Stevens in McDonald v. Blackman/Shapiro in Pandora’s Box. We agree, Kinda!

July 18th, 2010

I previously remarked that sections of Justice Thomas’ concurring opinion resembled some of the ideas Ilya Shapiro and I developed in Pandora’s Box. Looks like Justice Stevens may have also taken a few pointers from Pandora, though he seems to have confused using substantive due process rather than the privileges or immunities clause.

Stevens in McDonald v. Chicago:

It follows that the term ““incorporation,”” like the term ““unenumerated rights,”” is something of a misnomer. Whether an asserted substantive due process interest is explicitly named in one of the first eight Amendments to the Constitution or is not mentioned, the underlying in- quiry is the same: We must ask whether the interest is ““comprised within the term liberty.”” Whitney, 274 U. S., at 373 (Brandeis, J., concurring).

Blackman/Shapiro in Pandora’s Box:

Indeed, “incorporation” is a misnomer, a constitutional malapropism.  The concept of “incorporation” was anachronistically inserted into our constitutional jurisprudence decades after the ratification of the Fourteenth Amendment.  Historical accounts of the ratification debates reveal that the Privileges or Immunities Clause was meant to protect both more and less than the Bill of Rights—but in any event not the eight particular amendments as such.  Thus reconceptualized, the clause should be viewed not as a mechanical incorporator of the first eight amendments, but rather as a limitation of the power of the states to infringe certain liberties.  In 1868, these liberties were referred to as privileges or immunities.

No citation. Just saying.