The hearts of constitutional purists are beating harder today after Justice Neil Gorsuch joined Justice Clarence Thomas in a bid to restore sense and meaning to a key, but long ignored, clause of our nation’s founding document.
My colleague Erin Dunne has ably captured the top-line importance of the Supreme Court’s decision reining in an abuse of asset forfeiture laws, via which law-enforcement agencies seize property of those they arrest. I entirely concur with her analysis supporting the result. Beyond that, though, it is the concurring opinions by Gorsuch and Thomas that raise hopes, however faintly, for a return to jurisprudence more rooted in the Constitution’s text than in the expansive imagination of the court’s nine jurists.
Both Gorsuch and Thomas wrote Wednesday that the case Timbs v. Indiana would best be decided based not on the amorphous “due process” clause of the Constitution, but on the “privileges or immunities” clause of the 14th Amendment. The P/I clause, along with the privileges and immunities clause of Article IV, has been wrongly treated as dormant, or meaningless in practice, ever since the 1873 Slaughterhouse Cases. Or, more accurately, since the court misapplied Slaughterhouse in Maxwell v. Dow (1900) and other cases.
For years, Thomas has tried to revive P/I, but found few allies among his fellow justices. That’s why it’s significant that Gorsuch now has joined him in saying the clause has practical meaning after all.
When P/I was discarded, justices fumbled around looking for other clauses in the Constitution that would justify them in asserting that certain rights were guaranteed to citizens, against infringement by the states. They settled on the Constitution’s guarantee that “liberties” could not be taken away “without due process of law.” The natural reading of “due process,” of course, involves procedural matters, such as rights to a trial by jury rather than by judge. But the Supreme Court started shoving other “liberties” into the “due process” envelope until a new term, “substantive due process,” was invented.
The practical difference between P/I and substantive due process grew to large proportions. The most obvious interpretation of “privileges or immunities,” indeed the one the justices even in Slaughterhouse accepted, was that it guaranteed a certain, specified class of rights and liberties – a narrow but important set of individual rights growing directly from constitutional text or historical practice. But substantive due process, already being a rather vague concept, allowed justices to start asserting all sorts of newfangled “rights” apparent nowhere in the Constitution’s text itself.
In sum, P/I could protect pre-recognized liberties, but not let activist judges use wide discretion to create ones. By using substantive due process, though, justices began expounding on such airy ideas as “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That is how, for just one example, abortion eventually morphed into a “right,” even though nothing remotely like it is mentioned in the Constitution itself.
Perhaps policy should provide such benefits; but the problem is, judges are creating them as guaranteed rights, based on their own values rather than the Constitution’s express language.
By reinvigorating privileges and/or immunities, Thomas and Gorsuch would protect plenty of rights without letting judges invent new ones. They also would emphasize that all words in the Constitution have meaning, that none are “a nullity” (as P/I has been described), and that the original meaning of the document should be sacrosanct.
Good for them. More of their colleagues should join them.
