Restoring the Privileges or Immunities Clause May Have to Wait for Another Day

April 6, 2010

By Clark Neily

As we gathered outside the U.S. Supreme Court near dawn on Tuesday, March 2, the forecast called for scattered showers with a chance of liberty. In a few hours, the Justices would hear arguments in McDonald v. City of Chicago, and we would get our first inkling about the possible resurrection of the Privileges or Immunities Clause—a goal IJ has been working toward for nearly 20 years.

McDonald, of course, is the follow-up case to District of Columbia v. Heller, in which the Supreme Court held for the first time that the Second Amendment protects an individual right to keep and bear arms. Unresolved in Heller was whether the Second Amendment applies not just to the federal government, but to state and local governments as well. The answer to that question lies in the Fourteenth Amendment, not the Second.

As the clock ticked down that morning, the atmosphere inside the court grew charged. Many spectators had camped out overnight to ensure they got a seat for the argument, and the pew-like wooden benches to the left of the courtroom were packed with luminaries of the Supreme Court press corps. History was in the making.

Taking the podium for liberty was former IJ law clerk Alan Gura, with whom IJ board member Bob Levy and I had teamed up in litigating Heller. At issue was not simply whether the Fourteenth Amendment protects the right to keep and bear arms, but how: through the Privileges or Immunities Clause or the controversial doctrine of substantive due process? Would the Justices finally embrace the true history and purpose of the Fourteenth Amendment, or would they punt?

The Justices came out swinging, but unfortunately not for originalism.

Chief Justice Roberts began by admonishing Alan that he carried a “heavy burden” in asking the Court to overrule the Slaughter-House Cases, an 1873 decision that virtually wrote the Privileges or Immunities Clause out of the Constitution. A skeptical-sounding Justice Sotomayor inquired whether liberty had been “badly affected” by that decision, and when Justice Ginsburg asked which unenumerated rights the Clause protects, it was as if she were daring Alan to say the words “contract” or “property.” Justice Scalia noted that even he had “acquiesced” in the doctrine of substantive due process and asked whether that would not be “easier” than reviving the Privileges or Immunities Clause, which he caustically dismissed as the “darling of the professoriate.”

Incredibly, despite Alan’s valiant efforts to engage the Court on the history and importance of the Privileges or Immunities Clause, the Justices never made a single reference to the Civil War, Reconstruction, the Black Codes, or any of the events that gave rise to the Fourteenth Amendment.

Although we will not know for sure until the decision comes down, it appears the Supreme Court is still not ready to restore the Privileges or Immunities Clause to its rightful place in the Fourteenth Amendment. But we remain undaunted—after all, we have the text, history, purpose and original understanding of the Constitution on our side. It is only a matter of time before we get the Supreme Court, too.

Clark Neily is an IJ senior attorney.

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