Pandora’s Box Cited in Harvard Law Review Supreme Court Issue

November 22nd, 2010

The Harvard Law Review Issue for the 2009 Supreme Court Term has a fantastic piece on McDonald v. Chicago, titled Incorporation of the Right to Keep and Bear Arms: McDonald v. City of Chicago.

Here is the introductory paragraph:

It is well accepted today that the Fourteenth Amendment makes a broad array of liberties — including most of those enshrined in the Bill of Rights — judicially enforceable against the states. But the manner by which it does so and the scope of those liberties remain substantially contested. Last Term, in McDonald v. City of Chicago,1 the Supreme Court held that the Second Amendment right to keep and bear arms is fully enforceable against the states by virtue of the Fourteenth Amendment.2 This decision reaffirmed the articulation of the right as previously defined in District of Columbia v. Heller.3 But this case also presented the broader question of whether the proper basis for applying rights against the states comes from the Fourteenth Amendment’s Due Process Clause or from the Privileges or Immunities Clause.4 Although the Court could have relied on the Privileges or Immunities Clause in reaching its decision, the plurality was understandably hesitant to overturn precedent, as the Due Process Clause is the traditional basis for applying rights against the states. Though the result in this case would be effectively the same under either provision, many cases exist today where this distinction would be determinative and where the Privileges or Immunities Clause would be necessary to ensure the protection of rights long understood to be part of our legal tradition.

The note also has a section on economic liberty, and in the interest of shameless self-promotion, I would like to draw attention to this paragraph, which cites Pandora’s Box:

Of course, any discussion of economic liberty raises the specter of the Lochner era and the corresponding fear that broad swaths of progressive legislation, like minimum wage laws, could be put in jeopardy. 72 This concern, however, indulges in unhelpful generalities, assuming that there is a binary choice between judicial hostility to all economic regulation and complete judicial abdication of the field. Whatever the merits of the Court’s due process jurisprudence from 1908 to 1937, there is little doubt today that economic legislation passed to protect public health and safety or to ensure genuinely consensual contracts would withstand even substantially heightened judicial scrutiny. But there are many economic fields where greater judicial investigation is both appropriate and necessary.

FN72. An alternative, more progressive understanding of the Privileges or Immunities Clause is that it might itself compel minimum wage laws, or certain welfare benefits. Such an argument, however, is unlikely to prevail under a view of the Fourteenth Amendment guided by text, history, and constitutional structure. See Josh Blackman & Ilya Shapiro, Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, 8 GEO. J.L. & PUB. POL’Y 1, 84–86 (2010).


Here is the relevant passage from Pandora’s Box discussing how many progressive views of the Privileges or Immunities clause are inconsistent with the 14th amendment.

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 responsible decisionmaking” to cabin discretion when dealing with substantive unenumerated 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.

Instead of asking what Professors Ackerman and Balkin think the Privileges or Immunities Clause should mean in 2020, the inquiry should focus on what Congressman Bingham and Senator Howard and the state ratifying conventions thought the Clause meant in 1868. What did the 39th Congress think of Privileges or Immunities? What did contemporary writings, both from parties inside and outside government, think about privileges or immunities?439 These are the sorts of questions the Court should strive to answer in McDonald. In light of the reconceptualized notion of privileges or immunities we present in this article, the Glucksberg framework can extend not only to those rights listed in the Bill of Rights, but also to liberties implicit in our Anglo-American tradition.440

This approach kills two birds with one stone. It forces the Court to consider the legal traditions that brought us to the present, simultaneously requiring it to consider how the term was understood when drafted—exactly the query Justice Thomas posed in Saenz v. Roe. The Glucksberg test satisfies these aims and provides a pragmatic approach to recognizing fundamental liberties, yet cabins the discretion of jurists to recognize new rights lacking a place in the Pantheon of our Anglo-American liberties.

Alas, the Court did not adopt our approach, as we predicted. Soon enough, the Court will regret that choice.