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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


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    [::..archive..::]
    ::

    :: Tuesday, March 02, 2010 ::
    McDonald oral argument

    Postpone the Privileges & Immunities revolution. Attorney Alan Gura led with it, but the Chief and Scalia weren't buying any, and both "sides" of the Court showed concern (or prurient interest?) in "what else" p/i might cover.

    I expect Justice Thomas will say something about this in a separate opinion -- though you'd think that if there was ever a time for him to break his usual principled silence at oral argument, it would be in this case, since he broadly hinted at some day regrounding much of substantive due process in P/I in a footnote in his concurrence in Troxel v. Granville.

    It's no news that the conservatism of Justice Scalia and of CJ Roberts is more respectful of precedent, and this showed itself when Gura made his argument. The Chief interrupted Gura with: "Of course, that arguments is contrary to the Slaughterhouse Cases, which have been the law for 140 years." 140 years of persistent dissents, controversy, adherence based on the naked power of precedent, nonsensical alternatives such as s.d. p., etc. -- but, there it is.

    Gura answered the only way he could: precedents have less force when they are wrong. Soon Justice Ginsburg diverted the conversation into whether the personal firearms rights of the 2nd Am. and those of the 14th Am. P or I Clause are the same, and the Court stuck with that topic for the most part.

    Except for an interesting exchange with Scalia on s.d.p. Our hero asked Gura: "Is it easier to do it [i.e. protect individual gun rights at the state level] under privileges and immunities than it is under substantive due process?" Well, of course Gura didn't want to say he had a weaker case under s.d.p. than under p/i, especially since the Court had just signalled him that his p/i argument was about to be kicked into the next century; so he said no, it comes out the same under either clause.

    Then it went like this:
    SCALIA: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law when you can reach your result subsantive due -- I mean, unless you're bucking for a place on some law-school faculty --

    (Laughter)

    GURA: No, no, I left law school some time ago and this is not an attempt to -- to return --

    SCALIA: What you are arguing is the darling of the professoriate, for sure, but it's also contrary to140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which, as much as I think it's wrong, I have -- even I have acquieced in it?

    (Laughter)
    Now, if he hadn't added that part about thinking it's wrong, I'd have been mightily tempted to reply: "Because some authorities have opined -- with weighty arguments, I think, Justice Scalia -- that substantive due process is 'spinach.'"

    You like that "spinach" thing as applied to s.d.p.? I got it from Scalia, at one his FedSoc CLE's. But he headed off any such response, perhaps referring to majority opinions he has joined that acknowledge s.d.p. without warmly embracing it; perhaps to the highly restrictive "thus far and no farther"-type of acceptance reflected in his dissent in Troxel (which also hinted that he would be willing to overrule key s.d.p. precedents if asked to); or perhaps (I can dream, can't I?) to his plurality opinion in Michael H., including footnote six, which together sketch a rationale for both accepting and limiting s.d.p.

    Justice Ginsburg then engaged Gura in an interesting dialogue about how different societies that are all "free" nonetheless seem to maintain different lists of "fundamental rights." Gura accounted for these differences by arguing that he was not asking for the P/I Clause to be read as natural rights in the abstract, but natural rights as seen by the framers of the 14th Am.

    At that point, Scalia offered his "tradition and conscience of the people" test, noting that it is not just his test but one that the Court uses in s.d.p. cases. (This is actually true: see Glucksberg. And no, Lawrence is not to the contrary, because it does not purport to be grounded in even so diaphanous a doctrine as s.d.p.)

    Gura here gave a masterful response, showing how the argument from tradition had already figured in a recent Ninth Circuit decision on this very issue that also discussed the P/I Clause (I think he means this: see footnote five). But, as far as we know, the result was not to make Scalia say "Oh, so Judge O'Scannlain pointed out that the dissenters in Slaughterhouse reached results similar to what we've reached under s.d.p.? I'll have to take that on board." No, not today.

    Look for an s.d.p.-based opinion, disallowing Chicago's regulations but allowing, as Heller does, for some regulation of the protected right. But I do wonder what Thomas will say.

    :: David M. Wagner 4:56 PM [+] ::
    ...

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