There was a great deal of talk in blogs last week about a recent article by Dale Ho arguing that progressives should be relieved that the Supreme Court in McDonald v. City of Chicago did not revive the Privileges or Immunities Clause of the Fourteenth Amendment.  In a thoughtful article, Ho, an attorney with the NAACP LDF, discusses CAC’s amicus brief filed in McDonald on behalf of some of the nation’s most celebrated constitutional constitutional scholars, including Jack Balkin and Adam Winkler on the left, and Randy Barnett and Steven Calabresi on the right, as well as our report, The Gem of the Constitution: The Text and History of the Privileges or Immunities Clause.

As the brief and The Gem show, the Privileges or Immunities Clause was written to protect the substantive fundamental rights of all Americans, but was effectively written out of the Constitution by the Supreme Court  in its 1873 decision in the Slaughter-Houses Cases.  Ho appreciates the force of the constitutional history CAC presented, but opines that, on balance, it’s preferable that the Court reaffirmed protections for substantive fundamental rights under the Due Process Clause – or what Justice Elena Kagan called the Liberty Clause – rather than revive the Privileges or Immunities Clause.

Over at Reason’s Hit & Run blog, Damon Root weighs in, commending CAC for forcefully urging the Court to honor the text and history of the Privileges or Immunities Clause, notwithstanding the risks that libertarians like Randy Barnett would invoke the Clause to support revival of economic liberty, a la Lochner.  Root is disappointed that the NAACP LDF’s Ho and Justice Scalia see eye to eye, both failing, in his view, to take the Clause’s protection of economic liberty seriously.  Josh Blackman, writing on his own blog, highlights Ho’s piece and the risks that he believes we at CAC took in pushing aggressively for revival of the Privileges or Immunities Clause.

According to Blackman, by urging restoration of the Privileges or Immunities Clause, progressives risked opening the door to a revival of the Lochner era’s protection of economic liberty. In The Gem, we discussed the potential risks of reviving the Privileges or Immunities Clause.  We recognized that conservatives might try to use a switch to a Privileges or Immunities analysis to attack fundamental rights already recognized under the Due Process Clause, such as the right of reproductive choice first recognized in Roe v. Wade, or to bring back the Lochner era’s protection of liberty of contract.  We explained why both sets of risks were overstated.

We laid out the powerful case for reading the Privileges or Immunities Clause to protect a wide panoply of unenumerated substantive fundamental rights, including rights of hearth and home that were critically important to ensuring freedom for the newly freed slaves.  Protection of substantive fundamental rights, including the right of reproductive choice, would be on a stronger footing under the explicit textual guarantee of the Privileges or Immunities Clause.

We argued that Lochner was properly recognized as a departure from the Fourteenth Amendment’s meaning.  While the framers cared about securing the free labor rights for the freedmen, they recognized that a broad state police power was necessary to protect the health, safety, and welfare of the American people from abuses, even when it interfered with the liberty of contract. We’re thrilled that these debates are going on, and that people on the left and right who care about the Constitution are continuing to grapple both with our work and with the text and history of the Privileges or Immunities Clause.

In the end, because of that work and Alan Gura’s terrific advocacy, McDonald was a vindication of the text and history of the Fourteenth Amendment, even though it fell short of the goal of restoring the Privileges or Immunities Clause and overruling the Slaughter-Houses Cases. McDonald stands as a landmark ruling because the Supreme Court, perhaps for the first time ever, rooted the protection of substantive fundamental rights in the text and history of the Fourteenth Amendment.  Justice Alito’s majority opinion marshaled the text and history of the whole Amendment (including the Privileges or Immunities Clause) as well as precedent to demonstrate that the Amendment protects substantive fundamental rights, including the right to bear arms.

While the Court did not revisit the Privileges or Immunities Clause nor its decision in the Slaughter-House Cases that gutted it, Justice Alito gave a robust interpretation to the Due Process Clause, concluding that the weight of Supreme Court precedent made the Due Process Clause a worthy alternative to the Privileges or Immunities Clause that Slaughter-House had interred.   After McDonald, the basis for incorporation of the Bill of Rights against the states and the protection of substantive fundamental rights is on a stronger constitutional footing.  That’s a result we should all celebrate.