Constitutional Law Prof Blog

SCOTUS Rules Sixth Amendment Right To Unanimous Jury Verdict Applies to States

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court issued its opinion in Ramos v. Louisiana with a majority concluding that the Sixth Amendment confers a right to a unanimous jury verdict that is incorporated against the states through the Fourteenth Amendment.

Recall from the oral argument on the very first day of the 2019-2020 term that almost all rights have now been incorporated through selective incorporation, and that the unanimous jury requirement subject to an exception of the incorporation of the trial by jury clause. As Justice Alito phrased it in an opinion for the Court in  McDonald v. City of Chicago (2010) (in which a closely divided Court held that the Second Amendment is incorporated), the general rule is that rights "are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.”

There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon, 406 U. S. 404 (1972).

The precedential value of Apodaca, a case in which the Justices split 4-1-4, was at the center of the oral argument and is at the center of the Court's fragmented opinions in Ramos. The lone Justice in Apodaca is Justice Powell, who is specifically discussed throughout the opinions. Powell's adoption of what the Court calls the "dual-track" incorporation, and seemingly Justice Powell himself, does he does not fare very well in the Court's opinion, including quoting Powell that he was simply "unwilling to follow the Court's precedents" regarding incorporation.

Writing for the Court, Justice Gorsuch's opinion is joined by Justices Ginsburg, Breyer, Sotomayor, and Kavanaugh, but not in full. Indeed, the would-be majority loses Kavanaugh regarding some of its discussions of precedent and stare decisis, and loses both Kavanaugh and Sotomayor regarding a discussion of the specific stare decisis accorded to Apodaca. 

The Court clearly concludes, however, that there is a Sixth Amendment right to a unanimous jury verdict and that this right is incorporated as against the states.

Justice Thomas concurs, but renews his argument that the Privileges or Immunities Clause of the Fourteenth Amendment is the proper vehicle for incorporation. However, unlike in McDonald, Justice Thomas' vote is not necessary to constitute a majority.

Justice Alito dissented, joined by Chief Justice Roberts, as well as for most of his opinion, by Justice Kagan.

Certainly this case is important for both the constitutional doctrine of incorporation and for constitutional criminal procedure under the Sixth Amendment. But the Justices' various opinions discussing stare decisis might be read to portend larger developments.  Justice Kavanaugh's concurring opinion is most explicit in this regard: he outlines his views on stare decisis and supports his conclusion why Apocada should be overruled. Justice Alito's dissenting opinion argued for honoring stare decisis, but interestingly, Justice Kagan does not join that portion of the dissent arguing that the "reliance" in this case "far outstrips" other recently overruled cases.

Two other matters bear notice.
First, the racist roots of the non-unanimous jury verdict requirement is given attention by the Court, highlighted in Justice Sotomayor's concurring opinion, and minimized by the dissenting opinion (arguing that the opinion does not apply only to Louisiana and Oregon, but any future state that might adopt non-unanimous verdicts, even if all the lawmakers were "angels").
Second, there is the rhetoric and tone of some of the opinions. There is an evident conversation between the majority and dissent, with Gorsuch's opinion veering toward a condescending tone punctuated by rhetorical questions and Alito's opinion answering with accusatory and aggrieved notes.

But as a matter of incorporation doctrine, after last Term's Timbs v. Indiana regarding the Eighth Amendment's excessive fines provision, the Court's decision in Ramos now leaves only the Fifth Amendment grand jury requirement and the Seventh Amendment's right to a jury trial in a civil case as the federally applicable rights that are not incorporated as against the states. And then there is that Third Amendment.

SCOTUS Grants Certiorari on New York City Gun Regulation

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court has granted certiorari in New York State Rifle & Pistol Association Inc. v. City of New York, New York regarding a New York City regulation that allows  a person having a premises license  for handguns to “transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately,”  but further defines an "authorized" range/shooting club as limited to facilities located in New York City. 

Recall that  the Second Circuit unanimously upheld the regulation. On the Second Amendment challenge, the opinion for the panel by Judge Gerald Lynch tracked the analytic structure articulated by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. Assuming that the Second Amendment applied, the court concluded that intermediate scrutiny was the appropriate standard based on its analysis of two factors: "(1) ‘how close the law comes to the core of the Second Amendment right’ and (2) ‘the severity of the law’s burden on the right.' "  Thus, this grant of certiorari has the potential to determine the level of scrutiny to be applied to gun regulations, a question left open by the Court's decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).

In addition to the Second Amendment issue, the petition for certiorari also challenges the regulation on the basis of the dormant commerce clause and the "right to travel."  On these challenges, the Second Circuit noted that the plaintiffs did not convincingly allege there were problems implicating the crossing of state lines.

[image via]

 

 

Divided Second Circuit Upholds New York's "Maintain an Office" Requirement for Nonresident Attorneys

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In the divided panel opinion in Schoenefeld v. Schneiderman,  a Second Circuit panel majority upheld the constitutionality of a requirement that attorneys who practice law in New York but do not reside within the state be required to maintain an office in New York.

The statute, N.Y. Judiciary Law §470, provides:

A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.

Schoenefeld, admitted to practice in New York but who lived in New Jersey and maintained her main office in New Jersey, wished to practice law in New York without having the expense of a separate office in New York.  She challenged §470 on several constitutional grounds.  The district judge found that the statute violated the Privileges and Immunities Clause, Art. IV, §2, cl.1.   The lack of clarity in the statute caused the Second Circuit on appeal to certify the question of the "minimum requirements" to satisfy §470 to New York's highest court.  The New York Court of Appeals answered the certified question: §470 "requires nonresident attorneys to maintain a physical office in New York."

Syndicate and St. Paul Buildings, Highest Office Buildings in the World, New York City, 1920, via

Writing for the Second Circuit panel majority, Judge Reena Raggi, who was joined by Judge Susan Carney, concluded that §470 had no discriminatory or protectionist purpose.  Instead, §470 - - - with "its origins in an 1862 predecessor law" - - - was actually enacted to reverse a court ruling that had barred a nonresident attorney from practicing law at all given the difficulties of service of process.  Despite changes and recodifications, the majority concluded that there was no showing that the current §470 was "being maintained for a protectionist purpose."  Again, the majority found that §470 was enacted for "the nonprotectionist purpose of affording such attorneys a means to establish a physical presence in the state akin to that of resident attorneys, thereby eliminating a court‐identified service‐of‐process concern."

The majority relied in large part on the Supreme Court's unanimous 2013 decision in McBurney v. Young holding that a state can restrict its own freedom of information law, FOIA, to its own citizens without violating the Privileges and Immunities Clause. 

In his vigorous dissenting opinion, Judge Peter Hall argued that the real import of §470 is that resident attorneys need not maintain an office while nonresident attorneys must maintain an office, thus discriminating.  The next step in the analysis, Judge Hall contended, should be to consider the state's justification for such discrimination.  Judge Hall distinguished McBurney based on the "simple reason that the Virginia FOIA is not an economic regulation, nor does it directly regulate the right to pursue a common calling."  Hall's dissent criticized the majority for imposing a requirement of discriminatory intent as part of a prima facie case that would be appropriate under the Equal Protection Clause but is not under the Privileges and Immunities Clause. Moreover, Judge Hall concluded that New York's "proffered justifications for the in‐state office requirement— effectuating service of legal papers, facilitating regulatory oversight of nonresident attorneys’ fiduciary obligations, and making attorneys more accessible to New York’s courts—are plainly not sufficient."

Thus, New York can constitutionally compel attorneys who do not reside in New York to maintain a physical office in New York.

DC Circuit Upholds Federal Employment Application Limited to DC Area

Professor Ruthann Robson, City University of New York (CUNY) School of Law

As most law students learn, a state or locality cannot limit applicants for employment to its own residents because of a "right to travel."  But can the federal government limit applicants to those currently residing in the District of Columbia area?  In its opinion in Pollack v. Duff, the DC Court of Appeals has stated that the federal government can do so.

The case began with a 2009 job posting from the Administrative Office (AO) of the United States Courts for an attorney-advisor for a job in DC.  The posting provided that the AO would consider applications from any employee of the federal judiciary and from any other person who lived within the "Washington Metropolitan Area." 

Malla Pollack, who represented herself in this litigation, is a former DC Court of Appeals clerk and accomplished legal scholar.  She applied for the position when she no longer worked for the judiciary and was living in Kentucky.  The  AO rejected her application because of her residency.  She protested based on residency, but was referred to the Fair Employment Practices System; she was then told that such complaints were limited to allegations of discrimination based on race, and other categories that did not include residency.  The DC Court of Appeals opinion notes that the AO's actions of referral and then dismissal essentially "played upon" Pollack.  The court might also have characterized the AO's argument of judicial review preclusion - - - because the Fair Employment Practices System is the exclusive means for deciding a claim of discrimination - - - as attempting to "play upon" the court.  Instead, the court merely gives the argument the brief discussion it merited.  

The court also notes that this is the second time the litigation reached the DC Court of Appeals.  In late 2012, the court reversed the dismissal of the complaint based on sovereign immunity, concluding that sovereign immunity does not bar a suit seeking specific relief for officers acting outside the bounds of constitutional authority.

On the merits of the right to travel argument, the court's opinion - - - authored by Senior Judge Douglas Ginsburg - - - untangles the various strands of the constitutional right to travel as might be applied to actions by the federal government.  The court first looks at Article IV §2, the privileges and immunities clause, but finds it protects state citizens against actions by other states, not by the federal government.  The court engages with the erudite originalist argument centered on James Iredell but nevertheless rejects it, noting that although the historical record is not "pellucid," reasoning in part that the

location of the Privileges and Immunities Clause in § 2 of Article IV supports the conclusion that it is directed at the states and not at the national government. Article IV is the “so-called States’ Relations Article.”  Section 2 of Article IV, in addition to the Privileges and Immunities Clause, included the Interstate Rendition Clause and the Fugitive Slave Clause, both of which were concerned with comity among the states.

The court's rejection of the equal protection claim does not rest on its inapplicability to the federal government, which "indisputably" applies to the federal government through the Fifth Amendment, including in its right to travel aspects.  Instead, the court essentially finds Pollack's claimed right too speculative:

If the AO had reviewed her application, then it might have offered her a job, which might have prompted her to move to the Washington area. Thus, Pollack might have been marginally more likely to travel to the Washington area but for the geographical limitation she is challenging. This effect upon Pollack’s willingness to travel, i.e., to exercise her right to travel, is “negligible” and does not warrant scrutiny under the Constitution.

Additionally, and more remarkably, the court rejects the argument that the AO created a classification that serves to penalize the right to travel by reasoning that the AO classification actually incentivizes the right to travel.  Distinguishing the AO classification from the durational residency requirement at issue in the landmark right to travel case of  Shapiro v. Thompson (1969), the court reasoned:

The AO’s geographical limitation is quite different, however, because it would not penalize Pollack if she decided to travel from Kentucky to the Washington area. To the contrary, the geographical limitation gives Pollack an incentive to travel to Washington in order to apply for a job with the AO that is open only to residents of the area. In other words, the geographical limitation burdens only Pollack’s decision not to travel interstate.

[emphasis in original].  The court thus did not consider what level of scrutiny should apply or whether any level would be satisfied, but simply held that the classification did not actually implicate the right to travel.  On the court's read, Pollack's only viable claim would be if she had been in DC and discouraged from leaving because she wanted to apply for the AO position; a claim the court notes that she did not make and would not have standing to raise on behalf of another person.

After a brief consideration of structural arguments, the court concludes by questioning the wisdom of the AO policy:

We agree with Pollack that it is difficult to comprehend why the AO refused to consider applicants who did not live in the Washington area but were willing to move there if they received an offer of employment. The AO points out that it receives applications from many qualified attorneys and it must limit the total number of applicants for certain positions so that it may focus upon those it is most interested in hiring. It is unclear, however, why the agency would use a geographical limitation to control the size of its applicant pool rather than criteria that are likely to be more closely correlated with job performance.

But the court decides that the AO did not violate Pollack's constitutional rights.  And given this decision - - - and the AO's protracted litigation on the issue - - - one can only assume that the AO will limit applicants by geography in future job postings.

Ninth Circuit Upholds Arizona Bar Reciprocity Rule

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit yesterday upheld Arizona's reciprocal bar licensing rule against a host of federal constitutional claims. The ruling means that Arizona's rule stays in place.

At issue was Arizona's Rule 34(f), which permits admission to the state bar on motion for attorneys who are admitted to practice in states that permit Arizona attorneys to be admitted on a basis equivalent to Arizona's, but requires attorneys admitted to practice law in states that don't have such reciprocal admission rules to take the bar exam.

According to the National Conference of Bar Examiners and the ABA, just less than half the states and jurisdictions offer reciprocal admissions under this kind of rule.

Plaintiffs challenged the rule under the Equal Protection Clause, the Fourteenth Amendment Privileges or Immunities Clause, Article IV Privileges and Immunities, the Dormant Commerce Clause, and the First Amendment. The court rejected all of these claims.

As to equal protection, the court applied rational basis review and said that the state had legitimate interests in regulating its bar and in ensuring that its attorneys are treated equally in other states.

As to Article IV Privileges and Immunities and the Dormant Commerce Clause, the court said that the rule didn't discriminate against out-of-state attorneys--that it was a neutral rule that treated all attorneys alike--and that it advanced substantial state interests (the same as those above). The rule's neutrality also drove the result in the plaintiffs' Fourteenth Amendment privileges or immunities claim, because the right to travel isn't implicated (it can't be, if everybody is treated alike).

As to the First Amendment, the court applied the time-place-manner test and upheld the rule. The court flatly rejected the plaintiffs' right of association and right to petition claims.

Seattle's Minimum Wage Challenged in Federal District Court

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Seattle - - - a "progressive and expensive city" - - - "struck a blow against rising income inequality" by raising its municipal minimum wage to $15 per hour earlier this month, as Maria La Ganga reported in the LA Times. Seattle Ordinance 12449 becomes effective in 2015, with a phase-in schedule of pay rates dependent on type of employer.   But it has already been challenged as unconstitutional.

The complaint in International Franchise Association, Inc. v. City of Seattle challenges the ordinance on a variety of constitutional grounds: (dormant) commerce clause, equal protection clauses of the Fourteenth Amendment and state constitution, the state constitutional privileges or immunities provision, preemption under the Lanham Act (trademarks), the contract clauses of the federal and state constitutions, and the First Amendment. 

skyline of Seattle via

A central issue in this complaint is the Ordinance's definitions of schedule 1 and schedule 2 employers as the definitions relate to franchises.  As paragraph 50 provides:

The Ordinance provides that, for purposes of determining whether an employer is a Schedule 1 or Schedule 2 employer, “separate entities that form an integrated enterprise shall be considered a single employer ... where a separate entity controls the operation of another entity,” but this test applies only to a “non-franchisee employer.” Under the Ordinance, if a small franchisee is associated with a franchise network that employs more than 500 workers, the small franchisee is deemed a Schedule 1 Employer even if it is not part of an “integrated enterprise” as so defined.

Filed by Bancroft LLC and signed by Paul Clement, the pleading contains various arguments detailing why such a distinction is unconstitutional, largely revolving around the competitive disadvantage the ordinance will place on franchised and parent businesses by requiring higher wages.  

LawProf David Ziff of University of Washington School of Law in Seattle has some helpful discussions of the complaint on his blog, including an overview and a specific discussion of the "classes of corporations" argument under the state constitution's privileges or immunities clause.

Certainly this is litigation to watch.  And certainly cities across the United States that are considering similar measures will be looking closely.  Cities are often rightly concerned with state constitutional powers of "home rule" allowing municpalities to vary from the state mandated wage; for example,  the courts declared the 1964 attempted minimum wage raise from 1.25 to 1.50 in NYC to be beyond the powers of the city. But the Seattle challenge raises federal constitutional issues that are necessarily obvious.

Arizona Voter Registration Case: No Pyrrhic Victory for the Feds

In response to Monday's ruling in Arizona v. InterTribal Council of Arizona, Inc., striking Arizona's requirement that voters show proof of citizenship above and beyond the oath of citizenship on the standard federal voter registration form, there's a debate about whether the case is a pyrrhic victory for the federal government.  Our most recent post on the case, with links to earlier posts, is here.

On one side, Mary Lederman argued over at SCOTUSblog that the case, for all its talk of federal supremacy over how federal elections are held, probably curtails federal authority over who may vote in them.  That's because Justice Scalia, writing for the Court, carefully reserved the power to determine who may vote in federal elections to the states.  Lederman seized on Justice Scalia's line that the Elections Clause "empowers Congress to regulate how federal elections are held, but not who may vote in them" and argued that this principle puts in jeopardy current and possible future federal legislation requiring states to register certain persons to vote.  For example, he argued that the ruling threatens the Uniformed and Overseas Citizens Absentee Voting Act, UOCAVA, which requires a state to register for federal electiosn any person who resides outside the United States but would otherwise be qualified to vote in that state; any congressional restriction on state felon disenfrachisement laws; and even federal law upheld under Oregon v. Mitchell.  Rick Hasen made a similar point at The Daily Beast, followed up with a post on his own Election Law Blog.

On the other side, David Gans over at the Text and History blog at the Constitutional Accountability Center, argued that Lederman's argument "misses the enduring significance of Justice Scalia's sweeping reaffirmation that the Constitution gives Congress very broad powers to protect the right to vote in federal elections . . . ."  Gans and others seized on Justice Scalia's repeated and very strong language affirming federal authority under the Elections Clause--its "paramount power," without a presumption against preemption--to set the rules of the "Times, Places, and Manner" of congressional elections.

So who's right?

Both, it turns out--with an important caveat.  The ruling gives Congress broad authority under the Elections Clause to regulate the "Times, Places, and Manner" of congressional elections, including prescribing a federal form, using an oath on that form as evidence of citizenship, and requiring states to petition federal authorities (the EAC) to add a proof-of-citizenship requirement on that form (or to sue to get the EAC to add the requirement).  That's the core holding of the case--that the NVRA, with the prescribed federal form, including the oath, is a valid regulation of the "Times, Places, and Manner" of congressional elections that preempts contrary state law.

But the NVRA and the federal form spill over into the state-controlled power to determine who gets to vote, because they regulate the manner of determining an important qualification for voters, citizenship.  The Court said that to the extent that a federal law spills over and regulates voter qualification like this, the states must have an opportunity to petition federal authorities and ultimately to sue (under the Administrative Procedures Act) to enforce their own state voter eligibility requirements.  

So even under the Elections Clause, the case stands for vast federal authority--authority to set the "Times, Places, and Manner" of congressional election in a way that absolutely preempts state law, and more: to set those standards even when they spill over into regulation of who gets to vote, so long as the states have an opportunity--under a very loose standard--to preserve their power to set voter qualifications through administrative petitioning and APA action.  (Note that this administrative petitioning, by the Court's own reckoning, is informal and casual.  Note further that APA review is deferential.  Between the two, the principle puts the inertia behind federal regulation that spills over into regulation of voter qualification.)  

While the Court articulated these rules in the case--that is, that the feds have the absolute power over how to vote, while the states have the power over who gets to vote--even perhaps more clearly than it has in the past, it's not obvious that this breaks any new ground.  In particular, it's not obvious that it breaks any new ground reducing the power of the federal government or enhancing the powers of the states.  Indeed, if anything, the core holding of the case only underscores the vast power of the federal government at the expense of the states.  (While Justice Scalia's line dividing power between the feds and the states may eventually prove to be a "time bomb" (Hasen's phrase), the principal, driving holding of the case reaffirms federal authority.)

So here's the caveat: the Court said all this only with respect to the Elections Clause, but of course made no ruling on any other federal authority to regulate voter qualifications.  Thus the Court left in place vast federal power under the Fourteenth and Fifteenth Amendments, and left untouched the constitutional rights to travel and to vote.  Those authorities and rights, and others, might well support federal authority to enact the UOCAVA and maybe even to restrict certain state felon disenfrachisement laws.  If so, Monday's ruling doesn't do anything to those actual and potential federal laws.  

Moreoer, Monday's ruling does nothing to the federal laws upheld under Oregon v. Mitchell, or otherwise to undermine whatever holdings came out of that case.  (Justice Scalia's footnote 8 does nothing to the vitality or legitimacy of Mitchell, say what you will about the footnote or about Mitchell itself.)  Lederman argues that those laws might not withstand scrutiny under the Court's current approach to congressional enforcement power under the Reconstruction Amendments.  But, if so, that's a function of City of Boerne, not Monday's ruling.  Moreover, some or all of the laws upheld under Mitchell might well be upheld under different authorities.  As we know, the Court itself split sharply on the sources of authority in that case, suggesting that those laws might enjoy support under other authorities, not subject to the Elections Clause constraint that states have the power to determine who gets to vote.  

In short, Monday's ruling is a clear victory for federal authority under the Elections Clause, with a reservation of qualified state authority to determine who gets to vote in congressional elections even when Congress regulates the "Times, Places, and Manner" of congressional elections in a way that spills over into voter qualifications.  (Why "qualified state authority"?  Because the Court upheld a federal law that set a standard for voter eligibility, based on the oath on the federal form, so long as the states can petition the EAC and bring an action to court to supplement the oath if they can show that the oath is insufficient.  This putting-the-burden-on-the-state when the federal government prescribes a way to determine eligibility is a thumb on the scale in favor of federal power.  At the very least, it's an extremely unusual way to preserve and protect state power.)  But the ruling does nothing to other constitutional powers that Congress might use to validly enact federal law, and to preempt state law, regarding voter qualifications.  

SDS

Can States Limit Government Information to Their Own Citizens?

The Supreme court heard oral arguments yesterday in McBurney v. Young, a case testing whether a state's freedom of information law, or FOIA, can limit access to government information to its own citizens consistent with the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause.  (Together these provisions restrict states in discriminating against out-of-staters in the exercise of fundamental rights or important economic interests, or in interstate commerce.)  The case was brought by two out-of-staters against Virginia after the state denied them access to records related to the state's enforcement of a child support order and state property records collected for clients as part of a business.  Virginia is one of only three states that restricts its FOIA records to in-staters.

The case is tough, because it's not obvious that Virginia's restriction is a restriction on interstate commerce (in violation of the Dormant Commerce Clause), and it's not obvious that the access that the petitioners seek is the kind of right that they, as out-of-staters, should enjoy with respect to Virginia.

The questions from the bench went right to these points.  The Court was concerned about whether Virginia's restriction was, in fact, a restriction on commerce,  or whether it was merely a law, not a commercial regulation, that had at most an incidental effect on interstate commerce.  (The Dormant Commerce Clause points go to the property-records seeker, not the child-support seeker.)  In other words: does the Dormant Commerce Clause even apply, given that this may not be a regulation of commerce?

Justices were also concerned about the magnitude of the effect, on both sides.  As to the petitioners, they wondered why the cost to the petitioner wasn't negligible.  After all, any out-of-stater could simply hire an in-stater for a nominal fee to file their request and thus dodge the restriction.  As to the state, they wondered why the cost to the state in providing equal access to its records was significant.  The burden of addition requests from out-of-staters didn't seem to be much.

Finally the Justices wondered whether Virginia shouldn't be allowed to restrict access to its records, given that its law is designed to provide access to government information to ensure good government--a concern that applies uniquely to Virginians.  On this point, several Justices compared the right to access to the right to vote, and noted that out-of-staters don't get it.  In short: Shouldn't Virginia be able to keep its records to its own state citizens?  The question goes at least in part to the purpose of Virginia's FOIA--to provide information on governance (as the state would have it), or to restrict information in restraint of free trade (as the petitioner argued).

The parties didn't provide terrific answers to any of these questions.  But counsel for the petitioner did note that the challenge was as applied, not facial.  This could allow the Court to rule narrowly in favor of this individual, without overturning the restriction as to anyone else.  But even that result seems likely only if the Court can get over two threshold problems.  First, the restriction is not a direct discriminatory regulation of interstate commerce (even if it may have an indirect effect on interstate commerce in this case).  Next, Virginia is certainly able to restrict some of its state functions to its own citizens.  The question for the Court: Is this one of them?

SDS

McDonald v. Chicago Opinion Analysis: Second Amendment Incorporated Against States

By a vote of 5-4, the Court in McDonald v. Chicago today incorporated the Second Amendment right to  individual gun ownership it recently recognized in District of Columbia v. Heller against the states through the Fourteenth Amendment.  Our analysis of the March oral arguments is here.

The 214 pages of opinions (including a 4 page appendix) will provide much fodder for scholars and litigators.  There are not only dissenting opinions by Justice Stevens and by Breyer (joined by Ginsburg and Sotomayor), but the majority opinion provides the fractured decision-making that can frustrate law students and other readers of Supreme Court opinions.  Here are the alignments:

JUSTICE ALITO announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which THE CHIEF JUSTICE, JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join, and an opinion with respect to Parts II–C, IV, and V, in which THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join.

SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion.
BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., join.

The plurality - - - Alito, Roberts, Scalia, and Kennedy - - - conclude the due process clause of the Fourteenth Amendment incorporates the Second Amendment.  Scalia writes separately, noting "I join the Court’s opinion. Despite my misgivings about  Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guaran­tees in the Bill of Rights 'because it is both long estab­lished and narrowly limited.' [citation omitted].   This case does not require me to reconsider that view, since straightfor­ward application of settled doctrine suffices to decide it."

Only Justice Thomas, concurring (and vital to the Court's majority under the Fourteenth Amendment incorporation conclusion), rejected substantive due process:

Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” [citation omitted] and “‘deeply rooted in this Nation’s history and tradition,’” [citation omitted].  I agree with that description of the right.  But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.”  Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities
Clause.

Our discussions of the Privileges or Immunities Clause arguments are here, here, here, here, and here.  Although initially an attractive option, most scholars and court-watchers came to believe that the Court would ultimately not reverse The Slaughterhouse Cases and "resurrect" the Privileges or Immunities Clause.

Dissenting, Breyer considers the criticisms by scholars of Heller and asks:

At the least, where Heller’s historical foundations are so uncertain, why extend its applicability? My aim in referring to this history is to illustrate the reefs and shoals that lie in wait for those nonexpert judges who place virtually determinative weight upon historical considerations. In my own view, the Court should not look to history alone but to other factors as well—above all, in cases where the history is so unclear that the experts themselves strongly disagree.  It should, for example, consider the basic values that underlie a constitutional provision and their contemporary significance.  And it should examine as well the relevant consequences and practical justifications that might, or might not, warrant removing an important question from the democratic decisionmaking process.

Justice Stevens' 60 page dissenting opinion argues for judicial restraint, and while he does not explicitly chastise the majority for judicial activism, that is certainly the implication.

We will have additional discussion of the decision in the near future.

RR

Oral Arguments in McDonald

The Supreme Court heard oral arguments today in McDonald v. City of Chicago, the case challenging Chicago's handgun ban.  As expected, the arguments focused on application of the Second Amendment to the states ("incorporation") and avoided the meaning of the Second Amendment (or any related unenumerated right), except insofar as the meaning drives the incorporation analysis. 

Here are some of the highlights with additional thoughts:

The Second Amendment (or some portion of it) is Almost Certainly Incorporated.

James Feldman (for the respondent City of Chicago) faced skeptical questioning on his distinction between a right to self-defense (preexisting the Second Amendment) and the Second Amendment right to bear arms in order to protect against the federal government disarming the militia.  Feldman argued that the right to self-defense--which, he argued, states traditionally have regulated--"had little to do with" the Second Amendment (quoting Heller).  And the Second Amendment, with its militia clause, stands in a different relationship to the states than to the federal government.  Heller addressed its relationship to the federal government; Feldman argued that nobody was, or is, concerned about the states disarming the militia--and that the right to bear arms for this purpose is not fundamental as against the states.  He argued that this position is consistent with, even supported by, Heller itself.  Without incorporation of the Second Amendment, Feldman argued, all that is left is the preexisting right to self-defense.  But this has been traditionally regulated by the states and ought to be subject to the political process (and not fundamental rights claims). 

Chief Justice Roberts, Justice Scalia, and Justice Alito all attacked Feldman's arguments from different angles.  Chief Justice Roberts said it sounded awfully close to the losing argument in Heller.  Justice Scalia took issue with Feldman's focus on the reason the Second Amendment was codified (to protect against the federal government interference with the militia), while ignoring the function of the Second Amendment (to protect an individual right to bear arms, as in Heller) and with Feldman's argument that nobody cares about states disarming militias.  And Justice Alito, pressing Feldman on whether states could ban all firearms, seemed frustrated by a moving target--Feldman's seemingly inconsistent claims that states could not ban all firearms and that the right to keep and bear arms is not fundamental.  (Feldman's point here was that such a complete ban would violate even the default rational basis review under Due Process.)

In short, at least three justices were hostile to Feldman's attempt to navigate between Heller and incorporation and seemed inclined to incorporate.

A fourth, Justice Kennedy, also seemed inclined to incorporate, but offered Feldman a way out, at least on the merits.  Justice Kennedy suggested that the Court might incorporate the right to bear arms in Heller, but give states wide latitude in regulating the right--something like rational basis review.  Others on the Court may be inclined to this position, as well (even Scalia, as suggested by the Heller decision itself).  (Chief Justice Roberts also suggested this approach in a question to Clement.)  This would mean a loss for Feldman on incorporation, but on the substance it would result in exactly what he advocated by way of a different route: deference to the political process.

The Court may Incorporate Only a Portion of the Second Amendment.

The justices spent a good part of the argument asking whether the Court might incorporate only a component of the Second Amendment (or a related unenumerated right), and not the whole thing.  Justices Kennedy and Stevens pressed this issue the hardest, first asking Alan Gura (for petitioner McDonald) and then asking Paul Clement (for the NRA, which received permission to intervene to argue incorporation via the Due Process Clause) whether the Fourteenth Amendment "necessarily incorporates every jot and tittle of the Federal right."  Justice Stevens offered the Sixth Amendment right to trial by jury in criminal cases as an example: That right, as incorporated against the states, requires only non-unanimous juries.  Clement cast the Sixth Amendment right to a jury trial as an "outlier"--the only incorporated right in the Bill of Rights that applies to the states differently than it applies to the federal government--and maintained his position that the Due Process Clause incorporates the whole Second Amendment, and the Supreme Court caselaw that goes with it (now just Heller). 

Next, Justice Alito asked Clement whether the Court shouldn't return to Justice Harlan's approach in Duncan v. Louisiana--an approach that would consider incorporating rights without necessarily considering each amendment as entirely "in" or "out."

Justice Breyer raised the issue by way of a "chart" of rights--that the right to bear arms may be more important for some reasons than for others.  And those more important reasons may be incorporated, while the less important ones may not be.

Finally, Justice Kennedy returned to the issue with Feldman, asking him for "existing authority with reference to other provisions of the Bill of Rights that would allow us to incorporate . . . just the core of the Second Amendment . . . ."

These exchanges suggest that at least Justices Kennedy and Stevens (and possibly Alito, and more likely Breyer) may be open to applying the Second Amendment to the states in a different way than it applies to the federal government.

The Court is Almost Certain to Incorporate Via Due Process (and not P or I).

Several justices jumped on Gura's aggressive argument for incorporation via the Privileges or Immunities Clause, expressing concerns ranging from overturning the Slaughter-House Cases to uncertainty in incorporation doctrine to the unknown boundaries of the Privileges or Immunities Clause.  Based on the questions, Gura's argument is almost surely a non-starter.

Gura's argument for incorporation via the relatively obscure Privileges or Immunities Clause was indeed--and perhaps necessarily--grand.  At one point, Justice Scalia even joked that Gura must be angling for a law faculty position, given Gura's concession that he could just as easily get to incorporation via the much better developed Due Process route. 

What seemed to trouble the justices most, however, was Gura's inability to define the outer boundaries of the Privileges or Immunities Clause.  As a Court, they seemed unwilling to open this can of worms, even if it would allow them to undo an approach under the Slaughter-House Cases that is nearly universally considered incorrect.

Incorporation Looks to the Duncan Standard, American Style.

There was some back-and-forth beginning in Feldman's argument about the right standard for incorporation.  Feldman argued that the Court should look to those rights that are "implicit in the concept of ordered liberty."  Justice Scalia was quick to suggest that that standard was dated and defunct; and Chief Justice Robert qualified it by clarifying that whatever standard the Court applied, it was as to American values (and not some abstract notion of values).  (This is not an innovation; it's clear from the Duncan formulation, below.) 

Chief Justice Roberts specifically mentioned Duncan, and it seems likely that the Court will apply that standard: Is the right "among those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,' . . . 'basic in our system of jurisprudence,' and . . . a 'fundamental right, essential to a fair trial.'"

In all, the Court seems inclined to incorporate at least a core of a right to bear arms by way of the Due Process Clause of the Fourteenth Amendment.  This is really the path of least resistance, it preserves the incorporation approach the Court has used, and it doesn't open up entirely new areas of unexplored territory.  If the Court says anything about what the underlying right means, it seems to be leaning toward a deferential standard of review that would likely allow the states to do their work in issuing reasonable regulations of firearms. 

SDS

Competing Claims for Second Amendment Incorporation

Robert Barnes reported yesterday in the Washington Post on the competing claims for Second Amendment incorporation in McDonald v. City of Chicago, the Second Amendment case now before the Court (and scheduled for argument on March 2).  The article is a nice overview of the constitutional claims on incorporation and the politics of the case.

As Barnes reports, the NRA "was on the outside looking in" in D.C. v. Heller, the OT 07 case that held that the Second Amendment protects an individual right to bear arms, but left open the question whether that right extends to the states (or is "incorporated").  Barnes reports that the NRA was unhappy being left outside that case and thus filed to participate in oral argument in McDonald. 

On January 25, the Court granted the NRA's motion, no doubt in large part because of who would argue on its behalf: Paul Clement.  (Clement, of course, was the Bush administration's Solicitor General and, as Barnes writes, "a favorite of the court.")

In moving for time at oral argument, the NRA claimed that McDonald's attorney, Alan Gura (who also argued Heller), gave insufficient attention to the argument that the Due Process Clause incorporates the Second Amendment.  (As we reported, Gura pressed harder on his claim that the Privileges or Immunities Clause incorporates the Second Amendment.  He all but ignored the Due Process argument.)  The NRA apparently wanted to press the Due Process claim--the path of lesser resistance (because it wouldn't require overturning The Slaughter-House Cases, among others).  Gura's brief is here; the NRA's brief is here.

It's hard to know what, or how much, (if anything) to make of the Court's decision to grant time to the NRA and Clement.  It could simply be a move to include an obviously interested party with a popular attorney.  Or it could signal the Court's desire to consider more seriously the Due Process claim (and less seriously the Privileges or Immunities claim).

We've most recently posted on the case here, here, and here.

SDS

Tribune Profiles Second Amendment McDonald

The Chicago Tribune today profiled Otis McDonald, the lead plaintiff in McDonald v. City of Chicago, the Second Amendment incorporation case now before the Supreme Court.  We've posted on the case, here, here, here, here, here, and here.  It's scheduled for oral argument on March 2.

McDonald is a 76-year-old Chicago resident who says he needs to carry a handgun for personal protection and self-defense.  After agreeing to serve as lead plaintiff--and on instructions from his attorney--he sought to register his .22 Beretta pistol with the Chicago police.  The police denied his application, citing the city's 28-year-old handgun ban, and he sued.

According to the story, McDonald's compelling personal background and legitimate reason for wanting to carry a handgun made him a good pick for lead plaintiff.  But the story cites constitutional law experts as suggesting another reason: McDonald is black.  According to one source, this may "help us remember [the] history" of the Fourteenth Amendment.  The Tribune: "In the Hellerdecision, Justice Antonin Scalia, writing for the majority, referred to that chapter in history, arguing that those who had opposed disarmament of freedmen did so with the understanding that the Second Amendment protected an individual right to own a gun for self-defense."

This story is a good complement to lessons on incorporation, the Second Amendment, and even constitutional litigation generally, reminding us that so many of these disputes come to the Court as carefully engineered cases, not as accidents.

SDS

Symposium: Civil Legal Representation and Access to Justice

The Fred T. Korematsu Center for Law and Equality at Seattle University School of Law, the University of Washington School of Law, and Gonzaga University School of Law are co-sponsoring a symposium and CLE on Friday, February 19, at Seattle University School of Law titled Civil Legal Representation and Access to Justice: Breaking Point or Opportunity for Change.  Click here for the program and registration.

This looks like an outstanding program, with a very impressive line-up.  It includes some of the leading advocates and academics on the civil right to counsel.  Washington State Supreme Court Chief Justice Barbara Madsen will deliver the keynote.

The symposium comes in the wake of ABA President Carolyn Lamm's call last year for a constitutional right to counsel in civil cases involving basic human needs.  We posted on her call here.

SDS

NRA Scholars' Conference on Second Amendment Incorporation

The National Rifle Association Civil Rights Defense Fund hosted a Scholars' Conference on January 10 on incorporation of the Second Amendment via the Fourteenth Amendment Privileges or Immunities Clause.  The discussion features Ilya Shapiro (Cato), Dave Hardy (Arms & the Law Blog), Adam Winkler (UCLA), and Josh Blackman (Josh Blackman's Blog).  Thanks to Alice Beard for the tip.

McDonald v. City of Chicago, set for argument on March 2 at the Supreme Court, tests this argument.  We've posted most recently on the P or I incorporation issue here; our most recent Second Amendment posts are here and here.

SDS

State AGs Lay Out Constitutional Case Against "Cornhusker Kickback"

Thirteen state AGs--all Republicans--sent a letter to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid setting out their constitutional objections to the provision in the Senate health care reform legislation that exempts Nebraska from paying costs of new enrollees in the Medicaid program.  (Instead, under the provision, the federal government would pick up these additional costs.  Senator Ben Nelson is the only senator to have successfully negotiated such an arrangement for his state.)  We most recently posted on this here.

From the letter:

In Helvering v. Davis . . . the United States Supreme Court warned that Congress does not possess the right under the Spending Power to demonstrate a "display of arbitrary power."  Congressional spending cannot be arbitrary and capricious.  The spending power of Congress includes authority to accomplish policy objectives by conditioning receipt of federal funds on compliance with statutory directives, as in the Medicaid program.  However, the power is not unlimited and "must be in pursuit of the 'general welfare.'"  South Dakota v. Dole . . . .  In Dole the Supreme Court stated, "that conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs." . . .  It seems axiomatic that the federal interest in H.R. 3590 is not simply requiring universal health care, but also ensuring that the states share with the federal government the cost of providing such care to their citizens.  This federal interest is evident from the fact this legislation would require every state, except Nebraska, to shoulder its fair share of the increased Medicaid costs the bill will generate.  The provision of the bill that relieves a single state from this cost-sharing program appears to be not only unrelated, but also antithetical to the legitimate federal interests in the bill.

This seems deeply confused on a number of points.  First, both Helvering and Dole emphasize the expansive nature of the spending power and Congress's--not the courts'--discretion in determining what constitutes the "general welfare."  From Helvering: 

Congress may spend money in aid of the "general welfare." . . . There have been great statesmen in our history who have stood for other views.  We will not resurrect the contest.  It is now settled by decision.  United States v. Butler. . . .  The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents.  Yet difficulties are left when the power is conceded.  The line must still be drawn between one welfare and another, between particular and general.  Where this shall be placed cannot be known through a formula in advance of the event.  There is a middle ground, or certainly a penumbra, in which discretion is at large.  The discretion, however, is not confided to the courts.  The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.  This is now familiar law.

Next, the AGs ask too much of the "arbitrary" standard.  This is a very low standard, not requiring much.  Surely the Nebraska compromise cannot be "arbitrary."  This is especially true in light of the all-too-numerous state-specific benefits that we see in any major piece of legislation--any one of which is at least as "arbitrary" as the Nebraska compromise. 

Third, it's not clear how or why conditional spending plays any part in a constitutional analysis of the Nebraska compromise.  Nothing's conditioned here.

Finally, it's not at all obvious that a part of the purpose of the legislation is to get states to pay jointly with the federal government.  As Professor Mark Tushnet said, the legislation could ultimately aim to get the federal government to pay all of the increased costs; Nebraska simply represents the first step.

The other points in the letter seem equally confused.  For example, the Privileges and Immunities Clause of Article IV has been interpreted as a restriction only against the states, not Congress.  (The Privileges or Immunities Clause of the Fourteenth Amendment obviously doesn't apply at all--by its plain terms it restricts only the states.)  There's no Due Process problem here.  And any Equal Protection problem would get only rational basis review.  The courts would almost certainly uphold the provision for the reasons that Professor Tushnet articulated, among others.

The AGs dropped the Port Preferences Clause claim.

SDS

Constitutional Law Exam Hypothetical

Looking for a Constitutional Law hypothetical, either to adapt for your students or, if you are a student, to practice or to discuss with your study group colleagues?

Here's a problem focusing on "fundamental rights" and new doctrinal and theoretical developments that I used as a practice hypothetical for the last week of classes this semester: 

To:    All Constitutional Law Students

    I hope you can assist me with an issue that has suddenly arisen.  A friend of mine - - - let me call her Ms. K. - - - teaches a program entitled “self-defense for girls” in the NYC Department of Education's "academies" for students who have been suspended from other schools.   The mission of these academies is to enable "every student to succeed academically while developing socially and emotionally to become a confident and productive member of society."  Ms. K's program, approved and funded by the NYC Department of Education,  is aimed at improving "self-esteem and self-discipline" as well as providing "real-world usable skills." 
    Ms. K, who is highly trained in a variety of martial arts, regularly includes a unit on martial arts. However, all 25 of Ms. K’s students at a particular academy in Queens have been suspended for possessing the “kung fu stars” Ms. K required for class.  A suspension from an academy means that a student is not able to attend any public school in the city.   
    Almost all of the students who have been suspended from the academy carried the “stars” in their back-packs; most of the students had the “stars” in little black foam-lined cases. I believe, although I am not sure, that Ms. K provided both the “stars” and the cases.   Ms. K told the Principal that these stars were for the class, and that skill in throwing stars is vital for "female defense": “Skillful throwing of a star can stop a pursuer, giving the girl time to escape.  A truly skilled star thrower could hit a dime at thirty feet, although of course with only a few weeks experience, the students are less accomplished.”
    The Principal responded, “a rule is a rule.”  (An excerpt from the rules is available below [Download here]; the Principal does seem to be correct that there is a rule prohibiting “kung fu stars” in the schools.)  The Principal of the academy also stated that "these students are not regular students - - - they are students who have already been suspended and allowed to pursue the privilege of education at a special school.  If these girls cannot abide by the rules, even when given this last chance, then we can all agree they are a detriment to themselves and society."
    Ms. K does not agree.  Indeed, she is outraged.  She believes being educated in self-defense is a “fundamental right" vital to survival, especially for girls.  
    I told Ms. K that we have been considering "fundamental rights" recently and I am certain that every member of our class would be able to assist her.  Please provide a brief memo objectively discussing the constitutional aspects of the situation, including any constitutional arguments Ms. K (and the students) might make, the likelihood of their success, and the important theoretical perspectives. 
    Thanks!

Happy Exam Season.

RR

Dred Scott & Harriet Scott Plaque next to Taney Statute

Justice Roger Taney, a Supreme Court Justice, lived in Frederick, Maryland and practiced law there.  Thus, it is not surprising that the town of Frederick would have a monument to Taney.  It is also not surprising that not everyone would feel Taney should be honored with a monument; Justice Taney is most most well-known for authoring the Dred Scott decision.

As reported yesterday, the town of Frederick has installed a plaque as a tribute to Dred and Harriet Scott.  As the reports note, this occurred after extensive discussions and planning (the plaque itself bears the year 2008).

RR

Right to Bear Arms is a Privilege or Immunity, McDonald Argues

Petitioners in McDonald v. City of Chicago, the Second Amendment case now before the Supreme Court, filed their merits brief today and argued full force that the individual right to bear arms is protected against state interference by the Fourteenth Amendment Privileges or Immunities Clause.

The petitioners' aggressive argument on the Privileges or Immunities Clause--and the after-thought treatment of the Due Process Clause--opens the door for a reevaluation of how the Court treats claims that fundamental rights, including those in the Bill of Rights, apply against the states.

Petitioners' Privileges or Immunities claim was rejected by the Seventh Circuit.  That court ruled that The Slaughter-House Cases (holding that the P or I Clause does not incorporate the Bill of Rights, en bloc, to the states), and U.S. v. Cruikshank, Presser v. Illinois, and Miller v. Texas (all rejecting arguments that the P or I Clause incorporates the Second Amendment to the states) were still good law, even if they are universally criticized and even defunct.  The Seventh Circuit also rejected the petitioners' Due Process argument.  (The Second Circuit, in a panel including then-Judge Sotomayor, similarly rejected a claim that the Second Amendment applied against the states, but the Ninth Circuit ruled that it did.  The full Ninth Circuit voted to rehear the case en banc.)

Petitioners argue, as they must, that The Slaughter-House Cases, U.S. v. Cruikshank, and Presser v. Illinois should be overruled.

Here's a taste:

And yet this Court's various approaches to [applying fundamental rights, including those in the Bill of Rights, to the states under] the Fourteenth Amendment fall short of upholding this provision's essential promise.  State violations of rights understood and intended by the ratifying public to receive significant Fourteenth Amendment protection are not meaningfully secured by the federal courts.  Moreover, the failure to honor the Fourteenth Amendment's original public meaning foments confusion and controversy as courts pursue other approaches to protecting core individual rights.

This case presents a rare opportunity to correct a serious error, honor the Fourteenth Amendment's true meaning, and bring a needed measure of clarity to this Court's civil-rights jurisprudence.

The Fourteenth Amendment's Privileges or Immunities Clause forbids the States from abridging civil rights, including those codified in the Bill of Rights. . . .

SlaughterHouse's illegitimacy has long been all-but-universally understood.  It deserves to be acknowledged by this Court.  Because SlaughterHouse rests on language not actually in the Constitution, contradicts the Fourteenth Amendment's original textual meaning, defies the Framers' intent, and supplies a nonsensical definition for Section One's key protection of civil rights, overruling this error and its progeny remains imperative.

Others, most notably the Constitutional Accountability Center, have made similar arguments.  I've posted on them here, here, here, and here.  Ruthann just posted yesterday on teaching P or I here.

SDS

Privileges or Immunities Clause Pedgagogy: Robson's Saturday Evening Review

Teaching the Fourteenth Amendment’s Privileges or Immunities Clause in a Constitutional Law course has long been a challenging endeavor.  For many years, the doctrine started and ended with The Slaughter-House Cases, 83 U.S. 36 (1872), in which a professor’s role was largely to address the cynicism of students who concluded that the Court’s majority had obliterated the plain language of the Constitution. Ten years ago, Saenz v. Roe, 526 U.S. 489 (1999), initially held the promise of revivifying the clause, but the doctrine did not develop beyond Saenz’s applicability to the right to travel across state lines, which was also encompassed by the Equal Protection Clause, Shapiro v. Thompson, 394 U.S. 618 (1969).

Recently, however, the Privileges or Immunities Clause has been much discussed, including in the context of the applicability of the Second Amendment to the states in the recent grant of certiorari in McDonald v. City of Chicago, documents here, previously discussed here, in which the question is “Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.”

But how to teach the P or I Clause?   It is possible to discuss it in the context of the forthcoming McDonald after D.C. v Heller, 554 US ___ (2008), but it seemed to me that Privileges or Immunities deserved its own discussion.

This year, I assigned not only portions of  The Slaughter-Houses Cases and Saenz v. Roe, but a brief piece from The Wall Street Journal, which provides a nice rehearsal of the issues and a judgment that scholars and attorneys on “the left and right” seem to be uniting in their opinion that The Slaughter-House Cases were wrongly decided.   I also gave students a choice of one of two pieces:

The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, a 50 plus page report intended for a broad audience, published by the Constitutional Accountability Center in 2009, available here,

 or 

Ink Blot or Not: the Meaning of Privileges and/or Immunities, a 33 page law review article intended for a scholarly audience, by Richard Aynes,  11 Pa. J. Const. Law 1295 (2009), available on ssrn here.

I chose these pieces because they were recent, accessible, and relatively short.  Based on a class questionnaire students submitted anonymously, students split fairly evenly between the two pieces, responding to the query to explain their choice of article with various reasons including favoring or disfavoring the intended audience, the titles and subtitles, the mentioning of the Constitutional Accountability Center in the Wall Street Journal article, chance, download ease, and a great many “recommendation by classmate” (which nevertheless also split evenly).  Indeed, the students’ pre-class discussions were evident in the larger class discussion, and seemingly in their answers to some of the other questions I posed in the questionnaire.  The two final questions (out of a mere five questions) were most gratifying to read.  I asked students to quote a sentence or passage from the article they read which they found “most appealing” and then “most troubling.” 

Reading these responses after class, I was impressed by the students’ thoughtfulness and insight, as well as some of their humor.  (Students who read Ink Blot appreciated, and were inspired by, Aynes’ wit.)  While it can be difficult to discuss constitutional theory in a large classroom, contemporary background reading with some student choice, accompanied by in-class focus questions and adequate time for small-group discussion, allowed for wide-participation and much enthusiasm about the potential for change in the Fourteenth Amendment's Privileges or Immunities Clause doctrine. 

RR

U. Akron Law Celebrates Fourteenth Amendment's 140th

The University of Akron and The Akron Law Review put together an impressive and diverse group of scholars last year to celebrate the 140th anniversary of the Fourteenth Amendment.  A good number of the papers touch on incorporation and the Privileges or Immunities and the Due Process Clauses--issues before the Court this term in McDonald v. City of Chicago, the Second Amendment case out of the Seventh Circuit.  See also here, here, here, here, and here.

The Akron Law Review web-site doesn't yet link to the articles in the volume, so I tracked down those I could on SSRN.  All of the authors have written other works on the Fourteenth Amendment--in some cases extensively--so I've linked their SSRN pages (on their names), as well.

Elizabeth A. Reilly, Infinite Hope Introduction to the Symposium: The 140th Anniversary of the Fourteenth Amendment

Richard L. Aynes, The 39th Congress (1865-1867) and the 14th Amendment: Some Preliminary Perspectives

Elizabeth A. Reilly, The Union as it Wasn't and the Constitution as it Isn't: Section Five and Altering the Balance of Powers

David Skillen Bogen, Rebuilding the Slaughter-House: The Cases' Support for Civil Rights

James W. Fox, Fourteenth Amendment Citizenship and the Reconstruction-Era Black Public Sphere

SDS