Antonin Scalia

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.

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  1. What you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence.

    That 140 years of jurisprudence is an ass.

  2. I don’t think people are being fair to Scalia. He is just saying that the Court ought to always make as limited rulings as possible. Why overrule 140 years of precedence when you can accomplish the same result and not disturb any precedence?

    The answer of course is because the precedence is wrong. Scalia I think would respond by saying that the Court owes the country as consistent of an application of laws as possible. If you overrule Slaughterhouse a lot of law goes out the window. Now, maybe that is a good thing. But, it is also a lot of displacement and uncertainty that could be avoided by using substantive due process. If the other law is so bad, then bring a case before the court where overruling Slaughter is the only way to get to the proper result. Scalia doesn’t want to re-write law if he doesn’t have to.

    This whole exchange puts lie to the liberal cartoon that Scalia is some kind of a partisan lunatic aiming to destroy all established precedent in name of originalism.

    1. I think you are right on Scalia’s reasoning and he is wrong for reasoning that way. A decade plus ago, I saw him make a comment that basically said he avoids chaotic changes.

      Personally, I think “displacement and uncertainty” are good things.

      1. Its been awhile, I forgot the proper ending to that comment:

        Hail Eris!

      2. So, robc, you’re a Shadow as opposed to Scalia being a Vorlon?

    2. If you overrule Slaughterhouse a lot of law goes out the window. Now, maybe that is a good thing.

      …and Scalia won’t do that, or any of the others, because they are cowardly pieces of shit.

      Jesus fucking christ, it isn’t like the fucking world will implode if Slaghterhouse is overruled. Of course I could be wrong. Perhaps the etiology of the 2012 end of the world starts with the overturning of Slaughterhouse….. but probably not.

      1. You look at the court as a means to your ends. Scalia looks at the court as a place where cases are properly decided. If Slaughterhouse is that bad, bring a case where overruling it is required to get to the proper result. Don’t shoehorn it onto something else. And further, if all of the bad law under Slaughterhouse can be overruled for other reasons, why bother with Slaughterhouse at all. And who says this case is about Slaughterhouse? Right to bear arms is a substantive right just like every other right in the Bill of Rights. And thus, ought to be incorporated against the states via substantive due process.

        1. You just said the opposite up above. If Scalia believes the court is a place where cases are properly decided, he will properly decide, regardless of the chaos that it will cause.

          1. No. He will properly decide it on the narrowist grounds possible. Why cause chaos when you can get to the same result without having to do so?

            1. Nice one, Mayor Daley. Are the police here to preserve disorder, too?

            2. No, they should decide correctly, whether narrow or wide.

              1. they should decide rightly on the issue at hand. review of the Slaughterhouse cases is not the issue at hand. Rightly decided does not mean most perfectly right in every possible implication. If the other amendments are incorporated via Substantive due process, why should the 2nd be any different? no one is argueing (in this case) that the protection afforded via incorporation through SDP would be any less than through the Privileges or Immunities clause.

                  1. Could it be that Scalia is saying “don’t go there, Mr. Gura, because I’ll lose one of these four on our 2nd Amendment side if you argue P&I instead of SDP?” Perhaps why the NRA was given minutes?

                    1. Nick, that makes no sense as their is no requirement that the majority agree on the reason for their decision. They can have 5 different rationales and still agree on the outcome.

                1. Gura should be arguing both (as he is, or was before the NRA butted in) and see what sticks. Give the justices every chance to decide. However, if, as Scalia seems to be claiming, the substantive due process clause is wrong, he should overturn the Chicago laws by P&I. Let the rest of the majority overturn the laws via SDP.

                  1. Justice Scalia asked Gura what would be the point of using P&I. Even if Scalia thinks that Slaughterhouse was wrong and P&I should always have been used where the Due Process Clause has been, there’s still the question of what difference would it make to overturn the case now. So the Court made a wrong turn– but if it reaches all the same decisions under the Due Process Clause as P&I, what’s the difference?

                    Gura wouldn’t or couldn’t answer that question.

                  2. What would 5 different rationales in written concurrences do to those precedents? I’m just wondering what Scalia’s issue is with P&I.

                    1. What would 5 different rationales in written concurrences do to those precedents?

                      Absolutely nothing. That would be an example of “bad cases make bad law”.

                    2. What would 5 different rationales in written concurrences do to those precedents? I’m just wondering what Scalia’s issue is with P&I.

                      It appears to be that he doesn’t seem the point. Gura is explicitly arguing that Slaughterhouse be overruled as well, and that other courts be directed to use P or I where they have been using the Due Process Clause.

                      It’s reasonable to ask whether this means more than just a :%s/Due Process/Privileges or Immunities/g on a bunch of opinions.

          2. The tradition of deciding cases on the narrowest grounds possible is necessary as a check on the power of the court.

        2. The trouble is that Scalia’s dissent in Lawrence v. Texas called the court on its own hypocrisy– and carved out a decent argument for original intent.

          EVEN IF Scalia were rightly against overturning Slaughterhouse, Substantive Due does not make the best case for government intervention. Scalia himself has noted this.

          Looks like he’s the one being inconsistent now.

  3. $5 says that Thomas writes a concurring opinion (or dissent) mentioning P&I.

  4. SCALIA: ‘as much as I think it’s wrong, I have — *even* I have acquiesced in it?’ [emphasis added]

    *Even* an avowed ‘fainthearted originalist’ is willing to be fainthearted!

    Even the Pope admits that he’s Catholic!

    Even Radley Balko is against police abuses!

    Even President Obama admits that federal spending is a good thing!

    Even the Ku Klux Klan admits that black people are inferior!

    1. Even the liberal New Republic opposes Ron Paul!

  5. That old fogie does come off as a total pompous wind bag now doesnt he? I mean really.


    1. Spam-bot is clearly in the top 10% of H&R commenters for lucidity, sharpness, and ratio of correct comments.

      Hear, hear, motherfucker!

  6. Scalia is a hard core proponent of stare decisis. If it were up to him, no one would ever revisit settled precedent, no matter how stupid or wrong (see Gonzalez v. Raich).

    1. No he isn’t. He has overruled precedent before. But he is closer to that characterization than he is the liberal “he wants to destroy the law” one.

  7. One cannot be both an originalist and a hard-core proponent of stare decisis. Either the text of the Constitution is the ultimate touchstone, or previous case law is. Where they conflict, one has to prevail.

    I think we know where Scalia is on this question.

    1. Yes, he’s in the middle. Only Justice Thomas completely rejects stare decisis.

      1. Stare decisis to me seems like the lazy mathematician. Yes, you can derive starting from the work of others, but if you are correct, you should be able to do your derviation from first principles.

        1. All righty then. Starting from the ZFC axioms, derive the fundamental theorem of calculus. Show your work.

          1. Fortunately, Im not a mathematician. And Im lazy.

        2. Stare decisis to me seems like the lazy mathematician.

          You mean, how mathematics is actually done? If you mean not wanting to reinvent the wheel every time you solve a problem. Laziness is good; laziness is how civilization advances.

          Yes, you can derive starting from the work of others, but if you are correct, you should be able to do your derviation from first principles.

          And then, if you’re Louis de Branges proving the Bieberbach conjecture, other people come along and rewrite your proof in order to use well-known theorems and results so that other people can understand and use it.

        3. What proponents of stare decisis will point out, though, is that the law is unlike mathematics in that there’s rarely an objectively “correct” answer to any given problem — and, moreover, that millions of ordinary folks are expected to conform their behavior to the requirements of the law. Accordingly, stability and predictability are, in law, much more important than they are in mathematics, to the point that it’s sometimes — arguably — better to be consistently “wrong” than inconsistently “correct”.

          Now, personally, as a lawyer, I think that’s a pile of horseshit. For one thing, that the resolution of legal disputes is inherently subjective doesn’t mean there aren’t some questions that are fairly cut-and-dried. For another, laypeople are considerably more adaptable to changes in the law than many in my profession give them credit for. And for a third, only a fucking lawyer could imagine it’s better to be consistently wrong than inconsistently right.

  8. The court fucked up big time in the Slaughterhouse decision, and that decision isn’t made any better by a century and a half of compounding that error.


  9. they should decide rightly on the issue at hand. review of the Slaughterhouse cases is not the issue at hand.

    The Court has two ways to reach the “right result” of applying the 2A to the states.

    It can either extend a line of bad precedent (the due process incorporation cases), a line of cases which not coincidentally gives the Court a great deal of quasi-legislative power to weigh burdens and benefits and all that rot.

    Or, it can overturn a line of bad precedent (the Slaughterhouse case and its progeny).

    Which is preferable – extending a line of bad precedent to reach a good result, or overturning a line of bad precedent to reach a good result?

    1. since the issue at hand is deciding whether or not to incorporate the 2A, I will argue that both are equally preferrable in terms of achieving a “right” decision. since one SDP is easier, and there is no argument relevant to the case why the harder P&I route should be used (as even Gura admitted) SDP should be used.

    2. I secretly wish for the judicial anarchy that would result from a revival to S&I – but i know this is the wrong case for it.

    3. Which is preferable – extending a line of bad precedent to reach a good result, or overturning a line of bad precedent to reach a good result?

      But it sure would have been nice if Gura could have pointed to an actual difference in using P&I instead of substantive Due Process.

      The Justices (Ginsburg, Scalia, et al.) made Gura sound like he was saying “I want to have exactly the same results as the previous 140 years of rulings, just I want to overturn all of them and say that they’re justified under a different clause than what the Court has been saying.”

      He didn’t point to a specific case where using P&I would make a substantive difference from using the Due Process Clause. He was probably worried about losing a justice by arguing for a particular right, but it made resurrecting P&I seem a bit pointless, even if the right thing to do.

    4. While overturning the Slaugherhouse Cases is correct in the abstract, the uncertainty of calling into question every case and every law that has ever relied on the Slaughterhouse Cases makes it a questionable result. Heck, we don’t even have the first clue of what overturning the Slaughterhouse might result in. Dare I say that the Slaughterhouse Cases are too big to fail?

  10. “What you argue is the darling of the professoriate, for sure …”

    Damon, Nino just called you a homo.

    But I do think it’s cool that Scalia says “for sure.” I wonder if he’s into “bitchin'”.

    1. He’s a Valley judge.

  11. Since the 14th was written years after the 2nd, why can’t anyone successfully argue that the 2nd applied without restriction in the entirety of the jurisdiction of the US (including states, counties, cities, villages, hamlets, and outhouses) because it said “shall not be infringed” and made no reference to a governmental body granted or restricted WHEN IT WAS WRITTEN and there’s no later Amendment to remove that language?

    And, since there was no DC or non-state territory under federal jurisdiction at the time of the authoring of the Bill or Rights, no one could make a logical argument that it WOULDN’T apply to everyone, everywhere. No one knew there would be federal territory outside the several states at the time. So, once it is determined that a right to keep and bear arms is an individual right, and Madison and the signers certainly thought it was, end of fucking story.

    The word gun grabbers have always used to help their case is “well-regulated.” Well, here’s the definition as understood by the author of the Amendment.

  12. The courts prefer substantive due process to privileges and immunities for a pretty simple reason:

    Substantive due process allows for the application of balancing tests, the various “scrutiny” rules, etc. In other words, substantive due process protects rights in a highly contingent and limited way, that allows for their regular infringement whenever the courts think that infringement is a good idea.

    The privileges and immunities clause would be a broader brush, that would just knock laws down, instead of allowing the courts to finesse their application.

    Because P&I protects rights more absolutely, it has to be erased from history.

    1. Bull. If the Court used P&I, it would use it in the same way as the Due Process Clause. The Court invokes balancing tests all the time on clauses that are plain textual and don’t involve the Due Process Clause– not only Heller as applied to DC, but also First Amendment cases.

      Some justices– including Scalia (and Ginsburg and Souter) though not as much as Thomas– do tend to be more formalist and absolutist in rights, and some justices– like Breyer especially but also Roberts and Stevens– tend to be more pragmatist and invoke balancing tests.

      Those justices would each do so regardless of the clause used.

    2. I tend to agree with Fluffy – the due process clause is more fertile soil for judicial pro-state tinkering than the P & I clause, which would be more useful to a judiciary interested in expanding freedom via protection of unenumerated rights.

      Its right there in the DNA of the clauses – “due process” assumes that you will have some kind of (State) bureaucracy administering your activities, and does not provide any real footing for limiting the power of the state as opposed to fine-tuning how the State does whatever the fuck it wants.

      1. “”I tend to agree with Fluffy – the due process clause is more fertile soil for judicial pro-state tinkering than the P & I clause, which would be more useful to a judiciary interested in expanding freedom via protection of unenumerated rights.””

        I agree. I believe Scalia wants to keep the 2nd amendment subject to regulation.

      2. But the Court uses balancing tests all the time in rights that don’t involve the Due Process Clause in any way. When the Federal government infringes First (or Second or Fourth or Fifth) Amendment rights, the Due Process Clause isn’t involved, but balancing tests are still used, especially by justices with a certain pragmatic philosophy.

        No matter what textual clause is used, the pragmatist judges will invoke balancing tests.

  13. Oh, BTW, John – thanks for the email on how the scum in the Senate and House conspired to circumvent the Constitutional requirement revenue bills originate in the House. I shoulda known.

    1. You’re welcome. I kept trying to reply to your comments, but I kept doing it too late after you were no longer actively browsing that post.

      The parliamentary maneuver has basically rendering the Constitutional requirement null, but it’s difficult to pin down exactly where in the process of amendment by substitution the violation occurs. Hypothetically the House or Senate parliamentarian could call shenanigans, but the majority will never let that happen.

  14. After this, Justice Scalia’s claims of being an originalist can simply not be taken seriously by anyone.

    Well look who just woke up

  15. I think the ruling, when handed down, will not change shit with respects to gun regulations. It will re-enforce the concept that the 2nd amendment CAN be infringed. Collective right, or individual right, is mostly irrelevent if it can be legislated to near death.

  16. Scalia is afraid of nationalized abortion rights (after an eventual overturn of Roe) and gay rights and will use Slaughterhouse to keep them away.

  17. Scalia may also be giving a hint that there is a case under which it is appropriate to overturn Slaughter-House … but he wants the Seconds Amendment to stand on its own merit without requiring support from another. The right to bear arms, if it is indeed a fundamental right, should not need additional caveats, provisos, or shoring up. It either IS a fundamental right in which states and municipalities should not meddle or it IS NOT such a right.

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