« "Law, Religion & Ethics: A Multi-Faith Dialogue" | Main | Advice for Foreigners on the U.S. Law School Market: Part I »

Thursday, March 04, 2010

Thoughts on McDonald v. Chicago

It’s an honor and a pleasure to have a return engagement here at Prawfsblawg.

As most readers of this blog already know, proponents of the “privileges or immunities” theory of incorporation had a bad day this last Tuesday. Representing the petitioners in McDonald v. Chicago, Alan Gura managed no more than a couple of sentences before being interrupted by Chief Justice John Roberts and questioned about why Gura thought it was in his client’s interest to needlessly seek the reversal of 140 years of judicial precedent. The conversation went downhill from there. Not only did Justice Scalia mock Gura’s argument as an effort to endear himself to ivory tower legal academics, even those Justices less caustic seemed truly troubled by the potential implications of opening the long-sealed door of the Privileges or Immunities Clause. That way is closed, the justices seemed to say. It was shut by Slaughterhouse and it is guarded by stare decisis.

Gura could not have been surprised by the Court’s response. His brief fairly invited judicial resistance. Instead of asking the court to do nothing more than move incorporation doctrine to the privileges or immunities clause, Gura sought nothing less than a libertarian transformation of Section One of the Fourteenth Amendment. Not just rights listed in the Bill, but all fundamental natural rights, including those listed by Justice Bushrod Washington’s Article IV decision of Corfield v. Coryell (and many more) are protected by Gura’s vision of the Privileges or Immunities Clause. The right to bear arms was just one of an innumerable list of rights which deserve judicial enforcement as the natural rights of citizens of the United States. When pressed at oral argument whether this really was an innumerable list of rights, Gura assured the court that it was indeed.

This is not the way to win votes and influence Justices.  That Gura took such a bold approach suggests that he had a great deal of confidence in his argument and his ability to convince the Court to make a dramatic and pregnant alteration in the jurisprudence of fundamental rights. He certainly had some of the best legal scholars in the country on his side. The constitutional scholars amicus brief which advocated the same libertarian view of the Privileges or Immunities Clause was signed by such notables as Richard Aynes, Jack Balkin, Randy Barnett, Steven Calabresi, Michael Curtis, Michael Lawrence, William Van Alstyn and Adam Winkler. Other scholars such as Akhil Amar have made similar arguments. Gura was not, therefore, presenting a theory which lacked significant scholarly support. On the other hand, he was presenting an argument that remains strongly contested in the legal literature. The day before oral arguments, Columbia Professor Philip Hamburger posted a paper presenting almost the exact opposite view of Privileges or Immunities as that advocated by Gura and scholars like Randy Barnett. Where libertarians see unenumerated substantive rights, Hamburger sees nothing more than federal enforcement of the equality rights declared in Article IV.

It might seem odd that such eminent scholars could arrive at such diametrically opposed readings of the same provision. However, as I shall explain in future posts, both Hamburger’s and the scholars’ brief adopt equally plausible positions if one begins from the assumption that the Privileges or Immunities Clause is based on Article IV of the original Constitution. As I explain in a new paper, the traditionally assumed link between Article IV and Section One is contradicted by the historical record. Privileges and immunities of citizens of the United States are not the same thing as privileges and immunities of citizens in the several states. So, at least, Bingham maintained. Bingham’s vision of the Privileges and Immunities Clause is one that even a cautious Supreme Court should consider: It supports incorporation of the Second Amendment, but it would not open the door to an unlimited list of unenumerated natural rights. In future posts, I will present the rather surprising views of the man who wrote the Clause.

Posted by Kurt Lash on March 4, 2010 at 11:23 AM in Constitutional thoughts, Current Affairs | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Thoughts on McDonald v. Chicago:


But what if a contract is against "public policy" as determined by a state? It's not only the 13th Amendment that prohibits certain contracts. The so-called "absolute right to contract" is subject to limitations, both at the federal and state levels. Like a "contract for a hit" using a handgun (or some other weapon). Both reasonable and unreasonable people can differ on what is reasonable regulation for a contract or even handguns. Subject matter and context must be addressed. Perhaps an absolute right can result in anarchy.

Posted by: Shag from Brookline | Mar 7, 2010 6:36:08 AM

The feds can't violate the "right to contract" or at least don't just by providing reasonable regulations that somehow hinder some absolute right to contract.

Posted by: Joe | Mar 6, 2010 6:25:37 PM

I was impressed with Prof. Lash's Part I and more so with his Part II. It's a shame that SCOTUS did not have the benefit of Part II at the time of oral arguments. Presumably nothing would prevent the Justices from referring to it as may be appropriate. I anxiously await Prof. Lash's Part III on the public understanding of the P/I Clause of the 14th Amendment. I came away with no clue on what may be revealed in Part III. Perhaps Prof. Lash may publish Part III on a timely basis for consideration by SCOTUS with its decision in McDonald. Maybe he'll provide some clues with subsequent posts. Legal historians could learn a lot from Prof. Lash who cannot fairly be accused of dealing in "law office history."

Posted by: Shag from Brookline | Mar 5, 2010 2:51:03 PM

Mike, lawyers shouldn't take bold steps that blatantly conflict with the text of the Constitution. A correct interpretation and application of the Privileges or Immunities Clause is needed, but I'm afraid that the anti-textual argument presented to the Court earlier this week has poisoned the well.

Posted by: Andrew | Mar 5, 2010 12:38:36 AM

I think Mr. Gura saw the argument for P or I incorporation as a free shot. As seemed clear from the transcript of the argument, he had a decision in his client's favor in the bag from the getgo. So, why not take the bold step?

All of us who think about Constitutional litigation would find it exciting to open a new phase of constitutional development. People on the left would see opportunities for expanding personal individual constitutional rights in the P or I clause. People on the right would see a chance to resuscitate economic constitutonal rights that have beenout of fashion since 1937 (except for punitive damage limits). Further, they might see the chance to fold presently recognized personal individual rights back into the P or I clause to be cut back or even undermined completely.

So, assuming Mr. Gura comes at this from the right, this case opened up the conversation at a broader level. And, even though his argument was preemptively shot down by all the Justices, it did get the argument into the conversation at the Court. A start, perhaps.

Posted by: Mike Zimmer | Mar 5, 2010 12:32:01 AM

Kurt, I think we need to look at the text of the Clause, first and foremost. Mr. Gura presented an anti-textual interpretation.

To any normal person, the phrase "privileges or immunities of citizens of the United States" cannot possibly mean something that the federal government is free to violate. And yet that is exactly what Mr. Gura argued, when he contended that this phrase includes a right to contract and a million other things that do NOT already apply against the federal government.

The Second Amendment DOES already apply against the federal government, but Gura never made that distinction.

As Senator Jacob Howard put it in 1866, the rights that come within the Privileges or Immunities Clause were rights that had been "secured to the citizens solely as a citizen of the United States and as a party in their courts." Things like the right to contract and the right to sue were NEVER secured to a citizen of the United States. Howard only suspected otherwise because SCOTUS had not yet specifically addressed the scope of Article IV, Section 2 (which the Court definitively did in 1869 when it decided Paul v. Virginia).

I think that dwelling on what Bingham did or did not say is kind of futile, because (being a verbose politician) he basically said something for everyone. For example, if you look at the Congressional Globe, he said: "The law in every State should be just." But surely we should not rely on that statement to infer that SCOTUS has authority under the 14A to strike down any law that five justices subjectively think is unjust.

Posted by: Andrew | Mar 4, 2010 10:47:25 PM

I haven't had a chance to read the whole article carefully, but in the Bingham-March-1871 section I didn't see an explanation of Bingham's statement at app. 83 that the actual 14A "embraces all and more than did the February proposition." That suggests that "privileges or immunities of citizens of the United States" is at least as big as "privileges and immunities of citizens in the several States," the Article IV language repeated in the February proposal.

Posted by: Chris | Mar 4, 2010 6:30:22 PM

The comments to this entry are closed.