Tuesday, December 16, 2008

More--Much More--on Privilages or Immunities

I posted last week on Gans and Kendall's (The Constitutional Accountability Project) excellent report The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment.  Since then they've been guest-blogging at Balkinization, posting a series of must-read conversation starters on the P or I Clause.

Their first post sets out their general thesis that the Court in the Slaughterhouse Cases got the text and history of the P or I Clause wrong, leaving a void in constitutional protections of fundamental rights that the Court later filled with Substantive Due Process.  But this solution is both doctrinally weak (at best) and politically divisive.  Gans and Kendall's solution: "Restore the text of the Privileges or Immunities to its rightful place" and allow the Clause to do the substantive work that by its plain text and history it was intended to do.

The second post argues that the P or I Clause, not the Due Process Clause, should be the vehicle for Second Amendment incorporation to the states, post Heller.  This argument should appeal to (true) originalists, but it puts conservatives (who are also committed originalists) in a bind:

The dilemma for conservatives is that an originalist ruling that overrules Slaughterhouse and restores the Privileges or Immunities Clause to its intended constitutional role will simultaneously undergird the Court’s existing fundamental rights jurisprudence, which has produced rulings such as Roe v. Wade. While conservatives will certainly continue to attack these rulings as illegitimate, it’s far easier to say that the entire enterprise is out of bounds (as conservatives have said for years about substantive due process).

The most recent post argues that fundamental rights under Substantive Due Process--even those in Roe v. Wade and Lawrence v. Texas--are (actually and better) rooted in the P or I Clause.  And there's a political advantage for progressives in so rooting them:

There is an important lesson here. For too long, progressives have ceded the Constitution’s text and history to conservatives, staking their claim more on the Supreme Court’s interpretation of the Constitution than the document itself. . . . For many, this leaves the impression that progressives don’t care about the Constitution’s text and history.

That is why it is so important for progressives to engage in the coming debates about the Privileges or Immunities Clause, and its role in protecting substantive fundamental rights. Progressives may not like the individual, Second Amendment right recognized in Heller, but they cannot afford to sit out the upcoming fight over the incorporation of the Second Amendment. Instead, progressives should treat these incorporation cases as a tremendous opportunity. For years, debates over the Fourteenth Amendment’s protections have run aground, a casualty of persistent attacks that the Court had no basis to use the Due Process Clause to protect fundamental rights. Now is the chance to change the American constitutional conversation about fundamental human and civil rights.

I worry that these last two posts overstate the political point.  The second post--arguing that the P or I Clause puts politically conservative originalists in a bind--assumes that opponents of Substantive Due Process fundamental rights would be torn between their categorical opposition to rights not specifically enumerated and their commitment to originalism.  This is unlikely:  The latter would surely yield to the former.  And even if it wouldn't, we can easily imagine an "originalist" interpretation of the P or I Clause that would not include the right to an abortion or the right to sexual privacy (contrary to Gans and Kendall's argument in the third post):  First, an originalist would certainly claim that the more general right to bodily integrity (even if in the P or I Clause) does not include the more specific right to an abortion (drawing on the method of Washington v. Glucksberg); and second, notwithstanding Gans and Kendall's good evidence to the contrary, an originalist interpretation of the P or I Clause may very well not include the right to bodily intergrity.  (As we've seen in Heller itself, nobody has a monopoly on originalist interpretation.)

But even if the political point is overstated, its more modest version--that progressives might find some political advantage in couching rights in P or I terms--is nevertheless important.  And the posts in general are excellent and thoughtful--good complements to the report.  I highly recommend these.

SDS

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