Sandefur on Privileges, Immunities, and Substantive Due Process

December 1st, 2009

Tim Sandefur, author of the Cato/PLF Amicus in McDonald just posted a new article to SSRN titled Privileges, Immunities, and Substantive Due Process. Here is the abstract.

In McDonald v. Chicago, the Supreme Court is being asked to reconsider its disastrous 1873 decision in The Slaughter-House Cases. This article seeks to discuss Slaughter-House in a broader context, to address two questions. First, what is the fundamental reason that Slaughter-House was wrongly decided? Although the decision has many flaws, I contend that the deepest reason, and the one that accounts for the case’s other errors, involves important abstract principles of federalism and sovereignty; in particular, the Slaughter-House Court failed to give effect to the principle of “paramount national citizenship” that was a component of Republican Party ideology and the most fundamental

Second, is it true, as some scholars and judges contend, that overruling Slaughter-House and restoring vitality to the privileges or immunities clause would warrant abandoning the theory of “substantive due process”? If so, then the McDonald decision could herald an even more far-reaching revolution of law than it would at first appear. But in fact, “substantive due process” is not a mere substitute for the lost privileges or immunities clause, and overruling Slaughter-House should not coincide with an abandonment of theat theory. Rather, both doctrines are independent, constitutionally valid sources of protection against excessive state power.

Check out my JoshCast with Tim. We chatted about McDonald, Privileges or Immunities, and Substantive Due Process. He is an expert in this area of the law. This article looks like a great read, and I would commend it to your attention, especially prior to oral arguments in McDonald, scheduled for March 2, 2010.