Time for SCOTUS to Pass the Rights Buck to Congress

Last week, during oral arguments the originalist justices on the Supreme Court missed a chance to pass the responsibility to create and enforce rights from the courts back to Congress.

Last week, the Supreme Court heard oral argument in McDonald v. Chicago.

Sadly, the originalist justices were a disappointment, revealing again that they are judicial supremacists first, and restrainists second.

The principal issue before the Court was the incorporation of the Second Amendment, whether the constitutional right to bear arms applies against the states.  Of possibly greater significance, however, was the opportunity this case presented to clean up the jurisprudence of the Fourteenth Amendment, a mess since the Court's counterrevolutionary brethren gutted it of its original meaning.  The Court was asked to incorporate the Second Amendment by way of the long dormant privileges and immunities clause, rather than the due process clause.  By taking this opportunity, the Court not only would have made some sense of the Fourteenth Amendment, no small achievement given the continuing need for citizenly engagement with the founding charter.  It would also have signaled that in our constitutional system the people's representatives in Congress are primarily responsible for the creation and enforcement of rights.

Reliance on the due process clause for rights protection is an invitation to judicial adventure.  By contrast, the privileges and immunities of citizens are creatures of common and statutory law.

But the originalist justices balked at restoring the amendment's clear meaning.  As reported at Scotusblog, the Chief Justice responded to the privileges and immunities argument by noting that the Court had abandoned that approach in the Slaughterhouse Cases in 1873.  For an originalist, even a cautious one like the Chief Justice, the existence of this precedent should not be the end of the inquiry.  The originalist ought to consider that the Court betrayed the meaning of the amendment in Slaughterhouse, rendering the privileges and immunities clause effectively meaningless.  And our constitutional law of constitutional rights has been a judicial-driven abomination since.

Justice Scalia was not at his best either.  He asked the advocate "[w]hy are you asking us to overrule 140 years of prior law... unless you are bucking for a place on some law school faculty."  He continued, stating that this "darling of the professorate" was unnecessary, given that even he has acknowledged the role that due process might play in incorporation.

Though conservatives are inclined to do so, perhaps out of fear that it might prove another avenue for judicial activism, it is shortsighted to applaud these too casual dismissals of the privileges and immunities clause.  First, given that the professorate is certainly correct that the Fourteenth Amendment, originally understood, was meant to secure rights through the privileges and immunities clause, it undermines the originalist claim to historical integrity to write off this original meaning by pointing to an appallingly mistaken decision of the Court.  Second, given that privileges and immunities are created and supervised in large measure by elected representatives, the Court's originalists lost the opportunity to channel decisions about rights expansion to Congress and the state legislatures, where they generally belong in a democracy.

It is certainly true that longstanding precedents should not be casually overturned, and the privileges and immunities clause has been dead for over 100 years.  At the same time, it would be encouraging if the GOP's judicial nominees were more sympathetic to the constitutionalism of the first Republican president, Abraham Lincoln.  As Lincoln understood, the Court might have the last word in a particular case.  But the Court is not infallible, and the people and their representatives have obligations as citizens and constitutional officials to interpret the document themselves.  When the Court undercut the Fourteenth Amendment's meaning and operation in its infancy, it was unfaithful to the Constitution's meaning and set in motion a judicial supervision of rights that has continued to undermine the institutional position of the Court.  Such a decision should not be accorded the full protection of stare decisis.

As Justice Scalia has said elsewhere, the Court is under constant assault by the public and elected officials.  This is a new development.  It used to be that nobody much cared what the justices did, so long as they refrained from lawmaking better suited to elected officials.

By restoring the original meaning of the Fourteenth Amendment and reviving the constitutional guarantee of privileges and immunities, originalists could deny the Court of opportunities to engage in the essentially political activity of rights definition, and redirect the attention of interest groups to the lawmakers who are constitutionally charged with defining and securing our essential liberties.