With this final posting, I’d like to revisit two issues that I raised in my initial essay: incorporation and judicial activism. Both issues have implications for future litigation — consistent with the caption for this blog, “After Heller: The New American Debate.”
I use as my takeoff point two comments by Erwin Chemerinsky, who has been conspicuous by his absence from this debate, even though he agreed to participate and knew in advance what was expected of participants. In his sole posting, Chemerinsky argues: “There is no need for the Court to use the privileges or immunities clause to apply the Second Amendment to the states. It can find the Second Amendment to be incorporated in the due process clause, just as it has done with the other provisions of the Bill of Rights.” That’s correct; and it may turn out to be an accurate forecast of how the Court’s Second Amendment incorporation jurisprudence will unfold. But it’s important to understand what’s at stake.
The privileges or immunities clause of the Fourteenth Amendment provides a textual foundation for incorporating those rights — both enumerated and unenumerated — deemed to be among the privileges or immunities of citizenship. Properly understood, that phrase encompasses so-called negative rights that can be exercised by free people without imposing positive obligations on others — such as the right to pursue happiness, start a business, and contract for one’s labor. Not included among the privileges or immunities of citizenship are positive rights or entitlements, such as welfare or a minimum wage, the enforcement of which affirmatively obligates non-consenting parties.
By contrast, the due process clause has been used to incorporate those provisions of the Bill of Rights deemed to be “fundamental to the American scheme of justice.” Perhaps most important among the omitted rights under the due process clause have been economic liberties — e.g., rights to property, to contract, and to engage in entrepreneurial activities shielded from arbitrary or excessive regulation by the states. Since the New Deal, regulations of those rights have been rubber-stamped by the courts. That could change if the vehicle for incorporation were the privileges or immunities clause. Obviously, this is not the forum to thrash out all the arguments and counter-arguments for due process vs. privileges or immunities. But that choice does matter; and the Court’s handling of Second Amendment incorporation might hearten those of us who believe that the bifurcation of our rights into fundamental and non-fundamental categories is incompatible with the text, structure, purpose, and history of the Constitution.
Finally, Chemerinsky asserts, “There is often no way for Justices to decide constitutional cases without using their own views and ideology as a basis.” I disagree. Justices whose decisions are anchored in the text of the Constitution have an objective basis for their views. To be sure, the text is not always clear, but it does provide a starting point, which can be supplemented by examination of constitutional structure, purpose, and history. On the other hand, those justices who subscribe to an anchorless “living Constitution” theory are disposed to use “their own views and ideology as a basis” for their decisions.
Justice Breyer described the living Constitution as one “designed to provide a framework for government across the centuries, a framework that is flexible enough to meet modern needs.” Our constitutional system, says Breyer, requires “structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic and technological conditions.” But the Framers provided an amendment process for structural flexibility. If the Constitution needs to be updated, it should be accomplished by amendment, not by pretending that the written document doesn’t exist or doesn’t mean what it says. Indeed, what is the purpose of a written document if we act as though it’s just a piece of paper?
If government powers can be expanded with impunity, regardless of the constitutional text, then rights can be contracted with impunity. My Cato colleague Roger Pilon puts it this way: “A ‘living constitution’ that maximizes political discretion can be worse than no constitution at all. It preserves the facade of constitutional legitimacy while unleashing the political forces that a constitution is meant to restrain.” Indeed, one major reason for the broken judicial confirmation process is the Court’s gradual shift from reliance on the text to reliance on a living Constitution. When the text of our written Constitution is trumped by evolving societal needs, then the judicial function is just politics by another name. No wonder Congress and activist groups are so concerned about a nominee’s views on key public policy issues; those views could ultimately become law, notwithstanding explicit constitutional provisions to the contrary.