The Future of the Privileges or Immunities Clause after McDonald v. Chicago

June 28th, 2010

McDonald v. Chicago has set the stage for the future of the Privileges or Immunities Clause. For the first time in the history of the Supreme Court, a Justice found that an essential liberty is protected by the Privileges or Immunities Clause.

This case presents a 4-1-4 split, something I predicted months ago. We have 4 votes to incorporate through the due process clause, 1 vote to incorporate through the privileges or immunities clause, and 4 votes to not incorporate. Under the most narrow interpretation, we have 5 votes to incorporate the 2nd amendment, though there is no majority vote for the rationale. Regardless, the gun ban will fall.

But on a deeper level, we have a tacit endorsement of Privileges or Immunities. Here is the breakdown. One vote–Justice Thomas–found that the Privileges or Immunities Clause protects certain rights. Seven votes–Alito, Roberts, Scalia, and Kennedy, as well as Breyer, Ginsburg, and Sotomayor–were not willing to revisit the Privileges or Immunities Clause, but did not criticize it. Only Justice Stevens criticized the history behind the Privileges or Immunities Clause.

This is extremely favorable for the future of P or I. As I predicted in Pandora’s Box.

Here are the relevant quotes on P or I from the 4 opinions.

The Plurality on the Privileges or Immunities Clause

Although the Supreme Court did not adopt Justice Thomas’s approach, Justice Alito was very careful not to disparage it. They simply “declined to disturb” it.

Petitioners argue,however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the “privi-leges or immunities of citizens of the United States.” In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15–21, but petitioners are unable to identify the Clause’s fullscope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consen-sus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz, supra, at 522, n. 1 (THOMAS, J., dissenting).

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected bythe Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

The Court was simply not willing to revisit the Privileges or Immunities Clause in this case.

Justice Thomas on the Privileges or Immunities Clause

I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” Ante, at 1. I write separately because I believe there is a more straightforward path to this conclusion, one that is morefaithful to the Fourteenth Amendment’s text and history.
Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear armsapplies to the States through the Fourteenth Amend-ment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” ante, at 19 (citing Duncan v. Louisiana, 391 U. S. 145, 149 (1968)), and “‘deeply rooted in this Nation’s history and tradi-tion,’” ante, at 19 (quoting Washington v. Glucksberg, 521
U. S. 702, 721 (1997)). I agree with that description of theright. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States throughthe Fourteenth Amendment’s Privileges or Immunities Clause.

I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substan-tive due process framework fails to account for both thetext of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudencedevoid of a guiding principle. I believe the original mean-ing of the Fourteenth Amendment offers a superior alter-native, and that a return to that meaning would allow thisCourt to enforce the rights the Fourteenth Amendment isdesigned to protect with greater clarity and predictability than the substantive due process framework has so far managed.

Justice Stevens on the Privileges or Immunities Clause

Justice Stevens was more critical than the Plurality, and argues that the history is not as clear as they think.

I agree with the plurality’s refusal to accept petitioners’ primary submission. Ante, at 10. Their briefs marshal an impressive amount of historical evidence for their argument that the Court interpreted the Privileges or Immunities Clause too narrowly in the Slaughter-House Cases, 16 Wall. 36 (1873). But the original meaning of the Clause isnot as clear as they suggest2—and not nearly as clear as it would need to be to dislodge 137 years of precedent. The burden is severe for those who seek radical change in such an established body of constitutional doctrine.3

However, this view was not taken by the Breyer, joined by Ginsburg, and Sotomayor in dissent.

Breyer’s Dissent

Breyer devotes but a single sentence to the privileges or immunities:

First, the Court today properly declines to revisit ourinterpretation of the Privileges or Immunities Clause.

Update: At Volokh, Ilya Somin characterizes the plurality’s decision to not discuss the privileges or immunities clause thusly:

Why did the plurality make this choice? They cite two reasons — the failure of the petitioners to explain the exact scope of the rights protected by the Privileges or Immunities Clause, and longstanding precedent:

I see neither reason as saying much about the future.

The passage from the transcript the majority cites is here:

JUSTICE GINSBURG: But — just tell us the dimensions of what it is. I mean, we have the eight amendments, so I know you say that’s included. Keep and bear arms would be included even absent the Second Amendment. What unenumerated rights would we be declaring privileges and immunities under your conception of it?

MR. GURA: Although it’s impossible to give a full list of all the unenumerated rights that might be protected by the Privileges and Immunities Clause, just as it’s impossible to do so under the Due Process Clause, at least with respect to the Privileges and Immunities Clause we have wonderful historical guideposts. There are —

This discussion deals only with unenumerated rights. Not enumerated rights. That section begins with “Petitioners argue,however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the “privi-leges or immunities of citizens of the United States.”

If the Court wanted to find that the privileges or immunities protects enumerated rights, such as the right to keep and bear arms embodied in the 2nd amendment, the fears of unenumerated rights were unnecessary.

Although petitioners sought to protect certain unenumerated rights, as Justice Thomas noted, the only issue before the court was an enumerated right–the second amendment. Certainly the Court could have decided this on narrower grounds, without reducing an entire clause of the Constitution to a nullity.

The second argument, longstanding precedent, is not much of a barrier. When the Court wants to ignore stare decisis, they have no hesitancy doing so.

In short, the Court could have ruled on narrower grounds. They could have said the privileges or immunities clause only protects enumerated rights. Or they could have ruled on broader grounds, and said the privileges or immunities clause protects nothing. Instead, they did neither. They argued that the petitioner failed to address their concerns, scholars are conflicted, and precedents stand in their way.

The exact same argument could have been made about DC v. Heller. Petitioner did not address concerns about bans on the exact scope of gun control regulations. There had been decades of debate among scholars about the history of the second amendment. And the Court reversed over a century of precedents.

But if the Supreme Court wishes to give the Privileges or Immunities Clause more teeth in the future, I hardly see this opinion as standing in the way.

Update 2: I reply to Ilya Somin’s comment and Volokh, and cross post here:

Ilya Somin: Ilya, I have a more optimistic spin on McDonald. The majority simply declined to address the Privileges or Immunities Clause. They did not criticize it, or disparage it, though they could have. Scalia did not mention it in his opinion at all.I very much disagree. The plurality opinion’s reasons for not applying the P or I Clause in this case — precedent and vagueness — apply just as strongly to any reasonably conceivable future case as to this one.

Ilya, vagueness and precedent have not stopped the Supreme Court before. In fact, the Court routinely deals with vagaries in, and routinely overrules long-standing precedents, when they want to. As for the vagueness, the Court identifies two rationales. The Court discusses conflicts among scholars. As important as scholars think their work is, Courts are free to ignore it, even when they are in tension. See the majority and dissenting opinions in Heller. Second, the court notes that the petitioner failed to narrow the scope of the rights protected by P or I. If you check the transcription (see, the discussion talks about the scope unenumerated rights, and not enumerated rights. Granted, there are not that many more enumerated rights that could be enumerated. But the Court did not reject the Clause outright.

As for precedent, the Court follows precedent unless they don’t want to. I really don’t see that as a major obstacle if five votes want it.

It wasn’t a resounding victory for Privileges or Immunities, but this opinion could have been much, much worse. The Court could have spent more than a few paragraphs excoriating the right–think of Scalia’s discussion of substantive due process in Stop the Beach. Additionally, Breyer’s dissent did not address it either. For an issue that was so significant, you would think the Court would spend more than a few paragraphs on it. This tells me, simply, they could not agree on how to treat it, and just let it alone.