David Gans Cracks Pandora’s Box Open, CAC’s Privileges or Immunities Amicus Brief in McDonald

November 24th, 2009

This morning I blogged about the Constitutional Accountability Center’s Amicus Brief in McDonald. I mentioned that this brief brought together odd bed-fellows, uniting the likes of Randy Barnett and Jack Balkin.

Both libertarians and progressives agree to revive the Privileges or Immunities Clause. But beyond that, I don’t think there is much agreement.

As Ilya Shapiro and I argue in Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment the libertarian and the progressive vision of the Privileges or Immunities clause is quite different. Libertarians seek to ground Privileges or Immunities in Negative Rights, deeply rooted in our Nation’s history and traditions. Progressives seek to ground it in Positive Rights based on a modern traditions.

If you read the CAC Brief, it is noticeably bereft of any definition of the substantive rights protected by the Privileges or Immunities clause. Neither positive nor negative types of rights. This can only be explained by a compromise of necessity between the disparate interests.

But, David Gans of CAC just blogged on Balkinzation and tipped his cards, and in my estimation, cracked open Pandora’s Box. He wrote:

Finally, a shift to the Privileges or Immunities Clause could even inure to the benefit of aliens in other ways. Take the right of protection – unquestionably one of the Privileges or Immunities that the framers of the Fourteenth Amendment considered a fundamental right of all citizens protected by the Privileges or Immunities Clause, as well as a right of all persons secured by the Equal Protection Clause. The Court has ignored this text and history in cases like Deshaney v. Winnebago County and Castle Rock v. Gonzales, holding that the Due Process Clause does not require state and local governments to protect anyone against threats of harm, even when the government turns a blind eye to known violence. Taking text and history seriously would not only require overruling DeShaney, it would also demand that all persons, citizens as well as aliens, be afforded the right to protection.

Gans made the same point about the right of protection and Deshaney and Castle Rock in a Georgetown Lecture I blogged.

I do not know if the “right of protection” is “unquestionably” one of the Privileges or Immunities. But, Deshaney and Castle Rock are positive right cases. They impose on the government the obligation to do something (without casting any normative judgment). A “right of protection,”Deshaney v. Winnebago County and Castle Rock v. Gonzales were never referenced in the CAC Brief.

This is revealing of the Progressive vision of the Privileges or Immunities Clause in the future. I’ll blog about this some more.

Update: For an alternate perspective, check out this article from Roger Pilon discussing the right of protection as a Privilege or Immunity.