Inspired by Sunstein, I spend a fair enough share of time reading blog posts from the Volokh Conspiracy, and frequently enjoy the discussions. Because several conspirators favor reading the second amendment to allow an individual gun ownership-right, they have posted aplenty on McDonald v. Chicago – the case before the Supreme Court this term that may incorporate the 2nd amendment to the states. What has really struck my interest is one of the plaintiff’s angles: the Court ought to incorporate the 2nd amendment with the 14th amendment’s privileges and immunities clause.
I’m pretty sure the following sentence is not hyperbolic: the Constitutional law sea change that would be effected by such a move would out-rank Brown v. Board and Roe v. Wade. A decision agreeing to overturn the Slaughterhouse cases would equal Marbury and Dred Scott in Constitutional importance.*
Back in August 2007, I mentioned a good question from a panel discussion: why isn’t Dred Scott more prominent in our explanation of the 14th amendment? You would think that, with state vs federal citizenship being at the heart of Taney’s decision — that decision being so clearly representative of the losing side in the Civil War, and the 14th amendment being the legal staple to the victorious side — that the citizenship discussion in the 14th amendment would clearly be understood in light of Dred Scott. Remember, Scott didn’t have standing because, wrote Taney, he was not a citizen. So:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Well. All that came to mind while I read a recent article on Slaughterhouse, the case that supposedly stripped all effect from the 14th amendment’s privileges and immunities clause. The conventional wisdom is that the case transferred to the states the power to enforce rights, thus depriving the federal government any ground to enforce fundamental human rights except under a bizarre theory of substantive (as opposed to procedural) due process. No one (left or right) has enjoyed the system, but it has continued on for a century and a half. Until, hope some, now.
So we’ll dedicate a little time to rights, citizenship, and the 14th amendment in the next post or two.
*Here’s my quick argument – Brown and Roe didn’t change the structure of Constitutional argument – they worked within existing structure. Marbury and Dred Scott affected jurisprudential structure – the former set the table for the Court’s last word on Constitutionality and the latter is, what I’d argue, what the 14th amendment attempted to correct (in regards to citizenship).
