A Tale of Two Editorials

It’s a rare day when the New York Times gets something right editorially while the Wall Street Journal gets it wrong — and on gun rights, no less. Yet that was the case today, when the Supreme Court heard oral arguments in McDonald v. Chicago, a challenge to Chicago’s draconian gun‐​control law.


Not surprisingly, the Times opens with a shot against the Court’s 2008 decision in Heller v. District of Columbia, which found for the first time that the Second Amendment protects an individual’s right to keep and bear arms, quite apart from whether he’s a member of a militia. The next step, at issue in McDonald, is whether that right was good not simply against the federal government (Heller decided that) but against states and municipalities as well. Both the Times and the Journal argue, correctly, that the Bill of Rights should apply against the states, and that’s how the Court will likely rule. The difference is on the grounds for so ruling, and it’s not a trivial matter.


The Times reviews very briefly the history that gives rise to that issue. In a nutshell, and filling in some blanks, the Bill of Rights applied originally only against the federal government. With the ratification of the Fourteenth Amendment in 1868, however, U.S. citizenship was defined and elevated over state citizenship, and states were prohibited from abridging the privileges or immunities of citizens of the United States, from depriving any person of life, liberty, or property without due process of law, and from denying any person within their jurisdiction of the equal protection of the laws. But five years later, in the infamous Slaughterhouse Cases, the Court eviscerated the Privileges or Immunities Clause, which was meant to be the principal font of substantive rights under the amendment. Thereafter the Court would gradually “incorporate” various provisions of the Bill of Rights under the less substantive Due Process Clause — an uneven and sometimes mischievous process, the Court finding “rights,” from time to time, nowhere to be found in the Constitution. That’s the “substantive due process” against which conservatives have often railed over the years, often rightly so, as part of their larger assault on “judicial activism.”


Well the Times editorialists recognize that history and recognize also that scholars have long criticized the Slaughterhouse decision. Accordingly, they call on the Court to rectify its mistake of 1873 and to base its decision in McDonald on the Privileges or Immunities Clause. If the Court did, that “would be truer to the intent of the [framers of the Fourteenth Amendment], and it could open the door to a more robust constitutional jurisprudence that would be more protective of individual rights.”


And that, precisely, is what concerns the editorialists at the Journal. They too review the history — more fully than does the Times — but argue that the Court should ground its decision on the Fourteenth Amendment’s Due Process Clause. What they fear is that reviving the Privileges or Immunities Clause might lead to more judicial activism. But they offer no reason to believe that — which is all the more surprising since those of us who have long urged the Court to reverse Slaughterhouse and revive the Privileges or Immunities Clause have done so precisely to check that abuse.


As the Times rightly implies, the Due Process Clause has been the wrong clause all along for deciding most Fourteenth Amendment cases. Those cases should have been decided under the more substantive Privileges or Immunities Clause, the history of which would have better informed the Court and, accordingly, better checked the Court’s occasional activism. It’s less than clear, however, whether the editorialists at the Times appreciate that final point. Indeed, when they write, as just noted, that respecting the intent of the Fourteenth Amendment’s framers “could open the door to a more robust constitutional jurisprudence that would be more protective of individual rights,” flags go up. But if the Court did correct its mistake, the issue would then turn on what those framers meant by “privileges or immunities of citizens of the United States.” And on that question there is a rich and fairly clear historical record, unlike with the much less definite idea of “substantive due process,” the ground recommended by the Journal’s editorialists.


It appears, in short, that the Journal’s understandable concern to check judicial activism has led it to ignore the better check and, ironically, to leave the Slaughterhouse decision, the source of the problem, uncorrected. The irony is that that decision was a paradigmatic example of judicial activism, of a Court ignoring the law. Were the Court today to perpetuate that mistake, in a case that is primed for correcting it, that would amount to one more activist decision. After all, the text is there, staring the Court in the face. Yet the Journal urges the Court to ignore it. That’s the very mark of judicial activism.


[Cross‐​posted at NRO’s Bench Memos]