Due Process as Pandora’s Box

The Washington Times carried an opinion piece last month by two social conservatives concerned about the upcoming McDonald v. Chicago decision. If you have been following this issue, you know that the team representing Otis McDonald seeks to have the Supreme Court recognize that the Fourteenth Amendment imposes the Second Amendment on the states. So why are social conservatives (who are generally pro-gun) concerned? Their concern is this: what theory will the Court use? To quote Ken Klukowski and Ken Blackwell:

Many have heard about the historic gun rights case going to the Supreme Court. Fewer have heard that this is also a major case for businesses and family values.  It could lead to anything from court-ordered ObamaCare to same-sex marriage. This is the biggest case of the year, and everyone has a stake in it.

There are three major provisions of the Fourteenth Amendment with respect to imposing the Bill of Rights onto the states (also known as “incorporation”): the “privileges or immunities” clause (P or I), the “due process” clause (DPC), and the “equal protection” clause (EPC).

The historical evidence strongly suggests that the Fourteenth Amendment was understood by both supporters and opponents as incorporating the entire first eight amendments of the Bill of Rights onto the states through the privileges or immunities clause.  The purpose of the due process clause was to make sure that before the southern states deprived blacks and white Republicans of life, liberty, or property, the governments would have to go through something recognizably like a trial. The purpose of the equal protection clause was to make sure that whatever laws the southern states passed applied equally to everyone. If a southern state required blacks to make annual labor contracts (as some states had done immediately after the Civil War), then the law had to apply to whites as well.

In 1873, the Supreme Court handed down a bad decision known as the Slaughterhouse Cases, in which it refused to recognize that the privileges or immunities clause incorporated the protections of the Bill of Rights. A few years later, in U.S. v. Cruikshank (1875), the Court continued down the same line, overturning a conviction of Klansmen who had murdered dozens of freedmen. (Gun control advocates love to cite Cruikshank because that Court ruled that the Second Amendment didn’t protect individuals from state gun control laws.)

Some years later, the Court started ruling that particular provisions of the Bill of Rights do protect individuals from state laws, a process known as “selective incorporation.” But rather than admit that Slaughterhouse was wrongly decided, the Court started finding that these rights were protected through DPC, first in Gitlow v. New York (1925), and then in many other cases. Now, almost the entire Bill of Rights is now incorporated — but not the Second Amendment. The reasoning behind selective incorporation is almost non-existent. The situation is so bad that it has become something of an embarrassment to many legal academics — even those that don’t particularly like the idea of incorporating the Second Amendment.

The concern that Klukowski and Blackwell have is that the left has accomplished much of its judicial activism to transform America through two patently false interpretive approaches: DPC and EPC. (That includes court protection of virtual child pornography, abortion, striking down of sodomy laws, and imposing same-sex marriage on the states.) P or I, it seems, would open an entirely new set of bogus arguments.

I understand Klukowski and Blackwell’s concern, but I don’t agree, primarily because the left’s judicial activism has never been limited by anything as pedestrian as following the Constitution. When Congress adopted the Fourteenth Amendment, sodomy was a criminal offense in 32 of 37 states. It would require remarkable evidence to establish that Congress and the states intended the Fourteenth Amendment’s DPC to overturn existing criminal statutes with respect to what law books of the period consistently called “the infamous crime against nature,” (California’s Penal Code) or “the detestable and abominable crime against nature” (from that other center of cosmopolitan thought, New York State). And yet in Lawrence v. Texas (2003), that’s exactly what the majority decided: that Texas’s sodomy law violated DPC. And Justice O’Connor’s concurring opinion decided that Texas’s sodomy law violated EPC.

To quote Justice Thomas’s dissent, which was quoting a previous decision, Griswold v. Connecticut (1965), this is an “uncommonly silly” law. Like Justice Thomas, had I been in the Texas legislature, I would have voted to repeal it. But silly, foolish, or counterproductive isn’t the same as unconstitutional. Yet with no valid basis for striking down that law, the Court did so.

There are many other examples of how the Court has struck down state laws based on this ahistorical reading of the DPC and EPC, such as Shapiro v. Thompson (1969), which struck down Connecticut’s residency requirement to collect welfare as a violation of EPC.  I share Klukowski and Blackwell’s concerns — but I have enormous confidence that the judicial activists that gave us Lawrence, Griswold, Roe v. Wade, and hundreds of other bizarre decisions aren’t going to be much influenced by the results of McDonald.

They will twist or imagine the right to have sex with 10-year-olds through P or I, or DPC, or EPC, or freedom of religion if necessary. (I think you get extra points on your law school exams if you can find a way to justify it through the interstate commerce clause.) Facts and history seldom stop this crowd.