Jun 17, 2010

Posted in Uncategorized

What does Stop the Beach Tell us About McDonald v. Chicago?

Stop the Beach tells us a few things about McDonald v. Chicago.

First, Roberts, Scalia, Thomas, and Alito are not afraid to recognize a new right when it suits their fancy. They went out of their way to note that in some cases it is appropriate to recognize new rights, without applying them.

It is not true that deciding the constitutional question in this case contradicts our settled practice. To the contrary,we have often recognized the existence of a constitutional right, or established the test for violation of such a right(or both), and then gone on to find that the claim at issue fails.

That the Court did not avoid the issue perhaps portends that the Supreme Court will incorporate the Second Amendment through the Due Process Clause, and recognize the validity of the Privileges or Immunities Clause, but not rely on it. That fits in nicely with what the Court did today.

Second, Roberts, Scalia, Thomas, and Alito absolutely loathe substantive due process.

Moreover, and more importantly, JUSTICE KENNEDY places no constraints whatever upon this Court. Not onlydoes his concurrence only think about applying Substan tive Due Process; but because Substantive Due Process is such a wonderfully malleable concept, see, e.g., Lawrence v. Texas, 539 U. S. 558, 562 (2003) (referring to “liberty ofthe person both in its spatial and in its more transcendentdimensions”), even a firm commitment to apply it would bea firm commitment to nothing in particular.

The great attraction of Substantive Due Proc-ess as a substitute for more specific constitutional guaran-tees is that it never means never—because it never means anything precise.

So how will the Court rely on the due process clause to incorporate the Second Amendment? Will they swallow their pride and find that incorporation through substantive due process is a kindler, gentler “wonderfully malleable concept”? Or will the Court rely on the historically accurate Privileges or Immunities Clause to extend the right to keep and bear arms to the state.

Third, Robets, Scalia, Thomas, and Alito very clearly believe that the Due Process Clause does not protect any economic rights.

The second problem is that we have held for many years (logically or not) that the “liberties” protectedby Substantive Due Process do not include economic liber-ties. See, e.g., Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525, 536 (1949).JUSTICE KENNEDY’s language (“If a judicial decision . . . eliminatesan established property right, the judgment could be set aside as a deprivation of property without due process of law,” post, at 3) propels us back to what is referred to (usually deprecatingly) as “the Lochner era.” See Lochner v. New York, 198 U. S 45, 56–58 (1905). That is a step of much greater novelty, and much more unpredictable

Some had hoped that Justice Thomas would be open to using the Privileges or Immunities Clause to protect certain economic rights. This does not bode well for such hopes.

Fourth, on a tangentially related note, Justice Sotomayor is not bad on property rights as we may have thought. She joined Justice Kennedy’s opinion, which left open the possibility that a judicial taking is possible, and not Justice Breyer’s opinion, which largely foreclosed judicial takings.

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  • steve rappoport

    Are you comfortable when the Justices invent a new right even when they need not do so to decide a case (and they did not have to do so here)? Or is it a case-by-case thing, with approval being given when the invented right is one that you like and disapproval being expressed when it is one that you do not?

    • Josh Blackman

      I am not comfortable with judges creating rights, if you define creating rights as pulling law out of the ether. Recognizing rights that are derivable from our Constitution–and I understand such derivations are subject to reasonable debate–seems to be part of the judicial function. I would hope that the Court aims for consistency on how to derive rights. This would minimize knee-jerk reactions to cries of judicial activism or creation of rights.

  • Lindsay

    I didn’t read that as hostile to protecting economic liberties… more “this is the law of the land (even though it might be stupid).” It’s true that economic rights don’t belong under substantive due process (and nothing else does either).

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