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Somin on McDonald

By Lawrence Solum

Ilya Somin has a post entitled Why Not the Privileges Or Immunities Clause? on The Volokh Conspiracy. Here is a taste:

Why did the plurality make this choice? They cite two reasons ? the failure of the petitioners to explain the exact scope of the rights protected by the Privileges or Immunities Clause, and longstanding precedent:

In petitioners? view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, ..., but petitioners are unable to identify the Clause?s full scope..... Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases? interpretation is flawed... We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-Householding.

Tellingly, these supposedly originalist justices offer no originalist justification for their conclusion. The precedent argument is at least understandable, though the Court has often been willing to reverse longstanding precedent when it believed that important constitutional rights were at stake. But the vagueness argument is extremely weak. 

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