Federal Judiciary

Privileges or Immunities Clause alive again

By Akin Gump Supreme Court Practice Group

Randy Barnett is a professor at Georgetown Law Center, and filed an amicus brief in favor of the petitioner in McDonald v. Chicago.

Today, the Privileges or Immunities Clause has risen from the grave.  Only a plurality was willing to use the Due Process Clause to apply an individual right to the states.  The crucial fifth vote was provided by Justice Thomas? extensive fifty-six-page originalist opinion that rested solely on the Privileges or Immunities Clause.  Neither Justice Alito for the plurality, nor Justices Stevens or Breyer in dissent, even attempted to impeach Justice Thomas? analysis, which now stands uncontradicted in the Supreme Court Reports.  Decades of academic research that has lead to a remarkable consensus among constitutional scholars that The Slaughter-House Cases was wrongly decided have now been vindicated.  Only a remarkably tepid and barely defended assertion of stare decisis by Justice Alito now stands in the way of a complete restoration of the ?lost? Privileges or Immunities Clause at the heart of Section One of the Fourteenth Amendment.  Not that this will happen overnight.  It took twenty-five years for Justice Powell’s lone 1978 opinion in Bakke — in which he accepted ?diversity? as a rationale for affirmative action in schools — to be adopted by a majority of the Court in Grutter.  But adopted it eventually was.

Full post as published by SCOTUSBLOG on June 28, 2010 (boomark / email).