Given Randy’s earlier response to my initial prediction on how the Court might respond to Alan Gura’s Privileges or Immunities argument, I was hoping Randy might weigh in with his thoughts on the McDonald oral argument. I am pleased to see that he has. In this morning’s post, Randy writes:
Hey Orin. Given that you insist you have no expert view on the original meaning of the Privileges or Immunities Clause, how do you know that Richard L. Aynes, Jack M. Balkin, Steven G. Calabresi, Michael Kent Curtis, Michael A. Lawrence, William Van Alstyne, Adam Winkler (none of whom are dreaded libertarians, so far as I know) and my reading of the Privileges or Immunities Clause is wrong? And doesn’t the failure of the justices who were obviously hostile to the Privileges or Immunities argument to ask any question challenging the accuracy of this reading strongly confirm its correctness as a matter of original meaning? Had there been a hole in that claim, do you think Justice Scalia would have hesitated to mention it to puncture the originalist analysis of “the professoriate”? Hearing none, can we take this claim of original meaning as presumptively established and go on from there?
Two responses:
First, to be clear, I have never argued, and I don’t know, that Randy’s view of the original public meaning of the Privileges or Immunities Clause is wrong. I love legal history, but I’m not a trained legal historian who has gone through all the original materials myself. And as best I can tell, legal historians simply disagree on the question. Given that, I can read their works with interest and sometimes get a vague sense of what seems more or less plausible. But self-awareness requires me to admit upfront that I have no deep insight into who is right or wrong. (As an aside, I find this particularly frustrating in my area of Fourth Amendment law: If you care about legal history, as I do, but are not a trained historian — and the historians in the field disagree amongst themselves — you’re left uncertain as to the answers to questions that you would really like to know. But I guess that’s just one more entry on the long list of things I wish I knew, but don’t.)
Randy’s second question is whether the absence of the Justices trying to poking holes in his view at oral argument “strongly confirm[s] its correctness as orignal public meaning” and indeed “presumpively established” its correctness. With all due respect to Randy, I don’t think it does. As best I can tell, the Justices didn’t ask any questions about the original public meaning of the Privileges or Immunities clause not because they all saw Randy’s views as correct, but because they saw the question as beside the point. Based on the transcript, it seems that the Justices clearly had it in mind to incorporate the Second Amendment via Due Process, and they thought the Privileges or Immunities arguments were a bit of an oddity. Presumably that’s why the Justices took the extraordinary step of giving Paul Clement 10 minutes of the Petitioner’s oral argument time. Only Justice Scalia really engaged with the PorI issues, and that was mostly to express his view that stare decisis forecloses the inquiry. Given that the Justices’ attention was elsewhere, I don’t think we can read their silence on the issue as a strong sign of their views — assuming that they have views of the original public meaning of PorI, which may or may not be the case.
Martinned says:
Isn’t originalism great?
March 3, 2010, 2:20 pmKazinski says:
What is frustrating is that the court got it badly wrong in 1873, and while they have found a workaround, they won’t go back and fix the original error.
March 3, 2010, 2:40 pmDilan Esper says:
What is frustrating is that the court got it badly wrong in 1873, and while they have found a workaround, they won’t go back and fix the original error.
This is what Holmes was talking about when he said that law is not a brooding omnipresence in the sky.
March 3, 2010, 2:44 pmSteve says:
How I wish we could draw a negative inference from the Court’s refusal to engage with a given issue, but sadly I don’t think it works that way. Not to draw an overly disrespectful analogy, but Orly Taitz probably thinks the refusal of the federal courts to hear her case regarding President Obama’s citizenship proves she’s really onto something.
The most plausible reason why someone like Scalia might be uninterested in engaging the issue is that he views it as academic in every sense of the word. Since he knows with a high degree of confidence that there is zero chance of a majority of the Court embracing the P/I argument any time in the foreseeable future, there’s simply no need for him to hit the history books and figure out who’s right.
March 3, 2010, 2:48 pmTNeloms says:
I thought the more interesting part of Orin’s previous post was the point that Gura was picking and choosing his originalism, and unfortunately Randy didn’t respond to that, but instead focused on whether his reading was ultimately correct.
Several commenters tried to clarify what a consistent originalist argument would be, but it would be nice to see that addressed by Randy (or Orin, playing devil’s advocate).
March 3, 2010, 2:49 pmRandy says:
I do admit to being rather delighted to open the VC and think my opinions were being treated so grandly. Alas, ’tis not the case. I only wish now that I had an opinion worthy of such a thoughtful response.
I don’t think we will have a Orin/Oren Kerr problem here, fortunately.
March 3, 2010, 2:56 pmDissenting Reason says:
Orin,
I think Randy is right. Let’s say that Ginsburg, Stevens, and Breyer do not count. Furthermore, Thomas is a vote for P or I. Sotomayor is irrelevant to the outcome (and probably won’t go P or I). That leaves Roberts, Kennedy, Alito, and Scalia who matter.
Roberts may have been skeptical, but he asked whether P or I gives license to judges to make up unenumerated rights. Gura said no.
Kennedy posited that on the incorporation question was “a wash” between P or I and DP. Now, what’s the difference down the road? Gura said Grand Jury clause, juries in civil trials, and an 1866 Civil Rights Act formulation of the liberty to contract (which Alito provided). Anything more? Can’t say. But can’t say with DP, either. At least we have text and history as limits.
In other words, the BIG SCARY CRAZY LIBERTARIAN ARGUMENT yields: incorporating the Grand Jury Clause to the states, incorprorating the Seventh Amendment to the states, and a “liberty to contract” right that is less than Lochner (and the Court is free to ignore under current doctrine).
Uh. This does not look like disinterest to me. Gura’s rebuttal time was used to close up all the holes in his argument.
We could have a Thomas, Kennedy, Alito P or I opinion, a Roberts, Scalia, Sotomayor DP opinion (but Sotomayor splits on what “reasonable regulation” means), and then a Stevens/Ginsburg dissent that critcizes the P or I opinion for ignoring the rights of women, then a Breyer dissent on European, Robert Alexy-style value optimizing proportionality and the deaths of little children.
I didn’t see any Justices who doubted the validity of the P or I arguments. I saw Justices concerned about the consequences if they selected P or I. Gura appeared to confirm that there aren’t all that many. Since Justice Thomas’ opinion will probably mention that there aren’t all that many and since the NRA DP brief mentions the Grand Jury Clause and Seventh Amendment, too, the only real fight here is over the “liberty to contract”. Moreover, the more historical approach that will likely be evident in Thomas’s opinion could draw Justices to join it simply because the history is right, but then take another tack for prudential reasons, much as on the question of whether the Second Amendment secures an individual right in Heller, the Court decided it 9-0. They split 5-4 on what that means and its consequences.
Lastly, since NOBODY IS GOING BACK TO LOCHNER, NO MATTER WHAT, I don’t see the hostility from the Court that you do. I’ll also note that the same people who think the Court hated the P or I argument predicted that Kennedy would be writing the Heller opinion.
March 3, 2010, 3:05 pmleo marvin says:
It’s perplexing how Randy could have believed otherwise since, well, you never argued that his view of the original meaning of the P or I clause was wrong. It’s bad enough mis-reading and mis-characterizing people’s arguments is rampant between partisan enemies, especially among us great unwashed in the comment threads. But for a renowned legal scholar to do it to one of his co-bloggers looks like a sad illustration of the power of emotion to overcome reason.
March 3, 2010, 3:52 pmCJColucci says:
It would have been nice to have this discussion after Randy’s post, but Orin has obliged us, so we owe him a beer.
March 3, 2010, 3:53 pmIn my law school days, I briefly flirted with the idea of reviving the P&I clause, but came to view the matter as much ado about nothing. It doesn’t solve any real problem except the giggling of law students first exposed to the silly-sounding term “substantive due process.”
There are three ways to deal with rights against the states under the due process clause:
(1) Full Incorporation of the Bill of Rights and Nothing Else: This has the advantage of being theoretically tidy and (since most of its advocates don’t put any content into the Ninth Amendment) prevents judges from Making Shit Up. It has the disadvantages of saddling states with juries in Small Claims Court, and requiring grand jury indictments (which the Founders thought a barrier to unjust prosecutions before people realized that a prosecutor can get a grand jury to indict a ham sandwich). It also has the disadvantage of preventing judges from Making Shit Up.
(2) Full-Bore Substantive Due Process: Palko and “ordered liberty.” It is theoretically tidy, if (to put it mildly) imprecise, and has the advantage of not saddling the states with grand and really petit juries. It has the disadvantage of making clear that judges are Making Shit Up, and forcing us to decide whether there’s something wrong (or even avoidable) about that.
(3) Selective Incorporation: The current approach. Some, but not all, of the Bill of Rights applies to the states. Theoretically incoherent, avoids saddling the states with procedural requirements once thought important but now no longer thought to be, agnostic on whether to supplement it by Making Shit Up — as opposed to just Making Shit Up in deciding what to incorporate or not incorporate.
I used to think the courts had a “wrong clause” problem, but I no longer think so. I do not see how calling what they do P&I versus one form or another of substantive due process will change anything. They’ll still be Making Shit Up.
Libertarian1 says:
When I read that Alan Gura, for whom I have a very deep respect, was strongly proposing incorporation via the Privileges or Immunities Clause I emotionally backed that route as compared to the easier to argue Due Process route. But when I just read the NYT, in an editorial, similarly promoted the P or I pathway I have stepped back. Since it is only very rarely the NYT and I have the same objectives what are they hoping to accomplish and will that benefit limited government proponents? What are they trying to achieve that I will end up hating?
March 3, 2010, 3:57 pmDilan Esper says:
In other words, the BIG SCARY CRAZY LIBERTARIAN ARGUMENT yields: incorporating the Grand Jury Clause to the states, incorprorating the Seventh Amendment to the states, and a “liberty to contract” right that is less than Lochner (and the Court is free to ignore under current doctrine).
Anyone who blithely talks about the grand jury clause as if it were no big deal to apply it to the states has not thought seriously about either (1) typical state criminal procedure systems or (2) retroactivity on direct review.
March 3, 2010, 4:07 pmMaryG says:
I don’t know you two.
This “hey you! try this on for size…” is starting to sound a bit manufactured. Calling him out like that.
March 3, 2010, 4:14 pmMaryG says:
Might work on other blogs, but manufactured controversy is not really the style here, and it looks like you’re pressing.
March 3, 2010, 4:15 pmSteve says:
Since it is only very rarely the NYT and I have the same objectives what are they hoping to accomplish and will that benefit limited government proponents?
That depends whether you are the sort of limited government proponent who thinks that government should stay out of personal and family decisions, or if you’re more of a Ron Paul type who likes limited government except when the government can help advance your personal views on issues like abortion.
The reason why folks like Scalia look skeptically at expansion of the P&I clause is presumably the reason why the liberals at the NYT favor the idea: because it could easily become a vehicle for judicial recognition of more unenumerated rights, like the right to abortion. In virtually all cases, these unenumerated rights serve as limits on government power, so there’s no good reason for genuine limited government proponents to fear the prospect.
March 3, 2010, 4:30 pmKirk Parker says:
Steve,
Laws against murder are pretty widely supported even among the most-limited of the limited-government proponents (though of course they will argue that it should be primarily a state matter and the feds don’t normally need to be involved.)
March 3, 2010, 5:10 pmdebauched_sloth says:
Witnessing Justice Scalia’s shotgun wedding to substantive due process was entertaining. But watching him berate an advocate for favoring principled originalism over 137 years of erroneous precedent the results of which Justice Scalia has himself consistently mocked and disparaged — that was theater.
March 3, 2010, 5:18 pmripcord says:
You so badly want it to be true that proponents of generally limited government who want to limit or eradicate abortion are necessarily inconsistent. But it just doesn’t follow. Pro-lifers believe, at a minimum, that a baby just before birth is no less of a person than after birth. They do not (all) consider the question to be a matter of wishy-washy gray area personal morality. Just simple science. This is perfectly consistent with advocating “limited government” generally.
March 3, 2010, 5:25 pmOff Kilter says:
“The reason why folks like Scalia look skeptically at expansion of the P&I clause is presumably the reason why the liberals at the NYT favor the idea: because it could easily become a vehicle for judicial recognition of more unenumerated rights”
Why, goodness! If that came to pass, we might have to expect judge’s to actually, you know, act judiciously. Make reasoned arguments based on fact, law, and history.
As more and more jobs are replaced by computers, one might have expected the Justices would be more receptive to an argument that the work of judges involves showing reasoned judgment.
Here’s a hypothetical: There is broad agreement among the “professoriate” that P&I was wrongly decided in the 1873 Slaughterhouse cases, creating a partial nullity in the then 5 year old 14th amendment. Suppose it was different. Suppose one vote on the Court changed, and Slaughterhouse reached the opposite conclusion. Suppose P&I was vindicated.
It is now 1874. Who really thinks that judges and justices throughout the land would be lamenting their inability to apply the law consistently as there were now “no rules”, raising deep philosophic questions as to what P&I could possibly mean, believing they now had unlimited power to rule any way they wished since P&I allowed anything as rights now included some that were unenumerated. How many judges in 1874 thought the 9th amendment, which makes similar claims, was unintelligible and a nullity?
March 3, 2010, 5:33 pmripcord says:
Pretty dramatic, aren’t we? It seems clear that Orin’s prior post was at least a little disparaging toward Randy’s view, even if it stopped short of an absolute claim (such a claim would require Orin to defend it substantively, of course, rather than weasel out of it).
March 3, 2010, 5:40 pmDilan Esper says:
You so badly want it to be true that proponents of generally limited government who want to limit or eradicate abortion are necessarily inconsistent. But it just doesn’t follow. Pro-lifers believe, at a minimum, that a baby just before birth is no less of a person than after birth. They do not (all) consider the question to be a matter of wishy-washy gray area personal morality. Just simple science.
“Science” does not resolve the issue of fetal personhood, nor can it, given that “personhood” isn’t a scientific concept.
In any event, your framing of the issue would only make sense if the vast majority of abortions were third trimester abortions, rather than first trimester abortions as they are now.
March 3, 2010, 5:52 pmCJColucci says:
I suspect that Off Kilter and I, starting from different points and moving in different directions, have ended up in much the same place.
March 3, 2010, 6:04 pmJ. Aldridge says:
Madison has a post out today that explains what Congress and Bingham understood the P&I’s to mean. As a bonus, he explains why Bingham and Howard may had talked about the Federal amendments in relation to the P&I’s. Can be read here.
March 3, 2010, 6:16 pmGuy says:
The silliest thing about this whole issue is that PorI supporters don’t seem to realize that Slaughter-House was overturned by the doctrine of substantive due process. I still don’t understand why some believe that there are a whole host of undiscovered rights that they could have if only PorI would be revived in form as well as in substance.
March 3, 2010, 6:32 pmJ. Aldridge says:
To be clear, is there any factual basis to support “substantive due process” under the 14A, or is the court still just assuming things on its own without evidence?
March 3, 2010, 6:40 pmGuy says:
There may or may not be, but do you deny that substantive due process is, in practice, one of the two interpretations of the PorI Clause that Slaughter-House sought to disclaim? (The other interpretation being a grant of general police power to the federal government)
March 3, 2010, 6:48 pmSuperSkeptic says:
CJColucci @ 3:53 PM gets it. It’s a wash, but “Making Shit Up” remains. Could be good or bad.
* * *
J. Aldridge,
If there ever was an oral argument to shake you out of it – it was this one; I fear you may be lost forever. Come back to us, if you can J. – Listen to Randy Barnett: he says the Justices know you are right and they simply don’t care.
March 3, 2010, 6:58 pmJ. Aldridge says:
I don’t see “substantive due process” as an interpretation to anything. I mean, could anyone claim “substantive due process” from Chapter 39 of the Magna Chapter where Bingham argued was the words of “due process” under the 14A?
March 3, 2010, 7:08 pmGuy says:
I will say one thing for reviving PorI, at least formally using it as the source of the substantive restrictions would provide some protection to the courts from people complaining about “judicial activism” because the PorI clause can’t be read as much more than an invitation to start Making Shit Up (unless you take either the Slaughter-House approach or the Congress-has-police-power interpretation). Whether giving the courts that extra protection would be a good thing is a matter for debate.
March 3, 2010, 7:24 pmGuy says:
The writers of the Magna Carta presumably believed that the Law of the Land would be a restriction on the King’s power, Which in turn suggests that there are some things the King couldn’t do while acting with the approval of the law. I’m not saying it’s airtight, but the argument isn’t totally untenable, also the Framers’ conceptions of “due process” may have differed from the conception of “in accordance with the law of the land” that prevailed in England in 1215.
March 3, 2010, 7:30 pmArthur Kirkland says:
Have we now identified by name the professoriate Justice Scalia openly mocks?
March 3, 2010, 7:58 pmMatthew Carberry says:
At a maximum, (even some non-religious) pro-lifers believe a mere embryo is a human life (human DNA distinct from either parent and is physiologically alive). As such it can either die of various natural causes or misfortune (neither of which is a criminal issue) or it can be killed by active human agency, which in every other case of human life, regardless of personhood (vegetative state, etc.) is a fundamental interest of government.
From that viewpoint, 1st trimester abortions involve competing human rights, not simply the right of the mother. If there’s something limited government types feel is a proper place for government it is just such conflicts.
March 3, 2010, 8:41 pmJ. Aldridge says:
But that ignores what the liberty of the person meant under the 39th Chapter (physical restraint without law). If I am not mistaken, “substantive due process” treats this liberty of person to mean expansive rights far beyond physical restraint without law.
March 3, 2010, 8:48 pmGuy says:
Yes, it does. Textually, it makes sense, though historically it may be a bit of a stretch, I think the idea is that there’s no problem so long as “liberty” encompasses only those privileges and immunities that “should” have been secured by the PorI clause. You see the basic reasoning of Slaughter-House wasn’t rejected by the later courts, it was simply the narrow list of privileges and immunities that they didn’t like.
March 3, 2010, 9:01 pmJ. Aldridge says:
I’m not sure it is safe textually because the liberty of person was always protected by the writ of habeas corpus. I never heard of anyone claiming protection of the great habeas corpus against ordinances that said they could not speak certain words in public.
Sounds like it won’t be long before someone can claim habeas corpus against local gun laws under substantive due process.
March 3, 2010, 9:18 pmGuy says:
Of course habeas would be an improper remedy for violations of SDP that didn’t result in imprisonment, but I wouldn’t call the idea that “due process” can only be enforced through habeas a textual argument, especially given that deprivations of property could not generally be prevented through habeas.
March 3, 2010, 9:30 pmAnderson says:
I am not qualified to evaluate Prof. Barnett’s views, but his defensiveness about them (“Hey Orin,” title *and* post, passim) does not inspire me with confidence.
When I’m right about something, and a smart person in good faith disagrees with me, I see an opportunity to explain myself, not a personal attack. But to each his own.
March 3, 2010, 9:50 pmDilan Esper says:
At a maximum, (even some non-religious) pro-lifers believe a mere embryo is a human life (human DNA distinct from either parent and is physiologically alive).
I do not doubt that some people believe that. Just to be clear, however, it isn’t something science tells us. Science tells us that many things have the same DNA: identical twins, various cells in one’s body, stem cells harvested from one’s body, a kidney that was transplanted from a person and now resides in another person’s body. Science makes no conclusion, however, as to whether one’s identical twin, cells, stem cells, or kidneys are one in the same person or separate persons. Science also tells us that many other things have different DNA, such as mutated cells from one’s own body, cells infected with RNA viruses, sperm and egg cells contained in one’s body, etc.
That’s all science tells us. Any conclusion that one may or may not draw about which things constitute distinct persons with rights and which do not is not a scientific conclusion, and indeed, it is a gross distortion (a lie if the person is smart enough to understand the terms he or she is using) when pro-lifers claim that moral conclusions that they make about what do or do not constitute persons are demonstrated by science. Science is completely agnostic on the question of what a person is because a “person” is not a fixed, understood concept that can be demonstrated through hypothesis and testing.
March 3, 2010, 10:06 pmcboldt says:
– But watching him berate an advocate for favoring principled originalism over 137 years of erroneous precedent the results of which Justice Scalia has himself consistently mocked and disparaged — that was theater. –
March 3, 2010, 10:22 pmAfter his work in Heller, I’ve come to view his “outcome-based jurisprudence” dissent in Planned Parenthood as pure comedy. I find it very difficult to take these people seriously – except, of course, for the fact that they have the power of the federal government behind their quackery.
AlanDownunder says:
Funny. When I think of prominent originalists, frustration and uncertainty are not traits that immediately come to mind.
March 3, 2010, 10:32 pmJ. Aldridge says:
I just thought of another problem: Bingham said the due process clause was “proceedings” and not rights.
March 3, 2010, 10:34 pmDissenting Reason says:
Anyone who blithely talks about the grand jury clause as if it were no big deal to apply it to the states has not thought seriously about either (1) typical state criminal procedure systems or (2) retroactivity on direct review.
You could say that about requiring police chemists to testify instead of submit a report.
March 4, 2010, 3:12 amDissenting Reason says:
This is a great point.
March 4, 2010, 3:17 amSCOTUSblog » Thursday round-up says:
[...] might apply differently against the federal and state governments. At the Volokh Conspiracy, Orin Kerr predicts that the Court’s silence on the Privileges or Immunities Clause incorporation option [...]
March 4, 2010, 10:20 amDilan Esper says:
Dissenting:
Not even close. Only a relatively manageable percentage of cases involved statements that were inadmissible under crawford, and in many cases the error was harmless.
In contrast, many states never bring indictments and use grand juries only for investigation. And there is no harmless error analysis here– it’s structural.
March 4, 2010, 1:18 pmd bright says:
Guns for All, Privileges or Immunities for None
The hearings in McDonald v. Chicago promise an unrevolutionary victory—but still an important one
Brian Doherty | March 4, 2010
Justice Antonin Scalia delivered the big laugh line of the hour at Tuesday’s Supreme Court hearings in McDonald v. Chicago. That case’s outcome will decide whether the Second Amendment rights vindicated in 2008’s D.C. v. Heller apply to states and localities. Scalia amused the crowd by asking a question that has perplexed some legal scholars and gun activists both for and against McDonald lawyer Alan Gura’s general goal of applying Second Amendment protections to all levels of American government.
To get the joke, such as it was, you first need the background about what was at stake. The Bill of Rights was originally interpreted to bind only the federal government. The framers of the 14th Amendment intended to change that, and bind the states as well in respecting Americans’ rights. This was in 1868, when recently freed slaves had their rights to work, own property, and bear arms widely abused and unprotected by state and local governments.
The history of the 14th Amendment’s passage indicates that a certain part of the amendment was meant to bear the interpretive burden of applying—“incorporating” in the legal lingo—the Bill of Rights (and other restrictions on government power) to the states. That was the Privileges or Immunities Clause: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
-[snip]-
On the night of the hearings, I stepped outside the constitutional debate, and glimpsed the heart of why such high-level abstractions matter—the reason why the Supreme Court was even listening to these arguments. Cases have plaintiffs, and plaintiffs are people. At a reception sponsored by one of the case’s institutional plaintiffs, the Second Amendment Foundation, I met the lead plaintiff, Otis McDonald.
Otis McDonald will be the man—as a plaintiff—who vindicated the rights of every American who doesn’t live in a federal enclave to, at the very least, have adequate means to try to protect their lives, families, and property from violent danger. He’ll go down in the history books, to be sure, this 76-year-old man with a wife and eight kids.
He’s black, which is appropriate for both public relations and for history. It ties the arguments Gura made on McDonald’s behalf to why the 14th Amendment exists: to guarantee that people of his color would have the liberties and protections white Americans of the time were supposed to have enjoyed. As Gura declared right at the start of his presentation to the Court, “In 1868, our nation made a promise to the McDonald family that they and their descendants would henceforth be American citizens, and with American citizenship came the guarantee enshrined in our Constitution that no State could make or enforce any law which shall abridge the privileges or immunities of American citizenship.”
Let me tell you something else about Otis McDonald: If you are lucky enough to meet the guy, you’re going to love him. Really. In about a half hour of conversation, both one-on-one and in a small group, the guy was devastatingly charming, in a completely unstudied way. He’s compelling and convincing and real, telling quotidian stories about being late for planes and late-night fishing; and equally so when getting historical and cosmic about the arc of his life and the role he knows he’s playing in his country’s history. One minute laughing and light, the other giving a sincerely tear-jerking account of the pride and gratitude he feels toward everyone else, especially the younger generation, advancing the scholarship and advocacy of his and his fellow Americans’ rights. After that half hour, I was on this guy’s side, just as a fellow human being. And a dream client for a civil rights case like this to boot, as the lawyers present agreed enthusiastically.
That the city of Chicago prevents this man from making the best choice available to him to protect himself and his family from the very real threats that surround him is, simply and with no constitutional history or theory required, wrong. It is a wrong that Gura’s arguments on Tuesday will likely right. And while libertarian legal scholars (and some leftist ones) may feel dejected that Gura failed to win the Court over to the wisdom of overturning Slaughterhouse, McDonald, his fellow plaintiffs, and the rest of Chicago will because of his efforts be able to exercise a core human right unmolested. That is great news, news whose importance should not be clouded by the specifics of how it was won.
Senior Editor Brian Doherty is author of This is Burning Man (BenBella), Radicals for Capitalism (PublicAffairs) and Gun Control on Trial (Cato Institute).
March 4, 2010, 4:56 pmOff Kilter says:
There were 5 years between the ratification of the 14th amendment in 1868 and the evisceration of the PorI portion of said amendment in the Slaughterhouse decision of 1873. Is anyone aware of court decisions based on PorI in that 5 year window? It would seem such rulings would give us contemporary understanding of the role PorI played in day-to-day judicial decision-making. I suspect there are no decisions that said the judge was free to rule arbitrarily since PorI was an open-ended category which could include anything.
March 4, 2010, 7:17 pmJ. Aldridge says:
No it was never viewed as open ended. It was only viewed as the same securities to life, liberty and acquiring property citizens of under their own state were entitled and that citizens from other states (citizen of the United States) were entitled within the state.
If a state provided for citizens to carry a gun for self defense so must the privilege be extended to other citizens from other states. Bingham: “It [P&I's] is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.”
Only way a state can abridge the P&I’s of U.S. citizens is through an organic act that denies to certain classes of citizens of the United States privileges or immunities the state grants to its own citizens in security for life, liberty or property. As the due process clause says under the 5A and 14A this cannot be denied or unequally applied to anyone.
In a way, the 14A made due process and its equal application a P&I for everyone.
March 4, 2010, 8:13 pmripcord says:
You are getting things twisted around here. Yes, the pro-life argument depends on morals. They start with the moral premise that we should outlaw killing a baby who has just been born. From there, they use science to argue that a baby is virtually the same being before they are born and therefore should receive the same legal protection.
Again, the overall point here is that it’s clearly not inconsistent for libertarians to oppose abortion. No more inconsistent than wanting to outlaw murder.
March 4, 2010, 8:53 pmDilan Esper says:
Yes, the pro-life argument depends on morals. They start with the moral premise that we should outlaw killing a baby who has just been born. From there, they use science to argue that a baby is virtually the same being before they are born and therefore should receive the same legal protection.
That’s not a “use” of science, or, to put it another way, it’s only a “use” of science in the same sense that a Catholic who takes communion is “using” the science that explains how the wine fermentation process works. The relevant claims about why communion is special are not scientific claims, they are supernatural ones.
Similarly, the relevant claims about the moral status of the fetus are moral claims, because science doesn’t actually tell us that an embryo has the same moral status as a fetus– rather, science simply provides us facts as to how an embryo is similar to a fetus (e.g., DNA) and how it differs (e.g., development of a nervous system, brain development, etc.). The interpretation of those facts, and their importance in determining the status of personhood, are things that science has nothing to do with.
This happens to really irritate me because I think pro-lifers would like to pretend that their beliefs are dictated by science (making them somehow unassailable) when they are in fact contested moral arguments that face strong and established counter-arguments. They are hiding extremely questionable moral claims (specifically, the fact that they overweigh the interests of the fetus and underweigh the interests of sexually active working or unmarried women) behind the mantle of science.
March 5, 2010, 1:58 amripcord says:
I did not say that science dictates their position, I said that it is part of it. Do you think that science is completely irrelevant in determining beginning of life issues?
March 5, 2010, 2:05 pmDilan Esper says:
I did not say that science dictates their position, I said that it is part of it. Do you think that science is completely irrelevant in determining beginning of life issues?
I think science simply gives us a bunch of facts (about DNA, fetal viability, sentience, development, twinning, etc.) and it totally depends on which facts we choose to define as the important ones.
I also think that pro-lifers’ views wouldn’t be any different on the issue of abortion if science told us that, say, halfway through the second trimester, the DNA of the organism completely changed and mutated. So, in that sense, I don’t think the science really matters at all.
March 5, 2010, 2:37 pmJustthisguy says:
Dang, all this lawyer talk makes my eyes glaze over. I like the easy-to-follow kitty-pidgin summary of the arguments over at http://politicsgunsandbeer.com/2010/03/02/my-summary-of-the-oral-arguments/
March 5, 2010, 6:25 pmJustthisguy says:
P.s. I did actually read the real transcript, and do think PG&B’s summary is pretty good. Does that Feldman guy actually stutter and stammer? I reckon we’ll have to wait for the tapes to find that out.
March 5, 2010, 6:40 pmMatthew Carberry says:
Dilan,
To continue the tread drift, mutated to what? If “the organism’s” DNA remained human DNA I think the same arguments would remain (not sure what that particular abstraction helps illustrate in the first place if it were to change to, say, canine).
Sure, the arguments on both sides of abortion, like all legal arguments, are primarily moral(ethical). Just like arguments about euthanasia or assisted suicide are moral without much help from science.
I’m not sure how the observation that “it’s a moral argument for which the science is not definitive” and “the argument depends on varying opinions of that non-definitive science” is anything but merely descriptive for any legal matter. It certainly doesn’t give any weight to one side or the other, particularly in cases where the issue is competing rights.
March 5, 2010, 7:39 pmDilan Esper says:
Matthew:
The reason why the “science” issue is important is, as I said, that pro-lifers make “science” into a talking point, i.e., saying that “science tells us that a fetus is a human being from the moment of conception”. Science doesn’t tell us any such thing– it tells us what characteristics an embryo or fetus at any stage of development shares with a born baby, and what characteristics it does not share. The definition of human personhood– i.e., the actual crux of the pro-lifer’s argument– is not dictated by science at all (and indeed the pro-lifer would take the same position even if the science were different), but they use the talking point to make it sound like their position is dictated by science rather than by their (frequently religious and anti-feminist) values.
March 5, 2010, 7:58 pmMatthew Carberry says:
Dilan,
Ah, gotcha. So it’s the attempted rhetorical elide from “human life” to “human person”. That’s a valid complaint about a lack of precision (and fundamental honesty) in my opinion as well.
Now I don’t think that complaint actually negates the secularly-based pro-life position; that all human life has some basic value which is then modified by actual personhood.
That argument then comes down to defining what “personhood” is and when it occurs, and how much personhood should matter when balancing the basic value of one human life with another.
As you say, both are ethical discussions which science can only inform.
And then we have to figure out what, if anything, society should do with the decisions.
March 5, 2010, 9:19 pmleo marvin says:
No, I don’t think that’s clear at all. Orin’s post was disparaging toward Randy’s view’s chances of winning, not its merits. Prediction isn’t advocacy, even if a lot of people use it that way. A lot of people also outright lie. That doesn’t justify accusing everyone we disagree with of dishonesty.
March 6, 2010, 5:42 pm