Justice Scalia's Faint-Hearted 14th Amendment Originalism


As Brian Doherty reported here yesterday after attending oral arguments in the landmark gun rights case McDonald v. Chicago, the Supreme Court seems very likely to incorporate the Second Amendment against the states via the Due Process Clause of the 14th Amendment. If that's indeed what happens, it would be a major victory for gun rights but an unfortunate defeat for the Constitution. That's because the Court would have rejected an ideal opportunity to revive the 14th Amendment's Privileges or Immunities Clause, which was specifically designed and ratified to protect individual rights from state abuse but was rendered a dead letter by the Court in the atrocious 1873 Slaughterhouse Cases.

It's particularly notable that Justice Antonin Scalia, one of the Court's biggest critics of substantive due process, appeared decidedly uninterested in restoring the Privileges or Immunities Clause. Consider this exchange with attorney Alan Gura (from the transcript):

JUSTICE SCALIA: Mr. Gura, do you think it is at all easier to bring the Second Amendment under the Privileges and Immunities Clause than it is to bring it under our established law of substantive due?

MR. GURA: It's -­

JUSTICE SCALIA: Is it easier to do it under privileges and immunities than it is under substantive due process?

MR. GURA: It is easier in terms, perhaps, of—of the text and history of the original public understanding of -­

JUSTICE SCALIA: No, no. I'm not talking about whether—whether the Slaughter-House Cases were right or wrong. I'm saying, assuming we give, you know, the Privileges and Immunities Clause your definition, does that make it any easier to get the Second Amendment adopted with respect to the States?

MR. GURA: Justice Scalia, I suppose the answer to that would be no, because -­

JUSTICE SCALIA: Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law, when—when you can reach your result under substantive due—I mean, you know, unless you are bucking for a—a place on some law school faculty -­


MR. GURA: No. No. I have left law school some time ago and this is not an attempt to—to return.

JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, I have—even I have acquiesced in it?

It's safe to say that "darling of the professoriate" is not Scalia's idea of a compliment. Writing at the Pacific Legal Foundation's blog, legal scholar Timothy Sandefur says the conservative justice sullied his reputation with those comments:

It was very frustrating, though, to hear Justice Scalia, who persists in calling himself an originalist, deride and make fun of Mr. Gura's arguments. He accused Mr. Gura of arguing for the overruling of Slaughter-House in order to "make a name for himself" so he could become a law professor, and said overruling Slaughter-House is the "darling of the professoriat." He said he was much more willing to rely on substantive due process–which he believes is a errant doctrine–than to revive the privileges or immunities clause. After this, Justice Scalia's claims of being an originalist can simply not be taken seriously by anyone. Here there is no question at all that, whatever else might be said about Slaughter-House, it does not represent the original intent or original meaning of the Fourteenth Amendment. Yet he openly said he was more comfortable using a different theory–one he has repeatedly attacked in his decisions–rather than return to the original meaning.

Read Reason's coverage of the case here. And keep an eye out tomorrow for Brian Doherty's report from inside the hearings.