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Doug Kendall

Doug Kendall

Posted: March 2, 2010 06:46 PM

Don't Trash the Constitution, Justice Scalia

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This front-page story in yesterday's Washington Post featured a quotation from Justice Antonin Scalia, taken from a 2006 Yale Law School presentation, in which the Justice calls the 14th Amendment's Privileges or Immunities Clause "flotsam." Flotsam is defined by Webster's Dictionary as "floating debris": trash, in other words. Talk about trashing the Constitution.

Justice Scalia continued along these lines at oral argument today in McDonald v. City of Chicago, a case about whether the Second Amendment limits the gun control laws passed by states. Scalia jumped all over McDonald's attorney, Alan Gura, who had the temerity to argue that the text and history of the Privileges or Immunities Clause was relevant to the outcome of the case. Scalia accused Gura of "bucking for some place on a law school faculty" by advancing an argument in text and history that was "the darling of the professoriate."

Why would a Supreme Court Justice who professes to care deeply about the text and history of the Constitution disparage part of that text and refuse even to hear an argument about the history of the Privileges or Immunities Clause? Simple: this text and history doesn't fit with his longstanding argument against judicial protection of substantive fundamental rights.

Throughout his tenure on the Supreme Court, Justice Scalia has disparaged the doctrine of substantive due process, under which the Supreme Court has recognized fundamental substantive rights including the right to reproductive choice in Roe v. Wade and the right to sexual intimacy in Lawrence v. Texas. Scalia has called substantive due process "babble" and an "oxymoron" and repeatedly sought to overturn rulings like Roe, arguing they cannot be squared with the Constitution's text and history. In dissent in a 1999 case called City of Chicago v. Morales, Scalia asserted: "[t]he entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of so-called "substantive due process") is in my view judicial usurpation."

The text and history of the Privileges or Immunities Clause thus present a very big problem for Justice Scalia. The Clause isn't trash. It isn't an "ink blot," as Robert Bork wanted to treat it. It is rather, the central provision of the Constitution's 14th Amendment, and the Clause intended by the framers to protect both the enumerated and unenumerated fundamental rights of American citizens. It is the "darling of the professoriate," for the simple reason that it is the right answer as a matter of text and history to the question of how rights like the Second Amendment apply against state action. The Clause has been misread by the Supreme Court for 140 years, starting with the Court's 1873 ruling in The Slaughterhouse Cases, and as Yale Law School's Akhil Amar has summarized: "Virtually no serious modern scholar -- left, right, and center -- thinks that [Slaughterhouse] is a plausible reading of the Amendment." Constitutional Accountability Center filed a brief in McDonald on behalf of preeminent constitutional scholars from across the ideological spectrum, urging all the Justices, including Justice Scalia, to restore the Privilege or Immunities Clause to its rightful place.

That's not likely to happen in McDonald, if today's argument is any guide, in large part because Justice Scalia and his colleagues, notably including Chief Justice Roberts, refused to take this text and history seriously. Their reason is surprising: it turns out that when it comes to gun rights, Justice Scalia and Chief Justice Roberts apparently believe that substantive due process is working just fine and is "easier" than reconsidering the Privileges or Immunities Clause. But how can this be, given the criticism of the doctrine from conservative sources? It appears that it is "easier" because it means the conservative justices don't have to rethink or give up on their attack on the legitimacy of substantive due process.

Chief Justice Roberts concedes as much in this unintentionally funny question at the end of Gura's argument:

Privileges and immunities give you a lot more flexibility than due process, because it is not limited to procedural -where you don't have to deal with the hurdle that it's limited to procedural by the text.
Let me translate that. Because the Privileges or Immunities Clause is in fact the provision of the Constitution designed to protect substantive fundamental rights, it would give more "flexibility" to judges to recognize and protect these rights. On the other hand, if we begrudgingly follow prior rulings and incorporate using substantive due process, we retain the ability to bash the doctrine and resist any further extension of it.

So two of the Justices that voted recently to overturn two prior rulings and call into question 100 years of campaign finance laws in Citizens United, based on a heart-felt (though erroneous) interpretation of the Constitution's First Amendment, appeared poised today to follow prior rulings they clearly think are questionable, and ignore arguments about the right answer in text and history, because doing so would give judges "flexibility" to protect rights and liberties of U.S. citizens.

We don't yet have the Court's ruling in McDonald. It is not too late for Chief Justice Roberts, Justice Scalia and the other members of the Court to take the text and history of the Privileges or Immunities Clause seriously, and at least recognize in their opinion that the Clause was written to protect fundamental substantive right from infringements by the states. But it looked today very much like when the Chief Justice and Justice Scalia say they take constitutional text and history seriously, what they mean is that they take text and history seriously, unless it's inconvenient to their judicial philosophy.