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Does Neil Gorsuch Side With Clarence Thomas or Antonin Scalia on the 14th Amendment, The Slaughter-House Cases, and the Privileges or Immunities Clause?

Supreme Court nominee Neil Gorsuch has something in common with both Justice Clarence Thomas and with the late Justice Antonin Scalia. All three jurists are known as proponents of originalism, which is the idea that the Constitution should be interpreted according to its original meaning at the time it was adopted.

ReasonReasonYet despite their shared affinity for originalism, Thomas and Scalia disagreed on some fundamental questions of constitutional law. Most notably, Thomas and Scalia disagreed about whether the Supreme Court should revive and enforce the original meaning of the Privileges or Immunities Clause of the 14th Amendment. I'd like to know where Neil Gorsuch stands on this crucial divide.

Here's the deal. According to the 14th Amendment, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." What are the privileges or immunities of U.S. citizens? According to Republican Congressman John Bingham of Ohio, the author of that section of the 14th Amendment, "the provisions of the Constitution guaranteeing rights, privileges, and immunities to citizens of the United States" include both those enumerated rights that are specifically spelled out somewhere in the Constitution—such as in the Bill of Rights—as well as other fundamental rights that are not enumerated in the document. Among the fundamental unenumerated rights that are secured against state abridgment, Bingham told the House of Representatives, was the "constitutional liberty...to work in an honest calling and contribute by your toil in some sort to the support of your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil."

The 14th Amendment was ratified in 1868. The Supreme Court first ruled on its meaning five years later in a dispute known as The Slaughter-House Cases. At issue was the granting of an exclusive and highly lucrative slaughterhouse monopoly to a private corporation by the Louisiana legislature. According to a number of New Orleans butchers, the monopoly law was an act of pure special interest cronyism that violated their fundamental rights to economic liberty under the 14th Amendment.

The Supreme Court disagreed, ruling 5-4 in favor of the state and its corporate beneficiaries. According to the majority opinion of Justice Samuel Miller, to view the Privileges or Immunities Clause as a guarantee of individual rights against any sort of state law or regulation would "fetter and degrade the State governments" and transform the Supreme Court into "a perpetual censor upon all legislation of the States." Miller's opinion effectively gutted the Privileges or Immunities Clause.

The principal Slaughter-House dissent was filed by Justice Stephen Field, who argued that the majority had just trashed the original meaning of the 14th Amendment. "It is to me a matter of profound regret that [the monopoly's] validity is recognized by this court," Field wrote, "for by it the right of free labor, one of the most sacred and imprescriptible rights of man, is violated." In Field's view, "the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the states which adopted it."

From the standpoint of constitutional originalism, Field had the winning argument. But he failed to carry the day at SCOTUS. Slaughter-House remains what lawyers call "good law" to this day.

Which brings us back to Clarence Thomas and Antonin Scalia.


In 2010 the Supreme Court finally had the opportunity to revisit The Slaughter-House Cases. At issue in the case of McDonald v. City of Chicago was whether the Second Amendment right to keep and bear arms applies against state and local governments via the 14th Amendment, and if it does apply, is that because the right to keep and bear arms is a privilege or immunity of U.S. citizenship, or because it is one of the liberties protected by the Due Process Clause of the 14th Amendment ("nor shall any State deprive any person of life, liberty, or property, without due process of law").

During the March 2010 oral arguments in that case, Justice Scalia openly mocked the idea of reviving the original meaning of the Privileges or Immunities Clause. "Why are you asking us to overrule 150, 140 years of prior law?" Scalia asked the libertarian lawyer Alan Gura, who was representing Otis McDonald in his gun rights fight. "Why do you undertake that burden," Scalia went on, "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 was a jaw-dropping moment. For decades Scalia had attacked the idea of using the Due Process Clause to protect substantive individual rights, denouncing it as a "judicial usurpation" and as an excuse "to render democratically adopted texts mere springboards for judicial lawmaking." Yet here was Scalia, a self-professed originalist, failing to practice what he preached in a major case dealing with the original meaning of the 14th Amendment.

Clarence Thomas kept quiet that day, as he usually does during oral arguments. But he spoke up loud and clear in his written opinion. Whereas Justice Scalia, Justice Kennedy, and Chief Justice Roberts joined the majority opinion of Justice Alito, which applied the Second Amendment against the states via substantive due process, Justice Thomas filed a lone concurrence that argued for applying the Second Amendment against the states via the Privileges or Immunities Clause and thereby restore the long lost original meaning of that provision. Thomas also strongly implied that Slaughter-House should be overruled. "The mere fact that the [Privileges or Immunities] Clause does not expressly list the rights it protects does not render it incapable of principled judicial application," Thomas wrote.

In short, Justice Thomas stood up for the original meaning of a core constitutional provision while Justice Scalia "acquiesced" to an approach that Scalia himself described as un-originalist and "wrong."

Where does Neil Gorsuch stand on the matter? Does he side with Justice Thomas and favor the judicial enforcement of the Privileges or Immunities Clause, or does he side with Justice Scalia and support maintaining the substantive due process status quo? The Senate Judiciary Committee should ask him about these fundamental constitutional issues during this week's confirmation hearings.

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  • Rich||

    OT: Been watching C-SPAN's coverage of Comey & Rogers.

    Had to laugh over Rep. Terri Sewell's righteous indignation over Flynn's transgressions.
    She wants him to be criminally investigated,
    "just like former Secretary ClintHAHAHAHAHAHAA!! Damn, couldn't quite get it out!

  • Damned||

    Probably because hypocrisy is sharp-edged. Clinton was subjected to eight different Benghazi tribunals, none of which concluded anything more than the first one did: shit happens.

  • Rational Exuberance||

    Probably because hypocrisy is sharp-edged. Clinton was subjected to eight different Benghazi tribunals, none of which concluded anything more than the first one did: shit happens.

    Congressional hearings are mostly for the benefit of voters, and voters concluded they didn't want Hillary.

  • Diane Reynolds (Paul.)||

    I heard this morning that Goruch is a member of the Federalist Society.

  • WakaWaka||

    "All three jurists are known as proponents of originalism"

    Thomas identifies as an 'orginalist' and Scalia identified as a 'textualist'. There is a slight difference between the two.

    "At issue in the case of McDonald v. City of Chicago was whether the Second Amendment right to keep and bear arms applies against state and local governments via the 14th Amendment"

    The real question of that case was rectifying an asinine decision that the Court made at the turn of the 20th Century. The Court decided to selectively incorporate the Bill of Rights, rather than just applying all of the Bill of Rights at once. The 2nd Amendment was one of the Rights that the justices refused to ever incorporate. Almost none of this had to do with the 'due process' clause. The pressing question was whether or not the 2nd Amendment should be incorporated. Which is an asinine argument if you are an 'originalist' or a 'textualist' as the 14th Amendment specifically calls for incorporation. Selective incorporation is the most vile cop-out that the Court has ever taken

  • Uncle Jay||

    RE: Does Neil Gorsuch Side With Clarence Thomas or Antonin Scalia on the 14th Amendment, The Slaughter-House Cases, and the Privileges or Immunities Clause?

    "Supreme Court nominee Neil Gorsuch has something in common with both Justice Clarence Thomas and with the late Justice Antonin Scalia. All three jurists are known as proponents of originalism, which is the idea that the Constitution should be interpreted according to its original meaning at the time it was adopted."

    Oh no!
    Not that!
    Not originalism!
    We must have SCOTUS justices who are progressive enough to believe the US Constitution is a living breathing entity. Otherwise socialist programs will be struck down, capitalism will continue to scar the country and our beloved socialist slavers oppressing us will be frustrated in their valiant attempts to suppress us all.
    Please!
    Anything but originalism.

  • Quo Usque Tandem||

    I'm just gonna sit back and watch the show. Should get especially good when the Republicans get enough of Mr. "I was born to legislate" Schumer and company, and use their own "nuclear option" against them.

    I can hardly wait for the yelling and screaming, because that is all that will be left.

  • Longtobefree||

    He will only be asked one question. "Were you nominated by Donald Trump?"
    When he answers "yes", he will be disqualified from consideration.
    Nothing else matters.

  • Rational Exuberance||

    It's because Obama had called dibs on a third supreme court justice. Nominating another irrational partisan hack wise Latina was his Birth Right! His Birth Right I Say!!!

    That's why Democrats are now entitled to throw any temper tantrum they like!

  • Let freedom ring||

    The most vile cop out the Supreme Court has ever taken is to not hear any appeals from Tax Honesty appellants. The Supreme Court has always held that the income tax is an excise tax, but if you walk into federal court with that argument in almost half the circuits you can be sanctioned. This means that you have no clearly defined due process rights. There is a big difference between holding the income tax is an excise tax , which is laid on activities and privileges, or some kind of hybrid, un apportioned direct tax, which almost half the circuits vaguely hold, but the Supreme Court has never said it is.

  • Quo Usque Tandem||

    From where do to you think those judges derives their generous salaries and benefits???

  • Bubba Jones||

    I don't understand why this matters. The Constitution says that Congress can tax income.

    Article XVI (Amendment 16 - Income Tax)
    The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

  • Dan S.||

    Isn't a grant of monopoly forbidden by the Equal Protection clause? After all, it is by definition a grant of "protection" not given to others.

  • Scarecrow Repair & Chippering||

    There are a zillion ways in which court rulings are rationalized to fit the desired end. I bet if you were to analyze such rulings, very few would be based on actual sound logic.

    One of my fav pet peeves is the hypocrisy in allowing learned appeals court judges to rule by majority vote when criminal case juries have to be unanimous. I say if learned judges, with months and even years to come to a conclusion, can't agree on what a law means, the law should be thrown out entirely, and if it's a lower court case they are deciding, that case should be decided in favor of the individual against the State, and if it's two non-State parties, the case should be thrown out.

    It's pathetic expecting individual people to know more about what's right and wrong than judges with decades of experience.

  • Damned||

    Agreed.

    Then you consider how originalists determine the meaning of phrases from 200+ years ago and it becomes more clear that the court of law is a political body.

    Gun rights supporters affirm the Heller correctly determined what the 2nd Amendment clearly meant. Funny how for decades before, very qualified judges did not reach that conclusion.

    Because the words are so clear?

  • AD-RtR/OS!||

    YES! But, for the particulars, we'll have to wait for some decisions.

  • Barry Gold||

    I will ask the same question I asked about another article: Why should the privileges and immunities clause cover the right to seek a living, but not the right of privacy -- in particular sexual privacy? Both of these are things that most people take for granted, and would have done so in 1787.

    That first question was, perhaps, rhetorical. I'll ask a second question that actually puzzles me. The right to keep and bear arms is explicit in the Constitution, in particular the Second Amendment. Years of jurisprudence, going back to either Chicago, Burlington and Quincy Railroad v. City of Chicago (1897) or Gitlow v. New York (1925), have used the 14th amendment to apply individual rights against the states as well as the federal government -- the "incorporation doctrine". That being the case, why does it matter whether the RKBA is applied via "substantive due process" or via "privileges and immunities"?

    Finally, does the 9th amendment mean anything? I can't seem to find any cases that were decided based on the 9th amendment's statement that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

  • Damned||

    It was cobbled up so that they could get to the number 10.

    Seriously, the constitution was shoved down people's throat after a short period of four months Four months in the 1780s, with the communications medium that exists then? So bad it was that they had to hammer through 10 more changes in just about a year.

  • Barry Gold||

    Based on the timeline at https://usconstitution.net/consttime.html it appears that it took slightly over 9 months to ratify the Constitution. It took a year and 8 months before the last state (RI) ratified it. (Vermont at 1791/03/04 doesn't count, because VT was part of NH when the Constitution was adopted.)

    Looking over that timeline, I also infer that for the most part it was the nearest states that ratified in the first 3 months: DE, PA, NJ. (Why DE ratified before PA when the Congress was in PA at the time... OTOH PA is a big state as East Coast states go, and DE is tiny and quite close to Philadelphia.)

    But after that it doesn't look like geography played a role. Georgia was 4th, and they're a long way (by the standards of the time). Farther than Medford, OR to San Diego, CA.

  • Barry Gold||

    And I should add that the Bill of Rights was pretty much demanded by some of the states -- those with significant Anti-federalist minorities (or even majorities who were nonetheless willing to ratify for the benefits it brought) as a _condition_ of ratification. And Hamilton made good on that condition by submitting the Bill of Rights shortly thereafter. At least acto the history given in Wikipedia.

  • Damned||

    The 14th Amendment was ratified in 1868. The Supreme Court first ruled on its meaning five years later
    So much for originalism, that something as recent as five years prior to the ruling was not understood even as people fucking lived in those very times.

    But no worries, today's originalists are perfect in divining the crystal clear meaning of phrases in the Constitution hurried cobbled up in 3-4 months, 200+ years ago.

    Say, what does the so-called Judge Napolitano say about this?

  • Barry Gold||

    Calling a judge "so-called" reeks of Trumpism. Please let us engage in a somewhat more civilized debate than that. If only judges that you agree with are "real" judges, and if I happen to disagree with you on some topics, and only judges that _I_ agree with are "real" judges, then there are no real judges.

  • Rational Exuberance||

    Calling a judge "so-called" reeks of Trumpism.

    You say that as if it's a bad thing.

  • Rational Exuberance||

    But no worries, today's originalists are perfect in divining the crystal clear meaning of phrases in the Constitution hurried cobbled up in 3-4 months, 200+ years ago.

    Well, the US government is one of limited, enumerated powers. So, if there is any doubt about whether some power has been granted to the US government, then the default ought to be to assume that the US government lacks that power.

  • Rational Exuberance||

    It works just like legislation: you've got to vote for the SCOTUS justice to know what's in him.

  • Ladyhawk||

    Waaaaay better than letting Nancy Pelosi tell us what it says.

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