In a new article, Dale Ho (NAACP LDF) thinks liberals dodged a bullet in McDonald when the Court chose to rely on substantive due process rather than the privileges or immunities clause. This article fits nicely into the narrative of I crafted in Pandora’s Box. Here is the abstract:
The Supreme Court’s decision in last term’s gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that “we are all originalists now.” Surprisingly, many progressive academics were disappointed. For “progressive originalists,” McDonald was a missed opportunity to overrule the Slaughter-House Cases and to revitalize the Privileges or Immunities Clause of the Fourteenth Amendment. In their view, such a ruling could have realigned progressive constitutional achievements with originalism and relieved progressives of the albatross of substantive due process, while also unlocking long-dormant constitutional text to serve as the source of new unenumerated rights in subsequent cases. This Article argues that progressives should be relieved by rather than disappointed with the outcome in McDonald. Practically speaking, the purported gains that would have accrued from a revitalized Privileges or Immunities Clause were largely illusory. The Clause was unlikely to be a fountain for new unenumerated rights. Moreover, progressive originalists’ concerns about substantive due process tend to overestimate the role that academic debates play in the broader public conversation about the meaning of the Constitution. But most importantly, a doctrinal shift away from existing Due Process jurisprudence towards a new reliance on the Privileges or Immunities Clause could have resulted in an unintended rollback of civil rights. Although the Fourteenth Amendment is undoubtedly radically egalitarian in spirit, there can be little doubt that the range of substantive protections that it was originally understood to afford is more limited than what is protected under current Supreme Court precedent. Moreover, reliance on the Privileges or Immunities Clause could have dire consequences for noncitizens, who may fall outside of the Clause’s scope. Although progressive originalists have made valuable contributions to constitutional discourse, McDonald illustrates that a conscious decision by progressives to adopt the language of originalism wholesale is unlikely to be a winning strategy in the long-term. More than any other area of constitutional law, the Court’s Fourteenth Amendment jurisprudence demonstrates the tremendous value of modes of interpretation other than originalism. Progressives should not shy away from a tradition of constitutional interpretation that has produced the finest moments in the Court’s history.
Ho parts company with Doug Kendall and the crew at the Constitutionality Accountability Center (the “Progressive Originalists”), who penned an amicus brief in McDonald along with Randy Barnett and others, arguing that the Privileges or Immunities Clause should be reinvigorated.
Although progressive originalism has and will continue to provide valuable in- sights in the debate over constitutional meanings, this Article argues that progressives should be relieved by the outcome in McDonald, and more wary of the promise of progressive originalism generally. Not only were the purported gains that would have accrued from a revitalized Privileges or Immunities Clause largely illusory, such a doctrinal shift could have resulted in an unintended rollback of civil rights protections. Although the Fourteenth Amendment is undoubtedly radically egalitarian in spirit, there can be little doubt that the precise range of substantive protections that it was originally understood to afford is more limited than the contemporary Court’s understanding of the Amendment. If a renewed Privileges or Immunities Clause jurisprudence were also accompanied by a return to the original understanding of the range of substantive protections afforded by the Clause, it is no exaggeration to say that the results for civil rights and civil liberties could have been devastating.
Here, I argue that the purported benefits of a new Privileges or Immunities Clause jurisprudence are largely overstated. As an initial matter, the project of attempting to ground new unenumerated rights in the Privileges or Immunities Clause is an uncomfortable fit within the broadly originalist project of revitalizing the Clause. But more fundamen- tally, the concerns animating this project seem largely misplaced. The dispute over the arcana of constitutional text—that is, due process versus privileges or immunities— is one that largely concerns the academy, rather than the broader public, and is unlikely to move the national constitutional conversation about controversial social issues such as reproductive freedom.
Ho also identifies a number of quirks of the Privileges or Immunities clause, that I have identified elsewhere, that could prove unappealing to liberals.
Finally, Part IV argues that there are a number of vexing problems that would arise were the Privileges or Immunities Clause to displace the Due Process Clause as the principal source of unenumerated constitutional rights. For one, the range of indi- viduals covered by the Privileges or Immunities Clause is unclear, as its text suggests that it applies to citizens only, unlike the Due Process Clause, which speaks broadly in terms of “person[s].”16 Moreover, the range of rights that were originally understood as falling among the “privileges or immunities” of citizenship may have been much more limited than what most people today would regard as fundamental rights.
Ho also identifies what I saw as the risk that Kendall and others took by pairing with Barnett.
If advocates of progressive originalism overestimate the likely benefits of revitalizing the Privileges or Immunities Clause, they also underesti- mate the possible pitfalls of charting such a new constitutional course. Reliance on the Privileges or Immunities Clause as the exclusive source of substantive rights protec- tions in the Fourteenth Amendment could reduce constitutional protections for non- citizens, who may be excluded from the provision’s scope, and may also call into question the range of rights currently protected under the Fourteenth Amendment.213 At the same time, an originalist understanding of the Privileges or Immunities Clause could raise the specter of Lochner, by providing conservatives with a new weapon to strike down economic regulations as an infringement upon freedom of contract.214
In fact, this pact was what drew my attention to this issue in the first place. I knew what Randy wanted here. I knew what Doug wanted. Randy risked that Doug’s vision would win out. Doug risked that Randy’s vision would win out. After McDonald, it looks like the score is tied at zero. This is not to say that future Courts will do better. But that’s how it stands now.
Anyway, important read.