Re:U.S. Supreme Court Puts Limits on Police Power to Seize P...
by int_19h on Wednesday February 20, 2019 @06:51PM
(#19213269)
> This distinction isn't merely semantic, though the end result in the present case is the same: under the majority view, the prohibition against excessive fines is a limitation on state government in all cases; in Thomas's view, it would not be a limit if the target of the state action were not a US citizen, since noncitizens necessarily do not enjoy the privileges and immunities of citizens.
That's the outcome, but I don't think that's the intent. The reason why Thomas wanted to go via the Privileges Clause rather than the Due Process Clause is because he represents a faction in jurisprudence that believes that the latter was historically inappropriately used in lieu of the Privileges or Immunities Clause in general.
If you dig into the history of that argument, it does kinda make sense - we have plain language in 14A speaking about states not allowed to deny rights to citizens, and we have historical record of the intent behind it. The reason why it's not used as intended is because in the infamous Slaughter-House Cases, SCOTUS essentially ruled it to be a nullity. Later, when the pendulum swung towards instead of reverting that decision and giving teeth to the Privileges or Immunities Clause, they made an elaborate construct of substantive due process from the Due Process Clause to allow for incorporation without a reversal.
The mainstream argument is that it's good enough, and that trying to revive the Privileges or Immunities Clause is simply not worth it - which is why it hasn't been referenced by SCOTUS in decisions for a long time. Nevertheless, there have always been judges that believe it to be wrong, and those judges would supply minority opinions referencing it. This generally correlates with textualism (and hence opposition to substantive due process, which is an inherently anti-textualist notion) - which is the case for Thomas as well - but is not limited to that crowd.
That's the outcome, but I don't think that's the intent. The reason why Thomas wanted to go via the Privileges Clause rather than the Due Process Clause is because he represents a faction in jurisprudence that believes that the latter was historically inappropriately used in lieu of the Privileges or Immunities Clause in general.
If you dig into the history of that argument, it does kinda make sense - we have plain language in 14A speaking about states not allowed to deny rights to citizens, and we have historical record of the intent behind it. The reason why it's not used as intended is because in the infamous Slaughter-House Cases, SCOTUS essentially ruled it to be a nullity. Later, when the pendulum swung towards instead of reverting that decision and giving teeth to the Privileges or Immunities Clause, they made an elaborate construct of substantive due process from the Due Process Clause to allow for incorporation without a reversal.
The mainstream argument is that it's good enough, and that trying to revive the Privileges or Immunities Clause is simply not worth it - which is why it hasn't been referenced by SCOTUS in decisions for a long time. Nevertheless, there have always been judges that believe it to be wrong, and those judges would supply minority opinions referencing it. This generally correlates with textualism (and hence opposition to substantive due process, which is an inherently anti-textualist notion) - which is the case for Thomas as well - but is not limited to that crowd.