Civil and Human Rights

CAC Files Constitutional Scholars Brief Seeking Restoration of the Privileges or Immunities Clause of the 14th Amendment

Yesterday, CAC filed an amicus curiae brief with the U.S. Supreme Court in McDonald v. City of Chicago, a case that asks whether the 2nd Amendment individual right to bear arms recognized by the Court in Heller v. District of Columbia (2008) is protected against infringement by the states.   This brief –- which argues that the 2nd Amendment is “incorporated” against state action via the 14th Amendment’s Privileges or Immunities Clause — reflects CAC’s founding mission of shaking up the debate about the Constitution in this country.

CAC’s brief was filed on behalf of eight preeminent 14th Amendment scholars, including Jack Balkin of Yale Law School, who is spearheading an effort, co-sponsored by the American Constitution Society, to define a progressive vision of The Constitution in 2020, and Steven Calabresi of Northwestern Law School, who nearly three decades ago co-founded the Federalist Society.  It embodies a remarkable scholarly consensus for the proposition that the Court erred profoundly 136 years ago in The Slaughter-House Cases when it effectively read the Privileges or Immunities Clause out of the 14th Amendment.  As Yale Law School’s Akhil Amar has stated: “Virtually no serious modern scholar – left, right, and center – thinks that Slaughterhouse is a plausible reading of the Fourteenth Amendment.”

While the diverse scholars signing our brief disagree about many things, they have joined together here on some of the most profoundly important questions in all of constitutional law, including that the 14th Amendment “incorporates” the protections in the Bill of Rights against state action and that the Constitution also protects unenumerated fundamental rights and liberties.   These scholars will surely diverge again down the road if the Privileges or Immunities Clause is revived in McDonald and the debate turns to what constitutes “the Privileges or Immunities of citizens of the United States,” but they are united in this case in urging the Court to revisit The Slaughter-House Cases and get the text and history of one of the most important provisions of the Constitution right.

CAC’s brief in McDonald builds on our work toward fulfilling the progressive promise of the Constitution’s text and history, including our report The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause of the Fourteenth Amendment, which explains why progressives in particular should favor a restoration of the Privileges or Immunities Clause.  As we also argue in The Gem, however, and as our brief in McDonald illustrates, all Americans should cheer a ruling that finally honors some of our Constitution’s most important text and history.   As the scholars signing onto our brief agree, the Constitution’s text matters; we all think that the Supreme Court’s most important job is to get the Constitution right.  Hopefully, that is precisely what will happen in the McDonald decision.

For those interested, below is a complete list of the scholars who have signed onto the brief.

Prof. Richard L. Aynes
University of Akron Law School

Prof. Jack M. Balkin
Yale Law School

Prof. Randy E. Barnett
Georgetown University Law Center

Prof. Steven G. Calabresi
Northwestern University

Prof. Michael Kent Curtis
Wake Forest University Law School

Prof. Michael A. Lawrence
Michigan State University College of Law

Prof. William Van Alstyne
William and Mary Law School

Prof. Adam Winkler
UCLA School of Law

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