Clarence Thomas: The Privileges and Immunities Clause Shall Rise Again

Thomas' concurrence rejects the Court's "incorporation" analysis and instead seeks to overturn 100+ year precedent, to base federal power to restrict the states on the Privileges and Immunities clause rather than the due process clause (long a bogeyman of endless mischief and sudden discovery of new "rights").

Neither Justice Alito for the plurality, nor Justices Stevens or Breyer in dissent, even attempted to impeach Justice Thomas’ analysis, which now stands uncontradicted in the Supreme Court Reports. Decades of academic research that has lead to a remarkable consensus among constitutional scholars that The Slaughter-House Cases was wrongly decided have now been vindicated. Only a remarkably tepid and barely defended assertion of stare decisis by Justice Alito now stands in the way of a complete restoration of the “lost” Privileges or Immunities Clause at the heart of Section One of the Fourteenth Amendment. Not that this will happen overnight. It took twenty-five years for Justice Powell’s lone 1978 opinion in Bakke — in which he accepted “diversity” as a rationale for affirmative action in schools — to be adopted by a majority of the Court in Grutter. But adopted it eventually was.

Thomas' analysis would not, if eventually accepted, end the principle that certain federal rights must be guaranteed by the states. But it would sharply curtail which rights could be found to be guaranteed, as his analysis is based on what was considered the privileges and immunities of free men from about the time of the Magna Carta to 1870.

The Court's opinion, and Scalia's concurrence especially, argue for an analysis that would get at pretty much the same result, but continue relying on the notion of incorporation. The Court (and Scalia) simply would substitute a fact-based historical analysis of which rights were considered fundamental at the time of the 14th Amendment's ratification in favor of Stevens' (and the other liberals') principle-free, restraint-free omniversal rights-discovery expedition.

Scalia's concurrence is a fun read. It's a very personalized F--- You to Justice Stevens, as it throws 40 years of Stevens' rights-discovery expeditions in his face, wondering where Stevens' now-asserted belief in judicial restraint came from, and where it's been all this time.

He particularly enjoys mocking the Kennedy opinion Stevens' joined in the Lawrence decision, wondering what judicial restraint was availing in sentences like this:

The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.

He keeps hitting Stevens' for discovering hitherto-undreamed rights while asserting that an age-old right isn't a right at all:

JUSTICE STEVENS also argues that requiring courts toshow “respect for the democratic process” should serve as a constraint. Post, at 23. That is true, but JUSTICE STEVENS would have them show respect in an extraordinary manner. In his view, if a right “is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not beappropriate.” Ibid. In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, apparently deserves less protection, while a privilege thepolitical branches (instruments of the democratic process)have withheld entirely and continue to withhold, deserves more. That topsy-turvy approach conveniently accomplishes the objective of ensuring that the rights this Courtheld protected in Casey, Lawrence, and other such cases fit the theory—but at the cost of insulting rather than respecting the democratic process.

Scalia continues his snarky F-You-Too mode:

JUSTICE STEVENS next suggests that the Second Amendment right is not fundamental because it is “different in kind” from other rights we have recognized. Post, at 37. In one respect, of course, the right to keep and bear arms is different from some other rights we have held the Clause protects and he would recognize: It is deeply grounded in our nation’s history and tradition.

Heh.

And if anything bothers Scalia, it's the "Let's look at foreign courts to determine American rights" analysis.

No determination of what rights the Constitution of the United States covers would be complete, of course, without a survey of what other countries do. Post, at 40–41. When it comes to guns, JUSTICE STEVENS explains, our Nation is already an outlier among “advanced democracies”; not even our “oldest allies” protect as robust a right as we do,and we should not widen the gap. Ibid. Never mind that he explains neither which countries qualify as “advanced democracies” nor why others are irrelevant. For there is an even clearer indication that this criterion lets judgespick which rights States must respect and those they can ignore: As the plurality shows, ante, at 34–35, and nn. 28– 29, this follow-the-foreign-crowd requirement would foreclose rights that we have held (and JUSTICE STEVENS accepts) are incorporated, but that other “advanced” nations do not recognize—from the exclusionary rule to the Establishment Clause. A judge applying JUSTICE STEVENS’ approach must either throw all of those rights overboard or, as cases JUSTICE STEVENS approves havedone in considering unenumerated rights, simply ignoreforeign law when it undermines the desired conclusion, see, e.g., Casey, 505 U. S. 833 (making no mention of foreign law).

Scalia's concurrence is probably the best read for politicos, as it is less about the instant case than liberal judicial activism generally. It doesn't break a lot of new ground but one does sense Scalia baiting Stevens with the proposition: If you had adhered to a more principled and restrained view of jurisprudence, perhaps I would have found differently and joined you in your newfound belief in judicial restraint; but since we are, apparently, free to discover whatever rights suit our fancy, here's one I fancy. How you like me now?

The Actual (Plurality) Opinion: is underwhelming. To be honest, reading it made me less convinced that there is a historical right to bear arms that the federal government can press against the states.

As a general rule, I'm skeptical of any assertion of a "right" that takes legislative power away from the people, even if I'm in basic agreement of the wisdom and policy choice behind such a "right."

And the actual ruling gave me more doubt, not less, that this is such a well-grounded right that it should be incorporated in the 14th Amendment (or the P&I clause, as Thomas would have it).

The part that I find most troubling is the Court's statement that because 22 of 37 state constitutions at the time of the 14th Amendment guaranteed the right to bear arms, that's a "clear majority" proving the right was considered "fundamental."

Now wait a minute -- if 22 of 37 guaranteed it, 15 of 37 didn't guarantee it, and that not really an overwhelming majority -- that's a bit better than half, but not by much. If 15 of 37 states didn't consider the right to be fundamental, doesn't that mean it's an open question for state legislatures?

I had expected this assertion to be followed up with something like "Even in the 15 states whose constitutions did not, specifically, guarantee the right to bear arms, state law operated to produce the same effect, see, e.g., New Jersey state code...," but no such examination of the states' codes follows their 22 of 37 is a clear majority statement.

Such an examination would, I'm guessing, probably support the 2nd Amendment's applicability to the states, but as the Court doesn't bother conducting the examination, I'm troubled.

Twice-Limited vs. Once-Limited: Actually, now that I think about it, I think the Court's approach is superior to Thomas', in terms of judicial restraint.

In Thomas' framework, a right becomes guaranteed if it passes one test:

1) Was this a privilege or immunity grounded in our nation's tradition at the time of passage of the 14th Amendment?

Whereas the Court's framework has two prongs:

1) Is this a specifically announced right in the Bill of Rights?

2) Was this right grounded in our nation's tradition at the time of the passage of the 14th Amendment?

The Court's approach strictly limits itself to rights that can be found in the Bill of Rights and which are also rooted in our nation's history. Whereas Thomas (a believer in Natural Law) can discover many rights outside the Bill of Rights, so long as he can argue they're rooted in history.

This can be used for purposes of conservative judicial activism (which is no better than the liberal sort). I also think it can be used for liberal judicial activism, too.

Take abortion. A liberal court finds that doctor-patient confidentiality has long been recognized by the law as a fundamental right. They then say the principle underlying this right is full and total medical autonomy, and thus it is a privilege and immunity of a citizen to have any procedure he likes without state interference; they argue they're just giving the basic principle a fuller reading, not inventing anything new per se.

If that sounds made-up and fake, well, they do that thirty times a year.

In the Court's framework, this wouldn't be possible, at least accepting that the universe of federally-enforceable rights is strictly restricted to those in the Bill of Rights.

posted by Ace at 11:29 AM

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