Rights Archives – Southern California Law Review

INTRODUCTION

Civil liberties deserve better protection than the dubious doctrine of substantive due process. Fortunately, an underappreciated, yet significant, development is ripening within the Supreme Court’s jurisprudence surrounding the incorporation of the Bill of Rights. At least two Supreme Court Justices¹ are willing to consider opening the Privileges or Immunities Clause door to incorporation that the Slaughter-House Cases slammed shut.² What if three more Justices changed their minds and that door swung open?

This Note provides a new methodology called the “PI + 9 Framework.” The PI + 9 Framework combines the Fourteenth Amendment’s Privileges or Immunities Clause (“PI”) with the Ninth Amendment (“9”) to apply the Bill of Rights to the states in a more efficient, clear, and sturdy way. This proposition is a bold, yet modest, means by which to incorporate the Bill of Rights against the states while securing unenumerated rights. The Framework is faithful to the original public meaning and original intent of the Privileges or Immunities Clause. The PI + 9 Framework focuses on the procedures by which substantive rights are secured rather than seeking untested answers that could destabilize manifold areas of law. Instead, the PI + 9 Framework seeks to ground the Bill of Rights, including unenumerated rights, in something more robust than substantive due process. The emphasis on a proper mechanism addresses justified concerns about the Privileges or Immunities Clause and the Ninth Amendment becoming a Pandora’s box.

This Note will begin by examining the only appropriate means for incorporating the Bill of Rights against the states: the Privileges or Immunities Clause. Part I conducts an in-depth textual analysis of the meaning of privileges and immunities in the context of the Privileges or Immunities Clause. Part II analyzes the case law surrounding the Clause, with a particular focus on the Slaughter-House Cases and some pertinent concurrences and dissents by Justice Black and Justice Thomas, respectively. Part III makes the case for overruling Slaughter-House based on the Supreme Court’s recent application of stare decisis factors. This Part goes factor-by-factor to argue why stare decisis should not prevent Slaughter-House from being overruled. Part IV argues for an end to substantive due process due to its poor reasoning and inability to adequately secure rights. Part V discusses how the Court should recognize unenumerated rights and considers which Ninth Amendment methodology would best identify and secure those rights. Part VI applies the PI + 9 Framework to two hypothetical fact patterns—one involving an enumerated right and the other involving an unenumerated right. A helpful chart of the Framework is included in that Part. Part VII lays out the advantages the PI + 9 Framework has over the current substantive due process regime. This Note gives the Supreme Court a guide for replacing substantive due process while preserving incorporation of the Bill of Rights and protecting the unenumerated rights that the Court is anxious about safeguarding.

I. TEXTUAL ANALYSIS OF THE PRIVILEGES OR IMMUNITIES CLAUSE

Before analyzing the Privileges or Immunities Clause’s case law, the meaning of privileges and immunities—and the meaning of those words when used alongside one another—is worth examining.

A. Interpreting Privileges and Immunities in Historical Context

The meaning of privileges and immunities is best explored by looking at the words’ meanings at the time of the Fourteenth Amendment’s ratification—while also keeping in mind the historical usage of those words in the Anglo-American legal tradition.

A Few Meanings of Privilege

The meaning of privilege at the time of the Fourteenth Amendment’s ratification, 1868,³ offers a guide that may be considered independently or alongside the Framers’ intent when interpreting the Privileges or Immunities Clause. A leading dictionary from around the time of ratification provided three definitions of privilege: (1) “[a] particular and peculiar benefit or advantage enjoyed by a person, company, or society, beyond the common advantages of other citizens”; (2) “[a]ny peculiar benefit or advantage, not common to others of the human race”; (3) “[a]dvantage; favor; benefit.”⁴ The first and second definitions are plausible, but the third is too vague to offer meaningful guidance toward understanding the Privileges or Immunities Clause in context. The first two definitions are more precise. Additionally, the third definition does not contradict the preceding definitions; thus, its interpretive value diminishes. Therefore, two definitions of privilege remain.

Privilege As a Benefit Beyond Those Held by Common Citizens

The first definition of privilege does not suit the Privileges or Immunities Clause and is better understood in the mode that privilege is used in the Speech and Debate Clause found in Article I, Section 4 of the Constitution.⁵ The Speech and Debate Clause guarantees that “Senators and Representatives” shall “be privileged from Arrest” during legislative sessions and when coming from and going to those sessions—except in cases of “Treason, Felony and Breach of the Peace.”⁶ This fits the first definition of privilege because the privilege granted to Senators and Representatives is not granted to common American citizens, who enjoy no such privilege.

Anglo-American jurists such as William Blackstone, Matthew Hale, and James Kent all occasionally used privilege to mean a benefit beyond those held by common citizens. For example, Blackstone described the “privilege of letters”⁷ that allowed members of parliament to send and receive letters free of postage.⁸ Hale wrote about bishops and abbots who “had special privileges granted to them to have mints.”⁹ Kent mentioned the privileges consuls are entitled to, “such as for safe conduct.”¹⁰ However, interpreting privilege in that manner in the context of the Privileges or Immunities Clause creates an incongruity. Under this inappropriate definition of privilege, the Privileges or Immunities Clause would guarantee that states could not abridge the benefits that citizens of the United States enjoyed beyond the benefits enjoyed by citizens of the United States. Inserting the first definition of privilege creates a contradiction. This preposterous result proves that privilege in the Privileges or Immunities Clause should not be interpreted as an advantage enjoyed beyond those enjoyed by common citizens.

Privilege As a Peculiar Benefit or Advantage Not Common to Others of the Human Race

To determine whether a “peculiar benefit or advantage not common to others of the human race”¹¹ is within the Clause’s scope, the Court would need to consider which benefits or advantages of citizens of the United States fall within the Clause’s scope. Americans enjoy manifold privileges as citizens of a prosperous nation. However, regarding the Privileges or Immunities Clause, the legal privileges are the most suitable for judges to ascertain.

The writings of prominent Anglo-American jurists suggest that the second definition of privilege, as a peculiar benefit or advantage, encompasses rights. Anglo-American jurists sometimes used privilege interchangeably with rights. For example, Blackstone described “those civil privileges”¹² as part of what constitutes a right found in “the declaration of our rights and liberties.”¹³ Kent mentioned the “right of trial by jury”¹⁴ in suits at common law, which the Seventh Amendment secures.¹⁵ Elsewhere, Kent referred to the jury trial right as a privilege. For example, Kent described some of “the inherent rights and liberties of English subjects, of which the most essential were the exclusive power to tax themselves, and the privilege of trial by jury.”¹⁶

Founding-era historical evidence offers additional proof that privilege’s second definition is the most appropriate one. At the time of the American Revolution, “[t]he words rights, liberties, privileges, and immunities, seem to have been used interchangeably.”¹⁷ Indeed, as evidenced by Blackstone’s invocation of privilege and historical examples that predate or coincide with the American Revolution, the interchangeability of privilege and right is well-founded.¹⁸

Viewing privilege as interchangeable with right, advantage, benefit, or immunity results in an interpretation aligned with privilege’s original public meaning at the time of the Fourteenth Amendment’s ratification. Under that definition, the Privileges or Immunities Clause would be understood to protect “the [rights, benefits, advantages] or [I]mmunities of citizens of the United States” from state abridgment.¹⁹

A Few Meanings of Immunity

Around the time of the Fourteenth Amendment’s ratification, a leading American dictionary listed three definitions for immunity: (1) “[f]reedom or exemption from obligation”; (2) “[e]xemption from any charge, duty, office, tax, or imposition; a particular privilege or prerogative”; and (3) “[f]reedom.”²⁰ Like the three definitions of privilege, the first two are plausible on their faces, but the third is too vague. Moreover, like the third definition of privilege,²¹ the third definition of immunity does not contradict the first or second definition. Thus, two definitions are ripe for examination.

The Broader Immunity Definition Is the Best Match

The first definition of immunity is an incomplete match for how immunities is used in the Privileges or Immunities Clause.²² The second and more capacious definition of immunities—“[e]xemption from any charge, duty, office, tax, or imposition; a particular privilege or prerogative”²³—fits more naturally with other constitutional protections that existed at the time of the Fourteenth Amendment’s ratification. One example precedes the Bill of Rights.

Before the ratification of the Bill of Rights, Americans enjoyed an important immunity that remains in force. Article III, Section 3 of the Constitution grants Congress the power to decide how treason is punished but provides that “no Attainder of Treason shall work Corruption of Blood.”²⁴ The Constitution does not define the prohibition of Corruption of Blood as punishment for treason as a right, immunity, or anything else. The punishment is simply prohibited. Any attempt by Congress to make treason punishable by Corruption of Blood would be voided due to its conflict with the Constitution.²⁵ Thus, Article III, Section 3 of the Constitution could reasonably be interpreted as providing immunity to American citizens from Corruption of Blood as a punishment for treason.

In a similar way, several provisions in the Bill of Rights provide for exemptions against certain charges and impositions. The Fifth Amendment prohibits double jeopardy and thus exempts a person from any charge of which they were already acquitted.²⁶ The Eighth Amendment exempts or immunizes Americans from the imposition of excessive fines.²⁷ Even if the word rights were not synonymous with immunities, some provisions of the Bill of Rights could reasonably be interpreted as immunities.

B. Rights, Privileges, and Immunities

Rights, privileges, and immunities were interchangeable words at the time of the Fourteenth Amendment’s ratification.²⁸ One needs to look no further than a dictionary to see that privilege and immunity were words used to define the word right.²⁹ Justice Thomas recognized this reality in his concurrence in McDonald v. City of Chicago.³⁰ Absent a showing that the Privileges or Immunities Clause means something other than what it says, the plain meaning appears to cover at least those rights enumerated in the Constitution at the time of the Fourteenth Amendment’s ratification, namely those in the Bill of Rights.³¹ The Bill of Rights originally established a baseline of rights that only applied to the federal government.³² Despite the rights being limited to protection against federal government infringement, all citizens of the United States still nonetheless enjoyed those rights, albeit with application being limited to the federal government and not state governments.

The plain meaning of privileges and immunities in the Privileges or Immunities Clause is not ambiguous, but construing the Clause is trickier. Given that rights, privileges, and immunities were synonymous at the time of the Fourteenth Amendment’s ratification, one would need to determine whether the Bill of Rights is within the scope of rights enjoyed by citizens of the United States that no state shall abridge.

C. “Citizens of the United States” Sets an Appropriate Limit on the Constitution’s Abridgment of State Power

Although several interpretations of the Privileges or Immunities Clause are reasonable,³³ the Clause must answer two questions. First, Are citizens of the United States the only persons whose privileges or immunities are protected from state abridgment? Second, Are states prohibited from infringing on those privileges or immunities that citizens of the United States hold? The first question asks who gets protected by the Privileges or Immunities Clause. The second question asks which rights are protected.

Justice Thomas answered the first question satisfactorily in his concurrence in McDonald v. City of Chicago.³⁴ One need not search outside the same section in which one finds the Privileges or Immunities Clause to find another that operates as a more natural and efficacious anti-discrimination provision: the Fourteenth Amendment’s Equal Protection Clause.³⁵ The Supreme Court occasionally used the Equal Protection Clause to strike down discriminatory laws shortly after Slaughter-House was decided.³⁶ Furthermore, suppose a state passed a law that only abridged the rights of noncitizens. Such abridgment may violate the Fourteenth Amendment’s commandment that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”³⁷ The Privileges or Immunities Clause is read more naturally as a clause that establishes a “minimum baseline of federal rights” that states may not abridge.³⁸ Such a reading answers the aforementioned second question in the affirmative.

II. PRIVILEGES OR IMMUNITIES CLAUSE CASE LAW

Any examination of the jurisprudence surrounding the Privileges or Immunities Clause must begin with the Slaughter-House Cases.³⁹ The majority opinion and dissents illuminate Reconstruction Era views of the Clause. Since the Court decided Slaughter-House, the few Justices who have conducted extensive historical analysis of the Clause’s legislative history have arrived at a more expansive view of the Clause.⁴⁰

A. Slaughter-House Shuts One Door for Incorporating the Bill of Rights

In 1873, the Supreme Court in Slaughter-House held that the Privileges or Immunities Clause did not incorporate the Bill of Rights against the states.⁴¹ Since then, the Privileges or Immunities Clause has been relegated to obsolescence.⁴² Once, in Saenz v. Roe, the Court used the Clause to recognize a right to travel⁴³ by striking down a California law⁴⁴ limiting welfare benefits for new California residents.⁴⁵ In his Saenz dissent, Chief Justice Rehnquist lamented the Court’s revival of the Clause, in part because the Clause had been dormant for so long.⁴⁶ Eleven years after Saenz, the Court in McDonald v. City of Chicago reluctantly affirmed, or at least refused to revisit, Slaughter-House’s narrow construction of the Privileges or Immunities Clause.⁴⁷ The reluctant affirmation of a questionable precedent was unwarranted in light of the developments after Slaughter-House. Federalism concerns pervaded the majority opinion’s reasoning in Slaughter-House. The Court worried that the Constitution—and the Court expounding it—would become a “perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.”⁴⁸

Nevertheless, the Supreme Court has incorporated most of the Bill of Rights against the states. The remaining unincorporated enumerated rights are the seldom-litigated Third Amendment,⁴⁹ the Fifth Amendment’s Grand Jury Clause,⁵⁰ and the Seventh Amendment right to a trial by jury in suits at common law.⁵¹ The resultant beefing up of the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause has achieved an effect rivaling the censor that the Slaughter-House majority feared.⁵²

Although the Privileges or Immunities Clause’s construction in Slaughter-House stands as good law today, the dissenters’ views shed some light on other views of the Privileges or Immunities Clause around the time of the Fourteenth Amendment’s ratification. Four Justices dissented in Slaughter-House.⁵³ Justice Field—joined by Chief Justice Chase, Justice Swayne, and Justice Bradley—dissented and wrote that if the Fourteenth Amendment’s Privileges or Immunities Clause were interpreted as narrowly as the majority interpreted it, then the Privileges or Immunities Clause “was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.”⁵⁴ Justice Field foresaw the superfluity of the new Clause if it were read so narrowly and wrote, “With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference.”⁵⁵ Justice Field’s prediction has but one blemish more than 150 years after the Court decided Slaughter-House: Saenz v. Roe.⁵⁶ Although Justice Field’s prediction proved prescient, Justice Bradley and Justice Swayne wrote broader dissents that explicitly advocated incorporating the Bill of Rights against the states via the Privileges or Immunities Clause.

Justice Bradley criticized the majority’s decision by averring that “the Constitution itself” contains “some of the most important privileges and immunities of citizens of the United States.”⁵⁷ One problem with narrowly construing the Privileges or Immunities Clause is that it denigrates the rights set forth in the Bill of Rights as not fundamental or less fundamental. A judge’s place is not to decide which rights in the Bill of Rights are essential and which are not.⁵⁸ Those who ratified the amendments comprising the Bill of Rights thought each was important enough to become part of the nation’s founding document. The people’s will, as expressed through their passage of the amendments, ought to be dispositive on the issue of whether a right in the Bill of Rights is fundamental. Justice Bradley grasped this flaw when he wrote that other rights, privileges, and immunities “of the greatest consequence were enumerated, although they were only secured, in express terms, from invasion by the Federal government.”⁵⁹ The Fourteenth Amendment changed the equation by protecting the privileges or immunities of citizens of the United States from state abridgment.⁶⁰

Justice Swayne wrote a separate dissent and believed that the Reconstruction Amendments “may be said to rise to the dignity of a new Magna Charta.”⁶¹ Justice Swayne also thought the majority’s analysis served to obfuscate rather than clarify.⁶² Justice Swayne believed the Privileges or Immunities Clause was clear and wrote, “Elaboration may obscure, but cannot make clearer, the intent and purpose sought to be carried out.”⁶³ Justice Swayne believed the Privileges or Immunities Clause concerned, “among other things, the fundamental rights of life, liberty, and property, and also the rights which pertain to him by reason of his membership of the Nation.”⁶⁴ This formulation would almost certainly cover each enumerated provision of the Bill of Rights and perhaps some rights not enumerated in the Constitution. After all, even the narrowly construed Privileges or Immunities Clause has already been held to protect at least one unenumerated right: the right to travel.⁶⁵ Justice Swayne acknowledged the objection that “the power conferred is novel and large.”⁶⁶ Justice Swayne had a simple answer to the objection:

The answer is that the novelty was known and the measure deliberately adopted. The power is beneficent in its nature, and cannot be abused. It is such as should exist in every well-ordered system of polity. Where could it be more appropriately lodged than in the hands to which it is confided? It is necessary to enable the government of the nation to secure to every one within its jurisdiction the rights and privileges enumerated, which, according to the plainest considerations of reason and justice and the fundamental principles of the social compact, all are entitled to enjoy. Without such authority any government claiming to be national is glaringly defective.⁶⁷

Justice Swayne ended his dissent by expressing hope that the consequences of the majority’s decision would be “less serious and far-reaching than the minority fear they will be.”⁶⁸ Justice Swayne’s fear was partially realized. On the one hand, most of the Bill of Rights is now incorporated.⁶⁹ On the other hand, incorporation of the Bill of Rights against the states proceeded tardily.⁷⁰ The majority failed to create a precedent that provided a bulwark against the specter of the “perpetual censor”⁷¹ of which the majority expressed great trepidation.⁷² However, the majority succeeded in crafting a precedent that dissuaded most future jurists from pursuing incorporation of the Bill of Rights via the Privileges or Immunities Clause.

B. The Privileges or Immunities Clause’s Post-Slaughter-House Champions

Following Slaughter-House, few Justices have dared to broaden the construction of the Privileges or Immunities Clause. The two most significant proponents of such a construction are Justice Black and Justice Thomas.

Justice Black’s “Eminently Reasonable” Method of Incorporating the Bill of Rights Against the States

In 1947, Justice Black, an early practitioner of constitutional originalism,⁷³ concluded in his dissent in Adamson v. California that the Privileges or Immunities Clause was intended to apply the first eight amendments of the Bill of Rights to the states.⁷⁴ In 1968, Justice Black, in a concurrence joined by Justice Douglas,⁷⁵ doubled down on his Adamson dissent. Justice Black once again concluded that the Privileges or Immunities Clause “seem[ed] to [him] an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the states.”⁷⁶

Experience as a prominent legislator guided Justice Black’s view of the Privileges or Immunities Clause.⁷⁷ Justice Black’s historical analysis of the Privileges or Immunities Clause—and the wholesale incorporation view that resulted therefrom—has value because of his decade-long experience as a United States senator.⁷⁸ Although Justice Black’s opinions regarding incorporation lack the force of law, his experience as a legislator may guide current and future Justices in evaluating the Privileges or Immunities Clause’s legislative history. Regarding the value of prior opinions, Justice Gorsuch wrote, “Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.”⁷⁹ The wisdom of former legislators who served as Justices can only be found in the past. No current Supreme Court Justice was ever a legislator. Justice O’Connor was the most recent Justice with any legislative experience,⁸⁰ and Justice Black was the last member of Congress to serve on the Court.⁸¹ Justice Black’s perspective regarding the Privileges or Immunities Clause aids the argument that views the legislative history of the Privileges or Immunities Clause as intending a full incorporation of the Bill of Rights.

Some have lamented when a judge heavily relies on history,⁸² but Justice Black’s opinions offer helpful surveys of the Fourteenth Amendment’s legislative history. The lived experience of a decade as a United States senator adds weight to his opinions regarding the Privileges or Immunities Clause’s legislative history. The fact that no current Justice on the Supreme Court has any experience as a legislator would be a problem if the Court had no previous opinion from a former legislator from which to draw. This is not the case. Justice Black passed down his learning about the Privileges or Immunities Clause’s meaning through his opinions in cases such as Adamson v. California⁸³ and Duncan v. Louisiana.⁸⁴ No judge ought to be required to follow Justice Black’s jurisprudence on every matter that touches legislative history on account of his experience. However, his legislative experience and pioneering originalism lend a unique perspective to any jurist seeking the original meaning of the Privileges or Immunities Clause.

Justice Thomas’s Revival of Privileges or Immunities in McDonald v. City of Chicago

In the past twenty years, Justice Thomas has led the charge for a potent Privileges or Immunities Clause in concurring opinions when a case arises in which the incorporation of a provision of the Bill of Rights is at issue.⁸⁵ Justice Thomas’s interpretation of the Constitution centers around a search for the Constitution’s original meaning.⁸⁶ Justice Thomas employed this interpretive method in his concurring opinion in McDonald v. City of Chicago.⁸⁷ In McDonald, Justice Thomas concluded that the Second Amendment’s right to keep and bear arms applied to the states via the Fourteenth Amendment’s Privileges or Immunities Clause.⁸⁸ After a detailed treatment of the Fourteenth Amendment’s text and history,⁸⁹ Justice Thomas wrote the following about the Privileges or Immunities Clause as it relates to incorporating the Bill of Rights:

This evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. As the Court demonstrates, there can be no doubt that § 1 was understood to enforce the Second Amendment against the States. In my view, this is because the right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause.⁹⁰

Justice Thomas recognized that the legislative history surrounding the Clause was “less than crystal clear.”⁹¹ He also acknowledged the difficulties that interpreting the once-dormant Clause may pose. Still, he argued that interpretation of the Privileges or Immunities Clause was “far more likely to yield discernible answers[ ]than the substantive due process questions the Court has for years created on its own, with neither textual nor historical support.”⁹²

In McDonald, Justice Thomas was alone in his interpretation of the Privileges or Immunities Clause. The plurality opinion stated that it “saw no need to reconsider” Slaughter-House and “therefore decline[d] to disturb the Slaughter-House holding.”⁹³ The phrasing in that sentence is crucial. The plurality did not reject Justice Thomas’s view on the merits or defend Slaughter-House on the merits. Instead, they saw another path to incorporation—substantive due process. Because that path remained open, the plurality believed it was merely unnecessary—though perhaps not improper—to revisit Slaughter-House.

The dissents rejected Justice Thomas’s view for similar reasons. In his dissent, Justice Stevens acknowledged the “impressive amount of historical evidence”⁹⁴ that the petitioners compiled in support of their position that Slaughter-House’s narrow reading of the Privileges or Immunities Clause was erroneous. Yet, Justice Stevens believed the original meaning of the Clause was “not nearly as clear as it would need to be to dislodge 137 years of precedent.”⁹⁵ In a separate dissent joined by Justice Ginsburg and Justice Sotomayor, Justice Breyer declined to defend Slaughter-House on the merits and instead wrote only that “the plurality today properly declines to revisit our interpretation of the Privileges or Immunities Clause.”⁹⁶ The refusal to substantively engage with Justice Thomas’s opinion or to defend Slaughter-House on the merits is at least some evidence of the weak footing on which opposition to Justice Thomas’s conclusion rests. A maxim from Chief Justice Marshall is enough to support Justice Thomas’s conclusion and defeat Slaughter-House’s construction of the Privileges or Immunities Clause, such that the only justification for upholding Slaughter-House is stare decisis. In Marbury v. Madison, Chief Justice Marshall wrote, “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.”⁹⁷ The words of the Privileges or Immunities Clause do not require such a narrow construction. Slaughter-House ought to be overruled unless stare decisis justifies upholding the precedent.

The Post-McDonald Future of the Privileges or Immunities Clause

Although Justice Thomas was unsuccessful in reviving the Privileges or Immunities Clause in McDonald, he has continued to defend his interpretation of the Clause. In Timbs v. Indiana, Justice Thomas would have applied the Eighth Amendment’s prohibition of excessive fines to the states via the Privileges or Immunities Clause—not the Due Process Clause.⁹⁸ In Dobbs v. Jackson Women’s Health Organization, Justice Thomas argued for reconsidering every substantive due process precedent and deciding whether the rights protected by those precedents are protected by the Privileges or Immunities Clause.⁹⁹ Since McDonald, Justice Thomas has found one potential ally to support his view of the Privileges or Immunities Clause. In 2019, Justice Gorsuch has emerged as a possible proponent of incorporation via the Privileges or Immunities Clause, a position he contemplated in Timbs.¹⁰⁰

III. STARE DECISIS FACTORS POINT TO OVERRULING SLAUGHTER-HOUSE

Stare decisis is not an “inexorable command.”¹⁰¹ However, the rule of law rests on a measure of stability. Justice Brandeis was prudent to say, “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”¹⁰² Nevertheless, the oft-wise policy is weakest when the Supreme Court interprets the Constitution because changing a constitutional precedent can only be accomplished via constitutional amendment—an arduous process—or by overruling the precedent.¹⁰³

The Slaughter-House majority’s interpretation of the Privileges or Immunities Clause is wrong and should be overruled. To overrule it, the Court would need to find that stare decisis factors weigh in favor of overruling the case. The Court tends to rely on six stare decisis factors: (1) nature of the error; (2) quality of the reasoning; (3) workability of the rule established; (4) disruptive effect on other areas of law; (5) developments since the case was decided; and (6) reliance interests.¹⁰⁴ All but one particular factor is either neutral or weighs in favor of overruling Slaughter-House. The factors as a whole weigh strongly in favor of overruling Slaughter-House and interpreting the Fourteenth Amendment’s Privileges or Immunities Clause as fully incorporating the Bill of Rights.

A. The Nature of the Slaughter-House Majority’s Error

The first factor focuses on the degree of wrongness and the damaging effects of the decision rather than the reasoning itself.¹⁰⁵

The Slaughter-House majority’s opinion constituted the type of egregious and deleterious error¹⁰⁶ that makes the first stare decisis factor weigh in favor of overruling Slaughter-House. Suppose that each provision of the Constitution were interpreted as narrowly as the Privileges or Immunities Clause. If each constitutional provision were interpreted so narrowly as to be famous for having little or no effect,¹⁰⁷ what purpose would the Constitution serve? The judicial nullification of the Privileges or Immunities Clause is repugnant to a democratic people and disrespects the ratifiers of the Fourteenth Amendment. The majority’s decision in Slaughter-House was nothing more than the “exercise of raw judicial power,”¹⁰⁸ which in effect nullified part of the Fourteenth Amendment.

Decisions that invent “principles or values that cannot fairly be read into [the Constitution] usurp the people’s authority.”¹⁰⁹ Here, the Slaughter-House majority did the inverse of what the Dobbs majority criticized Roe v. Wade¹¹⁰ and Planned Parenthood of Southeastern Pennsylvania v. Casey¹¹¹ for doing. The Dobbs majority believed that Roe and Casey improvidently took a decision not yet made by the American people and made it for them via judicial pronouncement;¹¹² the Slaughter-House majority took a decision already made by the American people, through the ratification of the Fourteenth Amendment, and revoked it via an impermissibly narrow interpretation¹¹³ of the Privileges or Immunities Clause that sapped the Clause of all might.

B. The Quality of the Slaughter-House Majority’s Reasoning

Silence and evasion cry out for criticism. When nobody stands to defend a precedent’s reasoning, the quality of the reasoning is weaker.¹¹⁴ In 2020, a plurality of the Court in Ramos v. Louisiana found the quality of the reasoning factor to weigh in favor of overruling a precedent, partly because “no Member of the Court today defend[ed] [the precedent] as rightly decided.”¹¹⁵ Justices from across the spectrum have attacked the Slaughter-House majority’s reasoning by refusing to defend the merits of Slaughter-House’s interpretation of the Privileges or Immunities Clause.¹¹⁶ The Justices were right to refuse to defend the opinion on the merits because doing so is almost impossible. The consensus of constitutional scholars is that the Slaughter-House majority’s interpretation of the Privileges or Immunities Clause was wrong.¹¹⁷

The reasoning in Slaughter-House was “exceptionally weak.”¹¹⁸ The reasons for the narrow construction were (1) a bald, results-based conclusion and (2) an absurd reading that ignores text and legislative history.

A Bald, Results-Based Conclusion

Beginning with the bald conclusion, the Court stated, “There can be little question that the purpose of both [Article IV’s Privileges and Immunities Clause and the Fourteenth Amendment’s Privileges or Immunities Clause] is the same, and that the privileges and immunities intended are the same in each.”¹¹⁹ In clear language, the Court admitted its result-oriented construction was “not always the most conclusive” argument.¹²⁰ Nevertheless, the Court made its choice out of fear of a theory that “radically change[d]” the relationship between state and federal governments and about concerns that the Court would become a “perpetual censor” over state legislatures.¹²¹ The Court’s reasoning depended on avoiding a purportedly undesirable outcome, but that feared result has already been achieved.¹²² The reasoning undergirding Slaughter-House’s results-based conclusion has crumbled as substantive due process has grown.¹²³

To overcome its concerns about a radical change to the constitutional order, the Court asked for “language which expresse[d] such a purpose too clearly to admit of doubt.”¹²⁴ The Court adopted something akin to a beyond-reasonable-doubt standard for interpretation that had no basis in constitutional interpretation. The total concoction of a novel standard for constitutional interpretation is further evidence of an egregiously wrong opinion.

An Absurd Reading That Ignores Text and Legislative History

In the majority opinion, Justice Miller set forth an anti-textual reading of the Fourteenth Amendment that distinguished between the privileges or immunities of citizens of a state and the privileges or immunities of citizens of the United States.¹²⁵ According to Justice Miller, the privileges and immunities of the citizen of a state “embrace[] nearly every civil right for the establishment and protection of which organized government is instituted.”¹²⁶ Conversely, the privileges and immunities of the citizen of the United States were limited to things like the right to travel to and from the seat of government and access to seaports.¹²⁷ The dichotomy between state citizens’ rights and United States citizens’ rights is difficult to square with Justice Miller’s belief that the purpose and effect of the Fourteenth Amendment should be to protect Black Americans.¹²⁸ The plain language of the Privileges or Immunities Clause seems to desire some nationwide baseline for individual rights. If that baseline was as paltry as Justice Miller suggested, then the enactment truly was “vain and idle.”¹²⁹

Regarding legislative intent, Justice Miller did not believe that a broad Privileges or Immunities Clause was intended. Justice Miller summarily concluded that he was “convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.”¹³⁰ Justice Miller failed to conduct even a cursory survey of the legislative history. If he had done so, he would have found that leading Republicans in the Congress that passed the Fourteenth Amendment believed the capacious definition of privileges and immunities was appropriate for the federal government to prevent state infringement of the same.¹³¹ Adding to the case against Justice Miller’s reading of the legislative history is the fact that Representative John Bingham, the Privileges or Immunities Clause’s primary draftsman, stated in a speech in Congress that the purpose of the Clause was to apply the Bill of Rights to the states.¹³² The quality of the Slaughter-House majority’s reasoning was abysmal because it failed to heed the Privileges or Immunities Clause’s plain text or legislative history.

For the above reasons and many more, “[v]irtually no serious modern scholar—left, right, and center—thinks that [the majority’s reading] is a plausible reading of the Amendment.”¹³³ The quality of the majority’s reasoning surpasses an excusable “garden-variety error”¹³⁴ and makes the quality of the reasoning factor weigh strongly in favor of overruling the precedent.

C. The Workability of the Rules Imposed on the Country

The workability factor asks whether the rule “can be understood and applied in a consistent and predictable manner.”¹³⁵ To laud Slaughter-House for creating a workable rule would be a mistake. The opinion created a bright-line rule that refused to incorporate any provision of the Bill of Rights.¹³⁶ This rule is easy for lower courts to apply in the same way that the following absurd, bright-line interpretation would be easy to apply: Suppose the Court held that “Speech” in the First Amendment¹³⁷ context must be construed in the same manner as “Speech” described in Article I’s Speech and Debate Clause.¹³⁸ That construction would be easy for lower courts to apply due to the narrow circumstances in which Speech and Debate Clause issues arise. However, workability through absurdity should not suffice.¹³⁹

D. The Disruptive Effect on Other Areas of Law

A precedent that has distorted other legal doctrines is more suitable for overruling.¹⁴⁰ Although achieving substantially similar results, the closing off of incorporation via the Privileges or Immunities Clause caused jurists who did not want to overrule Slaughter-House to distort the Fourteenth Amendment’s Due Process Clause in order to incorporate the Bill of Rights against the states.¹⁴¹ Due Process Clause distortion caused two nasty ailments.

First, the incrementalist incorporation route required Justices to inquire whether a provision of the Bill of Rights was “fundamental to our scheme of ordered liberty” with “dee[p] root[s] in [our] history and tradition.”¹⁴² Part of the rationale for Constitution-related precedent being weaker is the high bar for amending the Constitution.¹⁴³ When a provision of the Constitution enumerates a right, it is self-evident that a great majority of American voters considered the provision sufficiently fundamental to make it part of the nation’s foundational legal document. Judicial inquiry into whether a provision is important enough to be elevated to fundamental status is improper. The entire Bill of Rights is fundamental to liberty. The Anti-Federalists who pressed for a bill of rights in the Constitution did so partly because they believed some liberties were so fundamental that their inclusion in the nation’s founding document was necessary.¹⁴⁴

Second, the absorption of unenumerated-rights analysis into substantive due process¹⁴⁵ let the Ninth Amendment wither on the vine. Justices rarely refer to the Amendment. In Griswold v. Connecticut, Justice Goldberg penned a concurrence that examined the Ninth Amendment at length.¹⁴⁶ But aside from this single concurrence and occasional fleeting references,¹⁴⁷ the Court has ignored a provision of the Constitution that is no less deserving of interpretation and application than any other.¹⁴⁸ The absence of the Ninth Amendment in the Court’s unenumerated-rights jurisprudence is a consequence of the growth of substantive due process and neglect of the Privileges or Immunities Clause.¹⁴⁹

In sum, Slaughter-House has had the disruptive effect of implicitly disparaging some provisions of the Bill of Rights as nonfundamental while stunting the growth of Ninth Amendment jurisprudence. Those two consequences have damaged the Constitution and counsel in favor of overruling Slaughter-House.

E. Developments Since the Case Was Decided

A precedent is significantly weakened when the grounds for the decision have been “eroded” by the Court’s subsequent decisions.¹⁵⁰ A crucial aspect of the reasoning in Slaughter-House was its result-oriented approach that did not want incorporation to transform the Constitution into a “perpetual censor”¹⁵¹ of state legislatures.¹⁵² However, the majority’s fear has already been realized due to substantive due process’s subsequent metastasis. The vast majority of the Bill of Rights is already incorporated against the states.¹⁵³ At the 2018 oral argument for Timbs, Justice Gorsuch and Justice Kavanaugh were incredulous that Indiana’s solicitor general was contesting incorporation of any part of the Bill of Rights.¹⁵⁴ The subsequent legal developments of near-total incorporation have obliterated the result-oriented reasoning that grounded the Slaughter-House majority opinion. The ensuing legal developments counsel strongly in favor of overruling Slaughter-House.

F. The Absence of Concrete Reliance

People have concrete reliance on the rights that substantive due process preserves, but this reliance is separate from reliance on the procedural mechanism itself. Their reliance would only be concrete if abrogating substantive due process would also mean that the Bill of Rights was not incorporated against the states. Adoption of the PI + 9 Framework would avoid such issues.

The primary concrete reliance interests that would be upset by Slaughter-House being overruled would be those that rely on the unincorporated parts of the Bill of Rights remaining unincorporated. Today, the Third Amendment, the Fifth Amendment’s Grand Jury Clause, and the Seventh Amendment are the only enumerated rights that remain unincorporated.¹⁵⁵

The Third and Seventh Amendment present inconsequential reliance interests. The Third Amendment’s incorporation would be the least substantial because situations that lead to Third Amendment litigation are exceedingly rare.¹⁵⁶ Similarly, the Seventh Amendment’s incorporation would change little. Only three states lack a right to a civil jury trial in their state constitutions: Colorado, Louisiana, and Wyoming.¹⁵⁷ However, the right to a civil jury trial can be found elsewhere in those three states. The rules of civil procedure for Colorado,¹⁵⁸ Louisiana,¹⁵⁹ and Wyoming¹⁶⁰ allow a party to demand a jury trial. Accordingly, incorporating the Third and Seventh Amendment would change little for states or private parties.

Incorporating the Fifth Amendment’s Grand Jury Clause presents the greatest reliance-interest issues of the amendments that prescribe enumerated rights. States without a grand jury requirement have reliance interests in preserving the finality of criminal judgments and avoiding the costs associated with implementing an institution for criminal prosecutions—the grand jury.¹⁶¹

The finality of criminal judgments in state courts would likely remain intact despite incorporation of the Grand Jury Clause. In Edwards v. Vannoy, the Supreme Court refused to retroactively apply the Ramos jury-unanimity rule on federal collateral review.¹⁶² Given the refusal in Edwards to retroactively apply the unanimous jury verdict requirement from Ramos on federal collateral review,¹⁶³ it seems unlikely that the Court would rule differently if the Grand Jury Clause were incorporated. To apply the requirement retroactively, the Court would need to apply a rare exception that it described as “moribund” in 2021.¹⁶⁴

A state’s reliance interest in avoiding the costs associated with grand juries is the most significant reliance interest jeopardized by total incorporation of the Bill of Rights. However, reliance-interests analysis usually concerns the costs borne by private parties, not the government.¹⁶⁵ All but two states, Pennsylvania and Connecticut, still have grand jury indictment as part of their criminal procedure scheme—even if twenty-eight states do not require a grand jury indictment.¹⁶⁶ The familiarity with the grand jury as an institution and the existence of the institution in all but two states limit the extent to which incorporating the Grand Jury Clause would upset reliance interests. Moreover, the Court has repeatedly incorporated procedural protections against states despite the attendant costs.¹⁶⁷ Such decisions evince a belief in the relative unimportance of a state’s reliance interest in maintaining criminal laws and procedures that are inconsistent with the Constitution. As Justice Gorsuch wrote in Ramos, the most essential reliance interests are “the reliance interests of the American people.”¹⁶⁸ Given the relatively meager reliance interests that would be affected by overruling Slaughter-House, the reliance interests factor weighs only slightly against overruling the precedent.

Weighing the stare decisis factors as a whole in a manner consistent with the Court’s recent application of those factors, Slaughter-House should be overruled. Accordingly, the Fourteenth Amendment’s Privileges or Immunities Clause should incorporate every right in the Bill of Rights against the states.

IV. SUBSTANTIVE DUE PROCESS MUST END

Substantive due process is a doctrine with severe flaws. As will be explained below, the doctrine cannot justify itself with anything but a result-oriented conclusion. However, even that justification is unsatisfying because substantive due process is not the best means to protect individual liberties against state infringement—the Privileges or Immunities Clause is. The result is a disjointed Fourteenth Amendment and an ineffectual Ninth Amendment.

A. Substantive Due Process Fails to Justify Itself with Reason and Impedes a Harmonious Fourteenth Amendment

The Fourteenth Amendment’s Due Process Clause seems, on its text’s face,¹⁶⁹ to be an inapt mechanism to incorporate the Bill of Rights against the states. After all, the Due Process Clause describes process, not substance.¹⁷⁰ Over the years, several Supreme Court Justices have recognized the contradiction in terms for the folly that it is.¹⁷¹ Other Supreme Court Justices have employed substantive due process without defending the mechanism itself.¹⁷² Stranger yet, however, is when Justices who have openly expressed their distaste for substantive due process have nonetheless approved its use in applying the Bill of Rights to the states.¹⁷³

Despite substantive due process’s status as the favored means to incorporate the Bill of Rights against the states, the method has failed to justify itself by any means other than a result-oriented approach. This approach would be more understandable if a more apt provision of the Constitution could not accomplish the same objectives. The Privileges or Immunities Clause can achieve those objectives and would do so with greater force, clarity, and efficiency.

Furthermore, revitalizing the Privileges or Immunities Clause while curtailing substantive due process would harmonize the Fourteenth Amendment’s Due Process Clause, Equal Protection Clause, and Privileges or Immunities Clause. The Due Process Clause would consider only “procedural fairness.”¹⁷⁴ The Equal Protection Clause would address equality alone.¹⁷⁵ The Privileges or Immunities Clause would set a baseline of substantive rights that no state may abridge.¹⁷⁶ The failure to harmonize the three above-mentioned Fourteenth Amendment clauses puts rights on weaker footing.

B. Substantive Due Process Shortchanges the Ninth Amendment

Any construction that renders a constitutional provision superfluous is “inadmissible, unless the words require it.”¹⁷⁷ Chief Justice Marshall’s proscription against superfluous constructions was farsighted, and its logic extends to the wounds substantive due process has inflicted on the Ninth Amendment. The established doctrine the Court employs to evaluate whether the Constitution protects an unenumerated right is substantive due process.¹⁷⁸ The repeated¹⁷⁹ resort to the Due Process Clause to achieve purposes for which it was never intended,¹⁸⁰ and to which it is ill-suited, shortchanges the Ninth Amendment and renders it superfluous.¹⁸¹ Furthermore, to render the Ninth Amendment superfluous does more than flout one of Chief Justice Marshall’s memorable axioms. The failure to ground unenumerated-rights jurisprudence in the constitutional provision most suited to that purpose puts jealously guarded individual liberties at risk.

The Ninth Amendment offers the protection that unenumerated rights deserve. Regarding one such precious unenumerated right, Chief Justice Warren wrote for a unanimous Court that, “[u]nder our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state.”¹⁸² The right to interracial marriage is one of many precious unenumerated rights that deserves better protection than what a procedural clause can offer. The Ninth Amendment can secure those rights better than substantive due process. Any defense of substantive due process to defend an unenumerated right disserves the very rights the doctrine purports to protect. Substantive due process must be abrogated so that Ninth Amendment jurisprudence can become the sentinel of unenumerated rights.

V. UNENUMERATED RIGHTS: THE ELEPHANT IN THE ROOM

The biggest challenge to adopting an expansive construction of the Privileges or Immunities Clause may be getting Justices to agree on a test for whether the Constitution protects a particular unenumerated right. Fortunately, there is a consensus about protecting some unenumerated rights.¹⁸³ This Part argues that the Ninth Amendment should protect unenumerated rights and considers which test is appropriate for accomplishing that objective.

A. Justices Across the Spectrum Want to Protect Unenumerated Rights

The Dobbs v. Jackson Women’s Health Organization majority was quick to emphasize that its elimination of an unenumerated constitutional right to abortion should not “be understood to cast doubt on precedents that do not concern abortion.”¹⁸⁴ In his concurring opinion in Dobbs, Justice Kavanaugh expressed support for Supreme Court precedents concerning marriage and contraception.¹⁸⁵ The Dobbs dissenters believed that it was not possible to decouple the precedents concerning marriage and contraception from the precedents concerning abortion.¹⁸⁶ The fact that both sides agreed in Dobbs that at least some unenumerated rights were protected by the Fourteenth Amendment’s Due Process Clause is some evidence of the broad support for constitutional recognition of some unenumerated rights.

B. The Ninth Amendment Is the Best Means to Protect Unenumerated Rights

The Ninth Amendment shares at least two things in common with the Privileges or Immunities Clause. First, both have been mostly read out of the Constitution.¹⁸⁷ Second, substantive due process has haphazardly achieved some of each’s overarching goals.¹⁸⁸

There is a broad consensus that the Constitution protects some unenumerated rights.¹⁸⁹ And if the Constitution protects unenumerated rights, those rights ought to be safeguarded by a framework sturdier than the flimsy, contradictory substantive due process approach. Substantive due process’s embrace of unenumerated-rights jurisprudence would be more understandable if no part of the Constitution dealt explicitly with the issue of unenumerated rights. Fortunately, this is not the case. A provision that discusses unenumerated rights exists, and that provision is the Ninth Amendment, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”¹⁹⁰

The decision to craft a jurisprudence about unenumerated substantive rights in a procedural clause is confounding in light of the Ninth Amendment. The Supreme Court has traditionally declined to hold that the Ninth Amendment is the source of substantive rights.¹⁹¹ Indeed, the Ninth Amendment does not specify which rights were retained by the people. The only body with the power and qualifications necessary to decide which rights are retained by the people is the federal judiciary. The “province and duty of the judicial department to say what the law is”¹⁹² extends to expounding and interpreting which rights are “retained by the people”¹⁹³ under the Ninth Amendment.

C. Finding the Right Test for Identifying Protected Unenumerated Rights

The Supreme Court must choose a proper, workable rule of law for lower courts to apply when deciding Ninth Amendment cases if the Court were to adopt the PI + 9 Framework. The Ninth Amendment seems so open to interpretation that it could create Pandora’s box concerns that may produce workability problems.¹⁹⁴ Indeed, the Court has recently cited unworkability in both constitutional¹⁹⁵ and statutory¹⁹⁶ cases as a key reason for overruling precedents. However, substantive due process raises the same Pandora’s box predicaments,¹⁹⁷ yet the Court has had little trouble applying substantive due process in recent years.¹⁹⁸ Indeed, when the Court overruled Roe and Casey, the Court insisted on being guided by “history and tradition” in order to avoid the “freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York.”¹⁹⁹

However, if the Court were to hand down a landmark Ninth Amendment decision, it would have ultimate authority to say what the law is and could choose any test it desired. The Court ought not to be frozen by a fear of political backlash or public outcry when deciding the cases and controversies that it has the power to decide under Article III.²⁰⁰ In 2022, the Court acknowledged the importance of deciding cases based on principles, “not social and political pressures.”²⁰¹ A wise Justice once said of the Court, “We are not final because we are infallible, but we are infallible only because we are final.”²⁰² The Court ought to trust itself enough to exercise the power vested in it by the Constitution to interpret and construe the Ninth Amendment. Several options abound—ranging from ignoring the Ninth Amendment to presuming liberty—for the Court if it adopts the PI + 9 Framework.

The Ink Blot Approach: Disregarding the Ninth Amendment

Judge Robert H. Bork infamously compared the Ninth Amendment to an “ink blot” that the Court should not interpret.²⁰³ Judge Bork’s conception should be rejected because it underestimates the judiciary’s abilities, ignores history, and is impractical.

Judge Bork’s interpretation should be rejected because it ignores a provision of the Constitution due to its potential for being difficult to interpret. Judge Bork underestimated the Court. The “task of translating the majestic generalities of the Bill of Rights” is daunting.²⁰⁴ However, this task is the province and duty of the judges who comprise the federal judiciary.²⁰⁵ There is no exception to this province and duty in cases that raise complex and profound questions.

Furthermore, Judge Bork’s conception is not historically defensible from any conceivable originalist perspective.²⁰⁶ For Anti-Federalists, enumerating any rights was dangerous because doing so could be construed to imply the nonexistence of other rights.²⁰⁷ James Madison acknowledged this criticism when he defended the Constitution’s ratification and offered a provision, which became the Ninth Amendment, that expressly guaranteed protection for unenumerated rights.²⁰⁸ Although Ninth Amendment scholars have come to vastly different conclusions—from natural-rights readings²⁰⁹ to readings emphasizing control for local governance²¹⁰—it appears there was more underneath the ink blot than Judge Bork thought.

Finally, Judge Bork’s conception is impractical. Some unenumerated-rights protections, including those for contraception and same-sex marriage, enjoy support from Justices across the ideological spectrum. The differences are in degree, not kind. For example, the Dobbs majority opinion, a concurring opinion, and the joint dissenting opinion all claimed to stand for unenumerated rights other than abortion.²¹¹ The idea of stripping all unenumerated rights of constitutional protection is simply unthinkable. For example, the right to interracial marriage is unenumerated.²¹² However, any prominent person who suggests that it is not a right protected by the Constitution is instantly and vociferously rebuked.²¹³ Aside from its indefensibility as a matter of history and principle, the idea that all unenumerated rights would be summarily stripped of constitutional protection is beyond the realm of realistic possibilities.

The Presumption of Liberty Approach: Ninth Amendment Maximalism

Randy E. Barnett has written extensively on the Ninth Amendment²¹⁴ and has his own grand Ninth Amendment theory. Under Barnett’s theory of unenumerated rights, one could first conduct an originalist analysis to determine which unenumerated rights get constitutional recognition.²¹⁵ However, Barnett conceded that originalist materials would be insufficient to recognize all the rights worthy of Ninth Amendment protection, so the sphere of unenumerated rights would be even more expansive than originalism could contemplate.²¹⁶ Barnett advocated a framework that presumes liberty for unenumerated rights.²¹⁷ Presuming liberty would place the burden on the government to establish why any government infringement on individual freedom is both necessary and proper, rather than assuming constitutionality when possible.²¹⁸ In determining when liberty should be presumed, Barnett’s dividing line is a rightful/wrongful conduct distinction.²¹⁹

Barnett’s contributions to Ninth Amendment scholarship are admirable, but his solutions are quixotic. First, to presume liberty would be to undo fundamental canons of construction. Established canons of constitutional construction dating back to the early nineteenth century demand that “[n]o court ought, unless the terms of an act rendered it unavoidable, to give a construction to [a statute] which should involve a violation, however unintentional, of the constitution.”²²⁰ To reverse the paradigm to one in which the federal judiciary seeks to strike down laws that touch so-called “rightful activity”²²¹ would be catastrophic. The current Court’s desire to take more issues out of constitutional law and insert them into the democratic process is at odds with Barnett’s framework.²²²

Aside from the current Court’s probable unwillingness to adopt the kind of radical shift that Barnett supports, workability concerns are sufficient to reject Barnett’s framework. In recent years, the Court expressed frustration with unworkable rules of law and overruled precedents on that basis.²²³ The idea that the Court would adopt a rightful/wrongful conduct test for trial and appellate courts to apply to every piece of legislation is fantasy.

To be sure, Barnett’s theory is far from the only Ninth Amendment framework. Many theories abound.²²⁴ For example, Kurt T. Lash’s theory considers the Ninth Amendment through a federalism prism that emphasizes retained powers in addition to retained rights.²²⁵ In any event, Barnett’s presumption-of-liberty theory represents the opposite of Judge Bork’s ink-blot theory. Between Barnett’s Ninth Amendment maximalism and Judge Bork’s Ninth Amendment ignorance lie too many possibilities to ponder in this Note.

An ideal rule for the Court to adopt in inaugurating its Ninth Amendment jurisprudence would be one that is workable, in line with current precedents, and moored by “respect for the teachings of history.”²²⁶ A workable rule of law would promote consistency and predictability to a constitutional provision that many may fear due to its unpredictability.²²⁷ A rule of law in line with current precedents regarding unenumerated rights would prevent the instability that a brand-new rule might invite. A rule of law grounded in respect for history and tradition would avoid the open-ended judicial activism of the Lochner era.²²⁸

Glucksberg’s Goldilocks Test

Fortunately, there is an established test that is workable and guided by history. Further, this test is more than merely consistent with current precedents—it is current precedent.

The Court adopted a sensible unenumerated-rights framework in Washington v. Glucksberg.²²⁹ The framework requires a “careful description” of the asserted liberty interest.²³⁰ The careful description provides a buffer against broad assertions of a liberty interest that could mean anything and everything. Additionally, adopting an approach that describes a liberty interest rather than a retained right²³¹ is appropriate because liberty and right have been used interchangeably since the American Revolution.²³² Then, there is a two-pronged test for deciding whether the Due Process Clause protects a right, and this framework applies to evaluating unenumerated rights.

First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”²³³

The above framework gets at the heart of the Ninth Amendment, even though it brands itself as a Due Process Clause analysis. The language about a right needing to be “objectively, deeply rooted in this Nation’s history and tradition”²³⁴ is appropriate for evaluating which rights have been “retained by the people.”²³⁵ For a right to be retained, the right could not have recently come into existence—thus the deeply rooted phrasing. This approach shows proper respect for history’s teachings, prefers judicial restraint and caution,²³⁶ and averts the unrestrained judicial activism of the Lochner era.²³⁷ The history-and-tradition prong also ensures that the Ninth Amendment would preserve an existing right. Any analysis that claims the Ninth Amendment is not the source of substantive rights²³⁸ is telling a lawyerly half-truth. The nation’s history and tradition are the source of the rights retained by the people in the Ninth Amendment.

The Glucksberg test also scores high in workability when lower courts have applied the test to purported unenumerated rights in various contexts.²³⁹ For example, not long after the Court decided Glucksberg, the Fourth Circuit Court of Appeals applied the two-pronged test to reject a petitioner’s asserted unenumerated right to be free from unjust or arbitrary incarceration.²⁴⁰ In another case, the Eighth Circuit Court of Appeals had no difficulty applying Glucksberg to uphold an Iowa statute limiting where sex offenders could reside.²⁴¹ In 2024, a federal district court judge in Murphey v. United States had little issue applying Glucksberg’s two-pronged test to reject a plaintiff’s asserted right to grow, possess, and use psychedelic and other drugs.²⁴² Additionally, in the district court’s application of the test in Murphey, the court looked to Supreme Court decisions that counseled against recognizing additional rights because “guideposts for responsible decisionmaking in this unchartered area [were] scarce and open-ended.”²⁴³ Lower courts have proven Glucksberg to be workable.

The second prong allows judges to ensure that sordid practices do not get constitutional protection merely for existing long enough to be deeply rooted in the nation’s history and tradition. As Justice Stevens observed in Bowers v. Hardwick, “neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”²⁴⁴ However, the right to interracial marriage is beyond doubt implicit in the concept of ordered liberty.²⁴⁵ Moreover, there may be “room for play in the joints”²⁴⁶ between the first prong and second prong.²⁴⁷ The first prong may act as a nonabsolute constraint on the second prong. Regarding the relationship between the prongs, Justice Kennedy wrote, “History and tradition guide and discipline [the second prong] but do not set its outer boundaries.”²⁴⁸

To be sure, the second prong requires courts to “exercise reasoned judgment.”²⁴⁹ But the exercise of reasoned judgment is inherent to the judicial power. It is “emphatically the province and duty of the judicial department to say what the law is.”²⁵⁰ Neither political branch has the power to identify constitutional rights.²⁵¹ Thus, the proper body for identifying rights in the context of the Ninth Amendment is the judicial branch.²⁵² Through its substantive-due-process jurisprudence, the Court has already

recognized a number of unenumerated rights deemed to be fundamental.²⁵³ If it continues to do so, it ought to do so through the proper means: the Ninth Amendment. Doing so gives unenumerated rights a place in law that is more secure than substantive due process.

VI. THE FRAMEWORK APPLIED

The PI + 9 Framework would apply amendments one through nine to the states through the Privileges or Immunities Clause and conduct its unenumerated-rights inquiry under the Ninth Amendment by using the two-pronged Glucksberg test. Figure 1 shows how amendments one through nine would apply to state governments under the PI + 9 Framework.

Figure 1. The PI + 9 Framework

A. The Framework for Enumerated Rights

The PI + 9 framework has the benefit of simplicity, especially as the framework applies to enumerated constitutional rights, such as the right to bear arms.²⁵⁴ Under the PI + 9 Framework, the Second Amendment would apply to the states via the Privileges or Immunities Clause. There would be no need to consider whether the Second Amendment is implicit in the concept of ordered liberty because it would automatically be incorporated via the Privileges or Immunities Clause. A judge would only consider whether the state law violates the Second Amendment, which would get to the heart of the issue more quickly than a gratuitous rehashing about the wisdom or foolishness of substantive due process. Under the PI + 9 Framework, the state law would be analyzed in accordance with pertinent Second Amendment precedents, such as New York State Rifle & Pistol Association v. Bruen²⁵⁵ and District of Columbia v. Heller.²⁵⁶

In any opinion concerning a state law’s alleged abridgment of the Second Amendment, the Court would quickly state what is clear from the text, legislative history, and original intent,²⁵⁷ which is that the Privileges or Immunities Clause applies every right in the Bill of Rights to the states. Then, the Court would decide whether the state law at issue violates the Second Amendment. In the Second Amendment context, the prevailing test remains the test from Bruen.²⁵⁸ Any difficulties arising from applying Bruen²⁵⁹ could be hashed out purely within the confines of the Second Amendment. Full incorporation takes distracting debates about substantive due process off the table and decreases judicial discretion as it relates to incorporation. The focus would be more on the right itself rather than the procedure by which the right in question is incorporated.

PI + 9 Applied to a Hypothetical About an Enumerated Right

Assume the following hypothetical factual scenario:

After increasing pressure from the public, Iowa enacts Statute One,²⁶⁰ which criminalizes the “carrying, transportation, or possession of any firearm on the grounds of any public school in the state of Iowa.” After Statute One’s enactment, Tina attends a parent-teacher conference at a public school in Marion, Iowa, with a loaded Glock 17 pistol in a holster on her hip. After seeing the holstered pistol, a student at the school calls the police, and the police arrive at the school and arrest Tina. Tina is charged with violating Statute One, and a jury convicts her in Linn County District Court. The Iowa Court of Appeals affirms the conviction. Tina petitions for a writ of certiorari to the Supreme Court of the United States, challenging her conviction and alleging that Statute One violates the Second Amendment to the United States Constitution. The Supreme Court of the United States grants certiorari.

Under these facts, a Court using the PI + 9 Framework would state that the Second Amendment applies to the states through the Fourteenth Amendment’s Privileges or Immunities Clause.²⁶¹ No inquiry would occur into whether the Second Amendment right is deeply rooted or implicit in the concept of ordered liberty. Once incorporated, the Second Amendment would operate “identically to both the Federal Government and the States.”²⁶² Given that, the Court would apply the pertinent Second Amendment precedents.

The Court would apply Bruen’s inquiry and make the government “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”²⁶³ Here, the Court could look to a precedent like Heller, which held that forbidding firearms in “sensitive places such as schools” was permissible and consistent with historical restrictions.²⁶⁴ The Court could also conduct a historical analysis to confirm or reject the view set forth in Heller about the presumptively lawful nature of prohibitions against guns in schools.²⁶⁵ Under the hypothetical set of facts, the Privileges or Immunities Clause would mandate that the Second Amendment be applied to the Iowa government. The Supreme Court’s precedents on the Second Amendment would control, and the petitioner’s conviction would likely be upheld.

The Framework for Unenumerated Rights

The PI + 9 Framework for unenumerated rights requires just a few more steps than the PI + 9 Framework for enumerated rights. First, the Court would incorporate the Ninth Amendment against the states via the Fourteenth Amendment’s Privileges or Immunities Clause.²⁶⁶ Then, the Court would carefully describe the liberty interest at stake in accordance with Glucksberg’s “careful description” mandate.²⁶⁷ After formulating a careful description of the asserted unenumerated right at issue, the Court would analyze under the Ninth Amendment²⁶⁸ whether (1) the right is “deeply rooted in this Nation’s history and tradition”;²⁶⁹ and (2) whether the right is “implicit in the concept of ordered liberty.”²⁷⁰ If the Court answered yes to those two questions, the Ninth Amendment would protect the right from infringement by the federal government and state governments.

PI + 9 Applied to a Hypothetical About an Unenumerated Right

Assume the following hypothetical factual scenario:

After a public campaign against homeschooling, California enacts Statute Two, which mandates, “No parent may homeschool their child, and all children must attend an accredited private or public school. Parents who violate this statute are guilty of a felony.” Tom is a parent in Los Angeles, California who homeschools his son. After Statute Two’s enactment, Tom continues homeschooling his child because he believes he can provide a better education for his son than any nearby public or private school. After a neighbor reports Tom to the police for homeschooling, Tom is arrested and charged with violating Statute Two. Tom is convicted of violating Statute Two in the Los Angeles County Superior Court and appeals to the California Second District Court of Appeal, which affirms his sentence. Tom petitions for a writ of certiorari to the Supreme Court of the United States, challenging his conviction and alleging a violation of his Ninth Amendment right to homeschool his child. The Supreme Court of the United States grants certiorari.

Under these facts, a Court using the PI + 9 Framework would first note that the right at issue here is not enumerated in the Constitution. Thus, a Ninth Amendment inquiry is apt. The Court would quickly explain that the Privileges or Immunities Clause applies the Ninth Amendment to the states. Then, the Court would carefully describe the right at issue in the instant case, which is the right to homeschool one’s child. After carefully describing the right, the Court would answer each Glucksberg prong: (1) whether the right is deeply rooted in the nation’s history and tradition; and (2) whether the right is implicit in the concept of ordered liberty.

Under the first prong, the Court would be free to conduct an independent historical analysis. Homeschooling in America predates the American Revolution.²⁷¹ Many colonies passed laws in the seventeenth century that required parents to educate their children.²⁷² Colonial fathers were expected to teach their children reading and religion.²⁷³ Abigail Adams homeschooled her children, and the Adams family was not unique among New Englanders in this respect.²⁷⁴ Before the Civil War, enslaved people used home education as a means to defy racist anti-literacy laws.²⁷⁵ Today, homeschooling is legal in all fifty states,²⁷⁶ except for the fictitious California in the hypothetical.

Additionally, early-twentieth-century Supreme Court cases decided issues related to the right of parents to make decisions about their child’s education. If the Court decided that the early twentieth century was early enough to inform the history-and-tradition inquiry, the Court could cite Pierce v. Society of Sisters²⁷⁷ and reaffirm Pierce’s proposition that parents have a right “to direct the upbringing and education of children under their control.”²⁷⁸ The Court could also rely on Meyer v. Nebraska, which held that “[c]orresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life.”²⁷⁹ The cases recognizing a right of parents to control the upbringing of their children are more than one hundred years old. Those cases, in addition to historical evidence, buttress the proposition that the right to homeschool one’s children is deeply rooted. The Court would answer (1) in the affirmative and move on to answering whether the right to homeschool one’s children is implicit in the concept of ordered liberty.

The Court would likely also answer (2) in the affirmative and hold that the right to homeschool one’s child is implicit in the concept of ordered liberty. In Meyer, the Court held that the right to “establish a home and bring up children” was protected by the Constitution.²⁸⁰ Additionally, the right to homeschool one’s child could be drawn within the sphere of “related rights of childrearing, procreation, and education” that the Court has recognized.²⁸¹ Under sufficiently analogous precedents and the exercise of reasoned judgment, the Court would hold that the right to homeschool one’s children is implicit in the concept of ordered liberty. After carefully describing the right at issue and satisfying Glucksberg’s two prongs, the Court would hold that the Ninth Amendment protects the right to homeschool one’s children and would void Statute Two.

VII. ADVANTAGES OF THE PI + 9 FRAMEWORK

The PI + 9 Framework has three main advantages: (1) it provides a stronger mechanism for protecting individual rights; (2) it is a more efficient, clear, and appropriate means by which to incorporate the Bill of Rights; and (3) it could lead to the development of Ninth Amendment jurisprudence.

A. Putting Individual Rights on Stronger Footing

The primary advantage of the PI + 9 Framework is that it puts the precious civil liberties enshrined in the Constitution on stronger footing. Every single right recognized by substantive due process is always somewhat in doubt because of the dubious, wobbly nature of the doctrine. Why risk it? Those alarmed by Justice Thomas’s concurrence in Dobbs,²⁸² which suggested that all substantive due process precedents ought to be reconsidered, have nobody to blame but themselves if they previously championed a flawed doctrine like substantive due process. Individual substantive rights are too important to leave behind the unlocked door of a process-related clause. The PI + 9 Framework gives substantive rights the defense they deserve by providing power to the text, history, and intent of the Privileges or Immunities Clause.

B. Efficiency, Clarity, and Respect for the People’s Amendments

The PI + 9 Framework offers a better approach to incorporation than substantive due process. Glucksberg’s application to enumerated rights is inappropriate, inefficient, and unclear. It is inappropriate because a judge should not answer whether an amendment to the Constitution is sufficiently important to qualify as a sort of “super right” to be incorporated against the states. Each provision of the Bill of Rights was important enough for two-thirds of Congress and three-fourths of the states²⁸³ to add the provision to the nation’s founding document. Furthermore, it is inefficient because it requires a two-pronged analysis for provisions that were clearly fundamental enough to liberty to be included in the Constitution and are part of the nation’s history and tradition since 1791. Finally, there is a lack of clarity as to why some amendments in the Bill of Rights are more vital to liberty than others. As Justice Thomas wrote in McDonald, a Privileges or Immunities Clause analysis is “far more likely to yield discernible answers” than substantive due process.²⁸⁴ If the Court were to adopt the PI + 9 Framework, there would be no more ink spilled or time wasted defending substantive due process. The Court could instead get to the business of interpreting what each provision of the Bill of Rights means and how it ought to be construed and applied to the facts of a case.

C. Development of Ninth Amendment Jurisprudence

Another benefit of the PI + 9 Framework is the development of Ninth Amendment jurisprudence. In carrying out its duty to “say what the law is,”²⁸⁵ the judicial branch ought to tell the American people what the Ninth Amendment means. Scholars may argue about the proper interpretation and construction of the Ninth Amendment, and this Note advocates Glucksberg’s two-pronged approach. Such words are wind. Only the judiciary can give meaning to the Constitution’s text. Perhaps this will mean freezing the American people’s rights as of 1791 or 1868.²⁸⁶ Perhaps this will mean a presumption of liberty that would drastically curtail the role of government in Americans’ lives.²⁸⁷ Perhaps this will mean adopting Glucksberg’s two-pronged approach. However, the first Court opinion that grounds itself in the Ninth Amendment could give birth to a new age of Ninth Amendment scholarship and jurisprudence aimed at discovering the proper meaning and construction of the Ninth Amendment. Each time the Court is tempted to defer interpretation of the Ninth Amendment and choose the more well-trodden path of substantive due process, the Court instead ought to heed the words of Chief Justice Marshall: “It cannot be presumed that any clause in the [C]onstitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.”²⁸⁸

CONCLUSION

The PI + 9 Framework secures rights in a more robust, efficient, and clear manner than substantive due process does. Substantive due process is worse than a mere contradiction in terms. The ever-expanding reach of substantive due process has robbed two provisions of the Constitution—the Privileges or Immunities Clause and the Ninth Amendment—of the importance they deserve. Any stare decisis issues would be more well-founded if most of the Bill of Rights had not already been incorporated. Moreover, the substantive changes that replacing substantive due process with the PI + 9 Framework would cause are the incorporation of the Third Amendment, the Fifth Amendment’s Grand Jury Clause, and the Seventh Amendment, and using the current controlling framework for unenumerated rights. Thus, adopting the Framework would not cause a significant expansion or diminution in substantive rights. Far from an expansion or diminution, the PI + 9 Framework offers enumerated and unenumerated rights the durable, efficient, and clear protection that American privileges and immunities deserve.

99 S. Cal. L. Rev. 359

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Lincoln Son Currie*

*Articles Editor, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; B.S. 2023, Boston University. I thank my supervisor, Professor Rebecca Brown, for providing me with careful suggestions and guidance as I wrote this Note. I am grateful to the editors of the Southern California Law Review for their diligence in improving this Note. All errors are my own.

INTRODUCTION

I. TEXTUAL ANALYSIS OF THE PRIVILEGES OR IMMUNITIES CLAUSE

A. Interpreting Privileges and Immunities in Historical Context

A Few Meanings of Privilege

Privilege As a Benefit Beyond Those Held by Common Citizens

Privilege As a Peculiar Benefit or Advantage Not Common to Others of the Human Race

A Few Meanings of Immunity

The Broader Immunity Definition Is the Best Match