Advocates and opponents of birthright citizenship are stuck in a dilemma: originalism binds us to accept it, nonoriginalism offers room to deny it.
Recently, I was looking over McDonald v. Chicago, the case that held that the Second Amendment was incorporated against the states. While I agree with the result, I believe this case was very problematic from an originalist perspective. Four of the Justices — Alito joined by Scalia, Roberts, and Kennedy — relied on the doctrine of substantive due process to incorporate even though it seems clear that the due process clause did not incorporate as an original matter. It was only Justice Thomas that sought to find incorporation in the more defensible Privileges or Immunities Clause.
Justice Alito sought to explain why the plurality were relying on this erroneous precedent. He wrote:
We see no need to reconsider this [precedent] here. For many decades, the question of the rights protected bythe Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.
At the same time, however, this Court’s decisions in Cruikshank, Presser, and Miller do not preclude us fromconsidering whether the Due Process Clause of the Four-teenth Amendment makes the Second Amendment rightbinding on the States. See Heller, 554 U. S., at ___, n. 23 (slip op., at 48, n. 23). None of those cases “engage[d] inthe sort of Fourteenth Amendment inquiry required by our later cases.” Ibid. As explained more fully below, Cruikshank, Presser, and Miller all preceded the era inwhich the Court began the process of “selective incorpo-ration” under the Due Process Clause, and we have never previously addressed the question whether the right tokeep and bear arms applies to the States under that theory.
Not exactly the most persuasive lines written in Supreme Court history. “We see no need to reconsider this interpretation here.” (This ranks with Chief Justice Rehnquist’s statement in Morrison v. Olson that “our present considered view is” that fifty years of precedent and practice was wrong, without further explanation.) The precedent is only one of the few that is virtually unanimously criticized as wrong, but no need to explain why they do not to revisit it.
“At the same time, however” the plurality goes on to revisit three other precedents that it thinks got the matter wrong. This isn’t exactly principled or transparent. Kind of sad really. I shall have more to say about Justice Alito’s plurality in the future, but for now let’s leave it at that.
Interestingly, Justice Stevens also opposed relying on the Privileges or Immunities Clause. Part of his reason was that the PI Clause would confer too much discretion on judges. Quoting Fourth Circuit Judge J. Harvie Wilkinson, Stevens wrote: “For the very reason that it has so long remained a clean slate, a revitalized Privileges or Immunities Clause holds special hazards for judges who are mindful that their proper task is not to write their personal views of appropriate public policy into the Constitution.” Sorry, this is rich. Others may differ, but I believe that Justice Stevens spent most of his 35 years on the Court writing his personal views into the Constitution. One suspects that Justice Stevens was attempting to do exactly that in his dissent. It is an old Supreme Court trick to write one’s view into the Constitution while claiming that one is protecting against doing exactly that.
Update: A reader takes issue with my claim that Justice Alito revisited the three precedents referred to in my post. According to the reader, those precedents had reached decisions under the privileges or immunities clause, whereas the court was now deciding matters under the doctrine of substantive due process. This is correct as a technical matter. Of course, the only reason that those earlier cases did not decide the matter under substantive due process is that no one thought to argue the matter at the time — they did not realize the court would invent that new doctrine. Thus, the Court was not technically overruling a precedent. Instead, it was applying a new doctrine, that it invented after those cases were decided, to the issue decided in those cases, to reach a different result. I am comfortable calling that a revisiting of the precedents, but it would have been clearer for me to note that the precedents were decided under a different clause.