Privileges and Immunities Again

[Pertinacious Tom]

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:
 

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.

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.

 

[Saorsa]

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:
 

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.

It's obviously not enough.  We need laws specifying any identifiable or declared individual characteristic of a citizen so that more laws and even amendments can be passed to define what is covered by the 14th.

Otherwise it would be too simple.

 

[Pertinacious Tom]

Special awareness should be on USSC's Thomas who's doing what he can in a very scary way: 

"To his credit, Thomas does not pretend to believe in stare decisis, or respect for precedent. He thinks the court should overturn precedent, like Bolling, any time a majority concludes it was “demonstrably erroneous.” The deceptive allure to this simplistic solution conceals the fact that it’s a recipe for chaos, as well as an abrupt contraction of rights that most of us have come to take for granted." Chaos Theory

Thomas is right about this IMO.

Consider the privileges or immunities clause, a moribund provision that Thomas seeks to elevate to the center of constitutional law. Some scholars say this clause enforces the Bill of Rights against the states, the view Thomas holds. Others believe it enforces those rights and other, unenumerated rights. Still more say it does not guarantee any specific rights, but merely bars states from granting some citizens more rights than others. How did Thomas decide the first position is correct while the other two are not? It’s a mystery how, exactly, the justice chooses to latch onto a specific theory, then demand that the Supreme Court constitutionalize it. But whatever his process, this method is a surefire way to destabilize the law, keeping Americans in a perpetual state of suspense about what rights will be granted or taken away on each Supreme Court opinion day.

It's "moribund" because of the Slaughterhouse cases and Cruikshank, mistakes that should be corrected.

 

[Blue Crab]

I'll have to circle back around on this. But I like off the top is the reference to Boling really goes to Brown. 

Brown was correct, IMO, but the implementation was poor: guvment, go figure, and that isn't as critical as it sounds. Integration had to happen and it's clear that we didn't know how to do it ... who would? 

 

[Pertinacious Tom]

I like the idea that words mean things, including the words privileges and immunities in the 14th amendment.

The thing is, the article purports to list 3 interpretations of those words. It actually lists 4. The 4th is contained in the word "moribund."

Accepting the "moribund" status of those words, as the article appears to do, means accepting truly horrible decisions.

Cruikshank, for example.

In United States v. Cruikshank, 92 U.S. 542 (1876), the U.S. Supreme Court threw out the convictions of Cruikshank and other whites who, during a dispute about a gubernatorial election in Louisiana, killed about 100 blacks in the Colfax Massacre and were subsequently charged with conspiring to deprive those blacks of their constitutional rights.

If you look to cops like you might need stopping and frisking, as Justice Thomas does, you might see the problem with just accepting this result.

Yeah, it's moribund all right. Because of the rankest racism. And wanting to undo that mistake is bad...why again?