The latest issue of the libertarian magazine Reason has an interesting essay by Brian Doherty on the briefing in McDonald v. City of Chicago, the Second Amendment incorporation case. Notably, the article includes the responses of Alan Gura, counsel for McDonald, to those who have disagreed with his approach to briefing the case. In response to the amicus briefs in favor of incorporation (that is, in favor of Gura’s client) but on narrower grounds, Gura states:
Nobody has a legitimate reason to fear a faithful interpretation of the Constitution, and nobody has any legitimate reason to fear effective and complete protection of civil rights. There are people who do fear what they might perceive to be a bad case following from the decision in McDonald, but the fact a future court might make an erroneous decision is no excuse to make an erroneous decision in this case. . . . I think clearly some of these people [who want McDonald to win without overturning Slaughterhouse] are not really interested in securing the right to arms, . . . so much as they are interested in constraining civil rights in other ways.
The article then summarizes some of the posts we’ve had here at the VC on the briefing of the case, together with Gura’s response to it:
Kerr thinks there is no way the current Supreme Court will accept Gura’s arguments. Kerr’s colleague at Volokh.com, the anarcho-libertarian legal theorist Randy Barnett, thinks Kerr’s points don’t hold up. . . . .Gura also thinks Kerr’s take on the strategy is mistaken. Gura tells me that he’s merely asking the Court to actually deal with the explicit language and meaning of the 14th Amendment. “It is always helpful when the Court decides cases based on the Constitution’s text and history. That way even those who might disagree can take comfort in knowing the Court actually addressed the meaning of the Constitution. It would make not just the opinion in McDonald more stable and accepted, generally speaking this approach increases people’s confidence in the Court. And we could get the 14th Amendment that we’ve always been meant to enjoy.”
Anon321 says:
I still find it odd that Orin’s original posts on this topic have met with such criticism. As I remember them (yes, I’m too lazy to go back and read them), Orin was simply saying: (1) few members of the Court will be likely to vote to overturn Slaughterhouse and adopt Gura’s proposed reading of the 14th Amendment; (2) as a result, his decision to devote the majority of his brief to this argument is a surprising strategic choice for an advocate to make, in light of the fact that advocates typically care primarily about winning and therefore choose the argument most likely to win. I don’t recall Orin saying anything about the merits of the 14th Amendment argument or about what the Court should do. His point was just about the strategic advocacy choice. And I think he’s since moderated his criticism of the strategic choice in light of the fact that the client was on board from the beginning with the decision to go the Privileges-and-Immunities route rather than the Due-Process route. So, what’s to quibble with?
I do like seeing Randy being referred to as an “anarcho-libertarian,” though. I would have thought that you’d need to be waaaaaay out on the fringe for Reason, of all publications, to describe you that way.
December 5, 2009, 4:39 pmGuy says:
Could someone please explain to me why we should expect a revived P&I clause to be any different from substantive due process? It seems like a such a technical point. Also, since the P&I clause only restricts state action, it would seem anything it protects that isn’t in another provision would have to be incorporated, equal protection style, into the 5th Amendment Due Process Clause anyway to keep things sensible (assuming everyone thinks the things it protects are things that the federal gov’t is also required to respect).
December 5, 2009, 4:47 pmGuy says:
I assumed that was Reason‘s way of saying “I heart you” to Randy Barnett.
December 5, 2009, 4:50 pmOff Kilter says:
Anon: I think much of the criticism of Prof. Kerr was an apparent refusal to make any effort to put forth a positive theory of constitutional interpretation beyond “follow precedent”.
As far as describing Barnett as an anarcho-libertarian, have you READ his book, The Structure of Liberty? That’s a pretty accurate description.
December 5, 2009, 5:12 pmSgtDad says:
This is stirring stuff. And very convincing, in my view.
Doesn’t anybody but me think it more than passing strange — and a threat to liberty — that several provisions of the Bill of Rights are thought to be dead letters?
December 5, 2009, 5:17 pmMe says:
Then again, the Supreme Court might have its own thoughts on the merits of the argments.
http://www.theonion.com/content/video/supreme_court_rules_death_penalty
December 5, 2009, 5:29 pmOrin Kerr says:
Anon321,
I’m not entirely sure, but I suspect at least some of the criticism results from the felt need to create a perception of being mainstream. This doesn’t explain all of the reaction, but I think it does explain some of it. The starting point is the common understanding that Supreme Court Justices are disinclined to follow the fringe. As a practical matter, creating a widespread perception that a theory is mainstream is necessary (or at least very helpful) to get the Supreme Court to adopt it.
If I’m right about that, I suspect the problem with my posts is that the predictive claim about what the Justices will do carries along an implicit claim as to what is in the mainstream. That is, my posts implicitly say the Gura/Barnett position, whatever its merits as a matter of constitutional theory, is outside the mainstream. If you’re trying to create a perception of being mainstream, such commentary can seem like a threat. Commentary about what the Justices will do may play a part in helping to foster a perception that might influence what the Justices actually do. I suspect that explains at least some of the hostility (both expressed in public and in private).
December 5, 2009, 5:31 pm(Obviously, I’m not suggesting that anyone important would actually be interested in my views in particular; rather, I’m suggesting that a uniform front is a helpful way to create the desired impression.)
Orin Kerr says:
To join this with my comment directly above, I think we can put this another way: my comments were implicitly casting the Gura/Barnett view as outside the mainstream without offering them a chance to be considered mainstream. If you want to get an outside view consider mainstream, it’s essential to have people debating your theory: If a theory is widely debated, it is seen as worth debating, and if it is worth debating, then it has a decent chance of becoming considered widestream. My sidestepping the normative debate — for the reason that I don’t really do or believe in grand constitutional theory, as I have blogged many times — thus didn’t help the project along. I suspect this explains at least some of the complaints that I have not offered a competing grand constitutional theory in my predictive posts.
December 5, 2009, 5:41 pmDebauched Sloth says:
SgtDad hits the nail on the head. The 9th Amendment and the P or I Clause are mere “inkblots,” while the Commerce Clause has been transformed through sophism into a gushing river of unauthorized government power. Precisely what the Framers feared would happen and did their level best to prevent.
Outside the halls of academia and the federal judiciary, does anyone look at the Constitution and see a fundamentally majoritarian text?
December 5, 2009, 5:41 pmFederal Farmer says:
I really don’t see the basis for labeling Prof. Barnett an anarcho-libertarian.
December 5, 2009, 5:59 pmArkady says:
Well, that’s a pretty crappy remark, if you ask me. Nothing like calling folks who disagree with your approach liberty-hating wannabe tyrants. (“Oh, but I didn’t mean you…”)
December 5, 2009, 6:04 pmGuy says:
Yeah, in response to that quote you cited, let me explain why I’m skeptical of arguments in favor of overturning Slaughterhouse:
(1) It is already overturned, in effect if not theory. Substantive due process exists to fix Slaughterhouse.
(2) People who want to bring it back sound like they think, for some reason, that the Court will choose to view its substantive protections as being different from those of substantive due process, or that the law will be in enough of a state of flux to give them the opportunity to get their agenda more easily fulfilled. I find it hard to believe that this isn’t an inept attempt to smuggle in Lochner through the back door.
(3) Once P&I is revived, substantive due process has a less strong reason for existing, and future courts might choose to axe it, thus having the net effect of reducing the protections of the Fourteenth Amendment, while also giving the federal government much broader authority to trample over civil rights.
(4) To the extent I understand the argument to imply total incorporation of the Bill of Rights, requiring states to have grand juries is dumb.
December 5, 2009, 6:15 pmMark N. says:
Well, among other things, he contributed a chapter to an Independent Institute book entitled Anarchy and the Law, which describes itself as defending “private-property anarchism, also known as anarchist libertarianism, individualist anarchism, and anarcho-capitalism”. He does seem to use descriptions like “polycentric” rather than any “anarch-” prefixed terms in his own writing, though.
December 5, 2009, 6:16 pmjuris imprudent says:
You know, if you look at the comments on that reason article, you will note that I referenced the Aldridge/Bingham drinking game thread here.
Orin, if the Court wasn’t in the least interested in the P&I clause, why grant cert on the petition that brought it up. Why not go with NRA on the more familiar due process grounds? Cavanaugh over at reason suggested they wanted a case to re-affirm Slaughterhouse, but doesn’t that seem rather unlikely?
December 5, 2009, 6:24 pmOren says:
This is a tangent, but does anyone believe that your odds of success are really related to the level of emphasis you place on different arguments? That seems to violate (my implicit belief in) the underlying rationality of our of system of justice. I’d very much like to believe that each argument stands or falls on its own merits, entirely independently of the strength of the argument that preceded it in the brief, appears after it in the brief and the color of the counsel’s tie.
December 5, 2009, 6:44 pmGuy says:
I doubt the briefs and oral arguments significantly influence the Justice’s decisions, at least on really big issues like 2nd Amendment incorporation or whether Slaughterhouse needs to be overturned. I can see briefs making a difference in some arcane question of contract law, where the Justices might care about what’s happening in the law as applied on the ground but aren’t familiar with the situation, or where there really is some obscure argument that the Justices might need some assistance to understand the reasoning behind it.
December 5, 2009, 6:54 pmFiftycal says:
I wonder about people that think INCREASING people’s rights are somehow the same as LESSENING people’s rights. The same argument was made about HELLER, where somehow the declaration of the RIGHT of the individual to keep and bear arms, independent of a “militia”, is somehow a LOSS! Because P&I exists is no excuse for due process to go away. And the original decision that P&I only applied to rights “created” by the existence of the U.S. government is obviously racist and only geared to DENY RIGHTS. How overturning that denial would deny OTHER rights boggles the mind.
December 5, 2009, 6:56 pmGlen says:
It seems pretty difficult to find fault with this sentiment, even if it assumes a legal approach that is “considered outside the mainstream” by certain commentators.
Likewise one can wonder why so many seem comfortable with the power of government to enforce the smooth running of society and fret over the allegedly chaotic and unpredictable results of a textual interpretation of the Constitution — unless, of course, they are the ones who are in the unique position of influencing and wielding government power.
December 5, 2009, 7:07 pmJ. Aldridge says:
If that was true today there would be no incorporation or any argument over whether the 2A is addressing public or private defense.
Law would be pretty boring on a federal level and that doesn’t make lawyers money or advance creative rights.
December 5, 2009, 7:22 pmBrett Bellmore says:
Depends on whether we’re talking positive or negative rights. You can increase negative rights without harming other people’s rights, because they’re really just the right to be left the heck alone in one respect or another.
Positive rights, OTOH, are a ‘right’ to compel somebody else to aid you in accomplishing something. And expansions of positive rights certainly do result in an over-all reduction in liberty.
A negative right would be the right to eat, if you’ve got something to eat. A positive right would be the right to have something to eat. Which, of course, implies that somebody somewhere has just lost the right they formerly had to the food you’re planning on eating.
December 5, 2009, 7:24 pmDjDiverDan says:
OR, rather than incorporation, the Court could just say that the “privileges or immunities” referred to in the 14th Amendment means essentially the same thing as the “privileges and immunities” protected (as against the Federal government in Article IV of the Constitution. Why bother to go the indirect incorporation route when there is a rather clear counterpart in the main text of the Constitution?
December 5, 2009, 7:27 pmOff Kilter says:
Orin,
With all due respect, your explanation of why your “anti-Gura/Barnett” comments were opposed doesn’t satisfy. It’s fine to say you don’t do Constitutional law and have not given thought to associated theoretical issues. But to claim, as your posts seemed to when pressed, that “precedent should rule” is the whole of the issue is unsatisfying when, as you know, everyone, including you, can list cases that were overturned and, for most, properly overturned. This requires SOME justification. Your unwillingness to even acknowledge there’s a problem to be solved is what likely rankled at least some.
December 5, 2009, 7:59 pmPeter says:
If I had a case in the Sup Ct that merely asked the justices to extend a precedent they set within the last five years and my lawyer based his argument on reviving the p and i clause, I’d fire him. Then I’d look into the possibility of a malpractice suit. The Sup Ct all but wrote his argument for him, and he has to re-invent the wheel. I can see throwing in the p and i stuff at the end, but making it the primary argument? As the great legal theorist Chris Carter said, ‘COME ON, MAN!”
December 5, 2009, 8:06 pmGuy says:
I’m not aware of the Article IV clause ever being held to bind the federal government, although I suppose that argument could be made textually, do you have a cite?
December 5, 2009, 8:24 pmDave Hardy says:
I REALLY like the spread of briefs in this case.
1) If a Justice wants to put pedal to the metal, he can go privileges or immunities and overrule everything back to and including Slaughterhouse.
2. If he or she isn’t quite that bold, they can go privileges and immunities and overrule back to Cruikshank.
3. If they wuss out and don’t want to overrule anything, they can go due process.
I think a wide spread is advisable where, as here, we know so little of the battlefield. The last incorporation dispute (actually a subset of one) was so far back that of the present Court only Stevens was then sitting. We know that Justice Thomas is at least open to privileges and immunities, know nothing on that regarding the other eight.
December 5, 2009, 8:26 pmFederal Farmer says:
When you do, be sure to let us know how it comes out.
December 5, 2009, 8:32 pmFiftycal says:
Brett, I believe you have confused “rights” with “entitlements”. My “right” to free speech does not compel ABCNNBCBS to broadcast that speech nationwide. And my “right” to bear arms does not compel Remington, Bushmaster or the federal government to give me one-gun-a-month. Now, by various bastardizations of the Constitution, some people “feel” they are ENTITLED to free food, housing, health care, color TV’s, etc. They aren’t, but “feelings” and VOTES trump Constitutional government in the eyes of the current office holders in DC, whose only concern appears to be getting re-elected so they can line their own pockets some more.
December 5, 2009, 8:50 pmKevin says:
Perhaps Gura was brilliant in re-framing the debate as whether to incorporate the 2nd amendment via P or I or Due Process; heads he wins, tails Chicago looses. Chicago has to be careful about arguing too strongly against P or I less the court (or Justice Kennedy) try to find a compromise between Gura’s and Chicago’s positions. If there is a bit of hesitation about being to radical/reactionary Gura (or his amici) give the judges the option to be moderates and deny Gura what he is asking for and only strike down gun control using Due Process.
December 5, 2009, 9:02 pmMark Field says:
I think you’re making an implicit assumption that all those overturned precedents had something in common which made overturning them proper. But what if they didn’t? What if, to bastardize Tolstoy, all the bad precedents were bad in their own way? Then there is no “global theory” which would explain why precedents get overturned. Each case would have to be considered on its own merits.
December 5, 2009, 9:05 pmGuy says:
Not sure if this is directed at my comment? I don’t think reviving the Privileges or Immunities Clause would deprive anyone of rights directly, but it does seem to be borne out of hostility to substantive due process. I honestly don’t understand why anyone thinks the Privileges or Immunities Clause would be better suited to protect certain substantive rights than substantive due process. I do think that it would be unwise and imprudent for the court to resurrect that clause when they already have a perfectly good way to rule the same way on the case in front of them. I think it’s pretty clearly within the basic principles of judicial restraint and stare decisis that the Court should wait until they find that reviving the clause is the only way to settle the case in front of them correctly. A big part of my skepticism comes not from any substantive changes in law that I think might happen (I see no reason why the P&I implies anything due process doesn’t under current jurisprudence, so I think the whole thing is pretty academic and theoretical), but rather from the apparent motives of the supporters; some of what I’m hearing sounds a lot like Lochner, which is a textbook example of judges running amok to protect “rights” in a way that is actually just forcing the personal policy preferences and cultural biases of judges onto the population.
December 5, 2009, 9:06 pmbystander says:
Damn it, Aldridge, get to work! It’ the weekend, and I want to drink!
December 5, 2009, 9:26 pmOff Kilter says:
Mark Field: “I think you’re making an implicit assumption that all those overturned precedents had something in common which made overturning them proper. But what if they didn’t? What if, to bastardize Tolstoy, all the bad precedents were bad in their own way? Then there is no “global theory” which would explain why precedents get overturned. Each case would have to be considered on its own merits.”
I don’t think that’s true Mark. I need only assume that the decision to overturn, say, Plessy or Lochner, was not wholly arbitrary.
If these decisions were wholly arbitrary, then one cannot say “rely on precedent” because precedent can be overturned for wholly arbitrary reasons. If they are not wholly arbitrary, there must be a rationale, a theory, a justificatory structure for distinguishing what precedents are to be overturned and what precedents are to be respected.
You seem to be saying such theories must be of a simple form: Overturn precedent for this reason and this reason only, and therefore it would be a counter-argument to note that various precedents are overturned for different reasons. But I see no reason to make that assumption. But perhaps I misunderstand your point.
December 5, 2009, 10:10 pmKirk Parker says:
I’m with Sgt Dad (and also, somewhat nervously, with Debauched Sloth, though certainly hoping nothing rubs off.)
Fiftycal, Brett is not confused. Instead, you appear to be unaware that ‘positive right’ is a term of art here.
December 5, 2009, 11:35 pmDave Hardy says:
Bottom line(s):
1. Privileges and immunities incorporation is the only path that has history, intent, understanding, and logic behind it. Unfortunately, it does not have precedent, having been rejected in the 1870s, the rejection treated as indisputable in the 1890s, etc.
2. Due process incorporation has the support of precedent. But not much else. Almost nothing in intent or understanding. Nothing in logic (so outlawing X violates due process, no matter how much process is given?).
Some Justices may value history, intent, and original understanding. Others may admit the point but be hinky about overruling 130+ years of precedent.
December 5, 2009, 11:36 pmFiftycal says:
>Fiftycal, Brett is not confused. Instead, you appear to be unaware that ‘positive right’ is a term of art here.<
"Positive right" is not a "term of art". It is a bastardization of language. It is attempt to create a duty that does not exist. Nothing in the Constitution compels anyone to do anything. Now I have heard that the current party in power deems Constitutional Rights as "negative rights" because they constrain the GOVERNMENT from doing something the current administration may want to do. Now various administrations have CREATED situations where certain people feel like the government OWES them life, food, shelter, clothing,etc. But only sophists can find those "rights" in the Constitution.
December 5, 2009, 11:52 pmMark Field says:
I’m not certain I’ve understood your point, so let me back up a bit. As I understood the original thread (and some others we’ve had), a number of comments asked Prof. Kerr to describe the basis or principle which he would use to overrule precedent. The questions weren’t directed to a specific case, but seemed to imply some overall theory of the Constitution which would guide the decision.
Part of the problem in answering such a question (at least as I see it) is that the reasons may be different in each case. For example, Plessy might be overruled because it was inconsistent with originalism or because it led to obviously unjust results. Lochner might be overruled because it caused to Court to become too involved in economic regulation which properly belonged to the legislature. (These are hypothetical reasons for the sake of example.)
Assuming that the reasons do differ from case to case, then it’s impossible to give “an” answer to the general question which people seem to be asking.
With that in mind, maybe you can let me know if I’ve misunderstood you.
December 5, 2009, 11:52 pmAndrew says:
People are so focussed on the Gura brief that they’re not paying any attention to the NRA brief. The NRA has a very compelling argument that the 2d Amendment should be incorporated via the P or I Clause WITHOUT overturning Slaughter-House or Cruikshank or Presser or Miller. See pages 38-43 of the NRA brief.
As for incorporation via due process, Judge Easterbrook and the Seventh Circuit correctly explained that precedent and stare decisis argue against it, not for it.
December 6, 2009, 12:00 amJ. Aldridge says:
So you think the P&I’s of U.S. citizens also must mean the P&I’s of citizens of a state who have not removed themselves to another state?
House Report No. 22, January 30, 1871: “The clause of the Fourteenth Amendment, ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two.”
Did Article IV, Section II ever include the first 8 amendments? Of course not. There was no amendments when Article IV was adopted under the constitution. Even if it did the P&I’s only belong to citizens who remove themselves from their state to another and not while resident within their own state.
December 6, 2009, 12:03 amAndrew says:
The opinion of one House committee years after the 14th Amendment was adopted seems like an inferior indicator of intent.
December 6, 2009, 12:06 amJ. Aldridge says:
Maybe if it wasn’t for the fact it was authored by the framer of the P&I’s under the 14A, John Bingham. He argued the same thing in 1866, too. So the date is irrelvant.
December 6, 2009, 12:21 amAndrew says:
Bingham said a lot of things in 1871. But what he said in 1871 is not particulalrly relevant unless it’s backed up by stuff that was said before ratification of the 14th Amendment. It was ratified in the 1860s, not the 1870s.
December 6, 2009, 12:40 amAnti-troll says:
Drink!!!
December 6, 2009, 12:45 amJ. Aldridge says:
His House report No. 22 is well backed up from his remarks of 1866-1868. He said in 1868 the P&I clause allowed for the enforcement of the same restrictions placed on Missouri: To wit, Missouri’s constitution should “never be construed to authorize the passage of any law, and no law shall ever be passed in conformity thereto, by which any citizen of either of the States of the Union shall be excluded from the enjoyment of privileges or immunities to which such citizens are entitled under the Constitution of the United States.”
December 6, 2009, 1:32 amGene Hoffman says:
Orin Kerr:
I think the reason most people found your post distasteful is that it smells outcome determinative. “Why don’t people just get the 2A Incorporated and not upset any apple carts – especially apple carts that may have outcomes I don’t like.”
Granted that may not be you intent, but it certainly read that way.
The bottom lines of this argument are two fold. First, those who don’t want Slaughterhouse overturned appear to want that case not overturned for the same reasons that the Supreme Court judicially nullified a section of the Constitution. Second, it runs into the quite amusing irony that the fear of “Judicial Activism” drives its supposed opponents to support what may be the most egregious example of Judicial Activism left in American jurisprudence.
Also, anyone who thinks that the Lash “you don’t have to overturn Slaughterhouse to P or I Incorporate the 2A” thought is being about as faithful to the text of Slaughterhouse as the Brady Campaign was to US v. Miller.
Why are so many so opposed to interpreting the Constitution based on original public meaning – even when it might have outcomes you don’t like?
-Gene
December 6, 2009, 1:33 amOren says:
Except serve on a jury, which had been compulsory by English Common Law since time immemorial.
December 6, 2009, 1:33 amOrin Kerr says:
Gene Hoffman,
I don’t follow. It is common for VC bloggers to predict how a case might come out. Plus, as I think I have made clear, I think the Court should and will rule in favor of McDonald. Given that, how is a prediction as to how the Court will reach that result “outcome determinative”?
Also, when talking about “results I don’t like,” do you mean results I don’t like as matter of policy? If so, can you explain how you know what i favor as a matter of policy?
December 6, 2009, 1:39 amOff Kilter says:
Mark,
I wouldn’t say you’re misunderstanding me as much as I’d suggest we’re looking at the problem differently.
If you were to say that the ONLY principle of Constitutional interpretation you had was to follow precedent and then were to add, “but of course I agree that Lochner should have been overturned because of X and Plessy because of Y,” then I think it would be fair to either assume a) you felt it appropriate to just make things up as you went along, or b) that you had an unarticulated theory of Constitutional interpretation that generated the X and Y exceptions under the broad assumption of maintaining precedent. I’m not sure what other logical possibilities there are.
Assuming that law professors would be ashamed of holding the position “I just make it up as I go along,” I thought, perhaps incorrectly, that if someone held in as much esteem as Professor Kerr chose to speak on the subject, he must have SOME underlying interpretative theory. And yet not only did he choose not to even begin to discuss what that theory might be [what contours it might have; what factors might weigh in its development, etc.], he seemed to respond as the lack of need of a theory were self-evident, since–as he has claimed repeatedly–all this effort at theory is merely a rationale to justify policy preferences. This, rather than making comments that pushed PorI from the mainstream, is what I found disappointing.
December 6, 2009, 1:41 amOren says:
Quick addendum, I suppose the Constitution itself does not compel service on a jury. Since it does specify the right to trial by jury, and does not forbid the extant common-law tradition of compulsory service, it all but endorses the continuation of compulsory jury service.
December 6, 2009, 1:47 amGene Hoffman says:
I think there is no debate that States will be bound to honor the Second Amendment by 7/4/2010.
The Slaughterhouse Court didn’t like the implications of Section 1. Reading between the lines, it appeared that you agree with the outcome desired by the Slaughterhouse Court. My point was that it seems like the “results you don’t like” would be the results of overturning Slaughterhouse in subsequent cases beyond McDonald.
You have continued to not answer how your predictions squares with the fact that the court took McDonald and not NRA and further chose a question that included P or I.
-Gene
December 6, 2009, 1:50 amOrin Kerr says:
Gene Hoffman writes:
We have had that discussion in the comment threads several times, with contributions both from myself and from others. I thought the previous discussions were quite useful.
Also, despite your interesting attempt to “read between the lines” in this area to divine my own views, the reality is that I don’t have a view about whether Slaughterhouse was right or wrong. I haven’t studied the history closely enough to know the answer, and my view is that I would need to dedicate a great deal of time to really know the answer.
My interest is more in the realities of whether it would matter to the current Supreme Court. I don’t think it would.
December 6, 2009, 1:53 amAndrew says:
J. Aldridge, I guess you’re referring to this 1868 statement by Bingham. It seems more ambiguous than the 1871 statement that you quoted.
Orin, do you have an opinion as to whether the Court might incorporate the 2d Amendment via P or I without overturning Slaughter-House?
December 6, 2009, 2:04 amOrin Kerr says:
Gene,
I’m not sure I follow. Is your thinking that the Justices are committed to originalism, and thus that I that have a naive or uninformed view about the Supreme Court that fails to recognize the Justices’ fealty to originalist methodology?
December 6, 2009, 2:23 amAndrew says:
Orin, have any of the VC bloggers mentioned the possibility that the Court might incorporate the 2d Amendment via P or I without overturning Slaughter-House? That NRA-supported outcome seems much more likely than the demise of Slaughter-House.
December 6, 2009, 2:33 amOrin Kerr says:
Andrew,
I think the most likely outcome is incorporation via DP. The second most likely outcome is hard to predict.
December 6, 2009, 2:36 amGene Hoffman says:
I think I was quite clear. I said that you seemed underinformed of the history of Slaughterhouse. As such, you may not understand why quite a few of the originalists on the Court may find overturning Slaughterhouse more compelling than you predict based on the original public meaning of Section 1 of the 14th Amendment.
Again, do you have a link to where you engaged with the question of how the cert grant itself conflicts with your prognostication?
-Gene
December 6, 2009, 2:37 amAndrew says:
Orin, I think the most likely outcome is that a Court minority will vote for DP incorporation, and a number of other justices will vote for incorporation via the P or I Clause (either with or without voting to overturn Slaughter-House).
If 3 justices vote to incorporate one way, and 2 justices vote to incorporate another way, then the right is incorporated. I very much doubt that a majority of justices will vote to overturn the due process precedent that compelled the decision of the Seventh Circuit (and the Second Circuit); I certainly hope they wouldn’t vote that way.
December 6, 2009, 2:48 amOrin Kerr says:
Gene,
When you refer to “quite a few” of the originalists, can you say who you have in mind beyond justice Thomas? Do you mean Justice Sotomayor? My former boss Justice Kennedy, perhaps? I have gone on record as to how I think each of the Justices will react to the Gura arguments, and why: I look forward to you doing the same.
As for the link, I have looked for you, but we have had so many posts on that issue that I can’t seem to come up with the best google search to find it right now. My apologies for not being able to find the best thread for you to see our prior discussions on the issue.
December 6, 2009, 2:51 amAndrew says:
Why are the Gura arguments relevant but the NRA arguments are not relevant?
December 6, 2009, 3:00 amOrin Kerr says:
Gene,
A quick question while I have you: Am I right you’re not a lawyer? I just read your bio, and it doesn’t mention any legal training. Not that it matters generally, but when predicting what the current Justices might do, it’s helpful to get a sense of where you’re coming from.
December 6, 2009, 3:02 amGene Hoffman says:
I have chosen not to take the California bar but I can assure you that I’ve a bit more experience with federal litigation than most lawyers I know. I won my first federal copyright case before I was of drinking age and have been a plaintiff or amicus in some of the most interesting cases in the 9th circuit over the last 10 years from crypto to copyright to firearms.
I’m not so sure you former boss is an outright loss. His comments shortly after Heller lead me to believe he may be more open to overruling Slaughterhouse than you currently think he is. I will admit I was wrong on my 6-3 prediction in Heller as I was expecting Ginsburg to be honest to her previous position on firearms. I’ll note Scalia’s disgust on that issue in the majority opinion.
I’m glad to know that you agree with me that it’s not quite clear how you previously responded to the issues that the cert grant itself raises in opposition to your position. Would you mind terribly explaining what your theory is as to which four justices chose McDonald and a question that includes P or I?
-Gene
December 6, 2009, 3:15 amOrin Kerr says:
Gene,
My view was that it made no sense to grant just on DP when the Q or I issue would be raised in the next round of litigation: better to take both at once. And then another commenter chimed in with the view that because of the way the split in the CA9 had developed, it was sensible to take the issue, merits aside, from McDonald. It’s unfortunate I can’t find the comment, as I thought it was pretty insightful: I guess that’s the downside to commenting at 3:30 am on Saturday night.
December 6, 2009, 3:30 amGene Hoffman says:
Thanks for finally answering my question even if it’s hilariously thin. The P or I issue wouldn’t have been raised at all if the question didn’t raise it. There is no next round of litigation to raise it if the question would have been limited to Due Process, but maybe I think that because I’m not a lawyer. The only split derived out of Nordyke (and again, this non lawyer knows nothing about Nordyke does he? Are you sure you’ve done your homework?) was about Due Process as the Nordyke court stated it was bound by SlaughterHouse on P or I as P or I was raised by the Nordykes.
I clearly understand that we disagree about your former bosses’ position and unlike you I don’t discount that on that you may have something valid to add. However, I’m glad that your credentials are quite useful to distract from the actual discussion and support a specious argument from authority by claiming that a lack of a bar card means my points should be discounted.
Let’s try a critical hypothetical. Do you think that as a policy matter, it would be an improvement in constitutional law to have enumerated and unenumerated rights that have the support of original public understanding at the founding and 1868 incorporated against the states by Section 1 of the Fourteenth Amendment?
-Gene
December 6, 2009, 3:48 amAndrew says:
Gene makes a very good point: it would have made no sense to grant on both DP and P&I if the justices felt that DP incorporation was the obvious way to go; there would be no next round of litigation after accomplishing DP incorporation.
But Gene is mistaken about an original understanding that supposedly favored unenumerated rights. On the contrary, radical Republicans thought that all of the rights in question were encompassed by Article IV Section 2 and the Bill of Rights rather than by some mystical aura of the Constitution; they also recognized that their understanding of Article IV Section 2 might be wrong.
Anyway, the present case is about a clearly enumerated right, so I don’t see why anyone would try to use this case to get a limitless bunch of unenumerated rights recognized. Unless maybe there are ulterior motives afoot. Just as there may be ulterior motives afoot when supporters of substantive due process emphasize the more outlandish arguments of the petitioners instead of addressing the more reasonable arguments of respondent NRA.
December 6, 2009, 4:21 amGene Hoffman says:
We clearly disagree about unenumerated rights. The main reason I tend to care about unenumerated rights in McDonald is that I happen to note that the right to self defense is an unenumerated right inferred from the Second Amendment. Luckily, Heller embraced the unenumerated right of self defense. Living in a state that lacks an RKBA, I can easily imagine a state making the argument that one can never discharge a firearm – even in self defense. In fact, Posner via Easterbrook made that argument below in McDonald.
If Section 1 of the 14A didn’t include more than the first eight amendments to the Constitution then what was Senator Howard referring to in his speech of May 23, 1866 reprinted widely in the newspapers of the day?
I’ll note that Senator Howard mentioned Corfield v. Coryell before his quote above…
-Gene
December 6, 2009, 4:50 amAndrew says:
Gene, just as there are implied powers, there are also implied rights, and I have no problem with those. It’s when judges think up unenumerated rights that aren’t really implied by anything in the Constitution that I despair.
In answer to your question about Howard, he misinterpreted Article IV Section 2. He also specifically acknowledged that he might be mistaken, given that SCOTUS had not definitively spoken about Article IV Section 2.
December 6, 2009, 5:04 amJ. Aldridge says:
Nothing ambiguous about it. If it seems that way to you then read the actual Missouri restriction in question under 6 U.S. Statutes at Large, 945.
The accumulation of remarks show the P&I’s are only those of citizens removed from their state and not of their own state: “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”
Why would Bingham repeat that twice years apart if it wasn’t so?
December 6, 2009, 5:05 amAndrew says:
J. Aldridge, I can’t respond to quotes (e.g. “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States”) if you don’t tell me when it was said, or alternatively provide a link.
On May 14, 1868 Bingham discussed enforcement of rights described in the Missouri Compromise, and added that, “The fourteenth article of the amendments of the Constitution secures this power to the Congress of the United States.” Notice that Bingham did not say on May 14, 1868 that the fourteenth amendment refers to nothing other than those rights embraced in the Missouri Compromise.
December 6, 2009, 5:20 amAndrew says:
Okay, I tracked down J. Aldridge’s Bingham quote (“This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States”). It’s here. He was describing the guarantee in Article IV Section 2, not the guarantee in any draft 14th Amendment. He was proposing an amendment to enforce that provision in Article IV Section 2, and he did not say that that was the only purpose of his proposed amendment. On the contrary, he was also trying “to arm the Congress…with the power to enforce the bill of rights….” Cong. Globe, 39th Cong., 1st Sess., 1088 (1866).
December 6, 2009, 5:53 amjrose says:
I have the same question as Guy. What is the practical effect of incorporating through P&I versus sticking with DP?
December 6, 2009, 8:50 amOrin Kerr says:
Gene Hoffman,
I have two responses, one as to the substance and one as to tone.
1) On the substance, I think you err when you state with confidence that “[t]here is no next round of litigation to raise it if the question would have been limited to Due Process.” You are assuming not only that McDonald wins on DP — which I agree is likely — but that all the Justices are firmly convinced of that prediction as well at the cert stage. But that latter assumption is unwarranted: the Justices would certainly be aware of the possibility McDonald loses on DP when they granted cert, especially given that Heller was 5-4. The Justices would know that if the City of Chicago won on Due Process, then the Court would hold that the 2A is not incorporated under Due Process without saying whether there would be a different result under a different clause of the same Amendment. The challenges would then start up again from scratch on P or I.
Plus, what happens if Justice Thomas won’t join a DP opinion but would join a P or I opinion? You might have four votes for incorporation via DP and one vote for incorporation via P or I, creating serious chaos: That either forces Thomas to write an opinion on P or I even though it wasn’t briefed or argued, or else you face the difficult question of how to get the issue before the Justices on P or I alone without a split just to let CT show his hand on P or I to create the 5th vote on incorporation. That would be a mess. The sensible choice is to grant on both so you can get clear answer on whether the 2A is incorporated.
2) On tone, Gene, if you would like to continue to comment here, please don’t question my good faith. I am telling you what I honestly and genuinely think about the McDonald case and the cert process. I realize that you don’t like what I’m saying, and that you have passionately held views about the Constitution and how the McDonald case should be decided. But if you would like to comment here, please don’t question my good faith in responding to you.
December 6, 2009, 10:59 amJdog says:
Preface: I’m not a lawyer, and don’t claim any expertise; I read and occasionally comment here to learn stuff.
From this remove, Gura’s attack on the Slaughterhouse cases looks like a (principled, granted) Hail Mary pass. But what I’m sensing from much of the commentary is that that analogy is flawed; that it’s not terribly likely that his attempt to get the 14th Amendment to mean what it clearly was meant to mean is likely to endanger victory in the case on narrower grounds — due process or other incorporation of the Second Amendment, as per the curious limitations of Heller.
Am I totally off-base?
December 6, 2009, 11:45 amMark Field says:
First of all, I agree with you that a pure common law approach to precedent does run the risk of seeming unprincipled. I think that the response to that criticism is that while precedent is valuable, there are lots of other values as well. When considering whether to reverse precedent, it’s necessary to weigh all the relevant values (text, history, structure, the value of stable precedent versus the disruption of overturning it, justice, etc.). That doesn’t make the decision to reverse unprincipled, it just means that the relevant factors get different weight depending on the circumstances.
To take Plessy as an example, a Justice reasoning like this might consider that the decision was poorly supported by text, well supported by history, poor in leaving fundamental rights to legislative whim, that overruling it would be very disruptive, but that justice would be better served by overruling it. All those would then be weighed to reach a final decision.
This process involves the exercise of judgment more than the application of any underlying theory. That seems pretty subjective, and as I said above, it is to some extent. Certainly it constrains a judge less than adherence to pretty much any “grand” theory of interpretation might. But that doesn’t make it “unjudicial”; it could well be argued that the exercise of reasoned judgment is the very essence of judicial duty.
I guess it might be possible to come up with a list of factors which would generally arise when considering whether to overturn precedent. I’m not sure it’s possible to list them all, nor that the list would be very informative — what would it mean, for example, to say that the judge should consider “justice”? But I don’t think that this leads to the conclusion of either “making it up” or “underlying theory”, unless you want to say (as you could) that what I’ve described IS the “underlying theory”.
December 6, 2009, 11:46 amPubliusFL says:
Then why did Bingham use a South Carolina statute permitting South Carolina to require South Carolina’s citizens to swear allegiance to South Carolina and abjure allegiance to the United States as an illustration of the want fulfilled by the PorI clause?
December 6, 2009, 12:40 pmAndrew says:
In reply to jrose and Guy, the practical effect of incorporating through PorI versus sticking with DP is what it would portend for the future. For example, here are 3 possibilities:
(1) The Court incorporates the 2A via the PorI Clause which the Court says can be infused with whatever meaning the Court wants despite the original meaning of the PorI Clause.
(2) The Court incorporates the 2A via the PorI Clause which the Court says is limited to enumerated fundamental rights per the original meaning of the PorI Clause.
(3) The Court incorporates the 2A via the DP Clause which the Court says can be infused with whatever meaning the Court wants despite the original meaning of the DP Clause.
Although (1), (2), and (3) would all have the same practical effect in this case, (1) and (3) would portend a Court gone wild — or wilder — in future cases.
December 6, 2009, 1:43 pmSebastian the Ibis says:
“Most Supreme Court briefs focus on trying to win the case,” Kerr wrote, “whereas this brief seems to treat that as an afterthought and instead is trying to use this case to achieve a long-time goal of the libertarian legal movement.”
Orin: With all due respect, I believe you have missed the real party here, and their objectives. AFAIK- the real party in the case, the one paying the bills and making the decisions is Robert Levy. See e.g. http://www.3dca.flcourts.org/Opinions/3D07-3130.pdf
Levy’s objectives extend far beyond the right to have a handgun in the home in Chicago (which I assume is what would you would consider a win), or even incorporation of the RTKBA. Since the Court has opened the door to obtaining these objectives by drafting the question presented the way they did, why not walk through it?
Also, since SCOTUS has asked for PI to be briefed why would an advocate ignore it? Going for the home run, while allowing the NRA and the other highly capable amicus to layout less dramatic alternatives seems like a prudent strategy to me. The alternative, ignoring PI or merely paying it lip service, would seem to be a remarkably defeatist strategy, as it completely ignores half of what the court asked.
Perhaps the question presented is a Machiavellian plot to split the RTKBA arguments and throw the matter into disarray, but I don’t believe it.
December 6, 2009, 1:46 pmOrin Kerr says:
Sebastian,
I’m not sure what you think I’m missing; there isn’t anything inconsistent between what you said and I said.
December 6, 2009, 2:02 pmFederal Farmer says:
I’m pretty certain that Robert Levy is not involved in the McDonald case. That case is funded by the SAF and the ISRA (Illinois State Rifle Association)
December 6, 2009, 2:55 pmGene Hoffman says:
[Deleted by OK on civility grounds. Gene, several commenters have pointed out over the years that the #1 easiest way to get banned from VC comment threads is to respond to a warning about civility by complaining about being treated unfairly and/or otherwise being unapologetic and rude. I've agreed with that view, for reasons I have discussed many times before.
In light of that policy, I am banning you from the comment threads. If you think you can change your ways and be civil, please send me an e-mail or call me at work next week and we can discuss it one-on-one. If you are ready to make a genuine commitment to civility, I would be happy to have you back. Otherwise, you are no longer welcome in our comment threads.]
December 6, 2009, 3:21 pmSgtDad says:
I think Sebastian the ibis is spot on. This is the sort of coordination on briefs that I look to have when blessed with amici help.
But this is the crux of the issue. “Privileges and immunities” is the Framers way of describing all the traditional English liberties. The Framers understood that Parliament was as big a threat to liberty as the Crown (this was alluded to in the Heller arguement) and wanted to be sure Congress would be restrained, as well. Hence the debate between the Federalists & Anti-Federalists. The Federalists were sure that the Constitution explicitly incorporated all of the traditional English liberties. The Anti-Federalists were not sure their descendants would see that point and therefore insisted on a Bill of Rights. They saw how the English Bill of Right had been eroded is less than a hundred years.
The Anti-Federalists were right, in my view. That lawyers would develop a line of scholarship that denied the RTKBA was personal would astonish the Framers — in fact the notion makes sense only to people whose sole knowledge of American History is derived from law review articles.
December 6, 2009, 3:31 pmSgtDad says:
Gene: Cut it out. When you get personal everyone else just stops reading. That’s why judges bar cross-talk between counsel.
December 6, 2009, 3:35 pmOff Kilter says:
Mark Field: Thanks for your helpful, thoughtful comments. I continue to mull them over.
December 6, 2009, 4:10 pmjrose says:
Andrew,
Are you saying Option 2 results in fewer invalidated state statutes in the future? Doesn’t that contradict Orin’s observation that “this case [is] to achieve a long-time goal of the libertarian legal movement”, which I thought was to invalidate more state statutes. What I am at a loss for is how using PorI would achieve the libertarian goal.
December 6, 2009, 4:47 pmAndrew says:
Jrose, the petitioners seem much more sympathetic to Option 1 than Option 2. Option 1 would accomplish what Orin said. The NRA and various amici seem more sympathetic to Option 2 than Option 1.
December 6, 2009, 5:04 pmChris says:
On the topic of page 1088 of the Congressional Globe, I’m surprised how many briefs present Bingham as discussing the 14A itself, rather than his earlier proposal (“The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States; and to all persons in the several States equal protection in the rights of life, liberty, and property.”). See here at 45-46 (NRA); here at 8-9 (CalGuns attacking Fairman & Berger); here at 12 n.4 (Clement for a majority of Congress); here at 3 (Maryland Arms Collectors); here at 25, 28 (A2A) (quoting February speech as if it were “introducing the 14A in the House,” with “of course” emphasis, but then later suggesting the difference in language is important!); here at 31 (ACRU); see also here at 29-30 (McDonald brief) (other Bingham discussion placed in context of 14A without explanation of differing proposals).
Kudos to the amici who distinguish the proposals: here at 36 (CAC); here at 14ff (ACLJ); here at 7ff. (Gun Owners of America). In the middle: here at 23, 28-29 (Arms Keepers) (quoting Bingham at one point as if the proposals were the same, but conceding later they weren’t).
December 6, 2009, 5:05 pmdave h says:
Of course I meant …something I would NOT like to see repeated.
December 6, 2009, 5:26 pmjrose says:
OK. But, that doesn’t explain how Option 1 achieves the libertarian goal any better than Option 3.
December 6, 2009, 5:44 pmJ. Aldridge says:
You are ignoring the fact it was Article 4, Section 2 Bingham said he was incorporating into the 14A without modification. You also ignore the fact Bingham’s quote is talking about the P&I’s of U.S. Citizens just as the 14A does. AND you ignore the fact he defined which “bill of rights” he was talking about: Due process and the P&I’s under Article 4. Need proof of that just read the 14A and you will find those are the only “bill of rights” it incorporates.
You won’t find and court ruling or scholar who said the first 8 amendments were the privileges or immunities of U.S. Citizens. That simply isn’t how the P&I’s work.
December 6, 2009, 5:51 pmJ. Aldridge says:
Looks like he was complaining that SC required its citizens to never have allegiance for the federal government and its constitution and in return never could be a citizen of the United States outside of the SC.
December 6, 2009, 6:03 pmMark Field says:
It’s a pleasure to have a thoughtful discussion of the issue. Thank you.
December 6, 2009, 6:18 pmSgtDad says:
If by this, Mr. Aldridge means to assert the entire Bill of Rights [BoR] is excluded from the ambit of the 14A, then I disagree. The first 8 amendments are a subset of the traditional liberties protected by Art 4, §2. In fact, all 10 articles of the BoR are.* The point of the BoR was to make explicit some, but not all, of the traditional liberties protected by Art 4, §2. The Anti-Federalists, God bless them, envisioned the day when gov’t would encroach on the privileges & immunities of the citizenry and that one or more factions would deploy sophistry and ahistorical thinking to help it.
So, if the 14A was intended to incorporate Art 4, §2 against the several states, as seems pretty obvious to me, then the entire BoR is incorporated. The 14A has no meaning or utility otherwise.
That we are now having this discussion (in between plays in the Seahawks vs 49ers game) is proof positive the Anti-Federalists were right.
December 6, 2009, 6:59 pm—————————————–
* Art 8 & 9 both guarantee privileges and immunities held by the people.
J. Aldridge says:
Can you point to a pre-14A authority that said that? There was no 8 amendments when the Article 4, Section 2 was adopted. I’m not aware of anyone claiming the 8 amendments became a P&I when they were adopted.
I believe it was universal that all citizens had a right to protection and enjoyment of life, liberty and property and that was a P&I of citizenship throughout the United States, and that was generally protected when a citizen entered into another country (protection against arbitrary denial).
December 6, 2009, 7:28 pmSgtDad says:
Fair question. And, no, not off the top of my head. I am going by my recollections of my studies in college & grad school, lo these many years ago.
But I think you miss my point. I do think the commentary supporting adoption of the 14A more or less proves that the 14A was intended to incorporate the P&I in Art 4, §2.
But, Art 4, §2 brings with it the BoR. As I mentioned before, the BoR was designed to reassure the Anti-Federalists who were worried the general language of the Constitution would lend itself to incremental attenuation of the rights the Framers thought they were preserving. The BoR exists to make explicit some, but by no means all, the P&I protected in in Art 4, §2. So, if the 14A incorporates Art 4, §2, then by definition it brings with it the BoR. That is why the commentary & case law on “incorporation” is so incoherent.
Selective incorporation allows the court to do exactly what Art 4, §2 & the 14A sought to prevent: substitute the courts current values as to which rights are inviolate and which can be dispensed with.
The Federalists were right, too. Their view. inter alia, was that being too specific excludes the rights & liberties not mentioned. They also thought self serving sophistry cannot be fully defended against. Take the Grand Jury. The Framers had recent experience with colonial grand juries and the Crown’s efforts to subvert them. The Grand Jury, as the Framer’s understood it, was a bulwark against prosecutorial abuse. The Defendant could appear, have counsel, call witnesses, and plead to the Grand Jury that justice would not be served by indictment. The grand jury of the Framers time more resembled a UCMJ Art 32 hearing than the farce it is today. It was to be the people, not the executive, that had the final say on who was to be indicted.
The Supreme Court has allowed the grand jury to devolve in to the very evil the Framers sought to prevent.
December 6, 2009, 8:15 pmFederal Farmer says:
SgtDad, your arguments are appealing. Makes a lot of sense.
However, to be intellectually honest, doesn’t the fact that Madison intended the individual rights in the BoR to be placed in Article 1, Section 9 and not in Article 4, Section 2 do damage to your assertions?
December 6, 2009, 8:26 pmSgtDad says:
Federal Farmer:
In my view, a little, but not much. Art 1, §9 does appear to limit only Congress, though that is not completely true: e.g., the nobility & emoluments clauses limit the executive. So, the actual language of the BoR would not be so limited, even if placed there.
That said, Madison was only the primary author. His view is not dispositive of what both the Federalists & Anti-Federalists intended. The fact is, the BoR is not in Art 1 or Art 4, nor does it refer to them
December 6, 2009, 8:36 pmJ. Aldridge says:
SgtDad: Was Article 4, Section 2 ever something a citizen within his/her state could claim? Or was it something states were required to recognize when it came to citizens of other states?
December 6, 2009, 8:42 pmSgtDad says:
Federal Farmer:
The brain spasm (senior moment?) that caused me to miss your point just passed.
I have only a vague recollection of Madison’s comments. That said, it is hard to square with what was going on. Madison was a Federalist and did not necessarily accept the Anti-Federalist thinking.
December 6, 2009, 8:45 pmDave Hardy says:
“You are ignoring the fact it was Article 4, Section 2 Bingham said he was incorporating into the 14A without modification. You also ignore the fact Bingham’s quote is talking about the P&I’s of U.S. Citizens just as the 14A does. AND you ignore the fact he defined which “bill of rights” he was talking about: Due process and the P&I’s under Article 4. Need proof of that just read the 14A and you will find those are the only “bill of rights” it incorporates.”
1) Bingham’s key speech introducing the 14th refers to the “bill of rights” a dozen times. He describes it as “secur[ing] the enforcement of these provisions of the bill of rights in every State….” Cong. Globe, 39th Cong., 1st Sess. at 1090 (Feb. 28, 1866).
I think your interpretation of what he ought to have thought is not quite so weighty as what the did say. Nobody arose to dispute his assumption that the 14th A was meant to apply the bill of rights to the States.
And Sen. Jacob Howard, introducing the 14th Amendment in the Senate, explains
“Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution…”
Id., at 2765 (May 23, 1866).
2) Bingham in 1871:
“the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.
….
Mr. Speaker, that decision in the fourth of Washington’s Circuit Court Reports, to which my learned colleague [Mr. Shellabarger] has referred is only a construction of the second section, fourth article of the original Constitution, to wit, ‘The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.’ In that case the court only held that in civil rights the State could not refuse to extend to citizens the same general rights secured to its own…. Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article….?”
CONG. GLOBE, 42nd Cong., 2nd Sess., Appendix at 82 (Mar. 31, 1871).
December 6, 2009, 8:53 pmOrin Kerr says:
Guys,
I’m trying to figure out a way that we can move the debates on Bingham to a different thread, or a different blog. Any ideas? Maybe have a dedicated Bingham post, with the understanding that comments on Bingham’s goals should be relegated to that thread? Or maybe someone can start a Bingham blog, and all the discussion of his views can go there?
December 6, 2009, 9:46 pmDave Hardy says:
But what about Jake Howard? (grin)
December 6, 2009, 10:00 pmKharn says:
Bingham, Bingham, Bingham…
December 6, 2009, 10:06 pmHis nanny’s great-great-great-great grandchild told me he (as a 4yo) said he’d incorporate the entire BoR against the states.
J. Aldridge says:
Howard never said the 14A made the first 8 amendments applicable against a state, or that they ever were, only that they “should” be included. The fact is he said they never applicable against the states:
You will never find Howard remotely suggesting the 14A’s P&I’s are applicable between a state and its own citizens.
Note very carefully what Bingham said: “permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States.”
As Paul Madison points out, there is no reason to make such a distinction if there is no important distinction between a U.S. citizen and a citizen of a state. For P&I’s it is important because U.S. citizens never could claim them as a citizen within their own state.
December 7, 2009, 12:14 amDave Hardy says:
Hmm… I notice you do not dispute Bingham’s later words, specifically stating that the 14th goes beyond Article IV. So must for … your entire argument.
Starting with your own reading, you suggest that neither Bingham nor Howard would have adopted an incorportationist reading of what they were doing. Bottom line is that both, in the most natural reading of their words, would meant if. So citizens of the states in the states means something different from citizens of the US. Both Bingham and Howard say that means the rights in the first eight amendments of the bill of rights. And nobody but nobody disputes that.
For a starter, find anyone, anyone, prior to say 1868, who says that P or I means something LESS than Bill of Rights liberties,
End of issue, I rather think. Games can be played forever, but there are better things to do. This ranks with the word games of Slaughterhouse and Cruikshank. It is not that those are impossible to play, just that that are better ones to waste time on.
December 7, 2009, 12:32 amJ. Aldridge says:
The 14A goes beyond Article IV? If it did it would have to say so.
Slaughterhouse was very correct to make a distinction between U.S. citizens and citizens of a state.
House Report No. 22, January 30, 1871: “The clause of the Fourteenth Amendment, ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two.”
And: “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.”
New York Times, November 15, 1866: “We concluded the first number with the quotation of the First Section of the proposed Amending of the Constitution that ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.’ This is intended for the enforcement of the Second Section of the Fourth Article of the Constitution, which declares that ‘the citizens of each State shall be entitled to all the privileges and immunities of the citizens in the several States.’”
Bingham to Rep. Robert Hale (NY): “I respectfully ask him [Hale] to inform us whence he derives the authority for supposing, if he does suppose, that any State has the right to deny to a citizen of any other State any of the privileges or immunities of a citizen of the United States. And if a State has not the right to do that, how can the right of a State be impaired by giving to the people of the United States by constitutional amendment the power by congressional enactment to enforce this provision of their Constitution?”
December 7, 2009, 4:23 amDave Hardy says:
OK. Bingham said that (1) section one was meant to incorporate the bill of rights and make it applicable to the States and (2) that it was meant to enforce Article IV, §2.
The two statements are consistent unless we assume that Article IV liberties and bill of rights liberties are completely different things.
On that issue we may consult case law with which the framers of the 14th were certainly familiar, since the core of the amendment was directed at its destruction. Dred Scott. That case argued that free blacks could not be “citizens” since
“It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies… and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”
December 7, 2009, 9:56 amSgtDad says:
Mr. Hardy is making the same point I am. “Privileges and immunities” is the Framers’ term of art to describe all the traditional English liberties. It had very specific meaning, just like “people,” (“the right of the people“). One of the purposes of the 14A was to guarantee all those liberties, most specifically including the RTKBA, to all citizens.
Mr. Aldridge is also right to say the efforts of some states to deny some liberties to citizens of other states was also something they sought to end. Ending this evil does not affect what P&I actually means.
In effect, the 14A guarantees to every citizen of every state all of the traditional English liberties. The RTKBA was one of those liberties being denied that Congress sought to protect. As I recall, the Reconstruction Congress made ratification of the 14A one of the conditions of re-seating a southern state’s delegation.
Incorporation caselaw has set up the Supreme Court as a legislature, deciding by their own lights which of the traditional English liberties is so “fundamental” to our society that it is “incorporated” against the states. So we get incoherent and unprincipled distinctions, e.g., trial by jury is incorporated, but indictment by grand jury is not. It was precisely this sort of arbitrary thinking the 14A was intending to prevent.
December 7, 2009, 10:31 amFederal Farmer says:
Wrong. You lost that war in the 1860s. There is no two-tiered citizenship. We are all equal, even the darker skinned among us.
December 7, 2009, 11:03 amAndrew says:
Federal Farmer, I disagree very strongly with much of what J. Aldridge has said, but I haven’t detected any hint of racism in any of his comments, so I think you’re out of line for suggesting otherwise. There’s no question but that being a citizen of an individual state has one set of consequences, whereas being a citizen of the United States has another set of consequences.
J. Aldridge, in the case of American Insurance Company v. 356 Bales of Cotton, 26 U.S. 511, 542 (1828), Chief Justice Marshall mentioned that a treaty with Spain granted inhabitants of Florida, “the privileges, rights, and immunities of the citizens of the United States.” That could not possibly have referred to Article IV rights, because Article IV only involves people who are within the boundaries of the individual states, rather than on federal territory. That’s one of many reasons why I think you’re mistaken that the Privileges or Immunities Clause refers exclusively to Article IV, Section 2.
December 7, 2009, 1:54 pmAndrew says:
P.S. Another reason is that the first draft of the Fourteenth Amendment tracked the language of Article IV Section 2 verbatim. That was drastically changed in the final draft.
December 7, 2009, 2:22 pmRailroad Gin says:
I’m not sure I agree that if the issue was limited solely to incorporation through due process that Thomas would refuse to incorporate. My guess is that he would incorporate the 2A and write a concurrence asking the court to reevaluate its incorporation doctrine, but would accept that under current practice the due process clause is the preferred mechanism.
The second point is more interesting. But I am curious if P&I ever got raised by the court in the various fourth, fifth and sixth amendment cases in the 60s and 70s. If P&I is truly dead and Slaughterhouse remains good law, why even bother to mention it? Especially when the Court could have just taken the NRA’s case which limited itself to due process. If its just for the sake of historical completeness then why not ask the parties to brief whether McCulloch v. Maryland is still valid as well?
It seems reasonable to assume that there are a few justices that at least want to be able to write a concurrence/dissent strongly arguing for overturing Slaughterhouse. However, I will throw out a third possibility — some of the justices want to put the final nail in P&I once and for all. It could be similar to Dickerson where the Court had a chance to overturn Miranda and instead set it in stone.
I would hate to be the attorney for Chicago. The response brief has to argue: 1) P&I doesn’t apply; 2) even if it does, the 2A is not incorporated through it; and 3) even if it doesn’t there’s also no incorporation through due process. Good luck on that.
December 7, 2009, 2:29 pmAndrew says:
Railroad Gin:
Yes, PorI was mentioned in the incorporation cases several decades ago. For example, in Duncan v. Louisiana (incorporating 6th Amendment right to jury trial), Justices Black and Douglas argued vociferously that using the Due Process Clause was basically hogwash, and that the appropriate vehicle was the PorI Clause.
I agree with Black and Douglas that the Court has distorted the Due Process Clause beyond all recognition. Perhap not coincidentally, that distortion has conferred upon the Court virtually absolute power over the most fundamental and controversial aspects of life in the United States.
As for what you said about Justice Thomas, I have no crystal ball, but note that he and CJ Rehnquist wrote in 1999: “the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence….”
I find it difficult to believe that he would endorse due process incorporation in the present case, especially given that incorporation of citizens’ right to keep and bear arms would not be hindered the slightest bit if he instead endorses using the PorI Clause. Ditto for several of the other justices, but who knows for sure?
December 7, 2009, 2:42 pmSgtDad says:
Andrew & Railroad Gin:
What we see here is Justices Black, Douglas, Rehnquist & Thomas all agreeing on:
— an issue of personal liberty;
— that the gov’t has extended its power far beyond
what the Constitution permits.
My impression is that Scalia agrees, as well. This should make it harder to draw the ideological lines that so many commentators like.
Maybe some of the name-calling addressed to these guys could now be put to rest.
December 7, 2009, 3:47 pmJ. Aldridge says:
No. He said it was meant to incorporate Article 4, Section 2 and due process of the fifth. He always called these the bill of rights. The 14A doesn’t say anything else about any additional “bill of rights.”
December 7, 2009, 5:42 pmJ. Aldridge says:
But Bingham always refereed to Article 4, Section 2 as privileges and immunities of United States citizens, i.e., there was no difference between the two phrases he used.
December 7, 2009, 5:46 pmJ. Aldridge says:
Bingham, House Report No. 22, January 30, 1871: “The clause of the Fourteenth Amendment, ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two.”
So it’s me mistaken? I don’t think so.
December 7, 2009, 5:51 pmJ. Aldridge says:
Bingham, House Report No. 22, January 30, 1871: “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.”
Funny that Bingham and the House says Slaughterhouse was absolutely correct.
December 7, 2009, 5:54 pmAndrew says:
1828 is less than 1868.
1871 is greater than 1868.
December 7, 2009, 5:55 pmJ. Aldridge says:
I don’t know Andrew, you got the primary framer along with fellow members of the judiciary declaring what they adopted in 1866 is pretty powerful and conclusive evidence. And the entire House must have approved since they voted to print the Report.
Not easily dismissed.
December 7, 2009, 7:27 pmAndrew says:
A lot of things were said in 1871, such as this: “Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article, that no state shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment, and which were not limitations on the power of the States before the fourteenth amendment made them limitations?” J. Aldridge, I’m through discussing things that were said in 1871 untethered to pre-1869 history. The amendment was ratified in the 1860s, not the 1870s.
December 7, 2009, 9:17 pmGuy says:
Setting aside the fact that I don’t agree that your characterizations of options 1 and 3 are fair ones, I still don’t see how option 1 (or 2) protects civil rights any better than option 3… which is already the law of the land. In fact, I don’t see any difference in the law that would result based on which option was chosen, except that options 1 and 2 would confuse everyone and make the logic behind the Court’s jurisprudence haphazard and unaesthetic.
You’re right that the 14th Amendment distinguishes U.S. citizenship from state citizenship. But Slaughterhouse‘s error was interpreting the rights accordant to U.S. citizenship as narrowly as it did. Not that that matters today, because DP already protects those rights now.
December 7, 2009, 9:31 pmSgtDad says:
Well, there is a new paper on what P&I/PorI means:
Ink Blot or Not: The Meaning of Privileges and/or Immunities by Richard L. Aynes, The University of Akron School of Law. University of Pennsylvania Journal of Constitutional Law, Vol. 11, No. 5, 2009
University of Akron Legal Studies Research Paper No. 09-08
The opening paragraphs confirm my memory from college: P&I is a phrase designed to encompass all the tradition English liberties.
December 7, 2009, 10:28 pmAndrew says:
Guy, my comment did not say that option 1 (or 2) protects civil rights any better than option 3. They were merely examples of different types of protection that could result from the present case.
Options (1) and (3) say that the Court can infuse “whatever meaning the Court wants” into the Constitution, whereas Option (2) is “limited to enumerated fundamental rights.” If you don’t see a difference between a Court that does whatever it wants versus a Court that is limited to enumerated rights, then I guess my examples were in vain.
December 7, 2009, 10:43 pmJ. Aldridge says:
So what is the problem with it’s chief framer officially stating as chairman of the House Judiciary the meaning and purpose of the words and the House agreeing 3 years later?
You can discount his March 31, 1871 remarks since he ruled out the amendments having any application to citizens of their own state.
That is as powerful as it comes.
December 8, 2009, 12:18 amJ. Aldridge says:
It has never been denied the P&I’s embraced fundamental liberties of life, liberty and property. What is denied is they embrace the first 8 amendments.
December 8, 2009, 12:22 amDave Hardy says:
“No. He said it was meant to incorporate Article 4, Section 2 and due process of the fifth. He always called these the bill of rights. The 14A doesn’t say anything else about any additional “bill of rights.”
You have some citation where he says this is his unique definition of the term “bill of rights”? Here, for example,
http://lcweb2.loc.gov/cgi-bin/ampage?collId=llcg&fileName=100/llcg100.db&recNum=437&itemLink=r?ammem/hlaw:@field%28DOCID+@lit%28cg1001%29%29%231000345&linkText=1
he specifically draws a distinction between the 14th Amendment and Article IV, and says that the 14th Amendment was meant to protect the liberties embodied in the first eight amendments to the Constitution. In case there is any doubt, Bingham reads the first eight in.
December 8, 2009, 8:46 amGuy says:
I see how (2) is practically different… except not really because (3) is the law of the land, so the real result is basically (3) no matter what option the court takes, do conservatives hate substantive due process so much that they’re not willing to use it to further their own goals? My question was in regard to those who seem to really, really want the P or I clause revived… why? What can it possibly imply that isn’t already covered/argued for as easily under due process? How is taking the due process route hostile to civil rights, as Gura seems to be implying?
December 9, 2009, 1:26 amAndrew says:
I’ll construe this as giving kudos to Arms Keepers. Thanks Chris. :)
December 14, 2009, 8:33 pmAndrew says:
Guy, I can’t speak for all “conservatives,” but I certainly hate the doctrine that much. The reason is because it is a fake doctrine; the people who wrote and ratified our Bill of Rights did not intend anything like it. Add the paralyzing and demoralizing effects that this same fakery has repeatedly had on our country, and there is ample reason to loathe the doctrine, no matter whom the doctrine may help at any particular moment. The doctrine gives essentially unlimited power to five individuals, who may then use it to exercise unlimited control over the lives of hundreds of millions of people, in direct contradiction to what the clause originally meant. Hate it? Absotively.
December 14, 2009, 8:43 pm