I was reading Thomas’ concurrence in McDonald:
and I must say that I’m sold. Why torture the due process clause when there is another more straight forward way to give rights to citizens? What would be the drawbacks to using the PorI clause to confer rights instead of substantive due process?
Moved MPSIMS --> GD.
So, we’re supposed to wade through 214 pages of a PDF before we answer?
C’mon, Thomas’s dissent is only fifty-six pages long.
Okay, I didn’t read it all either. But in general I feel that due process has a more established body of precedents than privileges and immunities has - and in this case, I feel that’s a good thing. If the Court bases decisions on due process than it’s a relatively straight forward procedure. Due process is pretty well defined so the Court just has to decide if it was followed in the case under its review. But the privileges and immunities are much more vague. If you start making decisions on the privileges and immunities clause, the Court is going to have to make a lot of decisions about what constitutes a privilege or immunity.
And quite frankly, I don’t trust these Justices to make those decisions. I feel that if they start deciding cases based on privileges and immunities, they’ll often end up calling what they like a privilege and immunity that’s protected by the Constitution. And if they don’t like something, they’ll just declare it isn’t a privilege or an immunity and therefore it doesn’t get Constitutional protection.
In Thomas’ case, I believe he has only invoked this argument in cases related to the Second Amendment. Which could be an indication that he believes the privileges and immunities clause only protects rights explicitly listed in the Constitution. If so, he could then follow through with the argument that any right that isn’t explicitly mentioned in the Constitution is not entitled to Constitutional amendment. That could allow states broad ground to prohibit things which are currently protected by the Constitution.
Ah, another late Saturday Night on The Dope.
One could say the same thing about substantive due process. The whole tiers of scrutiny (strict, intermediate, rational basis) is all judge made law and they place different things in those groups totally on their subjective belief as to how bad it is. Racial discrimination is bad, so strict scrutiny. Gender, well, it’s not always bad so intermediate. Then we have some things that two Justices, Kennedy and O’Connor, want to go out on their own and torture this judge made law even further.
Abortion, not a fundamental right, but there simply cannot be an undue burden placed upon it. Scalia, in his dissent in Planned Parenthood v. Casey eviscerates this logic. The current jurisprudence on sexual orientation which has been described as rational basis with teeth, is also tortured and nothing but judicial sophistry.
So using PorI instead of substantive due process would involve some judge made decisions about what exactly is a privilege or immunity. But I don’t see any system that won’t. On SSM, for example, a judge will have to decide if that is such a thing that is protected in a free society, no matter the vehicle used.
Under my new PorI instead of substantive due process regime, there are no tiers, just one question: Does the challenged law deprive the Petitioner of a privilege or immunity to which he is entitled by virtue of living in the United States?
I think that will naturally apply the whole of the bill of rights to the states, including grand jury indictments and jury trials for common law offenses with damages over $20. I don’t think that it limits freedoms solely to those enumerated. We still have the 9th amendment. The right of parents to have care, custody, and control of their biological children is a pretty well established right not open to much debate. (Troxel v. Granville). The right to marry (at least a person of the opposite sex) is likewise not subject to much disagreement. The freedom from racial discrimination is explicitly provided for in the 14th amendment and is almost certainly a privilege or immunity of U.S. citizenship; the Civil Rights and Slaughterhouse Cases notwithstanding and they should be overruled.
If you are familiar with my posting history, you will know that my view of a fundamental privilege or immunity will be less expansive than some. I’m sure Thomas would likewise read them narrowly. However, there is nothing to prevent liberal justices from finding wide ranging privileges or immunities. Is SSM or abortion a privilege or immunity of citizenship? I certainly don’t think so, but your guys can torture the hell out of that clause to find it. At least in my mind, it is far less that the torture you have done to the due process clause. The clause itself only speaks to process and assigning a substantive portion to it is sketchy at best. Why not just use the easier way provided?
I agree with what you’re saying. The law has been and is being made based on what judges believe. Judges are always activists. It’s their job.
Judges look at a situation and then make decisions about which laws apply to this situation and what the words in those laws mean. And their decisions are based on their beliefs.
As an example, the Constitution says that no excessive fines will be imposed. That’s the text of the law. So a guy gets fined a million dollars for something and he says it’s excessive. The case goes before a judge and he has to decide; is a million dollars excessive or not? The Constitution says excessive fines are illegal but it doesn’t mention a specific amount. So the judge has to form his own opinion about how much is excessive. One judge might say a million dollars is excessive and is therefore illegal. But a different judge might have said a million dollars wasn’t excessive and therefore was legal. And neither judge was necessarily right or wrong. They just had different opinions on the subject.
But many people, including some judges, can’t accept this. They want to claim that one answer is True and all the other answers are wrong. Not just different opinions; they’re want to claim those answers are factually wrong. “A million dollar fine is excessive. Any judge who says otherwise is lying.”
So to sum it up, I’m not saying that I don’t want Clarence Thomas ruling on privileges and immunities because I think he’s factually wrong on the issues. I’m saying I disagree with his opinions on these issues and I don’t want him turning his opinions into legal decisions.
I don’t agree that judges are activists by their nature. They should apply the law as understood by the drafters. The authors of the 14th amendment didn’t contemplate SSM or abortion, so the same should be left to the democratic process.
But your hypo does expose a textualist argument. Suppose a guy is fined $10,000 for spitting on the sidewalk. Is than an excessive fine prohibited by the 8th? If we look at the history, then $10k (in 1789, with inflation would be into the millions) is almost certainly excessive. In today’s money? It’s a more open question. I agree that judges have to use their own opinion with regard to such vague terms as “excessive.”
Do they have to do that with abortion and SSM? I don’t think they do. The drafters of the 14th amendment certainly could have contemplated such things. But you and I both know that there would have been a unanimous vote in each House of Congress denying such perceived rights should it have been presented.
Original intent, at least in my mind is very important. If you are saying that since public opinion has changed that the very text of the constitution should also be changed, then that is a de facto amendment, which Article V gives the procedure for doing that.
Until and unless there is such a change in public opinion to garner that support, judges should not be simply decreeing that there is a right to SSM or abortion or anything like that.
In 1867, did those Congressman think that they were giving us the right to marry another man? Was it a universally held privilege or immunity of citizenship? No, then it’s not a fundamental right. As 19 states have already conferred that right, it will grow as time progresses. No need for judicial activism in this regard. As opinions change, the law changes.
PorI should be used but SCOTUS will never overturn Slaughterhouse so it’s moot.
Can you think of any fundamental right that can be used as a venue to overturn Slaughterhouse? Heller was the last really and they declined to do so. Gura made the argument though so at least it’s not completely fringe.
The authors of the Second Amendment never saw an automatic weapon. So are you saying automatic weapons aren’t protected by the Second Amendment? Are you also going to argue that freedom of religion doesn’t protect Mormons and freedom of the press doesn’t protect television news shows?
The people who wrote the Constitution were smart enough to know they didn’t know everything. They certainly didn’t think people in the 18th century were somehow wiser than people in the 21st century would be. They wrote a set of principles and left it to future generations to figure out how those principles applied to the society they lived in.
If they had wanted us to live by 18th century rules, they would have just written something like “Any fine over twenty dollars is excessive.” That would have been a sensible rule back in 1789 - five dollars a week was a good wage back then. But nowadays, you’ll leave five dollars as a tip at Applebee’s. We can call a fifty dollar fine for a speeding ticket reasonable even though fifty dollars would have been a huge sum at the time the Eighth Amendment was written.
Since the constitutional convention did not expect the Bill of Rights to apply to the states then presumably we’d need an amendment to make the P&I Clause do that.
That’s what the 14th amendment did. PorI specifically refers to the States and restricts what laws they may pass or enforce.
During the run up to Heller, there was a lot of discussion about the history of the 14th and just what the PorI clause was intended to do. I can’t recall the details from my head, but in looking at the discussion that was had prior to the amendment’s enactment it was clear to me the intent was that this clause was meant to protect much more than the ability to travel between states and on waterways. Slaughterhouse destroyed all of that and set back civil rights for many decades.
The first and second amendments contemplate change. Although the drafters of those amendments didn’t know of television and automatic weapons respectively, they knew that technology would continue to change. Just in the same way they knew that the definition of an excessive fine would change. They established a broad principle like freedom of speech which would encompass yet to be known ideas like television or the internet.
Do we extend that to SSM or abortion? I think clearly not. First, those things were possible and could have been known by the drafters of the 14th amendment. If we got in a time machine and presented the idea to the 14th amendment drafters that this clause would be used to justify both, I don’t think that we would dispute that there would have been a unanimous vote in both House of Congress clarifying that each didn’t apply.
The thought that original intent doesn’t matter because the framers realized that times would change is undercut by the fact that an amendment process was provided for. Why the need to get 2/3ds of each House and 3/4ths of the states when a court could simply come to the conclusion that the public had sufficiently changed to allow such a new right?
IOW, the PorI clause would, at least to a textualist, provide more rights than substantive due process. I’m still dumbfounded about how a text which on its face provides only for a trial by jury, representation by an attorney, etc. somehow provides that a state may not allow prayers at a high school graduation. It beats and tortures the basic words of “due process of law.”
Now, if you want to say that an atheist student has a privilege or immunity to be free from religious prayer at a state high school, I might disagree but at least you have started a cognizable argument.
No, I disagree. Change isn’t just technology. Society changes as well.
To use your argument, if you traveled back in time and took a vote on whether women or black people should have the same rights as white men, you would have got a clear majority saying no. But in the 21st century the consensus that people should have equal rights regardless of their race or gender is near universal. So should we deny women and black people in the 21st century equal rights because people in the 18th century would have done so?
Society is now coming around to the idea that gays are entitled to the same rights as straights and that the equal protection clause applies to their rights. Just as we came around to the same realization for women and black people in the 20th century. It’s not a case of creating new law. It’s applying the old law to a new situation.
But they did take a vote, or rather they used the amendment process to pass a new law. That amendment says all persons born or naturalized in the US have all rights. There were millions of black people living in the US at the time the amendment passed so it obviously applies to black people. No need to invent a time machine and take a poll. No need to invent new rights by judicial fiat. Look at the plain language of the law they passed.
But the 14th Amendment P&I clause has not really been given effect in that way. Instead, the courts have used due process.
I agree. I think during the enactment of the 14th the authors intended PorI to be more expansive bit Slaughterhouse undercut it. Now so much relies on substantive due process it would be problematic to unwind.
There was much talk of the right to arms as part of the PorI of citizenship when the 14th was ratified. The original author of the amendment specifically discussed this IIRC. The only way to get back to this would be to overturn Slaughterhouse.
IIRC, Slaughterhouse was a pretty crappy case. The New Orleans butchers wanted to say that the new health code standards denied them a privilege or immunity of being a butcher and being as filthy as they wanted. It was very similar to what Lochner did 30 years later under substantive due process (in the top 5 of the worst decisions in history).
After holding that the butchers were not entitled to a PorI of being disgusting butchers, the Court went on to describe its awful view of the clause. It could be argued that such was dicta and not controlling on a future court.
It obviously applies to black people, huh? So you’re saying that the Fourteenth Amendment was enacted in 1868 and black people had full equality from that point on? That’s your version of history?
That’s not the way it happened in our world. The Fourteenth Amendment was enacted in 1868 and it gave black people full equality under the law. And then everyone ignored that fact for several decades. It was a hundred years before black people started actually getting the rights they had legally been entitled to since 1868. It wasn’t that the law changed. It was that judges finally began enforcing the law.
Same thing with gay people. They were given equal rights back in 1868. And now judges are finally beginning to enforce those rights.