Let’s say someone hired me to write an amicus brief in the McDonald Second Amendment case, and my goal was to get the Court to overrule the SlaughterHouse Cases (holding that the Privileges or Immunities Clause is a virtual nullity) and get the Court to hold that the Clause protects a right to bear arms, how would I go about it?
First, I would recount the scholarly consensus that SlaughterHouse was incorrectly decided, in that the P or I Clause was meant to provide substantive protection for individual rights beyond the extremely narrow category of rights enumerated in SlaughterHouse.
Second, I would explain why I think it’s important to decide this case on P or I grounds. My argument would be that in due process incorporation cases, the Court has consistently (and thoughtlessly) determined that the scope of the right against the states is precisely the same as the scope of the right against the Federal government. This is problematic in the context of the right to bear arms because of the confusion over what the “militia” language in the Second Amendment means. Heller came out the “right” way, but by a bare 5–4 majority, with much dispute about whether the Second Amendment was meant to protect an individual right to bear arms. By contrast, it’s entirely clear that the Framers of the Fourteenth Amendment thought that the P or I Clause protected an individual right to bear arms. In particular, they understood that African Americans and “carpetbaggers” needed weaponry to protect themselves from assaults by armed Southern terrorist groups.
Third, I would try to craft an argument that would appeal to the Court’s four conservatives, by far my most likely votes. I would conclude that originalism isn’t nearly enough–as witnessed by Antonin “Mr. Originalism” Scalia’s appalling concurrence in the Raich v. Gonzalez. Indeed, it’s unlikely that judicial, as opposed to political, ideology, ever persuades more than a Justice or two on a previously settled issue.
So what are the conservatives’ concerns that need to be addressed? (1) Further undermine Roe v. Wade, and certainly don’t create a free-floating liberty interest under P or I that can be abused by liberals; (2) Don’t bring back the dreaded Lochner.
The argument would go like this: (a) the Court should take this opportunity to start to move its individual rights jurisprudence from the Due Process Clause to the P or I Clause; (b) The problem with the D.P. Clause is that it traditionally prohibits “arbitrary” infringements on liberty, but arbitrariness is in the eye of the beholder, as is what is meant by “liberty,” see in both contexts Roe v. Wade; (c) worse yet, cases like Roe fail to give any real weight to the police power, the traditional brake on the D.P. Clause; (d) by contrast, through historical investigation, we can determine with some precision what rights were considered privileges or immunities of citizens. Abortion, (right to die, etc.) was not one of them!; (e) Justice Field and Justice Bradley were correct in their SlaughterHouse dissents that one p or i of citizenship is the right to pursue an occupation free from government-sponsored monopoly, a much narrower right than the later Lochner due process right to be free from arbitrary restrictions on liberty of contract, and a right that goes way back in Anglo-American history; (f) the ultimate holding of SlaughterHouse was still correct, because Louisiana had a legitimate police power interest in ensuring that its waterways didn’t carry disease, and the butchers who sued weren’t driven out of the profession, they just had to work in the safe location dictated by the government and pay a license fee to the slaughterhouse owner.
So, by deciding McDonald on P or I grounds, the conservatives can (1) help ensure the survival of the individual right to bear arms, and ground it in a much less controversial historical context, while leaving more room for federal than for state regulation of firearms; (2) start the process of transferring liberty jurisprudence from the D.P. Clause to the P or I Clause, which should help undermine Roe v. Wade and other rights with no historical basis as of 1868; and (3) allow some room for the Court to engage in serious review of a very narrow category of abusive economic regulations, along the lines of the cases brought by the Institute for Justice (requiring hairbraiders to take a two-year cosmetology course, creating a government-imposed cartel in funeral caskets, etc.)
In short, I would appeal not just to originalism, but to the conservatives’ long-term political self-interest, and affinity for the conservative political coalition that put them in power.
And I should add that I do not in any way mean to disparage or criticize any of those who are writing or have written briefs in this case.
UPDATE: Josh Blackman makes a good point in the comments: if the conservatives don’t define (and limit) the scope of the P or I Clause while they have a majority, the liberals may do so in the future, with very unconservative consequences.
Josh Blackman says:
David, that is very similar to the argument Ilya Shapiro and I made. My full thoughts on this approach are here. Our article, 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 touches (a), (b), and (d) of your strategy.
You seek to appeal “not just to originalism, but to the conservatives’ long-term political self-interest, and affinity for the conservative political coalition that put them in power.” This is precisely the tact we take.
The Court today more-or-less has 5 solid votes for incorporation. But as Justice Stevens and Ginsburg leave the Court, and Justice Scalia and Kennedy age, President Obama has the potential to totally transform the Judiciary. A future court could easily recognize a constitutional right to positive rights such as health care or social equality. Thus, we propose that the Court look to rights held as privileges or immunities during the time of Reconstruction, and not an evolving standard of rights (as articulated in Balkin’s work, and the Constitution in 2020 Project). If the Conservative majority takes a stand now, they can preserve an originalist jurisprudence for the forseeable future. If they punt, and let future Courts handle this, they are just waiting for Pandora’s Box to be opened.
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November 18, 2009, 10:05 amJoe says:
Court has consistently (and thoughtlessly) determined that the scope of the right against the states is precisely the same as the scope of the right against the Federal government
Except in respect to jury provisions.
As to how P/I will avoid Roe, tricky business that. This is underlined by how various supporters of the P/I approach take just the opposite view. The right of newly freed slaves over their family life was deemed fundamental by many, including choices when or when not to have a child.
Slaves did not have such rights. Invasion of such basic privacy horrified many as much as not having weapons to protect those who would violate such privacy. To ignore this might be useful for the lawyers involved, but others would be less willing to do so.
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November 18, 2009, 10:48 amCato The Elder says:
You lawyers are far more learned than I on this subject, so I ask to clear up my confusion: What exactly in the language of the Fourteenth Amendment or subsiquent jurisprudence involving it makes you assured that the P&I clause should only be construed as protecting only those liberty interests that were considered protected as of 1868? Why couldn’t a liberal Supreme Court justice, for example, 10 years from now, make up a positive right to healthcare using the enduring persistance and overwhelming positive public approval of the Medicare program as evidence? I know you are laying out a pretty narrow road for the conservatives to find rights, but why must that be the only way for the Court to interpret the clause? I think liberals could make a pretty strong rhetorical case using public opinion polling on multiple post-New Deal programs.
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November 18, 2009, 10:53 amJosh Blackman says:
Cato,
Putting aside arguments about originalism, and how law obtains its validity, to highlight the difficulties of citing public opinion polls, look no further than Kennedy v. Louisiana. In this case, Justice Kennedy found a national consensus that states no longer executed those who raped, but did not murder a child. After the case, the Court learned that they neglected to mention a UCMJ statute that Congress had recently enacting setting the death penalty for such a crime.
If the Court was not able to figure out a national consensus among 50 or so state statutes, how can we expect the Court to figure out a national consensus among polls? What percentage of the populace need be in favor of a provision to make it constitutional? 50% 75% 100%?
Such an approach lends itself too easily to revealing a Judge’s personal views.
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November 18, 2009, 11:01 amBlue Neponset says:
What are the chances that the liberal members of the Court outflank the conservatives by ruling in favor of incorporation and opening up the Pandora’s box mentioned above?
Perhaps the anti-gun crowd should look at this case as an opportunity rather than a challenge. I’d certainly trade the right to own a .50 caliber sniper rifle in NYC for the the right to health care.
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November 18, 2009, 11:22 amPubliusFL says:
while leaving more room for federal than for state regulation of firearms
Shouldn’t that be the other way around? You mention failure to give adequate weight to the police power as one of the failings of DPC incorporation, but the police power belongs to the states, not the feds.
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November 18, 2009, 11:23 amJosh Blackman says:
Blue Neponset,
This is a very valid concern, and I think it underscores the importance of Conservatives, both in the academy and on the Bench, of taking Privileges or Immunities seriously, and not discounting it like Orin does.
But, even if the Liberals do not out-flank the Conservatives in McDonald, the next case, or perhaps the case after that, could open the box and constitutionalize a health care. For that reason, the Conservatives on the Court today should set up an originalist framework, like Washington v. Glucksberg. Unless the Court in the future totally rejects that framework, at least future Progressive Justices would at least be somewhat cabined in recognizing rights.
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November 18, 2009, 11:28 amBarnett v. Kerr on McDonald v. Chicago. A fun little tussle is brewing on Volokh today. « Josh Blackman's Blog says:
[...] Kerr made his predictions for McDonald (my thoughts here), Professor Bernstein made his predictions (my thought here), and now Professor Barnett has [...]
Allan Walstad says:
I think that would be a big mistake, especially if incorporation of 2A would win under due process anyway. Righting an obvious wrong that was done to the Constitution shouldn’t be a conservative vs liberal thing. The last thing I’d do is appeal to conservatives’ desire to undermine Roe. Then you’re sure to earn the liberals’ determined opposition. At best it’s a distraction.
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November 18, 2009, 12:02 pmPubliusFL says:
Sure. Does anyone think there are five votes on the Court now for overturning Roe? If not, how does it help your client to include “as this case goes, so goes Roe” type arguments in most of the major points in your brief?
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November 18, 2009, 12:10 pmMark Field says:
Am I the only one who sees irony in comparing this:
“President Obama has the potential to totally transform the Judiciary. A future court could easily recognize a constitutional right to positive rights such as health care or social equality. Thus, we propose that the Court look to rights held as privileges or immunities during the time of Reconstruction, and not an evolving standard of rights (as articulated in Balkin’s work, and the Constitution in 2020 Project). If the Conservative majority takes a stand now, they can preserve an originalist jurisprudence for the forseeable future. If they punt, and let future Courts handle this, they are just waiting for Pandora’s Box to be opened.”
with this:
“Such an approach lends itself too easily to revealing a Judge’s personal views.”
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November 18, 2009, 12:11 pmMark Field says:
The short answer is there is nothing in the Constitution itself which imposes such a limit. All arguments for how to interpret the Constitution, whether liberal or conservative, rely on factors outside the text itself.
There are, however, a number of prior cases which suggests that the Court will limit the extent of the rights it chooses to protect. The Glucksberg case, already mentioned, suggests one approach. Another can be found in the case of Carolene Products. All such approaches rely on the value of precedent and persuasion.
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November 18, 2009, 12:16 pmJosh Blackman says:
Mark,
I suppose it is ironic if you view Originalism as a mere fig leaf for judicial preferences. I don’t see it quite that way. In my mind, adhering to the Original meaning of the 14th amendment is the least subjective way the Justices can resolve this case. While in many cases, it may reflect the views of the Conservative Justices (especially in the case of guns), I do not think that is the same thing as saying Originalism merely enacts the Judge’s personal views.
I agree entirely with this point. I do not think my approach, or any approach, is compelled by the Constitution. But, for Justices who profess to be Originalists, and interpret the Constitution according to Original Meaning (however defined), I would like for the Justices to do so consistently. And the P/I case is a prime example. Looking at the meaning in 1868 is one way to analyze it, and a method that comports with my understanding of originalism.
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November 18, 2009, 12:20 pmGene Hoffman says:
Please articulate how a “right to healthcare” can’t be found via substantive due process? Pre-Roe and Roe cases give plenty of stare decisis.
At least in a P or I world, doctors have economic rights to oppose government mandates.
–Gene
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November 18, 2009, 12:20 pmJosh Blackman says:
Gene,
As I read Glucksberg, the current substantive due process test for locating unenumerated rights, a right to health care, defined at that level of abstraction, would not be “deeply rooted” in our Nation’s histories and traditions. 20 years of Roberts and Rehnquist Court jurisprudence reigning in SDP has made it difficult to recognize new rights.
However, if you read some of Balkin’s work, as well as other essays in the Constitution in 2020, you will see arguments made that a right to equal education, a right to a stakeholder society (Bruce Ackerman) and other positive rights all fall under Privileges or Immunities.
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November 18, 2009, 12:24 pmAllan Walstad says:
The Bill of Rights was clearly intended to protect individual liberty from federal usurpation. Extending it to the states properly protects against usurpation of individual liberty by the states. There is no “liberty” to use the government as an instrument of robbery against one’s fellow citizens, and therefore no Constitutional “right” to, e.g., healthcare at others’ expense. Of course, a future court could indeed “recognize” such a non-existent right, just as the courts have done all sorts of things to undermine the Constitution. Nothing new there.
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November 18, 2009, 1:08 pmMark Field says:
That wasn’t what I meant. Your first comment seemed to use originalism as method of fixing your personal preferences regarding policy. IOW, I read your comment as doing exactly what critics of originalism argue. After all, a true originalist wouldn’t worry about what future liberals might do (a policy preference), s/he would worry about whether future judges might depart from originalism and in what ways (an interpretive standard).
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November 18, 2009, 1:13 pmJosh Blackman says:
I think you’ve touched on a deeper debate that likely won’t be answered in this thread. Is Originalism a policy preference, an interpretive standard, or perhaps both? And if it is both, is that necessarily bad for your views on policy to be informed by a certain interpretive approach?
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November 18, 2009, 1:27 pmyankee says:
But what about the fifth vote? Kennedy voted with the majority in Casey, so “this will help undermine Roe” is going to hurt you in your quest to count to five. It’s also going to kill any hopes of winning any of the liberals.
And Kennedy also loves free-floating liberty interests:
Lawrence v. Texas, 539 U.S. 558, 568–69 (2003).
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November 18, 2009, 1:34 pmDavid Bernstein says:
You don’t need a fifth vote, Kennedy will vote with you on DP incorporation.
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November 18, 2009, 1:40 pmyankee says:
David—if all you care about is getting the Second Amendment incorporated, you are quite correct. But if you want to overturn Slaughterhouse, you need five, not four.
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November 18, 2009, 1:41 pmMark Field says:
I agree that that debate goes far beyond this thread. My only comment before I let it drop is that I think liberals and conservatives both do themselves a disservice if they talk about how well an interpretive standard will support their policy preferences. If you believe in a standard, you should be willing to accept the bad with the good. JMHO.
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November 18, 2009, 4:06 pmSoronel Haetir says:
I find the entire discussion of trying to limit future liberal courts somewhat silly. If the court ever reaches the point of being Warren Redux it won’t matter much what the precedents made now say. I find the ascention of textualism far more comforting on that front. Even Sotomayor had to embrace it during her confirmation hearing.
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November 18, 2009, 11:28 pmThursday Round-Up | SCOTUSblog says:
[...] there is only one vote on the Court to overturn The Slaughter-House Cases of 1873 (Justice Thomas); David Bernstein outlines how he would argue the issue to convince other Justices to overturn; and Randy Barnett [...]
Jon W says:
I’m in no way a legal scholar, just someone who finds SCOTUS stuff interesting, but...
If your goal is to argue for a means to re-interpret the privileges and immunities clause, it seems to me that arguing that it encompasses a broad range of “natural rights” isn’t the way to go. There’s just too much unknown.
Rather than arguing for a broad interpretation, why not simply assert that the privileges and immunities are those specifically enumerated in the Constitution itself? The right to keep and bear arms (however you interpret the actual text) is a privilege for US citizens set forth in the constitution. Likewise, the immunity from self-impeachment in the 5th amendment is an immunity specifically provided for citizens of the US. They’re privileges and immunities not because they inherit from some abstract historical notion of rights, but because our nation has defined them to be privileges and immunities, a class that are so fundamental as to be extended to all citizens without abridgement by the states.
That limits the impact of the ruling. You aren’t opening a Pandora’s box of natural rights interpretation. You’re simply saying — the Constitution says citizens have certain rights, and states may not infringe upon those specific rights.
No idea how much water that holds, legally speaking, but it seems logical to me. It would overturn Slaughter House in a moderate way that wouldn’t topple the judicial apple-cart completely. That’s much easier to sell to the SCOTUS than a broad “anything goes” interpretation.
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November 19, 2009, 12:42 pmRyan Waxx says:
You’d think so, but remember that Heller was a 5–4 vote, so it’s not at all obvious to 4 of those members that a total ban on firearms like the one in D.C. violates the constitution.
Therefore any approach designed with the current court in mind would only seek to woo the 4 conservatives and Kennedy and totally ignore what the 4 liberals think, since they would oppose any second amendment rights whatsoever, no matter what the constitution says or does not say.
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November 19, 2009, 2:58 pmJ. Aldridge says:
But then someone, like a justice on the court, would read House Report No. 22 authored by Rep. Bingham and approved by the House for printing in 1871 that would leave your arguments in flames.
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November 21, 2009, 2:36 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
____________
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, 5:42 amDan Goodman says:
To all,
I am writing to inform you that the links I provided in my prior comment (Dan Goodman December 19, 2009 5:42am) no longer work. The new locations for them are:
____________
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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January 24, 2010, 1:21 am