Pertinacious Tom
Super Anarchist
A Decade of Privileges or Immunities
A decade ago, that irrelevant part of the 14th amendment was of no interest around here.
The linked article attempts to shine a light on what little hope exists that the 14th amendment will be read in its entirety by Justices other than Clarence Thomas:
A decade ago, that irrelevant part of the 14th amendment was of no interest around here.
The linked article attempts to shine a light on what little hope exists that the 14th amendment will be read in its entirety by Justices other than Clarence Thomas:
Heh. Gorsuch deciding to read the 14th is a "doubling" of support, no question about it, but I expect it will be decades, if ever, before the Slaughterhouse decision is revisited. Also, guns.This fight has been an uphill battle. But it has not been without its victories. Just last year, in Timbs v. Indiana, the Supreme Court held that the Eighth Amendment prohibition on excessive fines applied to the states through the 14th Amendment. Unfortunately, the majority stuck with the Due Process Clause.
Justice Thomas again wrote a concurring opinion explaining that the Privileges or Immunities Clause was the correct vehicle for incorporation. And again, no other judge signed onto his opinion
But there is some hope! Justice Neil Gorsuch also wrote a concurring opinion acknowledging that the Privileges or Immunities Clause was undoubtably the right vehicle. But he also argued that nothing in that particular case turned on whether the Court used the Due Process Clause or the Privileges or Immunities Clause.
All this means is that litigators simply must keep trying to bring the right case. But all is not rosy. Justice Kavanaugh joined Justice Thomas’ dissent from the Court’s decision to grant cert in Rogers v. Grewal—a case seeking to clarify Second Amendment protections. But Justice Kavanaugh refused to join the portion of the opinion that discussed the proper vehicle for incorporation.
Further, earlier this year when the Court decided Ramos v. Louisiana, no justice joined Justice Thomas in his concurring opinion again explaining that the Privileges or Immunities Clause is the proper vehicle for incorporation. This is doubly disappointing because, as Ilya Shapiro and Josh Blackman explained in their recent article about the Clause, Justice Kavanaugh suggested at his confirmation hearing some openness to reconsidering the cabining of the Clause.
It may not seem like it, but the Privileges or Immunities Clause has come quite a ways in the past decade. The support for it on some level has doubled in the Supreme Court. Further, the consensus that the Slaughter-House Cases was wrongly decided has only grown. And decisions and debates over the clause make frequent appearances in academic literature and debates.