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A Decade of Privileges or Immunities

It has been a decade since the Supreme Court released its opinion in McDonald v. City of Chicago. In this case the Supreme Court held that states (and localities) had to comply with the requirements of the Second Amendment. This is one of the most consequential decisions of the last decade for obvious reasons. But it is also consequential for the life it breathed back into the Privileges or Immunities Clause of the 14th Amendment.

This case came just two years after the Court’s decision in Heller, which declared a ban on registered handguns in Washington, D.C. unconstitutional. But as Washington, D.C. is  a federal district, the Court still had to decide whether it applied against the states as well.

The Court took the opportunity to do just that in McDonald. The Court ruled 5-4 that the Second Amendment applied to the states through the 14th Amendment. But they split over what provision of the 14th Amendment did the work.

The plurality, penned by Justice Alito, concluded that the Due Process Clause was the vehicle that had long been used to apply the Bill of Rights against the states. Whether that was right as an original matter was inconsequential to the plurality. As a result, they saw no need to reconsider the Court’s decision in the Slaughter-House Cases. That case from 1873 cabined the Privileges or Immunities Clause to the realm of constitutional oddities for scholars to squabble over.

Justice Thomas, as he so often does, thought differently. He agreed that the Second Amendment applied against the states. But he was not content to apply the wrong constitutional provision to do so.

Instead, he thought this was the ripe time to reexamine the Slaughter-House Cases and the original meaning of the Privileges or Immunities Clause. Through this examination Justice Thomas concluded that the 1873 decision inappropriately cabined the Clause. He also explained that the Privileges or Immunities Clause is the appropriate vehicle for incorporation rather than the Due Process Clause.

Justice Thomas is right. The drafters and ratifiers of the Privileges or Immunities clause understood that it would address government persecution of disfavored groups. It was aimed at the Southern States not respecting the constitutional rights of the newly freed African Americans.*

Justice Thomas was ready to right this wrong. And such a move is necessary to stop the continued abdication of the judicial duty to enforce the 14th Amendment in accordance with its original public meaning. That is why IJ attorneys filed an amicus brief in the case arguing that the Court should do just that. And that is why IJ has continued to fight to reinvigorate the Clause since the Court released McDonald a decade ago.

This fight has been an uphill battle. But it has not been without its victories. Just last year, in Timbs v. Indiana, the Supreme Court held that the Eighth Amendment prohibition on excessive fines applied to the states through the 14th Amendment. Unfortunately, the majority stuck with the Due Process Clause.

Justice Thomas again wrote a concurring opinion explaining that the Privileges or Immunities Clause was the correct vehicle for incorporation. And again, no other judge signed onto his opinion

But there is some hope! Justice Neil Gorsuch also wrote a concurring opinion acknowledging that the Privileges or Immunities Clause was undoubtably the right vehicle. But he also argued that nothing in that particular case turned on whether the Court used the Due Process Clause or the Privileges or Immunities Clause.

All this means is that litigators simply must keep trying to bring the right case. But all is not rosy. Justice Kavanaugh joined Justice Thomas’ dissent from the Court’s decision to grant cert in Rogers v. Grewal—a case seeking to clarify Second Amendment protections. But Justice Kavanaugh refused to join the portion of the opinion that discussed the proper vehicle for incorporation.

Further, earlier this year when the Court decided Ramos v. Louisiana, no justice joined Justice Thomas in his concurring opinion again explaining that the Privileges or Immunities Clause is the proper vehicle for incorporation. This is doubly disappointing because, as Ilya Shapiro and Josh Blackman explained in their recent article about the Clause, Justice Kavanaugh suggested at his confirmation hearing some openness to reconsidering the cabining of the Clause.

It may not seem like it, but the Privileges or Immunities Clause has come quite a ways in the past decade. The support for it on some level has doubled in the Supreme Court. Further, the consensus that the Slaughter-House Cases was wrongly decided has only grown. And decisions and debates over the clause make frequent appearances in academic literature and debates.

So today, as you are reminiscing about the Court’s decision in McDonald and lamenting the Court’s recent refusals to take up new Second Amendment cases, remember the other aspect of the decision. Spare a thought for the Privileges or Immunities Clause. It has come a great distance in the last decade, but it still has a long way to go.

Hopefully, in another decade we can again celebrate the doubling of justices on the Supreme Court who are at least interested in exploring the original public meaning of the Privileges or Immunities Clause.

 

*If you’re interested in learning more about the original public meaning of the Privileges or Immunities Clause, be sure to check out Bound by Oath, IJ’s podcast about the 14th Amendment.

And be sure to check out a law journal article about interpreting the Privileges or Immunities Clause using state constitutions by Center for Justice Engagement Director Anthony Sanders.

Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.

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