Why Not the Privileges or Immunities Clause?

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.


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