In today’s Supreme Court decision incorporating the Second Amendment against the states, the four justice plurality opinion used the Due Process Clause of the Fourteenth Amendment to justify its ruling rather than the Privileges or Immunities Clause.
As various commentators, including co-blogger Randy Barnett, have pointed out, it is strange that four conservative justices supposedly committed to originalism should take this approach in the face of overwhelming evidence that the Bill of Rights was originally intended to be incorporated under the P or I Clause. It is also strange given their own, especially Justice Scalia’s, longstanding aversion to “substantive due process.”
Why did the plurality make this choice? They cite two reasons – the failure of the petitioners to explain the exact scope of the rights protected by the Privileges or Immunities Clause, and longstanding precedent:
In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, …, but petitioners are unable to identify the Clause’s full scope….. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed… We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.
Tellingly, these supposedly originalist justices offer no originalist justification for their conclusion. The precedent argument is at least understandable, though the Court has often been willing to reverse longstanding precedent when it believed that important constitutional rights were at stake. But the vagueness argument is extremely dubious.
It’s true that the petitioners in McDonald failed to provide a precise statement of the rights protected by the Privileges or Immunities Clause. That might be a defensible reason for preferring the Due Process Clause – if the Court’s approach to that Clause were at all clear itself. In reality, of course, the Court’s standard for recognizing rights under the Due Process Clause is notoriously unclear, and open to manipulation. That standard (endorsed once again by today’s plurality) is whether the right in question is “fundamental” to “our scheme of ordered liberty.” You don’t have to be a constitutional law scholar to recognize that judges with different political ideologies and judicial philosophies will have enormous disagreements over the question of which rights are truly “fundamental.” And in fact there are ongoing controversies over whether such rights as abortion, the right to die, various property rights and economic liberties, and a host of other rights are “fundamental” enough to warrant judicial intervention. More than a century of Supreme Court precedent hasn’t even come close to providing us with a clear rule that could settle these issues. To put it mildly, there is very little consensus over the correctness, meaning, and future application of such landmark Due Process Clause decisions as Griswold, Roe v. Wade, Glucksberg, and Lawrence v. Texas. Justice Scalia and other conservatives have repeatedly complained about this vagueness and subjectivity, using it as one of their main arguments against “substantive due process.” It’s possible that a Court applying the Privileges or Immunities Clause wouldn’t fare any better in the search for a clear rule. But it could hardly do worse.
Moreover, at least from the originalist point of view espoused by the conservative justices, using the P or I Clause does in fact promise at least somewhat greater precision than we now have under the “substantive due process” approach. As Justice Thomas points out in his concurring opinion today, there is a great deal of evidence on the original meaning of “privileges or immunities” and scholars from across the political spectrum have reached at least some degree of agreement on these points, as one can see in this amicus brief by Randy Barnett, Jack Balkin and several other prominent constitutional law scholars of differing ideological backgrounds.
Obviously, the precise scope of the rights protected by the P or I Clause could not have been decided in a single Supreme Court opinion. But the same is true of any other important clause of the Constitution, especially one that has been largely neglected for decades. Brown v. Board famously invalidated school segregation under the Equal Protection Clause without even trying to determine the full extent to which that Clause banned racial discrimination by state governments. That issue was understandably left for later litigation. It was therefore unrealistic and possibly disingenuous for the plurality justices to demand that the petitioners provide a comprehensive theory of the rights protected by the P or I Clause.
Co-blogger David Bernstein has long pointed out that many of the conservative justices’ commitment to originalism is questionable outside the realm of various 1960s and 70s “social issues” precedents that they particularly despise. The McDonald plurality’s extremely dismissive approach to originalism and the Privileges or Immunities Clause seems to support David’s point.
Today’s decision is an important victory for the Second Amendment and the right to bear arms. But it is a setback for originalism.
UPDATE: Josh Blackman responds to this post here, arguing that the plurality opinion does not preclude reconsideration of the Privileges or Immunities issue at a future time. I disagree with the view that their rejection of P or I is strictly limited to this case. The plurality opinion’s reasons for not applying the P or I Clause in McDonald — precedent and vagueness — apply just as strongly to any reasonably conceivable future case as to this one.
Josh correctly notes that “vagueness and precedent have not stopped the Supreme Court before. In fact, the Court routinely deals with vagaries in, and routinely overrules long-standing precedents, when they want to.” He suggests that these issues will not be “a major obstacle” to the revival of P or I “if five votes want it.” I agree with this. But the plurality opinion’s reliance on the precedent and vagueness arguments is a strong indication that we are nowhere near having five votes that “want it.” In the meantime, the plurality’s holding will be an important obstacle to P or I claims in the lower courts.
Josh Blackman says:
Ilya, I have a more optimistic spin on McDonald. The majority simply declined to address the Privileges or Immunities Clause. They did not criticize it, or disparage it, though they could have. Scalia did not mention it in his opinion at all. Additionally, while the Stevens dissent criticized the history behind the privileges or immunities clause, the Breyer-Ginsburg-Sotomayor dissent simply said it was not proper to address those topics. Check out this post on the future of the Privileges or Immunities Clause http://joshblackman.com/blog/?p=4744
June 28, 2010, 4:16 pmAlso, here is a thorough instant analysis of the case http://joshblackman.com/blog/?p=4740
cityduck says:
Are you serious? Conservatives today are still in favor of throwing consenting adults in jail for oral sex in their own home?
June 28, 2010, 4:18 pmcityduck says:
We shoud all face facts: All Justices are activists Justices. Originalism is nothing more than a tool in their activist briefcases to be used when it suits a purpose and to be ignored when it doesn’t.
June 28, 2010, 4:20 pmAnthony says:
Moreover, at least from the originalist point of view espoused by the conservative justices, using the P or I Clause does in fact promise at least somewhat greater precision than we now have under the “substantive due process” approach.
June 28, 2010, 4:22 pmWhy would you think that? It’s not like you can’t in principle apply originalist logic to substantive due process. You’d likely lose because originalism doesn’t have a majority on the court, but that’s no different from PorI.
The Future of the Privileges or Immunities Clause after McDonald v. Chicago says:
[...] At Volokh, Ilya Somin characterizes the plurality’s decision to not discuss the privileges or [...]
June 28, 2010, 4:26 pmNunzio says:
Maybe because P or I is limited to citizens, it is less awkward to go with the due process clause.
June 28, 2010, 4:28 pmIlya Somin says:
To put it mildly, there is very little consensus over the correctness, meaning, and future application of such landmark Due Process Clause decisions as …. Lawrence v. Texas.
Are you serious? Conservatives today are still in favor of throwing consenting adults in jail for oral sex in their own home?
Conservatives who oppose anti-sodomy laws on policy grounds could nonetheless believe that they are not unconstitutional, which is basically what Scalia and Thomas said in their dissents in Lawrence.
June 28, 2010, 4:31 pmCJColucci says:
How can the decision be a “setback” for originalism? Almost nobody expected anything different.
June 28, 2010, 4:34 pmIlya Somin says:
Ilya, I have a more optimistic spin on McDonald. The majority simply declined to address the Privileges or Immunities Clause. They did not criticize it, or disparage it, though they could have. Scalia did not mention it in his opinion at all.
I very much disagree. The plurality opinion’s reasons for not applying the P or I Clause in this case – precedent and vagueness – apply just as strongly to any reasonably conceivable future case as to this one.
June 28, 2010, 4:34 pmyankee says:
Couldn’t they also be concerned that the PorI clause might become a vehicle for protecting new unenumerated rights?
June 28, 2010, 4:41 pmPersonFromPorlock says:
I would think that a government which draws its legitimacy from the consent of the governed can claim continuing legitimacy only as long as the governed have the power to remove it and don’t do so. That makes the RKBA fundamental to the government.
June 28, 2010, 4:41 pmConstantin says:
Might Marks mean Thomas’s concurrence controls going forward anyway?
June 28, 2010, 4:44 pmArthur Kirkland says:
Texas Republicans are demanding it.
Along a similar line, Virginia Attorney General Ken Cuccinelli has reportedly opined that the 14th Amendment does not apply to gays. Did that guy attend a real law school?
June 28, 2010, 4:47 pmArkady says:
This was raised by a comment to a previous post: The two clauses at issue seemed to be in some tension:
The P or I clause safeguards the rights of only American citizens (plainly read), while the due process clause (and equal protection clause) extends constitutional protections to all persons within the jurisdiction of the United States and the several states.
I guess my question is, how would one, in general, distinguish between a right that accrues to someone in virtue of his or her being a citizen of the United States and a right that only accrues as a result of being within the jurisdiction, etc.? Do Americans, for instance, have greater rights to counsel and trial by jury than aliens? If not, why not, or vice versa? Is there a criterion or criteria to distinguish?
I should say, it seems to me, the Due Process clause casts the net of liberty in a much wider arc than the P or I clause.
June 28, 2010, 4:52 pmA Non-E Mous says:
I don’t think that critique applies particularly well here. Whether or not the judges used PoI or Substantive Due Process, the policy put forth would have been the same – states can’t generally ban the right to possess firearms.
Quite the contrary, the judges here are, I think, trying to avoid being “activist” while still holding to the original intent of the Constitution. (I put activist in quotes because I think I agree with Randy Barnette’s and Erwin Chemerinsky’s comments that “activism” is bandied about too carelessly and capriciously.) Overturning the Slaughter-House cases – which have stood for a century – would be considered “activist,” while obeying the Court’s decisions would be restraint. Here, they avoid using originalism in order to avoid activism.
June 28, 2010, 4:55 pmJosh Blackman says:
Ilya, vagueness and precedent have not stopped the Supreme Court before. In fact, the Court routinely deals with vagaries in, and routinely overrules long-standing precedents, when they want to. As for the vagueness, the Court identifies two rationales. The Court discusses conflicts among scholars. As important as scholars think their work is, Courts are free to ignore it, even when they are in tension. See the majority and dissenting opinions in Heller. Second, the court notes that the petitioner failed to narrow the scope of the rights protected by P or I. If you check the transcription (see http://joshblackman.com/blog/?p=4744), the discussion talks about the scope unenumerated rights, and not enumerated rights. Granted, there are not that many more enumerated rights that could be enumerated. But the Court did not reject the Clause outright.
As for precedent, the Court follows precedent unless they don’t want to. I really don’t see that as a major obstacle if five votes want it.
It wasn’t a resounding victory for Privileges or Immunities, but this opinion could have been much, much worse. The Court could have spent more than a few paragraphs excoriating the right–think of Scalia’s discussion of substantive due process in Stop the Beach. Additionally, Breyer’s dissent did not address it either. For an issue that was so significant, you would think the Court would spend more than a few paragraphs on it. This tells me, simply, they could not agree on how to treat it, and just let it alone.
June 28, 2010, 4:55 pmAnthony says:
Or that they didn’t consider the point all that significant; since there isn’t really reason to think PorI would change the outcome of this case, it really isn’t that significant unless they choose to open a can of worms by overruling a ruling they didn’t need to overrule.
June 28, 2010, 5:02 pmA.W. says:
i think the majority really thought about it this way. the founders would agree with what they did. how they justified it is secondary.
i mean the opinion is pretty disjointed when you look at it. alito does a great job explaining how substantive due process works and then pretty much ignores it in favor of a nice original intent analysis. really the SDP stuff does almost nothing in the opinion. the original intent stuff does all the heavy lifting.
So yeah, they didn’t overturn the PI stuff, but they really didn’t have to, to get this case right. and i am fine with that. its when they don’t uphold a constitutional right that they should, i will be bothered.
June 28, 2010, 5:07 pmLior says:
Reading Thomas’s opinion gave the impression he thinks that the “privileges or immunities” covered are those rights enumerated in the bill of rights. I’m not sure if it was because the right to arms is enumerated, so it was enough to argue that all the enumerated rights are included, or if he really means that (unlike incorporation via SDP), the PoI Clause only forces the states to recognize enumerated rights.
June 28, 2010, 5:17 pmleo marvin says:
Lucky Orin. His sabbatical spares him having to resist the temptation to say “I told you so.”
June 28, 2010, 5:20 pmyankee says:
How do you know what the Founders would have thought of incorporation? They had been dead for decades when the 14th Amendment was ratified.
June 28, 2010, 5:21 pmOwen H. says:
Just look to the Texas GOP for the answer to that.
June 28, 2010, 5:31 pmAultimer says:
Is it anti-originalist to apply originalism to interpreting the 14A? Or are you just further defending activism when the result is desirable?
June 28, 2010, 5:35 pmpudge says:
Josh is right on here. Hell, Thomas gave considerable deference to the reasons why the majority didn’t use Privileges or Immunities. Thomas didn’t frame his concurrence as “this is how the majority should have ruled,” but “let’s start the process of going back to this.”
It’s obvious that Scalia, at least, cares deeply about the problems with substantive due process. But it’s fairly conservative — and arguably originalist — to believe that we shouldn’t throw out such a massive body of law, that nearly innumerable precedents are based on, without seriously considering it in a case, and this case wasn’t that case.
June 28, 2010, 5:45 pmGo Horns! says:
So the vote was 5-4 that 2A is incorporrated against the states, but the vote was 5-4 against incorporation through DP and 8-1 against incorporation through P or I. Got to love it when only results matter and the rationale, i.e. the rule of law, is just a side-show.
I think this just shows the weakness of Marks v. U.S. Marks works great when you have votes for X+Y and votes for just X, but this is a vote for X and votes for Y. Is DP narrower than P or I because of stare decisis, or is P or I narrower because it relies on the original meaning of the Constitution?
I wonder if Thomas ever though of holding the plurality hostage with the threat of a dissent if they did not go along with P or I.
June 28, 2010, 5:47 pmAhcuah says:
I wonder if now might be the time we could get the Congress interested in a constitutional amendment that specifically clarified that the PorI clause is to be used for rights and that the due process clause applies to, well, process.
A lot of people on both sides did seem to be interested in reviving the PorI clause. Or would we end up seeing both sides afraid of it extending rights to those they hate on the other side? (Which is what I suspect all the Justices but Thomas did.)
June 28, 2010, 6:07 pmThe MacDonald Slaughterhouse | The League of Ordinary Gentlemen says:
[...] your opinion on whether the Supreme Court reached the right result in MacDonald, Ilya Somin destroys the plurality’s argument against applying the privileges or immunities clause despite [...]
June 28, 2010, 6:13 pmDilan Esper says:
Conservatives who oppose anti-sodomy laws on policy grounds could nonetheless believe that they are not unconstitutional, which is basically what Scalia and Thomas said in their dissents in Lawrence.
1. Scalia definitely did not say only that. He said that throwing gays in jail upheld the rational conclusion that gays are immoral sodomites, and prevented TEH HOMOSEXUALS from enacting TEH HOMOSEXUAL AGENDA. Thomas said what you said in his separate opinion.
2. Even if the Thomas position was reasonable at the time, that’s a lot different from calling for Lawrence to be overruled. Seems to me that only a homophobe would want to throw gays in jail again. If you said Lawrence should be limited to its facts, that’s different.
June 28, 2010, 7:26 pmDilan Esper says:
Might Marks mean Thomas’s concurrence controls going forward anyway?
Nope. Marks only applies when one opinion rests on a narrower ground than the other. It probably doesn’t apply at all here, but if it did, the plurality opinion has a claim to being narrower than Thomas’ because it doesn’t overturn the Slaughter-House Cases.
June 28, 2010, 7:27 pmscc says:
That doesn’t seem to be what Thomas was explicitly attempting to do (p. 48):
June 28, 2010, 9:31 pmDilan Esper says:
scc:
Bear in mind, Thomas has to partially overturn Slaughter-House to even permit the RKBA to be incorporated under P/I. The majority does not. Therefore, the majority is the controlling opinion.
June 28, 2010, 9:33 pmscc says:
OK, I just reviewed the Marks decision, and I don’t see how your point about an overturning of precedent limited to the present case is relevant to the question of being more or less narrow. More relevant, IMHO, is the size of the group being affected (in Marks, the scope of material that may be obscene), and Thomas’s decision would be narrower because the P/I clause is directed to citizens, not persons. After all, there aren’t 5 votes now to prevent states from limiting the gun rights of non-citizens, are there?
June 28, 2010, 10:04 pmNelson Lund says:
Is there evidence that Roberts, Kennedy, or Alito thinks of himself as “committed to originalism”?
June 28, 2010, 10:18 pmDilan Esper says:
OK, I just reviewed the Marks decision, and I don’t see how your point about an overturning of precedent limited to the present case is relevant to the question of being more or less narrow. More relevant, IMHO, is the size of the group being affected (in Marks, the scope of material that may be obscene), and Thomas’s decision would be narrower because the P/I clause is directed to citizens, not persons. After all, there aren’t 5 votes now to prevent states from limiting the gun rights of non-citizens, are there?
That might get you a narrower RKBA, but it won’t get you P&I. Because there’s only one vote for P&I and the next case that asserts a new right under P&I will be 8-1 against.
June 29, 2010, 12:39 amShelby says:
Ilya:
It was therefore unrealistic and possibly disingenuous
“clearly” or “obviously” disingenuous, maybe; no “possibly” about it.
June 29, 2010, 1:22 amMark says:
Here’s hoping that, sometime down the line, Justice Thomas looks like the first Justice Harlan did after Brown v. Bd. of Education.
Gotta start somewhere, man.
June 29, 2010, 1:24 amAndrew says:
Justice Thomas gets credit for taking a serious look at a part of the Cnstitution that as all too often swept under the rug. And we can now say that the right to keep and bear arms would not now apply against the states but for the P or I Clause.
Nevertheless, I can see why parts of the Thomas opinion would have been allergic to Scalia, Roberts, and Alito. Thomas strongly suggested that the P or I Clause protects unenumerated rights, and suggested that he might even overturn the judgment in Slaughter House. I disagree with those suggestions in the Thomas opinion, and doubtless Scalia, Roberts, and/or Alito do too.
All is not lost for the P or I Clause. Justice Alito said he wants some scholarly consensus first. So let’s see if that’s possible.
June 29, 2010, 1:36 amAndrew says:
“as all too often” >> “is all too often”
June 29, 2010, 1:38 amscc says:
I’m just trying to figure out the holding under Marks. I agree that the Court will not extend P/I under its current make-up, though I don’t see that as relevant to what the holding of this case is.
June 29, 2010, 2:40 amJeff Y. says:
This post is golden. I learned something important and new. Thanks, Ilya.
June 29, 2010, 12:32 pmGordo says:
There’s an easy answer to that – Scalia has turned into a raging hypocrite, taking up or discarding constitutional arguments to fit his policy goals. See, e.g. Gonzalez v. Raich.
June 29, 2010, 12:48 pmTomB says:
Perhaps it is a bit of stratergery by the plurality, giving liberal justices a reason to think about revisiting the issue of selective incorporation.
And I agree with Gordo that Scalia’s concurrence in Raich shows that he has no principles whatsoever and bases his decisions on ideology.
June 29, 2010, 1:07 pmDilan Esper says:
I’m just trying to figure out the holding under Marks. I agree that the Court will not extend P/I under its current make-up, though I don’t see that as relevant to what the holding of this case is.
Well, it would be strange to conclude that the law is that the P/I clause protects one, and only one right, which is RKBA.
So obviously, the smarter conclusion is either that Marks doesn’t apply at all (because both opinions are similar in scope) or that the plurality is “narrower” under Marks.
June 29, 2010, 2:19 pmohwilleke says:
SCOTUS has, by an 8-1 majority, which was reinforced by a very disdainful treatment of the P&I claim at oral arguments put a stake through the heart of P&I arguments. Both the liberals and the conservatives on the Court were emphatic in rejecting it.
The way that P&I was argued in this case, as a sort of unbounded device through which unenumerated rights might be given constitutional status scared them even more than they might have been otherwise. The complications of having rights tied to citizenship also discourages this route.
Rather than giving Justice Thomas credit for being thoughtful, he instead deserves to be recognized as a mediocre justice who is out of touch with reality and has no sense of the relevance of our constitutional law precedents. He is the Don Quixote of the U.S. Supreme Court, tilting at windmills. It is as if everyone else on the Court is playing baseball and he is trying to apply the rules of cricket. His dissents are utterly irrelevant.
June 29, 2010, 3:52 pmscc says:
Well, yes, there are cases where Marks doesn’t work. But, so far, none of the reasons you’ve given so far seems (to me at least) apposite to that situation. Perhaps we need to bring a Marks specialist into the conversation.
June 29, 2010, 4:50 pmThales says:
“yankee says:
Couldn’t they also be concerned that the PorI clause might become a vehicle for protecting new unenumerated rights?”
Yes–as it certainly is, under its original public and plain textual meaning, given that “citizens of the United States” have more “privileges or immunities” than can reasonably be enumerated in the text of a constitution, including some that have not yet been invented by Congress (through the power vested in it, for example, Section 5 of the 14th Amendment), and the 9th and 10th amendments expressly tell you as much. The most intellectually honest (and simultaneously judicially abdicatious) answer about the difficulty of construing unenumerated constitutional rights came from Robert Bork, who referred to the 9th Amendment as an “ink blot.”
June 29, 2010, 6:30 pmSecond Amendment Highlights Big Day at Supreme Court « Verus Politics: Truth and Reason says:
[...] opinion, perhaps, was that of Justice Thomas, who concurred separately with more than 50 pages. As Ilya Somin notes, the plurality used the Due Process Clause instead of the Privileges or Immuniti…. Justice Thomas, however, did use the Privileges or Immunities Clause as justification, writing [...]
June 29, 2010, 8:13 pmBrett Bellmore says:
More like everybody else on the court is agreed that the Emperor is a natty dresser, and he’s stubbornly pointing out the obvious. But I always did say that little boy in the fable would have been dragged into a nearby alley and beaten with rubber hoses… It’s not that easy to get people to abandon a blatant lie, when everyone they want the respect of has already uttered it.
June 29, 2010, 9:20 pmThe Aftermath of McDonald v. Chicago: What’s next for gun rights? « Swashbuckling, Liberty & Waffles says:
[...] Somin of the Cato Institute offered, I think, the more sober and most likely correct take: Josh Blackman…argu[es] that the plurality opinion does not preclude reconsideration of the [...]
July 3, 2010, 9:23 pmMore on Prospects for Liberaltarianism | theConstitutional.org says:
[...] solicited one from the ACLU on the same side. IJ also advocates many legal theories (e.g. — reviving the Privileges and Immunities Clause) that annoy judicial conservatives, and deliberately avoids the issue of affirmative action so as [...]
July 16, 2010, 6:51 pm