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November 18, 2009

Should criminal justice reform groups actively urge SCOTUS to overrule The Slaughterhouse Cases?

As detailed in this effective SCOTUSblog post, the petitioners in the McDonald case concerning whether the Second Amendment applies to the states have filed "a wide-ranging survey of the meaning and origins of the  privileges clause of the Fourteenth Amendment [with] only seven pages of the 73-page brief are devoted to another provision of that Amendment: the Due Process Clause.... In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down ... the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity." 

At yesterday's OSU symposium, lots of the legal luminaries were buzzing about this brief and about whether the Supreme Court would really consider overuling The Slaughterhouse Cases.  Orin Kerr has now shared some of his thoughts on this topic in posts over at Volokh, and other Conspirators are also buzzing about the McDonald brief.  Here are links to some of these posts:

There is some much fodder for constitutional commentary in the McDonald brief, I am not sure where a con law guru would start to unpack all the great issues the brief raises.  But I am sure what at least one sentencing guru would like to discuss: whether persons or groups seriously interested in criminal justice reform ought to actively support the effort in McDonald to overrule The Slaughterhouse Cases.

I ask this question for two reasons: (1) I tend to view any constitutional development that stirs the pot as good for those interested in criminal justice reform, so my first instinct is that reform groups ought to actively support overruling The Slaughterhouse Cases, and (2) I think it is safe to assume that the dissenters in Heller (aka the supposed liberals) might well be drawn toward overruling The Slaughterhouse Cases if and only if some traditionally liberal advocacy groups seriously support the effort to do so.

Put another way, the McDonald brief urging the Supreme Court to overrule The Slaughterhouse Cases provides more evidence for my view that the awakening of the Second Amendment through the Heller ruling has started to take us through the modern constitutional looking glass.  I have generally been disappointed that many traditional criminal justice reform groups have failed to actively embrace the potential of Heller, and now I am wondering — really hoping — that the new McDonald brief will spotlight Heller's profound potential.

A few related new and old Second Amendment posts:

November 18, 2009 at 11:43 AM | Permalink


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I'm not quite sure why anyone would argue against overturning those cases. I thought the brief's opening comment that there is near universal agreement that they are and always have been unconstitutional to be correct. In fact, as far as I am aware most of the commentary against Slaughterhouse has been by "liberals" although Doug might more clearly explain what he means by that term.

I don't really comprehend why this is considered to be a "revolution" either. That revolution happened many years ago.

Posted by: Daniel | Nov 18, 2009 2:02:10 PM

It is academically interesting whether most of the Bill of Rights is incorporated through the Privileges and Immunities Clause or the Due Process Clause, but I don't see that it has much practical significance. I don't see the Supreme Court overruling any of the decisions incorporating various criminal law protections or the Hurtado decision declaring the Indictment Clause not incorporated. What's left? Excessive fines? They'll get around to expressly declaring that incorporated sooner or later, whether it's P&I or DP.

I also disagree that stirring the constitutional pot is good for reform, but then we probably have different ideas of what constitutes "reform."

Posted by: Kent Scheidegger | Nov 18, 2009 4:13:52 PM

This case also has potential implications for the felon-in-possession law, given that the court held that all gun laws must be independently justified notwithstanding the Heller Court's dicta. I actually think the domestic violence misdemeanant ban, which is limited to persons with a proven record of violence, is considerably more defensible under intermediate scrutiny than a blanket ban on possession by felons.

Posted by: desuetude | Nov 18, 2009 5:28:54 PM

Sorry, wrong thread.

Posted by: desuetude | Nov 18, 2009 5:29:32 PM

"It is academically interesting whether most of the Bill of Rights is incorporated through the Privileges and Immunities Clause or the Due Process Clause, but I don't see that it has much practical significance."

It's significant because there's this urban legend that's been floating around various factions of the Originalist crowd for years that incorporating the Bill of Rights through the Privileges or Immunities Clause instead of the Due Process Clause will provide a basis for overruling most of the substantive due process precedent (abortion, etc).

Posted by: JC | Nov 18, 2009 6:33:47 PM

I'm pro-life, by the way (I didn't mean for that last post to give an impression to the contrary).

Posted by: JC | Nov 18, 2009 7:14:18 PM

JC, I hadn't heard that one. Anyhow, just to clarify, my comment was made in the context of the original post's question about criminal justice issues. I wasn't addressing Roe v. Wade, etc., issues my organization takes no position on.

Posted by: Kent Scheidegger | Nov 19, 2009 12:10:29 PM

If you read David Kopel's blog post, I think you'll see that his quote about "a superb brief ... worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious" is in reference to Petitioner's brief, not in reference to the NRA brief.

Posted by: Rowen | Nov 19, 2009 2:27:21 PM

JC is partially correct: Adopting the bill of rights through the PI Clause rather than the DP Clause runs the risk of abrogating many of the right the Supreme Court has recognized under the DP Clause. BUT this concern is not just "urban legend" (on that point, JC is incorrect). Justice THOMAS (who is probably the biggest proponent of overturning The SlaughterHouse cases and breathing new life into the 14th Amend's PI Clause) has virtually admitted this to be true.

Thomas has intimated that the PI Clause should "displace, rather than augment" any rights that have been recognized under the DP Clause which are also not specifically listed in the first 8 Amendments:

"Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case. . . [Before doing so], [w]e should also consider whether the Clause should DISPLACE, rather than augment, portions of our equal protection and substantive due process jurisprudence.” Thomas then describes the DP Clause as a "convenient tool for inventing new rights, limited solely by the 'predilections of those who happen at the time to be Members of this Court.'"

Saenz v. Roe, 526 U.S. 489, 527 (1999) (Thomas, J., concurring).

In other words, Thomas wants to overturn The SlaughterHouse cases because, in doing so, it should overturn much of the Court's 14th Amend. procedural and substantive due process jurisprudence.

So, to answer the post's question: Assuming: a) Thomas has his way, and b) it is not in the criminal justice reform groups' interest to overturn/"displace" much of the 14th Amend.’s DP Clause; Then c) No, such groups should not actively urge SCOTUS to overturn The SlaughterHouse cases.

All that being said, if the assumption in a) is not met (i.e. The Court overturns The SlaughterHouse cases, yet the PI Clause is interpreted to "augment" or be "in addition to" the rights previously recognized under the DP Clause), then it might be a good development for such groups.

Posted by: DEJ | Nov 19, 2009 3:26:09 PM


I am confused by your post's assertion that if the Court overturns The SlaughterHouse Cases, then the 5th Amend's Grand Jury requirement would not be enforceable against the states.

Of course, overturning The SlaughterHouse Cases, would not require overruling Hurtado v. CA, 110 U.S. 516 (1884). That case only held that the DP Clause does not require Grand Jury proceedings in state court.

Yet, if the Court overrules The SlaughterHouse Cases, then ALL (i.e. each and every one of) the rights found in the first 8 Amendments would be enforceable against the states, including the Grand Jury requirement. At least, that was my understanding of what the PI Clause would mean.

If that's true, I'm surprised the Petitioner's brief did not address how such a change impacts the court's stare decisis decision. Then again, maybe it's more of an argument for the Respondents to make.

Posted by: DEJ | Nov 19, 2009 3:43:36 PM

DEJ, so there would be a constitutional right to a jury trial in a state civil case for $21?

I don't doubt that in theory the Court *could* reconsider the P&I clause and resurrect Justice Black's total incorporation view. I just don't think there is a snowball's chance in hell they will really do it.

Posted by: Kent Scheidegger | Nov 19, 2009 7:16:37 PM

Kent, The impression I got, after reading the Petitioner's brief, was that if the Court adopted the intent of the framers, as outlined in that brief, then total incorporation would be the implication. The framers continually referenced the first 8 and said they would be applied against the states via the PI Clause. Now, selective incorporation under the DP Clause was the route that eventually became historically necessary, given the holding of The SlaughterHouse Cases. It's not about "reconsider[ing]" Black's view, because that debate was only necessary under a DP Clause analysis, as opposed to "intent of the framers" PI Clause analysis.

Put another way, if the PI Clause is resurrected, in favor of the framer's intent, then total incorporation seems to be the logical result.

Posted by: DEJ | Nov 19, 2009 8:39:39 PM

You can read it that way, and it may indeed be the "logical result." However, I think the Justices have enough wiggle room to avoid total incorporation if they want to, and I think they very much want to. For example, at page 2765 col. 3 of the Congressional Globe, Sen. Howard refers to the privileges and immunities as including the first eight amendments but then he proceeds to list them, and grand jury indictment and civil-case juries are not on his list.

Posted by: Kent Scheidegger | Nov 20, 2009 1:11:04 PM

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