Dec 11, 2009

Posted in 2nd Amendment, McDonald v. Chicago, Pandoras Box and Privileges or Immunities

My Reply to Washington Times Op-Ed, “A gun case or Pandora’s box?” Imitation is the Most Sincere Form of Flattery.


Thursday, Ken Klukowski e-mailed me and said he found interesting the article Ilya Shapiro and I wrote, titled Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment, 8 Georgetown Journal of Law & Public Policy ____ (2010) SSRN

In Friday’s Washington Times, Ken Klukowski and Ken Blackwell (the Kens) write an op-ed titled A gun case or Pandora’s box?

I’m glad Ken and Ken (the Kens) enjoyed my article, and it seems to have inspired the title of their Op-Ed.

Indeed, imitation is the most sincere form of flattery.

But, beyond the title, I think there are several errors in this Op-Ed.

First, the Kens favorably cite to the Slaughter House Cases. Though, they fail to mention that virtually every Constitutional Law scholar on earth agrees that these cases were wrongly decided. In fact, the history shows that people in 1873 also thought Slaughter House was wrongly decided.

Second, the Kens characterize Slaughter House as a case primarily about economic rights:

What’s so important about that ruling is that there’s nothing in the Constitution about such an economic right.

This is not quite accurate. While the Slaughter House cases considered whether the state could maintain a monopoly on facilities to slaughter animals, the scope of the case was very expansive. The case virtually read the Privileges or Immunities Clause out of the Constitution. Contrary to the Kens, this case was not simply about an “economic right.” This was about interpreting one of the most critical aspects of the 14th Amendments, the crown jewel of the Reconstruction Congress.

Third, the Kens write:

Had the court accepted the butchers’ argument and struck down the Louisiana law, federal courts would have the power to declare anything they want to be a right of U.S. citizenship and strike down any state or local law they don’t like.

This statement is beyond hyperbole. The Privileges or Immunities clause of the 14th Amendment is not a general license for courts to impose their personal views. Rather, Privileges or Immunities was a term of art in 1868 that referred to a specific set of common law, pre-existing rights, including the right to keep and bear arms. This clause is no more a blank check for Judges to impose their will than the Due Process Clause; the exact vehicle the Kens seek to use in this case.

Fourth, the Kens write:

The libertarian lawyers representing Otis McDonald in the current lawsuit acknowledge that their goal is to persuade the court to overrule the Slaughterhouse Cases. Then federal judges could use the Privileges or Immunities Clause to challenge state and local labor laws, commercial laws, employment laws and business regulations across the country.

While the first part of this statement is accurate (see Petitioner’s Brief), the second part is not only inaccurate, but represents a misunderstanding of how constitutional litigation works. Judges don’t challenge laws. Plaintiff’s challenge laws. If a Plaintiff brings suit, and alleges that a law violates the Privileges or Immunities Clause of the 14th Amendment, it would be incumbent on a Judge to consider that question. If the Judge adheres to Originalism, he would consider the meaning of the privileges or immunities clause in 1868, and apply it. This is no different from the approach Justice Scalia took in D.C. v. Heller. He considered the meaning of the Second Amendment at the time of the Founding, and found that the D.C. gun control ordinance violated it. While the Kens may want to pick and choose when Originalism should apply, I do not adhere to Selective Originalism.

Fifth, the Kens write:

That would destroy federalism as we know it in this country; life-appointed federal judges could override the decisions made by elected leaders that we, the voters, choose. The people ultimately making those decisions would no longer answer to us.

I cringe whenever I see the word “life-appointed” and “federal judges” in the same sentence. I understand many on the Right do not like the idea that Judges are not elected and have lifetime tenure. Fine. Amend the Constitution. Again, it seems many like to pick and choose what parts of the Constitution they like. Yes, judges can strike down laws. Justice Scalia struck down the D.C. gun control law in Heller. This is nothing new. Judges, for better or worse, have been doing this for centuries. This case won’t change that.

While I concur with the Kens regarding the potential Pandora’s Box that can be opened if Slaughter House is overruled, I think the Supreme Court can keep Pandora’s Box sealed by writing an opinion in McDonald to make clear that the rights protected by the Privileges or Immunities clause are those rights deeply rooted in our nations history and traditions, and those rights there were publicly understood as privileges or immunities in 1868.

Update: My esteemed co-author, Ilya Shapiro, chimed in on this matter at Cato@Liberty. As Ilya mentioned,  to set the record straight, we are working on an op-ed — not so much to respond to the Kens’ flawed analysis but to present the correct historical and textual view of the Privileges or Immunities Clause.

Update: I wrote that the Kens seek to incorporate the 2nd Amendment through the Due Process Clause. Thanks to commenter Andrew below, I realize this was in error. The Kens seek to incorporate the 2nd Amendment through the Privileges or Immunities Clause.

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  • Soren

    Hear Hear.

  • John

    Thank you for correcting the many errors in the Kens’ astonishingly bad analysis that could have been avoided altogether, had the piece been looked over by anyone who passed first-year Constitutional Law before publication. There’s nothing like seeing pieces about constitutional law in newspapers to shake your faith in journalism.

  • troll_dc2

    The problem is not the journalism itself. Rather, it is the selection of outsider writers who campaign for a particular viewpoint regardless of the facts or the law. The editor who selects or accepts their work cannot be expected to know the intricacies of constitutional law; he just likes the bottom line that they put forth. This is ideology at work.

  • Orin Kerr

    Josh,

    Can you explain a bit more what you mean when you say that “virtually every Constitutional Law scholar on earth agrees that these cases were wrongly decided”? There are thousands of con law scholars out there today. How many have actually argued that the outcome in the case should have been different? That is, that it should have been deemed unconstitutional to have a state monopoly on slaughterhouses?

    My sense is very few, if any. Contrast this with Lochner v. NY, for which almost every con law scholar on earth — or on other planets — agrees the case was incorrectly decided in the sense of incorrect as to the result.

    • Josh Blackman

      Orin,

      Professor Amar wrote “Virtually no serious modern scholar—left, right, and center—thinks that [Slaughter-House] is a plausible reading of the [Fourteenth] Amendment.” Akhil R. Amar, Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 123 n.327 (2000).

      There are lots of other statements to this effect from top scholars, but suffice to say, virtually all scholars think Slaughter House misinterpreted the Privileges or Immunities Clause.

      That is not to say they think that the state monopoly on slaughterhouses was constitutional. Rather, the agreement is that the Court’s reading of the Privileges or Immunities Clause was incorrect.

      So while all con law scholars (a few roaming the halls of IJ, Cato, and elsewhere excepted) will agree that Lochner is wrong as a matter of reasoning and outcome, virtually all scholars will agree that the reasoning in Slaughterhouse was wrong, though there is room for disagreement whether the outcome was correct.

      One of the few outliers is Kurt Lash, who writes in this article that Slaughterhouse was correct. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1457360

  • Orin Kerr

    Josh,

    Thanks for the explanation. I’m curious, who are the scholars who argue that the outcome in Slaughterhouse was incorrect?

    • Josh Blackman

      Likely the same scholars who agree the outcome in Lochner was correct.

  • Orin Kerr

    Josh,

    Are any of them non-libertarians? Or are the only scholars who argue that the outcome in Slaughterhouse was incorrect a subset of the group who personally want the outcome in Slaughterhouse to be incorrect?

  • http://joshblackman.com Josh Blackman

    Orin,
    I had a feeling you would ask this question. I don’t know how others feel, so I will only speak for myself. I don’t approach constitutional law based on what my preferred public policy would be.I try to construe the Constitution based on its original meaning without the outcome in mind. Most of the times this mirrors my personal views, but not always. That often puts me at odds with people in my corner.

    I think ill blog about this in a full post bc its a deep question. Stay tuned

    Josh

  • troll_dc2

    “I try to construe the Constitution based on its original meaning without the outcome in mind.”

    Really?

    As you know, Article II provides in part: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. ”

    Suppose a state has a Republican legislature and a Republican governor, but the presidential election polls shows that the Democratic candidate is strongly favored to win the state’s electoral votes. Suppose further that the presidential race is a tossup. So the legislature and the governor approve legislation that abolishes the election for electors and instead gives that selection power to the legislature.

    Would you uphold such a change if you were on the Court? If the answer is yes, would you also allow such a substitution even if it occurred after the election but before the date set for the electors to cast their votes?

    I see nothing in the words of the Constitution to forbid such legislation, regardless of when it is enacted. After all, if you want to talk about “original meaning,” the framers did not contemplate our present system for choosing electors.

  • http://joshblackman.com Josh Blackman

    I have troll and kerr debating on my threads. I just need j. Aldredge and Oren to join and this site will become Volokh’s satellite blog. But no inappropriate don kates comments. Lol. Troll, I have never considered this provision of the constitution so I have no clue how to answer your question. That being said, originalism and public meaning is not the same thing as textualism. Construing this provision based solely on the text of the constitution is only part of the story.

  • troll_dc2

    “originalism and public meaning is not the same thing as textualism. Construing this provision based solely on the text of the constitution is only part of the story.”

    Yes, but then you get into “soft” evidence that is susceptible to perspective bias. I have my doubts as to whether your method of constitutional analysis is any better (in the sense of fidelity to whatever there is supposed to be fidelity to) than the others.

    It seems to me that to have a successful blog, you also need posters like Nieporent and, alas, SuperSkeptic.

  • troll_dc2

    Is it correct to say that legal theory is to real law as data management is to real facts?

  • troll_dc2

    Or is it more accurate to compare the relationship between legal theory and real law to that between financial derivatives and investments in real things?

  • http://www.andrewhyman.com Andrew

    Did someone say this is Volokh’s satellite blog? I just want to make sure that I’m in the right place. :-)

    • Josh Blackman

      LOL. Come one, come all. I may regret this, and may have to shut down comments like Randy :)

  • Orin Kerr

    Josh,

    If you’re going to make this a VC satellite blog, someone needs to call you an idiot or a hack. Or both. Until then, it’s just a blog with common readership to the VC.

    I’m interested in your comment, “I don’t approach constitutional law based on what my preferred public policy would be.” I don’t know you well enough to know whether this is true, but I am kinds of skeptical of this. My sense is that most people who believe in grand constitutional theory pick the non-laughable theory that is closer to their own personal policy views than any other non-laughable theory. They then claim that they are just following their theory, when in fact they picked the theory precisely because it matches their policy views more closely than any other view.

    That’s why I asked about whether any non-libertarians had taken the view: If the only people who believe legal position X are the people who want to believe X, it always raises the question of whether they believe that because they want to or because they feel the law compels it.

    • Josh Blackman

      Orin,
      I’m usually called a hack and/or idiot on a daily basis, so I think you’re request is covered. Of course, the satellite comment was made in pure jest. Hence the “lol”

      Do you think any grand constitutional theorists are in fact genuine? Or, have you ever met/known/read about a grand constitutional theorist that you were not skeptical about?

      • http://www.andrewhyman.com Andrew

        Josh and Orin,

        I wouldn’t fault someone for trying to figure what the Constitution actually says, as opposed to what SCOTUS says it says. If that’s “grand constitutional theorizing,” then it’s really the only way to constarin the power of SCOTUS and prevent it from becoming a runaway train.

        So, the fact that Josh (and Ilya) may be libertarians shouldn’t stop anyone from looking seriously at their legal positions, albeit with some skepticism. Having done so, I find that Josh (and Ilya) are being very inconsistent….

        They do not seem to challenge the Court’s jurisprudence under the Articler IV Privileges and Immunities Clause. Yet, that jurisprudence seems to say very clearly that when an out-of-state visitor comes to a visited state, the visited state is not obliged to respect any definite set of so-called “traditional” rights of the Anglo-American people, or anything like that. Rather, the visited state is only obliged to respect rights that its own citizens can actually vindicate against the state.

        This is the main reason why I find it difficult to take the Josh-Ilya position seriously. Put another way, how on Earth can something be a “privilege or immunity of citizens of the United States” if the federal government is free to violate it? I just find this to be an insurmountable hurdle to endorsing the Josh-Ilya view.

        • troll_dc2

          Andrew, you are assuming that the two P/I clauses mean the same thing or at least refer to the same thing, but in fact the one in the Fourteenth Amendment has a legislative history that fairly compels the conclusion that it encompasses the Bill of Rights as well as perhaps other concepts as well.

          • http://www.andrewhyman.com Andrew

            I agree that it encompasses the Bill of Rights (or almost all of the Bill of Rights). It’s the “other concepts” that I dispute.

            There’s no avoiding the fact that the distinctive term “privileges and/or immunities of citizens” was copied from Article IV. SCOTUS has said that this term comprises rights but not ALL rights. Specifically, it comprises rights that a citizen can actually vindicate against his or her home state, NOT some set of judicially-defined ancient liberties.

            But as I said, one doesn’t have to even look at Article IV to reach this same conclusion. How on Earth can something be a “privilege or immunity of citizens of the United States” if the federal government is free to violate it?

        • troll_dc2

          “They do not seem to challenge the Court’s jurisprudence under the Articler IV Privileges and Immunities Clause. Yet, that jurisprudence seems to say very clearly that when an out-of-state visitor comes to a visited state, the visited state is not obliged to respect any definite set of so-called “traditional” rights of the Anglo-American people, or anything like that. Rather, the visited state is only obliged to respect rights that its own citizens can actually vindicate against the state.”

          Which P/I clause did that jurisprudence involve? The one in the Fourth Amendment reads: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

          I read this provision as applying to the states only and merely requiring equal treatment. What are “Privileges and (notice the difference from the Fourteenth Amendment, which uses “or”) Immunities”? For that, you have to go to the sources on which the framers relied or were inspired by. I think I see what you are getting at, namely, that (a) the states have to provide equal treatment without there being much in the way of a minimum standard of treeatment (except as provided in other provisions) and (b) the federal government has no obligation here. It may be that the Court should be/should have been more assertive against the states, but I do not see Article IV as imposing any obligation on the federal government.

          What obligations do you believe that the Article IV clause imposes on the federal government?

          • http://www.andrewhyman.com Andrew

            Article IV imposes almost no obligations at all on the federal government. What I’m saying is that Article IV and the 14th Amendment use some identical terminology, and they also use some very different terminology. To the extent they use identical terminology, Article IV is a useful guide as to the meaning of the 14th Amendment. But even ignoring Article IV, it makes no sense to say that something is a “privilege or immunity of citizens of the United States” if it can be freel violated by the federal government (e.g. Josh points to no provision of the Constitution that forbids Congress from setting up slaughter-house monopolies in the District of Columbia).

  • troll_dc2

    Josh, you are a hack and/or an idiot. (Is it really possible to be both to the same observer?) Now you are official.

  • http://www.andrewhyman.com Andrew

    Josh, Ilya’s post at Cato says: “The Privileges or Immunities Clause is thus no more a blank check for judges to impose their will than the Due Process Clause — the exact vehicle the Kens would use to “incorporate” the Second Amendment.”

    I think this is an error. The Kens argued in the Washington Times (and in their amicus brief) to incorporate the Second Amendment using the Privileges or Immunities Clause, but CAREFULLY. They did not argue for using the Due Process Clause, as far as I’m aware.

  • Josh Blackman

    @Troll. Maybe I should write a post on how it is possible to be a hack and an idiot.

    @Andrew.

    First of all, which Ilya are you talking about.

    Are you referring to Ilya Somin or Ilya Shapiro? Orin had a similar protracted blog-battle with Ilya Somin on Volokh about 2 years ago about the role of the judges. See http://volokh.com/posts/chain_1201140590.shtml

    Or are you referring to my esteemed co-author, Ilya Shapiro.

    For a resolution of this name game, see http://joshblackman.com/blog/?p=2555

    But, to your question of whether there can be double standards for the federal government and the states, why is that so hard to believe? Aren’t there many things the federal government can do and the states can’t? Just look at the original text of the Constitution; regulate commerce, make treaties with foreign nations, declare ware, and others. Now, consider how the Civil War and Reconstruction totally changed the balance between the federal and the state system. Is it still beyond the realm of possibility?

    In early incorporation cases, SCOTUS moved away from having different standards of state and federal rights for the first 8 amendments, out of a fear of so called “shadow” rights. But I think this is more due to pragmatic concerns than any actual constitutional concerns.

    • http://www.andrewhyman.com Andrew

      Josh,

      I’m referring to Ilya Shapiro, who is linked in your blog post (sorry for any confusion about that).

      As for the other thing, I’m talking about what the word “privileges” means, and what the word “immunities” means, and what the distinctive phrase “privileges and/or immunities of citizens” means. You’re saying that, even though these words are used repeatedly in the Constitution, they have completely different meanings? I don’t find that credible. SCOTUS has repeatedly held that the term “privileges and/or immunities of citizens” does not include rights that a citizen cannot actually vindicate. That’s what the dictionaries indicate.

      But as I said, we don’t have to even consider Article IV at all. How can something be a “privilege or immunity of citizens of the United States” if it can be freely violated by the federal government? You have not pointed to anything in the Constitution that would forbid the federal government from taking away the right of a citizen (e.g. a citizen of Washington D.C.) to engage nin his trade or profession.

      • Josh Blackman

        Andrew, there is a rather lengthy history of the definition of the privileges or immunities clause, that may or may not involve quoting John Bingham. I’ll leave that debate for another day.

        But you raise a good point. And in our article, we do concede that the Federal Government would not be bound by P/I and could forbid a citizen of Washington D.C. from engaging in the trade of his profession, for example.

        That being said, I’m sure SCOTUS could Bolling v. Sharpe it, and imply a right against the feds like they did with the Equal Protection clause which does not exist in the 5th amendment.

        • http://www.andrewhyman.com Andrew

          Josh, even if Bolling v. Sharpe was properly decided on due process grounds (which I don’t think it was), you’re suggesting that SCOTUS should use the Due Process Clause to apply a ton of other rights against the federal government.

          If you think that the Due Process Clause empowers the judiciary to do so much, then why do you want to bother using the Privileges or Immunities Clause in the 14th Amendment?

          Regarding Bolling v. Sharpe, Judge Michael McConnell has pointed out that Congress never “required that the schools of the District of Columbia be segregated.” Therefore, SCOTUS had no need to rely (improperly) on substantive due process in that case.

      • troll_dc2

        “How can something be a “privilege or immunity of citizens of the United States” if it can be freely violated by the federal government?”

        The phrase came from the Articles of Confederation. See http://74.125.93.132/search?q=cache:S6njdJ8X15sJ:en.wikipedia.org/wiki/Privileges_and_Immunities_Clause+privileges+and+immunities+clause+of+article+iv&cd=1&hl=en&ct=clnk&gl=us :

        “The Privileges and Immunities Clause is similar to a provision that was contained in the Articles of Confederation. According to that provision, “the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.”

        “James Madison discussed that provision of the Articles of Confederation in Federalist No. 42. Madison wrote: “those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State….”

        “Likewise, Alexander Hamilton wrote in Federalist No. 80 that the Privileges and Immunities Clause in the proposed federal Constitution involves controversies between a state and a citizen of another state. Thus, the idea that the Privileges and Immunities Clause generally dictates how a state must treat its own citizens has been rejected since the eighteenth century.

        “It should also be noted that, throughout Federalist 42, Madison repeatedly used the word “privileges” interchangeably with the word “rights.”"

        • http://www.andrewhyman.com Andrew

          Troll, you have just quoted me, and then you quoted a bunch of stuff from Wikipedia. I don’t see how the latter stuff addresses the former.

          • troll_dc2

            I simply was quoting an account of where the phrase came from and what the people who incorporated it thought it meant. They did not have the federal government in mind.

  • troll_dc2

    Andrew, your hangup seems to be with the phrase “citizens of the United States.” I do not know for sure, but I would not be surprised if this phrase was a polite way to refer to free citizens and had nothing to do with the federal government at all.

    • http://www.andrewhyman.com Andrew

      Well, troll, if you have any source that suggests “privileges or immunities of citizens of the United States” refers to anything more than privileges or immunities that citizens can vindicate against the federal government, then I’d be glad to hear about it.

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