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The marvelous McDonald opinion of Justice Thomas

Posted by Richard on July 12, 2010

I've had Justice Clarence Thomas's concurring opinion in McDonald v. Chicago sitting on my desktop for some time, but hadn't gotten around to reading it. I'd read about it, of course, and knew his essential argument. But at the urging of a friend, I finally made time to read the whole thing this weekend. I'm very glad I did.

Completely aside from the fact that I agree with Thomas on every point, it's just such a pleasure to read such a well-reasoned, well-organized, and clear opinion. But don't take my word for it; Cornell Law School has it in both HTML and PDF form. I encourage you to read it for yourself. If you're not familiar with court opinions, all the inline citations might cause you to stumble a bit at first. But once you get used to them, you'll just skip right past them, and the clarity, readability, and directness of Thomas's prose will shine through. 

That such clarity is relatively rare in court opinions has as much to do with purpose as writing ability. Many opinions are attempts to twist the plain meaning of some constitutional provision or law into something more to the author's liking, or they're attempts to craft some compromise interpretation that papers over fundamental differences. Thomas simply examines the language and the historical record, explains those in clear and direct fashion, and arrives at a conclusion that leaves a fair-minded, rational person saying, "That makes sense." 

In Section I, Thomas provides a brief overview of how and why the Fourteenth Amendment came to be; how its Privileges or Immunities Clause was rendered meaningless by the Court's Slaughter-House and Cruikshank decisions (the latter is one of the Court's most racist and shameful rulings, and a perfect example of incoherent reasoning used to arrive at a conclusion to one's liking); and how the Court has since strained the Due Process Clause into a vehicle for protecting the "fundamental" substantive rights that the Court chooses to protect. Thomas forcefully rejects this state of affairs (emphasis added):

The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. … 

I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court's substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed.

Section II makes up the bulk of the opinion (pages 9-47 in the 56-page PDF). Its three parts consider the meaning of "privileges and immunities," the nature of the rights the clause was intended to protect, and whether it protects only against state discrimination or establishes a "minimum baseline of rights for all American citizens." It's a detailed, well-referenced examination of the historical record surrounding the circumstances leading up to the Fourteenth Amendment, the public debate and discussions about it, the intent of its supporters, and the understanding of its meaning by the general public at the time of passage and immediately after. In the process, Thomas systematically addresses and refutes all the arguments against the Privileges or Immunities Clause.

Section III takes up the issue of stare decisis and whether the precedents of Slaughter-House and Cruikshank ought to be retained. Thomas provides a detailed analysis of Slaughter-House and why its strained argument separating the rights of state citizenship from those of federal citizenship deserves to be rejected. In the process, in footnote 21 (page 51 of the PDF), he gets in a dig at Justice Stevens that made me jump up from my chair with a little whoop of joy (emphasis added): 

To the extent Justice Stevens is concerned that reliance on the Privileges or Immunities Clause may invite judges to “write their personal views of appropriate public policy into the Constitution,” post, at 3 (internal quotation marks omitted), his celebration of the alternative—the “flexibility,” “transcend[ence],” and “dynamism” of substantive due process—speaks for itself, post, at 14–15, 20.

Unlike Slaughter-House, Thomas dismisses Cruikshank peremptorily (I wholly approve; emphasis and link added):

Three years after Slaughter-House, the Court in Cruikshank squarely held that the right to keep and bear arms was not a privilege of American citizenship, thereby overturning the convictions of militia members responsible for the brutal Colfax Massacre. See supra , at 4–5. Cruikshank is not a precedent entitled to any respect. The flaws in its interpretation of the Privileges or Immunities Clause are made evident by the preceding evidence of its original meaning, and I would reject the holding on that basis alone. But, the consequences of Cruikshank warrant mention as well.

There follows a chilling three-page recitation of some of those consequences. Chilling.

Thomas concludes:

In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty. The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery. There is nothing about Cruikshank ’s contrary holding that warrants its retention.

*  *  *

     I agree with the Court that the Second Amendment is fully applicable to the States. I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship.

There is nothing wrong with this country that putting four or five more Clarence Thomases on the Supreme Court couldn't cure.

UPDATE: If you're interested in the racial aspects of this case and Thomas's opinion, you might want to also read Damon Root's recent column at Reason.

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