The MacDonald Slaughterhouse

Whatever your opinion on whether the Supreme Court reached the right result in MacDonald, Ilya Somin destroys the plurality’s argument against applying the privileges or immunities clause despite unambiguous evidence that the privileges or immunities clause was originally meant to apply in exactly the sort of situation presented in MacDonald.  In refusing to revive the privileges or immunities clause, the plurality once again demonstrated that all too often, the term “originalism” means merely “New Deal Originalism.”

Somin is at his most devastating here:

It’s true that the petitioners in McDonald failed to provide a precise statement of the rights protected by the Privileges or Immunities Clause. That might be a defensible reason for preferring the Due Process Clause — if the Court’s approach to that Clause were at all clear itself. In reality, of course, the Court’s standard for recognizing rights under the Due Process Clause is notoriously unclear, and open to manipulation. That standard (endorsed once again by today’s plurality) is whether the right in question is “fundamental” to “our scheme of ordered liberty.” You don’t have to be a constitutional law scholar to recognize that judges with different political ideologies and judicial philosophies will have enormous disagreements over the question of which rights are truly “fundamental.”

What is particularly unfortunate with the decision here is that the 5-4 result epitomizes why the use of substantive due process to do the lifting of the privileges or immunities clause is so problematic.  Regardless of your position on the Second Amendment, whether the Second Amendment’s right to keep and bear arms is “fundamental” to “our scheme of ordered liberty” is severely questionable.  Certainly other countries are able to have something that we would call “ordered liberty” without ironclad protection of firearms ownership rights.  And while historically there may have been instances where the ability of the citizenry to safeguard or expand “ordered liberty” via ownership of firearms, the restrictions that are allowed on the Second Amendment under Heller ensure that the government’s advantage in firepower will be insurmountable in such hypothetical circumstances nowadays. 

That’s not to say that a case can’t be made that Second Amendment rights are in fact “fundamental” to “our scheme of ordered liberty.”  Instead, it’s to say that whether a particular right is so fundamental as to warrant due process protection is left entirely up to where one falls on the political spectrum, almost by definition.  Liberals, by definition, value certain rights as “fundamental,” and worth making a higher priority than other rights; conservatives, by definition, will value a completely different set of rights as “fundamental,” and worth making a higher priority than other rights. 

However, in order for a “right” to be objectively “fundamental,” it must be essentially universal or at the very least completely exempt from interference by a political body.  Unfortunately, the Supreme Court is also an inherently political body, appointed, as it is, by politicians, meaning that what is and is not a “fundamental right” will be left to be determined on a more or less arbitrary basis.  Worse, the “fundamental rights” doctrine provides a means for the Supreme Court to revisit and limit the effects of any decision that a particular right is, indeed, a Constitutional right – just because a right is a Constitutional right against the federal government, it can still be found not to be a “fundament right” against state governments.  And, of course, the federal government has ample tools to coerce states into doing its bidding.  

In short, the “fundamental rights” doctrine is ultimately self-defeating, leaving few rights as truly “fundamental” and the contours of many rights protected and defined only arbitrarily.  The privileges or immunities clause would, at least, hold out the possibility of a more or less objective standard upon which individuals may rely, and at minimum would provide an indisputable starting point for understanding what a state actor is and is not prohibited from doing: if it’s an individual constitutional right, it’s a right that neither the federal nor the state government may infringe.