Kagan Memo to Marshall on DeShaney, Positive Rights under 14th Amendment, and Posner

May 16th, 2010

Jess Bravin has a great article on a memo Kagan wrote to Justice Marshall for DeShaney v. Winnebago County.

With respect to granting cert–Judge Posner wrote the opinion for CA7 finding that the state had no duty to protect Joshua DeShaney– Kagan cautioned Marshall about granting cert:

Ms. Kagan believed the Seventh Circuit got it wrong, but advised Justice Marshall to vote against hearing the appeal unless he was certain to have four other justices—making up a majority—on his side. Without such assurance, “I only worry that a majority of this court will agree with Judge Posner that ‘the Constitution is a charter of negative rather than positive liberties’ and will thereby preclude the approach” of the Third and Fourth circuits.

Very shrewd analysis. In a related case, Kagan embraced a positive vision of 14th amendment rights :

In a November 1987 memo to Justice Marshall, Ms. Kagan characterized that position as “considerably more tenuous” than liability based on an explicit statute. “Some members of this [Supreme] Court will doubtless object” to the holding that the 14th Amendment “imposes such affirmative obligations on state officials.” Nonetheless, she concluded, “I think the holding is correct and that this court should let it stand.”

And this analysis certainly has implications for the Privileges or Immunities jurisprudence.

I find the notion of positive rights under the 14th Amendment troubling. As I wrote in Pandora’s Box:

While libertarian scholars have long called for a restoration of the “lost Constitution”104—which would include overruling Slaughter-House—academic attention has come increasingly from the progressive voices who seek to infuse the Privileges or Immunities Clause with a host of positive rights. To satisfy ourselves that reinvigorating Privileges or Immunities will not in the long run effect a sub rosa constitutional rewrite, we must first understand what that purported Pandora’s Box contains.

Our framework foreceloses the recognition of modern—or post-modern!— rights under the Privileges or Immunities Clause, such as the positive “right” to health care, education, and welfare that the Fourteenth Amendment framers could never have fathomed. The Glucksberg Court describes our “Nation’s history, legal traditions, and practices” as providing the “guideposts for respon- sible decisionmaking” to cabin discretion when dealing with substantive unenu- merated rights. History, tradition, and practices are hallmarks of originalism. The Glucksberg tests thus lends itself well to an originalist inquiry and is ideally suited to consider the rights protected under the Privileges or Immunities Clause.