Privileges or Immunities

  • March 1, 2010
    Guest Post

    By Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

    McDonald v. City of Chicago puts the Court's conservatives to a choice: Guns or federalism? Today's conservatives say that the Constitution makes both of them important but so far they haven't come up with a decent account of why one or the other should prevail, and I don't think they can.

    The Rehnquist Court engaged in a modest "Federalism Revolution," and some conservative scholars were annoyed when the Court went with drug laws instead of federalism in upholding the national ban on the use of marijuana for medical purposes in Gonzales v. Raich. These cases might be described as dealing with national power exercised by Congress, and of course no national statute is involved in McDonald. But when the Court has discussed each of the constitutional provisions available as a basis for striking the Chicago ordinance down, it has noted their implications for federalism. In the Slaughterhouse Cases, the Court rejected an expansive interpretation of the Privileges or Immunities Clause - the one some conservatives are asking the Court to adopt in McDonald - because, it said, such an interpretation would authorize Congress to use the Fourteenth Amendment's fifth section to enforce a new and large set of rights. And, Justice Potter Stewart once described the Due Process Clause as part of a vast expansion of national power - legislative and judicial - during Reconstruction.

    Were conservatives truly concerned about federalism, they might want to think twice about their position in McDonald. Winning the case, particularly on Privileges or Immunities grounds, would give Congress a lot more power than they think it ought to have. And it should be obvious, although it hasn't been a major part of the discussion of McDonald that striking down the Chicago ordinance is an example of judicial activism as conservatives usually define it when questioning Supreme Court nominees. (Saying that we shouldn't worry about expanding congressional power by expanding the Fourteenth Amendment because the Court is always ready to strike down congressional statutes on federalism grounds simply reinforces the conclusion that McDonald will expand judicial power - and betrays an odd confidence, from conservatives, in the courts.)

  • September 30, 2009
    Today, the U.S. Supreme Court announced it would consider McDonald v. Chicago, a case involving the scope of individuals' Second Amendment rights. Speaking with ACSblog about the case, the Constitutional Accountability Center's Doug Kendall said that an intriguing question regarding the cases is, if the Second Amendment is incorporated to the states, whether the justices would consider incorporation through Privileges or Immunities Clause of the Fourteenth Amendment. Watch the interview below or download a podcast of it here.
  • January 23, 2009

    The Privileges or Immunities Clause of the Constitution’s 14th Amendment was intended to be the “vehicle by which we protect substantive rights and liberties,” said Doug Kendall in an interview with ACS. Kendall, founder and president of the Constitutional Accountability Center, maintained in his interview following a recent event, co-hosted by ACS, on the Reconstruction or Civil War amendments, that the clause was “written out of the document in 1873 [by the Supreme Court], causing a real problem in the way we talk about the Constitution today.” Kendall also noted his organization’s new report, “The Gem of the Constitution,” which provides a history of the Privileges or Immunities Clause and how it can still be restored. Watch his interview by clicking the picture below.