Legal News

Is Thomas the Last Hope for a ?Privileges or Immunities? Revolution?

By Ashby Jones

A piece by Tony Mauro on the BLT blog on Friday put us at ease a bit — reminded us that we’re not the only ones fascinated by the Supreme Court’s seeming unwillingness to breathe new life into the 14th Amendment’s Privileges or Immunities clause. Even the so-called “originalists” on the case, most notably Justice Antonin Scalia, hinted that going forward, PorI would continue to be a dead item. Click here for a post we did on the situation last week.

As we’ve written before, at issue is whether the court will extend the Second Amendment to the states and if so, how. The court has previously used the 14th Amendment as the vehicle through which other amendments were extended to the states. While the court has typically used the Equal Protection Clause to justify “incorporation,” many were hoping the court would, in the recent gun-control case, use the 14th Amendment’s moribund Privileges or Immunities Clause to do the job. Folks have suspected that use of the PorI clause could open a new era in constitutional interpretation, and open the door to a whole new trove of individual rights.

In an email exchange with Doug Kmiec, the former Republican White House lawyer who notably supported Barack Obama during the 2008 election (and got himself an ambassadorship to Malta after Obama won the election), Mauro explored the court’s unwillingness to resuscitate PorI — something many “originalists” or “textualists” had hoped to see.

Kmiec’s great hope: That Justice Clarence Thomas will support a PorI revival — because it probably ain’t gonna be Scalia. Writes Kmiec:

Perhaps it is seeing things at a distance that brings clarity, but even my Maltese law students (diplomats get to guest lecture from time to time) can see something is amiss when the ‘originalists’ on the bench favor the nonoriginalist penumbras of substantive due process over the tender of an historically grounded ‘privileges or immunity’ argument.

. . .

Justice Thomas sat silently as usual, but as a voice that has called upon the Court to re-examine the anti-textualism of Slaughterhouse, here's hoping that his honest voice will be raised – not necessarily to approve the claim that the drafters and ratifiers of the Fourteenth Amendment perceived the limitations of that Amendment to support a non-militia right to ‘keep and bear arms,’ but to at least redirect the Court's analysis to – as anyone of a hundred Federalism chapters or events would proclaim – the constitutional text as it exists.

Is this the hope now among conservatives and originalists (or as Kmiec calls them, “textualists”) — that Justice Thomas is the lone court member who might be willing to incorporate the Second Amendment to the states through the Privileges or Immunities Clause?

Ah, we can hardly wait for June.

Full post as published by Law Blog - WSJ.com on March 08, 2010 (boomark / email).