14
   

McDonald v. Chicago

 
 
wandeljw
 
  1  
Reply Tue 9 Mar, 2010 12:21 pm
Quote:
Justice Scalia Suggests that the Legal Academy is Out of Touch: Is He Right?
(By MICHAEL C. DORF, FindLaw Commentary, March 8, 2010)

Last week, the Supreme Court heard oral argument in McDonald v. Chicago, the most closely-watched case of the current Term. On behalf of his client Otis McDonald, lawyer Alan Gura is asking the Court to hold that the Second Amendment right to keep and bear arms applies not only against the federal government, but also against state and local governments.

As I explained in an earlier column on the McDonald case, the Court has applied most of the provisions of the Bill of Rights to states and their subdivisions via the Fourteenth Amendment's Due Process Clause. Yet the main thrust of Gura's argument relies on a different provision of the Fourteenth Amendment"its Privileges or Immunities Clause, which, since the 1872 Slaughterhouse Cases, has been treated as having almost no legal significance.

Although it looks as though Gura will likely win the case, even Justices who were sympathetic to his cause were vexed by his tactics during the argument, deeming them better suited to a law school faculty workshop than to the Court. In particular, an exchange between Justice Scalia and Mr. Gura went as follows:

JUSTICE SCALIA: . . . why are you asking us to overrule . . . 140 years of prior law, when you . . . can reach your result under substantive due [process]? I mean, unless you are bucking for a . . . place on some law school faculty.

(Laughter.)

MR. GURA: No. No. I left law school some time ago and this is not an attempt to . . . return.

JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, . . . even I have acquiesced in it?

(Laughter.)

Justice Scalia was simply injecting a bit of comic relief into a tense oral argument, but underneath his joke was a more serious charge, one that he and other judges have made repeatedly for some years now. They complain that law professors produce scholarship that has no practical value to judges who must resolve hard cases. If a legal theory is "the darling of the professoriate" and thus a fit subject for a law review article that will earn its proponent a tenured faculty position, Justice Scalia implies, it cannot have any practical utility.

Is Justice Scalia right? In this column, I contend that the answer is mostly no. With respect to the McDonald case, Justice Scalia himself, more than the professoriate, is responsible for the fact that a lawyer arguing an extraordinarily important case presented a theory that runs contrary to a 138-year-old precedent, rather than relying on well-established law.

The oral argument in McDonald was not the first time that Justice Scalia has publicly equated academic interest in some approach to law with practical irrelevance. From my perspective, the most salient previous example occurred in the 1996 case of Janklow v. Planned Parenthood. There, to emphasize that Justice Stevens had taken a view without legal support, Justice Scalia noted sarcastically that Justice Stevens had cited "no less weighty authority than a law-review article" I had written. By implication, Justice Scalia was saying that a law review article (whether written by me or any other professor) is no real authority at all.

Other judges have recently expressed similar sentiments. At a 2007 gathering at Cardozo Law School, seven judges of the U.S. Court of Appeals for the Second Circuit declared legal scholarship to be essentially useless to them. Chief Judge Dennis Jacobs was bluntest. "I haven't opened up a law review in years," he said. "No one speaks of them. No one relies on them." Liberal and conservative judges alike shared the concern. Judge Robert Sack acknowledged that the courts do occasionally cite legal scholarship, but added that they "use them like drunks use lampposts . . . more for support than for illumination."

What is the source of judicial disdain for legal scholarship? The general view among judges is that law professors concern themselves with esoteric theory, rather than the nitty-gritty of offering solutions to hard legal questions. D.C. Circuit Judge Harry Edwards fired the leading salvo for this position in a 1992 article in (ironically enough) the Michigan Law Review.

Judge Edwards denied that he and other judges were demanding "wholly doctrinal" legal scholarship, that is, articles in which law professors pretend to be judges. "Rather," Judge Edwards wrote, "a good 'practical' scholar gives due weight to cases, statutes and other authoritative texts, but also employs theory to criticize doctrine, to resolve problems that doctrine leaves open, and to propose changes in the law or in systems of justice. Ideally, the 'practical' scholar always integrates theory with doctrine."

That was and remains a fair definition of practical scholarship, and even Judge Edwards acknowledged a legitimate place for impractical and inter-disciplinary work, so long as the legally-trained academics engaging in the latter also have the relevant qualifications in some other discipline. But he stingingly stated, "Our law reviews are now full of mediocre interdisciplinary articles. Too many law professors are ivory tower dilettantes, pursuing whatever subject piques their interest, whether or not the subject merits scholarship, and whether or not they have the scholarly skills to master it." Ouch!

With respect to interdisciplinary work, I would report in defense of the legal academy that things have improved considerably since 1992. As a result of changes in appointments and tenure practices, today many more law professors writing about law and economics hold Ph. D.'s in Economics, while many more legal historians now hold doctorates in History. The ramping up of credentials in allied fields answers the charge of dilettantism, although it may exacerbate the core problem that concerned Judge Edwards. Economists and historians (as well as philosophers, sociologists, psychologists, and so forth) will rarely focus on precisely the sorts of issues that judges find most urgent, even if these scholars are also lawyers.

So, is the legal academy's increasingly interdisciplinary nature to blame for the the McDonald lawyers' reliance on the esoteric "privileges or immunities" theory? Did the history-trained law professors simply view the case as an opportunity to rummage in the Nineteenth Century archives to unearth new evidence about that period?

Hardly. By far the more important factor has been the pronouncements of the judges themselves, especially "textualists" like Justice Scalia.

Under the standard approach, the Fourteenth Amendment's prohibition on state deprivations of "liberty" without "due process of law" implies that some aspects of liberty"including most aspects that are singled out by the Bill of Rights"must receive substantive protection. In a case like McDonald, for example, the petitioner argues that he is substantively entitled to own a handgun; he does not argue that he is entitled to some special procedure for proving whether he has a handgun. Thus, the Due Process Clause"which is most naturally read as protecting procedures, not substance"is an awkward vehicle for applying the Bill of Rights to state and local governments.

Justices and judges who believe that text should play a critical role in legal interpretation have made that point relentlessly. As one prominent textualist, U.S. Court of Appeals for the Seventh Circuit Judge Frank Easterbrook, has said: "The Fourteenth Amendment contains an equal protection clause, and a due process clause, but no 'due substance' clause. The word that follows 'due' is 'process.'"

Likewise, Justice Hugo Black, who used to pull out his copy of the Constitution during oral arguments, was the leading champion of the view that the Privileges or Immunities Clause does much of the work of incorporating the Bill of Rights. He based that conclusion on his reading of the history of the adoption of the Fourteenth Amendment, but he was clearly driven by his hostility"on textualist grounds"to the very idea of substantive due process.

Over roughly the last quarter-century, the leading self-proclaimed textualist has been, without a doubt, Justice Scalia. Almost single-handedly, he has changed the Supreme Court's practice of statutory interpretation and, as he has explained on numerous occasions, he also tries to apply his textualist approach to constitutional cases. Moreover, his closest methodological ally on the Court, Justice Clarence Thomas, has repeatedly shown a willingness to abandon precedents that he regards as too far out of step with the text and original understanding of the Constitution.

Thus, one can hardly blame Mr. Gura for fashioning an argument that relies on textual grounds that appear to avoid the pitfalls of incorporation via substantive due process. In doing so, he was chiefly trying to appeal to textualists like Justice Scalia. That he was assisted in the endeavor by some law professors only belies the claim that academics have their heads in the clouds. If Justice Scalia finds the privileges-or-immunities theory unwelcome, he has only himself and his textualist sympathizers to blame for inviting it.
joefromchicago
 
  1  
Reply Tue 9 Mar, 2010 03:40 pm
@wandeljw,
Michael C. Dorf wrote:
If Justice Scalia finds the privileges-or-immunities theory unwelcome, he has only himself and his textualist sympathizers to blame for inviting it.

Oh snap!
0 Replies
 
Thomas
 
  2  
Reply Tue 9 Mar, 2010 05:47 pm
@Irishk,
Irishk wrote:
You're welcome. I hope it didn't appear that I was hounding you by posting two articles ...

No, it didn't appear that way at all. And even if it had, I would still have had made a mistake, and you would still have corrected it. You would have done a good thing even then.
0 Replies
 
Thomas
 
  2  
Reply Tue 9 Mar, 2010 05:53 pm
@wandeljw,
When you look at the core of Dorf's charge ....

Michel Dorf, as quoted by Wandel JW, wrote:
They complain that law professors produce scholarship that has no practical value to judges who must resolve hard cases. If a legal theory is "the darling of the professoriate" and thus a fit subject for a law review article that will earn its proponent a tenured faculty position, Justice Scalia implies, it cannot have any practical utility.


... it hardly follows from what Scalia actually said:

Antonin Scalia, as quoted by Dorf, as quoted by Wandel JW wrote:
What you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. (emphasis mine, T.)

Judging by the grammatical structure of Scalia's sentence, he thinks that as a rule, darlings of the professoriate are consistent with the Supreme Court's jurisprudence. But the professoriate's arguments about the privileges and immunities clause are an exception.
wandeljw
 
  1  
Reply Tue 9 Mar, 2010 07:44 pm
@Thomas,
The "but" does not change the effect of making legal scholars look irrelevant, especially since Scalia's remark immediately follows his remark about Gura bucking for a law school job:
Quote:
JUSTICE SCALIA: . . . why are you asking us to overrule . . . 140 years of prior law, when you . . . can reach your result under substantive due [process]? I mean, unless you are bucking for a . . . place on some law school faculty.


Also "darlings of the professoriate" is a belittling phrase.
Thomas
 
  1  
Reply Tue 9 Mar, 2010 09:44 pm
@wandeljw,
Not so, Wandel JW. What Scalia makes look irrelevant. So what exactly was McDonald's counsel, Mr. Gura, arguing immediately before Scalia made his remark? Dorf conveniently forgot to cite it. It starts on page 6 of the transcript (PDF here.)

Code: JUSTICE SCALIA: Mr. Gura, do you think it is at
all easier to bring the Second Amendment under the
Privileges and Immunities Clause than it is to bring it
under our established law of substantive due ?
MR. GURA: It's -
JUSTICE SCALIA: Is it easier to do it under
privileges and immunities than it is under substantive
due process?
MR. GURA: It is easier in terms, perhaps, of --
of the text and history of the original public
understanding of -
JUSTICE SCALIA: No, no. I'm not talking about
whether -- whether the Slaughter-House Cases were right
or wrong. I'm saying, assuming we give, you know, the
Privileges and Immunities Clause your definition, does
that make it any easier to get the Second Amendment
adopted with respect to the States?
MR. GURA: Justice Scalia, I suppose the answer
to that would be no, because -
JUSTICE SCALIA: Then if the answer is no, why
are you asking us to overrule 150, 140 years of prior
law, when -- when you can reach your result under
substantive due -- I mean, you know, unless you are
bucking for a -- a place on some law school faculty
-(Laughter.)
MR. GURA: No. No. I have left law school some
time ago and this is not an attempt to -- to return.
JUSTICE SCALIA: What you argue is the darling
of the professoriate, for sure, but it's also contrary
to 140 years of our jurisprudence. Why do you want to
undertake that burden instead of just arguing
substantive due process, which as much as I think it's
wrong, I have -- even I have acquiesced in it?

Again, the transcript lives here

It isn't Scalia who makes the "professoriate" look irrelevant to this case. Mr. Gura himself fails to identify any difference that his privileges-and-immunities argument makes to the outcome of the case. And Scalia is quite right to ridicule this as an academically interesting, but ultimately irrelevant speculation. (Notice, though, that he agrees with "the professoriate" that the Slaughterhouse Cases came out wrong.) Mr. Gura, as a competent jurist, should know that the Supreme Court won't overrule 140 years of precedent if it can reach the same outcome without doing so. Not even Scalia will.

My interpretation is that Mr. Gura is trying a psychological maneuver here. He knows he is asking the justices to reach a fairly drastic verdict. So he establishes a bargaining position by offering them an even more drastic verdict they might reasonably reach. That way, the justices can incorporate gun rights into the Fourteenth amendment but decline Gura's invitation to overrule the Slaughterhouse cases as "too radical". That way, everyone is happy. Gura gets what he wants, and the justices can still feel moderate and reasonable about what they are doing.
Thomas
 
  1  
Reply Wed 10 Mar, 2010 12:48 am
PS: Actually, the rest of the article makes a good point. The Supreme Court would greatly improve its caselaw by incorporating the Bill of Rights through the 14th Amendment's privileges-and-immunities clause. The clause is a more logical base for incorporation than the oxymoronic doctrine of "substantive due process", which is nowhere to be found in the text of the constitution.

It is only Dorf's journalistic hook that I have a problem with.
0 Replies
 
OmSigDAVID
 
  1  
Reply Wed 10 Mar, 2010 01:56 am

I think that, over the decades, both BARRON and SLAUGHTERHOUSE
have been thorns in the side and embarrassments to the USSC,
in the face of the known fact that the author of Section 1
of the 14th Amendment, and its sponsor in the US Senate BOTH
(John Bingham and Jacob Howard)
openly stated an intendment that is radically at variance
with those 2 cases, the last having strangled the text
of the amendment.

For a long time, the USSC has acted as tho it WANTs
to get rid of those cases and just read the Bill of Rights
and the 14th Amendment literally. Many people thawt
Scalia was going to do that.

There is a BIG QUESTION as to the reason
that leftists agree that the "privileges or immunities" clause
shoud be re-habilitated, but presumably, it is to further
their favorite ambitions, at which I can only guess,
by knowing what thay like.

Maybe leftists want a future judicial holding of a "privilege"
of American citizenship to have education or healthcare, etc.
or things to promote the Welfare State; possibly, Scalia is leery of this danger.





David
Thomas
 
  1  
Reply Wed 10 Mar, 2010 02:30 am
@OmSigDAVID,
OmSigDavid wrote:
There is a BIG QUESTION as to the reason
that leftists agree that the "privileges or immunities" clause
shoud be re-habilitated, but presumably, it is to further
their favorite ambitions, at which I can only guess,
by knowing what thay like.

Why guess when you can read it directly out of the transcript? (I'm referring particularly to justice Stevens's line of reasoning.) By enforcing the entire Bill of Rights against the states, the Supreme Court would basically expand individual rights under four amendments:
  • Gun rights under the Second Amendment,
  • The right to a grand jury in all criminal cases under the Sixth Amendment,
  • The right to a trial by jury in practically all civil cases under the Seventh Amendment, and
  • Any unenumerated rights the Supreme Court may find under the Ninth Amendment.
In terms of politics, the consequences following the first point will be welcomed by American conservatives, while liberals will be ambiguous. The consequences of the second and third points will be welcomed by American liberals, while conservatives will be ambigous or disapproving.

I think the fourth point will be largely irrelevant either way in practice. The Supreme Court has never found any substantive Ninth Amendment right. Only once, in the most liberal period of its history, did the Court come even close. The case was Grisworld v. Connecticut, and even in this one case, no sane person is arguing with the outcome. Only idiots would seriously dispute today that Connecticut was trampling on the 14th Amendment liberties of married couples by criminalizing the sale of contraceptives to them. So what extra mileage can liberals reasonably expect from the Ninth Amendment, now that the court is much more conservative? What usurpations do conservatives realistically have to fear? I don't see either.

So there's the answer to your "BIG QUESTION as to the reason that leftists agree that the 'privileges or immunities' clause shoud be re-habilitated": They like the expansion of trial-by-jury rights under the 6th and 7th Amendments. Big deal.
OmSigDAVID
 
  1  
Reply Wed 10 Mar, 2010 04:05 am
@Thomas,
OmSigDavid wrote:
There is a BIG QUESTION as to the reason
that leftists agree that the "privileges or immunities" clause
shoud be re-habilitated, but presumably, it is to further
their favorite ambitions, at which I can only guess,
by knowing what thay like.
Thomas wrote:
Why guess when you can read it directly out of the transcript?
(I'm referring particularly to justice Stevens's line of reasoning.)
I hope that u r right, but I think Scalia is wary of some more sinister potential of the left,
that I lack sufficient information to identify, and that is not in the transcript.







Thomas wrote:
By enforcing the entire Bill of Rights against the states,
the Supreme Court would basically expand individual rights under four amendments:
  • Gun rights under the Second Amendment,
  • The right to a grand jury in all criminal cases under the Sixth Amendment,
  • The right to a trial by jury in practically all civil cases under the Seventh Amendment, and
  • Any unenumerated rights the Supreme Court may find under the Ninth Amendment. [as of 1776]
As a conservative, I strongly approve of applying
the whole Bill of Rights to curtail State power, as originally intended.
As a conservative, I 've always been disdainfull of both BARRON and SLAUGHTERHOUSE,
both of which are radically anti-textual decisions, anti-historical decisions.




Thomas wrote:
In terms of politics, the consequences following the first point will be welcomed
by American conservatives, while liberals will be ambiguous.
The consequences of the second and third points will be welcomed by American liberals,
while conservatives will be ambigous or disapproving.
As a conservative, I approve of grand juries.


Thomas wrote:
I think the fourth point will be largely irrelevant either way in practice.
The Supreme Court has never found any substantive Ninth Amendment right.
Only once, in the most liberal period of its history, did the Court come even close.
In the circuit court of appeals, Roe v. Wade won abortion rights
based on 9th Amendment reasoning, if I remember. I approve of that.





Thomas wrote:
The case was Grisworld v. Connecticut, and even in this one case,
no sane person is arguing with the outcome. Only idiots would seriously dispute
today that Connecticut was trampling on the 14th Amendment liberties of married couples
by criminalizing the sale of contraceptives to them.
As a libertarian conservative (redundant) I welcomed that result.




Thomas wrote:
So what extra mileage can liberals reasonably expect from the Ninth Amendment,
now that the court is much more conservative? What usurpations do conservatives
realistically have to fear? I don't see either.
I have a little hunch
that Scalia has something in mind that I don 't know about.




Thomas wrote:
So there's the answer to your "BIG QUESTION as to the reason
that leftists agree that the 'privileges or immunities' clause shoud be re-habilitated":
They like the expansion of trial-by-jury rights under the 6th and 7th Amendments. Big deal.
Maybe; I hope that u r right, Thomas.





David
0 Replies
 
OmSigDAVID
 
  1  
Reply Wed 10 Mar, 2010 08:04 am

There are 2 additional cases wherein freedom lovers seek
to expand the reach of 2nd Amendment rights by extending
2 A protection beyond the home (beyond the HELLER holding)
out into the streets of America.

One is in Federal District Court in the District of Columbia:
PALMER and THE SECOND AMENDMENT FOUNDATION v. D.C.

The other case is in a California Federal District Court:
DEANNA SYKES and THE SECOND AMENDMENT FOUNDATION v. SACRAMENTO.

In both cases, Plaintiffs have moven for summary judgment.
Plaintiff in the California case has informed me that
the Federal Judge has indicated that if and when the USSC incoporates the 2 A
against the States (McDONALD v. CHICAGO), he will grant summary judgment.





David
0 Replies
 
joefromchicago
 
  1  
Reply Wed 10 Mar, 2010 09:22 am
@Thomas,
Thomas wrote:
It isn't Scalia who makes the "professoriate" look irrelevant to this case. Mr. Gura himself fails to identify any difference that his privileges-and-immunities argument makes to the outcome of the case. And Scalia is quite right to ridicule this as an academically interesting, but ultimately irrelevant speculation.

Not surprisingly, I think you're wrong here. Scalia is clearly using the "professoriate" remark to belittle Gura's "privileges or immunities" argument as irrelevant, and not just because Gura can't come up with any difference in the ultimate outcome of the case.

In Gura's defense, however, Scalia's questions don't make a lot of sense. He starts by saying: "I'm not talking about whether -- whether the Slaughter-House Cases were right or wrong." But when Gura says that his interpretation of the "privileges or immunities" clause wouldn't yield a different result, Scalia chides him by saying: "Then if the answer is no, why are you asking us to overrule 150, 140 years of prior law...." In other words, Scalia sets up the question by saying he doesn't want Gura to base his answer on whether or not the Slaughterhouse Cases were wrongly decided, and then he says Gura is, in effect, asking the court to overrule the Slaughterhouse Cases. That's patently unfair to Gura and distorts his actual position.

Gura does much more harm to his position when he can't answer Ginsburg's questions about what constitute the unenumerated "privileges or immunities" guaranteed by the fourteenth amendment. That really is the court's biggest concern with overruling the Slaughterhouse Cases -- not that it would simply duplicate the incorporation of the bill of rights that has been accomplished by means of the due process clause, but that it would lead to the application of other, unstated rights to the states.

Thomas wrote:
My interpretation is that Mr. Gura is trying a psychological maneuver here. He knows he is asking the justices to reach a fairly drastic verdict. So he establishes a bargaining position by offering them an even more drastic verdict they might reasonably reach. That way, the justices can incorporate gun rights into the Fourteenth amendment but decline Gura's invitation to overrule the Slaughterhouse cases as "too radical". That way, everyone is happy. Gura gets what he wants, and the justices can still feel moderate and reasonable about what they are doing.

That's possible, but I think Dorf is closer to the truth. Gura sees an opening through which he can drive his "privileges or immunities" argument -- an opening created by jurists like Scalia and Thomas. He didn't rely on that argument at the circuit court level, because that court couldn't overrule the Slaughterhouse Cases, so it would have been a waste of time. Instead, he made that argument before the supreme court because that's where he thinks he can actually accomplish what he wants.
Thomas
 
  2  
Reply Wed 10 Mar, 2010 03:39 pm
@joefromchicago,
joefromchicago wrote:
Scalia sets up the question by saying he doesn't want Gura to base his answer on whether or not the Slaughterhouse Cases were wrongly decided, and then he says Gura is, in effect, asking the court to overrule the Slaughterhouse Cases. That's patently unfair to Gura and distorts his actual position.

Sorry, I fail to see the unfairness. To see why, put yourself in Scalia's position. He agrees the Slaughterhouse Cases were decided wrongly. He doesn't want Gura to persuade him of that because he's already persuaded. But that's not enough for him to overrule them because he's not Clarence Thomas, so stare decisis does matter to him. He's not going to overrule 140 years of precedent if he can decide the case in the same way without doing so. Hence, he wants to know how overruling the Slaughterhouse Cases makes a difference to the case he's now deciding. In my understanding, these are all pretty mainstream attitudes for an American judge -- no?

Now, given that this is how Scalia thinks -- how were his questions to Gura unfair? What would have been the fair questions to ask him?
Thomas
 
  1  
Reply Wed 10 Mar, 2010 04:01 pm
@joefromchicago,
joefromchicago wrote:
That really is the court's biggest concern with overruling the Slaughterhouse Cases -- not that it would simply duplicate the incorporation of the bill of rights that has been accomplished by means of the due process clause, but that it would lead to the application of other, unstated rights to the states.

I don't understand that, either -- not because I disagree with you, but because I'm not seeing the court's point. If the Supreme Court was big on unenumerated rights, you'd think they would have asserted a lot of them against the federal government by now. But they haven't. So why would there suddenly be a splurge of federal Ninth-Amendment-incorporated-through-the-Fourteenth cases against the states?
OmSigDAVID
 
  2  
Reply Wed 10 Mar, 2010 04:47 pm
@Thomas,
Thomas wrote:
joefromchicago wrote:
That really is the court's biggest concern with overruling the Slaughterhouse Cases -- not that it would simply duplicate the incorporation of the bill of rights that has been accomplished by means of the due process clause, but that it would lead to the application of other, unstated rights to the states.

I don't understand that, either -- not because I disagree with you, but because I'm not seeing the court's point. If the Supreme Court was big on unenumerated rights, you'd think they would have asserted a lot of them against the federal government by now. But they haven't. So why would there suddenly be a splurge of federal Ninth-Amendment-incorporated-through-the-Fourteenth cases against the states?
Even if that HAPPENED, the fact remains that in 1868,
the Constitution was amended to OVERTHROW
BARRON, let the chips fall where thay may.

WHERE does it say in Article 3 that the USSC
is supposed to go around making policy decisions,
revoking the Constitution, or parts thereof?

Gura coud have pointed that out to him,
but it probably woud not have been politic to provoke him.
Thomas
 
  1  
Reply Wed 10 Mar, 2010 04:51 pm
@OmSigDAVID,
OmSigDavid wrote:
WHERE does it say in Article 3 that the USSC is supposed to go around makig policy decisions, revoking the Constitution, or parts thereof?

Can you be more specific about what you consider an impermissible policy decision that the Supreme Court is likely to be making?
joefromchicago
 
  1  
Reply Wed 10 Mar, 2010 05:02 pm
@Thomas,
Thomas wrote:
Now, given that this is how Scalia thinks -- how were his questions to Gura unfair? What would have been the fair questions to ask him?

Scalia's question is unfair because he wanted Gura to answer his hypothetical without any reference to the Slaughterhouse Cases, and then he criticizes Gura for asking the court to overrule that precedent. Scalia evidently doesn't want to overrule those cases, but the problem is that Gura does, and forcing Gura to answer his hypothetical without taking a position on the Slaughterhouse Cases is a distortion of Gura's argument.

Scalia asked if it would be easier to incorporate the second amendment through the "privileges or immunities" clause rather than through substantive due process. Gura's answer (if he could have finished it) would have been "yes," because that's what the "p or i" clause was meant to do. But Scalia didn't want to hear that answer -- he wanted Gura to answer in light of 140 years of substantive due process jurisprudence, even though that answer would have to assume that the court shouldn't overrule the Slaughterhouse Cases, which is exactly what Gura wants the court to do. It's rather like this:

JUSTICE SCALIA: Is it easier for a runner who has a 90-yard head start to win the 100-yard dash?
MR. GURA: I don't think it's fair to give one runner a 90-yard head start...
JUSTICE SCALIA: I'm not interested if you think it's not fair that one runner gets a 90-yard head start, I just want to know if it's easier for that runner to win the race.
MR. GURA: Well, I suppose so.
JUSTICE SCALIA: Then why are you asking us to start the race over with all the runners starting at the starting line?
joefromchicago
 
  1  
Reply Wed 10 Mar, 2010 05:14 pm
@Thomas,
Thomas wrote:
I don't understand that, either -- not because I disagree with you, but because I'm not seeing the court's point. If the Supreme Court was big on unenumerated rights, you'd think they would have asserted a lot of them against the federal government by now. But they haven't. So why would there suddenly be a splurge of federal Ninth-Amendment-incorporated-through-the-Fourteenth cases against the states?

I can think of at least three unenumerated rights that have been recognized at one time or another by the supreme court:

The right to privacy (Griswold v. Connecticut 1965)
The right to marry (Loving v. Virginia 1967)
The right to travel (Saenz v. Roe 1999)

To my knowledge, only Griswold involved the ninth amendment. Saenz, in fact, relied on the "privileges or immunities" clause of the fourteenth amendment, a rare instance of the court discussing that clause.

No doubt there are other unenumerated rights lurking out there. It's not that the court is afraid of the ones that it knows, it's afraid of the ones that it doesn't.
0 Replies
 
OmSigDAVID
 
  2  
Reply Wed 10 Mar, 2010 05:19 pm
@Thomas,
Thomas wrote:
OmSigDavid wrote:
WHERE does it say in Article 3 that the USSC is supposed to go around makig policy decisions,
revoking the Constitution, or parts thereof?

Can you be more specific about what you consider
an impermissible policy decision that the Supreme Court is likely to be making?
My point is that since 1872, we have had a giant judicial scandal in front of us, and tolerated it silently.
When the USSC decided in SLAUGHTERHOUSE to ignore the "privileges or immunities" clause of 14 A,
it was a known fact, known with clarity and specificity,
by both Houses of Congress and the public that the author of
Section 1 of the 14th Amendment, Representative John Bingham
said on the Floor of Congress, in the Congressional Record,
that he wrote it to revoke and overthrow BARRON v. BALTIMORE
and to directly apply the Bill of Rights to curtail jurisdiction of the States.

The same applies to Senator Jacob Howard, who introduced it into the US Senate,
reading each of the first 8 amendments into the Congressional Record
and saying that the 14th Amendment was to curtail State authority by applying the Bill of Rights.
No one questioned this; it was undisputed, except by the USSC in 1872 in SLAUGHTERHOUSE,
which was an act of judicial charlatanism.

I don 't know of anyone who stands up for and defends that precedent,
which screwed us out of a lot of freedom, to put it mildly.

0 Replies
 
Thomas
 
  1  
Reply Wed 10 Mar, 2010 05:20 pm
@joefromchicago,
joefromchicago wrote:
JUSTICE SCALIA: Is it easier for a runner who has a 90-yard head start to win the 100-yard dash?
MR. GURA: I don't think it's fair to give one runner a 90-yard head start...
JUSTICE SCALIA: I'm not interested if you think it's not fair that one runner gets a 90-yard head start, I just want to know if it's easier for that runner to win the race.
MR. GURA: Well, I suppose so.
JUSTICE SCALIA: Then why are you asking us to start the race over with all the runners starting at the starting line?

Because I commend the cleverness of your attempted analogy, I regret to point out that line four is unfaithful to the actual exchange. Once you fix that mistake, Gura answers, not "well, I suppose so", but "well I suppose not". And Scalia's reply becomes very appropriate indeed given that response: "If you suppose not, then why are you asking us to start the race over with all the runners starting at the starting line?".

When arguing from an analogy, you need to make sure it's analogous to the actual exchange.
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