on the assumption that the citizenship is the same and the privileges and immunities guaranteed by the clause are the same.” 83 U.S. 36 (1873), page 74.
And:
“In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens OF the several States.’ ” 83 U.S. 36 (1873), page 75.
The last was later reaffirmed in Cole v. Cunningham:
“The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship.” Cole v. Cunningham: 133 U.S. 107, 113–114 (1890).
The privileges and immunities of citizens of the several states are those described by Corfield, cited in the Slaughterhouse Cases. This is reaffirmed in Hodges v. United States:
“In the Slaughter House Cases, 16 Wall. 36, 76, in defining the privileges and immunities of citizens of the several States, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. Cir. Ct. 371, 380.” Hodges v. United States: 203 U.S. 1, at 15 (1906).
So there are now two citizens under the Constitution of the United States. One needs to find out information on both. For a citizen of the United States that is easy. Just about anywhere. For a citizen of the several States one will have to begin here:
http://citizenoftheseveralstates.webs.com/index.htm
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FOOTNOTE
The Effects of the Fourteenth Amendment on the Constitution of the United States
http://www.australia.to/index.php?option=com_content&view=article&id=15882
Also,
A Look At Corfield (On Citizenship)
http://www.australia.to/index.php?option=com_content&view=article&id=16868
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December 19, 2009, 6:19 amToken Conservative · Cases to watch in 2009-10: McDonald v. Chicago says:
[...] the P or I Clause issue. I generally agree with Professor Orin Kerr’s excellent vote analysis in this post at the Volokh Conspiracy. (Also some excellent comments in the [...]
Dan Goodman says:
To all,
I am writing to inform you that the links I provided in my comment (Dan Goodman December 19, 2009 6:19am), two entries up, no longer work. The new locations for them are:
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FOOTNOTE
The Effects of the Fourteenth Amendment on the Constitution of the United States
http://www.australia.to/2010/index.php?option=com_content&view=article&id=327
Also,
A Look At Corfield (On Citizenship)
http://www.australia.to/2010/index.php?option=com_content&view=article&id=331
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There is also the following which I think would be appropriate.
Comment on Petitioner’s Brief: McDonald v. City of Chicago
http://www.australia.to/2010/index.php?option=com_content&view=category&layout=blog&id=91&Itemid=126
http://www.americanchronicle.com/articles/view/136777
____________
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January 24, 2010, 1:25 am