Be Careful What You Wish For: Why McDonald v. City of Chicago’s Rejection of the Privileges or Immunities Clause May Not Be Such a Bad Thing for Rights
By Jeffrey D. Jackson.
On June 28, 2010, the United States Supreme Court handed down its much-anticipated decision in McDonald v. City of Chicago, holding that the Second Amendment’s right to bear arms is incorporated against the States by the Fourteenth Amendment’s Due Process Clause. Despite a valiant effort by the plaintiffs and various amici, the Court declined to adopt the Fourteenth Amendment’s Privileges or Immunities Clause as a vehicle for incorporation, and steadfastly refused to take the case as an opportunity to overturn its century-and-a-half old Slaughter-House decision.
McDonald represents the latest attempt to “right the wrong” perpetuated in the much-reviled Slaughter-House decision that restricted the Privileges or Immunities Clause as a source for both enumerated and unenumerated rights. Almost since its inception, the Slaughter-House decision has received constant criticism for cabining the rights protected by the Privileges or Immunities Clause to those rights that are incidents of “national citizenship,” including the right to become a citizen of any state, the right to protection on the high seas and foreign lands, the right to use navigable waters, to travel to the seat of and to petition national government, and the right to visit subtreasuries. Although almost universally recognized as an incorrect interpretation of the Privileges or Immunities Clause, and despite the reams of paper and oceans of ink dedicated to its abolition, Slaughter-House lives on.
And this might not be such a bad thing. Although there is a strong temptation, from an academic point of view at least, to make right the constitutional order by correcting the Slaughter-House Court’s misinterpretation of the Privileges or Immunities Clause, there is a large question regarding just what good such a result would do. Much of the work that the Privileges or Immunities Clause was supposedly designed to accomplish, such as the incorporation of the Bill of Rights against the States, has already been done through a different vehicle of the Fourteenth Amendment, the Due Process Clause. Additionally, Slaughter-House rejected the use of the Privileges or Immunities Clause to protect unenumerated rights; substantive due process jurisprudence has filled that gap as well. Thus, there is a serious question as to what work a revitalized Privileges or Immunities Clause would have to do.
The real force animating the discussion over privileges or immunities revival has to do with unenumerated rights.