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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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    :: Monday, June 28, 2010 ::
    More about McDonald: The majority leaves the issue of the Privileges or Immunities Clause substantially untouched. In a section that is plurality only, the Alito opinion (with Scalia on board) says there is no need here to revisit the P/I Clause and the Slaughterhouse Cases, since the Due Process Clause is the established way in which the Court has long applied the Bill of Rights to the States.

    Precedent to one side (and yes, I enjoy saying that!), this makes no sense, for reasons Justice Scalia has eloquently explained on other occasions, but it faithfully reflects his line of questioning at oral argument in this case.

    Justice Thomas concurs separately, making the Scalian argument -- what part of "process" don't you understand? (I paraphrase) -- and going on to argue that the P/I Clause is the proper 14th Am. vehicle for incorporating the 2nd Am.

    There will be debate on whether or not this decision slams the door shut on reviving the P/I Clause, with the affirmative using a sort of J.R. Ewing argument: "Barnes, if you didn't get me this time, you never will." I stand by my statement: substantially untouched. The majority basically left the P/I Clause alone; the plurality portion of the Alito opinion used a the low-octane "no need to revisit" grade, rather than "plus" or "super."

    :: David M. Wagner 10:27 AM [+] ::

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