[6/13/10] Conservative Jurisprudence vs. The Constitution

The Reason magazine cover story this month, Conservatives vs. Libertarians, focuses, in mostly layman's language, on the conservative argument against overturning constitutional precedent.  Yes, you read that right.  As enticing as returning to the original meaning of the Constitution and its amendments might be, you see, Conservatives just gotta oppose change.  This is a version of the left's classification of any reversal of precedent they favor as "judicial activism."

I found particularly illuminating the discussion of the gutting of the privileges and immunities clause of the 14th amendment by a previous Supreme Court in the Slaughter-House decisions of 1875, and of Antonin Scalia's support of that interpretation in recent oral argument on the Chicago gun control law.

At issue is the division of powers between the Federal government, the States, and the people imposed by the text of the Constitution and its Amendments.   As you read further, keep in mind that a right is a the negation of some power the group might otherwise exercise over the individual.  The Libertarian vision of the powers created by the Constitution is based on a four-pronged literal reading of that text.  1) The powers of the Federal government are limited to a relatively short list (In Section 8 of Article I creating and authorizing Congress).  2) The people retain all rights, not just those that Congress is expressly prohibited from abridging, except those that conflict with the powers explicitly granted to the Federal government ( Ninth Amendment). 3) The States are prohibited from abridging any privilege or immunity of citizenship (14th Amendment).  4) The States or the people may exercise any power except one expressly granted to the Federal government or denied to the States ( Tenth Amendment).

Thus, the Libertarian vision holds that the Court should extend to unenumerated rights like the right to choose your own shirt each morning, the same protection from State meddling that it extends to enumerated rights, such as freedom of speech and freedom from unlawful search and seizure.  That the Court does not do so is due to the fact that the third item in my list -- the privileges and immunities clause -- is not accepted as basis for argument before any Federal court in the land because... one Supreme Court decided it never would be!  I'm not making this up -- you can't make stuff like this up!  Let me quote from the annotation to the 14th Amendment from the Cornell University Law School's Legal Information Institute. 

Unique among constitutional provisions, the privileges and immunities clause of the Fourteenth Amendment enjoys the distinction of having been rendered a "practical nullity" by a single decision of the Supreme Court issued within five years after its ratification. In the Slaughter–House Cases, a bare majority of the Court frustrated the aims of the most aggressive sponsors of this clause, to whom was attributed an intention to centralize "in the hands of the Federal Government large powers hitherto exercised by the States" with a view to enabling business to develop unimpeded by state interference.  This expansive alteration of the federal system was to have been achieved by converting the rights of the citizens of each State as of the date of the adoption of the Fourteenth Amendment into privileges and immunities of United States citizenship and thereafter perpetuating this newly defined status quo through judicial condemnation of any state law challenged as "abridging" any one of the latter privileges.

The LII's tone can not withstand the fact that the 14th Amendment was passed by both Houses of Congress with two thirds majorities and ratified by three quarters of the States in the Union in 1868.  Why then did the Supreme Court of the day find that it just couldn't be the law of the land?  Again the LII weighs in, quoting the decision of that Court:

To have fostered such intentions, the Court declared, would have been "to transfer the security and protection of all the civil rights . . . to the Federal Government, . . . to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States," and to "constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. . . . [The effect of] so great a departure from the structure and spirit of our institutions . . . is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character. . . . We are convinced that no such results were intended by the Congress . . . , nor by the legislatures . . . which ratified" this amendment, and that the sole "pervading purpose" of this and the other War Amendments was "the freedom of the slave race."

Constitutional libertarians would find these arguments laughable, were they not still the law of the land.

However, Constitutional conservatives are on the other side of this issue, and accept the Court's decision in Slaughter-House because... well, because of the turmoil it would create in the law if the decision were overturned and the text of the 14th's privileges and immunities were to become the law of the land, one hundred and forty years late.

In order to extend the protection of the Fourteenth Amendment to unenumerated rights, subsequent Supreme Courts have fallen back to the second and third clauses of that same sentence, known respectively as the due process and equal protection clauses.  In doing so, they have largely gutted the previous Court's reason for not meddling in State law; today virtually everything about State law is a federal question anyway.

The Conservatives' problem is that in order to make progress in restoring economic liberties stolen by previous Supreme Court decisions, some precedents have to go.  How then can the conservative doctrine of letting the decision stand remain?

Sherry points out that the left's problem is entirely different: since Roe v. Wade is based entirely on extending protection for an unenumerated right to privacy to prevent State interference, how can the unenumerated right to contract not deserve similar protection?