Supreme Court Falls Back on Civil War Law

Article excerpt

WASHINGTON -- In constitutional law, as in geology, things can look perfectly stable on the surface -- until the tectonic plates shift underneath.

As the Supreme Court term heads into its final weeks, the question is whether such a shift may be under way. In its decision last week striking down California's reduced welfare benefits for newcomers to the state, the court relied on a portion of the 14th Amendment that forbids states to restrict the "privileges or immunities" of American citizens.

This is the long-neglected privileges-or-immunities clause, the sudden resurrection of which, by a broad 7-2 majority, was certainly one of the most surprising and possibly one of the most consequential constitutional developments in years. The 14th Amendment, adopted in 1868 to ratify the outcome of the Civil War, says in its first paragraph, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." There is historical evidence that the amendment's drafters regarded the privileges-or-immunities clause as more important than the much-invoked guarantees of due process and equal protection that it precedes in the text. But the clause was sent into early eclipse by an 1873 Supreme Court decision known as the Slaughter-House cases, which held that the clause protected only the rights of national citizenship and placed no new obligations on the states. So by turning back to this long-buried language, the court was taking at least a tentative step on a new path of constitutional analysis. While the ultimate destination is uncertain, it appeals to both conservatives, who see the clause as a new source for protection for property and economic rights, and weary liberals, who see it as a means for protecting individual rights without having to fight endless battles over the meaning of due process. Justices across the ideological spectrum signed their names to this opinion, from John Paul Stevens, its author and arguably the court's most liberal member, to Antonin Scalia, one of the most conservative. While Justice Clarence Thomas dissented, disagreeing that welfare was one of the historically protected privileges, he made clear his enthusiasm for reconsidering the privileges-or-immunities clause in an "appropriate case." That left Chief Justice William Rehnquist oddly isolated in his complaint that "the court today breathes new life into the previously dormant privileges or immunities clause," an observation that the majority did not rebut. The justices who came together in the California welfare case, Saenz vs. Roe, did not necessarily do so for the same reasons, or with the same expectations of where this new opening might lead. The privileges-or-immunities clause has been invisible for so long that there are few recognizable signposts, and there were no concurring opinions by which individual members of the majority might have elaborated on the analysis. But at the least, to carry the geological analogy a step further, the opinion undoubtedly achieved a release of doctrinal tension much as an earthquake relieves pressure that builds up under the Earth's crust. The two-tiered welfare program challenged in this case was quite clearly unconstitutional under the court's most directly relevant precedent, a 1969 decision called Shapiro vs. Thompson that invoked a constitutional "right to travel" to bar states from denying welfare benefits during a newcomer's first year of residency. Yet there was probably no member of the current court completely at ease with the analytic method that produced Shapiro vs. …


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