The Citizenship Clause of the 14th Amendment states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside

This clause has two essential parts.  In the first, it identifies a group of people (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof”) and then grants that group citizenship.  The essential question is whether or not the children of illegal immigrants are part of the identified group of people.  Based on the text and structure of the Clause, it is apparent that they are.

The part of the Clause that identifies the group is a conjunction of two separate conditions.  To qualify, you must be a person “born or naturalized in the United States.”  Anchor babies, by their very definition, are “born … in the United States,” so they pass this first test.  Having been born in the United States, you then must be “subject to the jurisdiction [of the United States].”  If there is a reason to believe that illegal aliens are not subject to US jurisdiction, it is difficult to imagine what that reason might be.  Illegal aliens are generally expected to obey US law, are subject to arrest, and can be imprisoned — all classic indicators that illegal aliens, while in the country, are subject to US jurisdiction.

However, as Ann Coulter points out:

The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

She takes that statement as evidence that, when it comes to conferring citizenship on aliens, illegals’ babies need not apply, because the author of the Clause himself was sure that it would not be so.  Her basic argument has two flaws.  First, it is entirely possible that the Clause’s author wrote something that he did not intend; if so, that’s unfortunate, but it is the text, not the author’s intent that controls.  Second, and more importantly, his words do not say what Ms. Coulter takes them to mean.  Senator Howard is not talking about illegal alien babies; he’s talking about “aliens, who belong to the families of ambassadors or foreign ministers.”

In the constitutional analysis, the difference between illegal alien babies and foreign ambassador babies is important.  Foreign ambassadors, by diplomatic tradition and legal history, do not normally become subject to the jurisdictions wherein they perform their official duties.  This fact is the basis of diplomatic immunity, which ambassadors enjoy along with their families who join them during their travels.  For Senator Howard to say that the Citizenship Clause does not apply to “the families of ambassadors or foreign ministers,” he is not saying anything that isn’t clear from the Clause’s text.  Because they are not “subject to the jurisdiction [of the United States],” they are not part of the group that enjoys automatic citizenship.  Illegal aliens, however, have no diplomatic immunity, or any foreign immunity of any kind.  That fact leaves them in the automatic citizenship group and leaves us with anchor babies.

Ms. Coulter’s other examples of who falls into the group and who doesn’t break down along similar lines.  Native Americans are out because they are under tribal rather than US jurisdiction.  Legal immigrants are in because they have crossed into and, thus, subjected themselves to US jurisdiction.  And she finishes with a tale of welfare state horribles that have nothing to do with the constitutional question at hand.

Although it would be nice if the existence of anchor babies rested entirely on a misunderstanding of the 14th Amendment, that is, unfortunately, not the case.  By its plain terms, if you are born in the US and subject to US jurisdiction, you’re automatically a citizen.  Because babies born to illegal aliens on US soil meet both criteria, their citizenship is constitutionally guaranteed.

Standing

I have wondered since I first heard that the US government was suing Arizona how the federal government would justify standing to bring forth its lawsuit.  In making her ruling, the judge offered no insight as to how she found the federal government to have standing.  Though I wasn’t surprised by this — neither side briefed the issue (that I saw) and nobody (I’ve seen) has asked this question besides me — I was disappointed.

The question of preemption is fundamentally a question of which law applies to a particular case.  In the normal preemption case, a party is challenged under a state law, and mounts a defense saying that the state law is preempted by federal law.  If the state law and federal law conflict, the Supremacy Clause dictates that federal law must win, meaning that the state law is preempted.  The conflict can either be direct, in the sense that the federal law and state law say two incompatible things, or the preemption could be made by rule, if the federal government affirmatively prevents the states from legislating in a given area.  Regardless of how preemption happens, the party harmed was always the person or entity against whom the state law would apply if not for preemption.

Today, without any discussion, the judge has necessarily found that the federal government is itself harmed when a state passes a law which is incompatible with federal law.  While it’s possible that I’ve missed something about how standing works, this (implicit) theory of standing seems incredible to me.  Last I checked, the federal government doesn’t have a free-standing license to challenge any state law that it doesn’t like.

Of course, for the sake of fairness, I should note that it’s at least plausible that the federal government could claim to be harmed by the “burden” Arizona would place on it by running immigration checks and referring illegal aliens to ICE for processing.  However, that only opens the door to some of the challenges posed to the Arizona law, not to the entire thing.

Section 2b

In striking down this section, the judge makes much of a drafting error made in the original SB 1070 and later corrected in a subsequent amendment passed in short succession.  The judge is quick to criticize the second sentence of this section, which says that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.”  In the law, as amended, this naturally follows the preceding sentence which says what Arizona law enforcement must do “[f]or any lawful stop, detention or arrest.”  The judge, however, refused to read the two sentences as a cohesive whole because the original unamended SB 1070 spoke only of “lawful contact,” rather than of “lawful stop, detention or arrest.”  There is little reason to doubt that the Arizona legislature intended both forms of that sentence to mean the same thing, and that the amendment was made to clear up the obvious vagueness of what “lawful contact” actually entails.  The judge, however, would apparently hold the two phrases to mean something so radically different that the second sentence and first sentence should be read as if they are in entirely separate sections, despite the absurd result that analysis produces.

Section 5

In striking down this section, the judge turns established precedent squarely on its head.  She begins with the following observation:

“States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” De Canas, 424 U.S. at 356. Interpreting De Canas and considering a state law sanctioning employers who hire unauthorized workers, the Ninth Circuit Court of Appeals held that, “because the power to regulate the employment of unauthorized aliens remains within the states’ historic police powers, an assumption of non-preemption appli[ed].” Chicanos Por La Causa I, 544 F.3d at 984; accord Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009) (observing that “[i]n all pre-emption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied, . . . we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress” (internal quotations and citation omitted)).

Having read that paragraph, it would appear that the viability of a law limiting illegal aliens from applying for or performing work should be an easy win for Arizona.  Arizona’s law is, after all, directly on point with the above cited cases.  By the end of the section, however, the judge has talked herself into the exact opposite conclusion.  The linchpin: Arizona attaches a penalty to violating its law.

Although I haven’t read the cited precedent, I find it highly unlikely that the cases above involved state laws with no penalty for non-compliance.  After all, police powers are rather meaningless if the police have no power to enforce them.

Section 6

In sum, this section amounts to unconstitutionality by virtue of hopelessly confusing federal policy.  The essence of the judge’s conclusion on this section is that it is simply too hard for Arizona police to know what is and isn’t a removable offense, so that “there is a substantial likelihood that officers will wrongfully arrest legal resident aliens.”

Although I find it illogical to say that this law is preempted as opposed to, say, that it is unconstitutionally vague, I find it hard to fault the judge too deeply for her outcome on this point.  From everything I understand, the entire concept of a “removable offense” is, truly, a mess.  Nobody really knows whether or not an offense mandates removal of the alien until the final appellate court has its say.  This is an area where Congress really should step up and add some much needed clarity to the law.

Conclusion

Overall, the quality of the ruling strikes me as being pretty bad.  The key through it all, however, is that the court bought the federal government’s argument of preemption and ran with it to every area of the law where it was necessary to strike the law down.  The ruling, however, leaves open some important questions which should be addressed in a final ruling on the merits at some point in the future.

It goes virtually without saying that the interest in merging Sharia law with US law is an exercise being undertaken exclusively by leftists.  Britain, of course, has actual Sharia courts, established as arbitration tribunals, which hear cases and issue rulings which have the force of law.  In other European nations, national courts have occasionally ruled consistent with Sharia principles despite national laws which point in the opposite direction.  France, though they haven’t got Sharia courts, do have a Sharia tax code which aims to deal with some of the peculiarities of Islamic financial management.  The US, so far, has only rogue judges in liberal states.

So far, Sharia courts and Sharia-related court decisions have all been based on one of three general legal categories: probate, equity, and domestic violence.  It is the cases of domestic violence which are most troubling, and the case in New Jersey illustrates precisely why.

In the New Jersey case, as mentioned, a man raped his wife on multiple occasions under the belief that it was his right, as her husband, to do so.  Had he done that even 35 years ago, it would not have been a crime in the US.  However, as of 1993, spousal rape became a crime in every corner of the United States at the urging of the feminist movement.  In addition to US law, spousal rape is identified in the UN Declaration on the Elimination of Violence against Women, Article 2(a) as a form of violence against women.  There is, I think it is safe to say, a solid consensus which sweeps broadly against ideological lines that cannot tolerate the behavior that took place in New Jersey.  As the self-declared champions of women’s rights, women’s equality, and the fight to end violence against women, it would seem that the left has a vested interest in making sure that no woman is ever raped by her husband ever again.

The stakes, however, go even beyond the question of spousal rape in Islamic marriages.  From what I have been able to find of the trial judge’s logic, it appears to be relatively unbounded.  If the touchstone of the judge’s ruling is the “belief that it is, as the husband, his desire to have sex when and whether he wanted to,” what about that is so closely bounded to Islam that it could not be applied elsewhere?  After all, that was everyone’s belief — and the law — until 1975, meaning most of America grew up in a country where there was no such thing as spousal rape.  And even further, what if I find that it is my belief as a man my “desire to have sex when and whether [I want] to” with anyone that I please?  There would be no such thing as rape, if only I didn’t believe in it.

Rulings like one in New Jersey place the left on a collision course with itself.  It is simply not possible to champion women’s rights and a culture which systematically represses and does violence to women at the same time.  But perhaps the thought that they might even try is part of the reason that the left, right now, has a woman problem.  I, for one, would rather see them win some women back than bury the rest of us under Islamic law.

Article 1, section 7 of the Constitution states:

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Mark Levin and other commentators point out from that text two phrases of paramount importance.  The first is the first sentence which states that “Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States,” and the second comes in the middle of the paragraph to say that “in all such cases the votes of both Houses shall be determined by yeas and nays.”  From these two phrases, and with reference to Clinton v. City of New York, commentators have deemed it obvious that the Constitution requires actually voting on the bill to pass it.  Obvious and correct as this ought to be, it’s not actually what the Constitution says.

To begin again at the start of the paragraph, the clause introduces itself with the words “Every bill which shall have passed” (emphasis added).  Those words, right there, are in the past tense.  This paragraph, right from the start, is not talking about how to pass a bill; it is, rather, talking about how to take a passed bill and turn it into a law.  The remainder of the paragraph is consistent with the understanding that it applies to passed bills, rather than bills to be passed.  It first describes the presentment to the President, explains the process for handling a veto, including its override, and further explains what happens to bills that the President leaves sitting on his desk.  All of the things described by the paragraph are only possible on bills which both houses have finished with.  This paragraph, in other words, assumes that a bill has been passed somehow, but offers no command for how that passage must come about.

Reading on to the second interesting clause, the bill says that “the votes of both Houses shall be determined by yeas and nays” in “all such cases.”  The inclusion of the word “such” is clearly an invitation to examine the preceding context of that phrase and to limit its scope accordingly.  The preceding context is none other than the process for overriding a Presidential veto, meaning that what that sentence tells us is that vetos may be overridden only by yeas and nays, and that it is limited to that meaning by its own terms.  Had the word “such” been omitted, Levin would have a stronger position, although he would still have an uphill battle to defeat the obvious context in which that phrase was placed.

Ultimately, the strongest argument against the Slaughter Rule are originalist rather than textualist, and Clinton v. New York guides the way.  In that case, the Supreme Court held that laws can only be formed when (among other things) “a bill containing its exact text was approved by a majority of the Members of the House of Representatives.”  But even this language leaves open the argument that, because it takes a majority to adopt a rule, and the rule contains an approval of the bill, passing the rule is tantamount to a majority of Representatives approving the bill.  Regardless, it is clear that the Supreme Court has recognized that there is a traditional process for passing laws, which is a good sign.

I have little doubt that the founders would be astonished to learn that the Slaughter Rule is even being considered.  The English law traditions they inherited and the process the country has followed consistently ever since the founding is clear in that bills are passed with majority votes, not with parliamentary trickery.

If the Senate Bill should pass on the basis of the Slaughter Rule, I wish Mark Levin the best of luck in bringing his lawsuit and having the bill stricken in court.  There is no doubt that the proposed rule is an abuse of process and a direct assault on American tradition, perpetrated by politicians waging a war against the liberty of the American people.  I do believe, though, that it would be a mistake to rely on the text of the Constitution alone to defeat the Slaughter Rule.

With respect to the first fact, no piece of reporting I’ve yet to see has managed any more than a statement of agreement or disagreement with that the Court is poised to do. I’ll join this silly straw poll: Incorporating the Second Amendment would be an activist decision; Incorporation ignores the original understanding of the scope of the amendment, it ignores the unique anti-federal-involvement-in-state-gun-laws purpose which motivated the amendment, and it has no basis in the Constitution’s text.

More interesting is the bizarre confusion about what’s at stake when it comes to the use of the Privileges and Immunities Clause for bringing about that incorporation.

Under the Court’s current precedent, the Due Process Clause of the 14th Amendment provides every tool that McDonald could ever need to bring about incorporation of the 2nd Amendment. It also contains a great many other things. Most of what the Due Process Clause is said to contain has been rightly criticized by conservatives as being impossible to support under any reasonable reading of the text of the amendment. The Due Process Clause has become, in essence, an open-ended clause which allows the Court to pretty much do whatever it wants.

Perhaps recognizing that they would eventually need to reconcile their appropriate disdain for “substantive due process” with their misplaced desire to allow the Court to make activist decisions which favor conservative policy preferences, there has been a push to breathe new life into the Privileges and Immunities Clause of the 14th Amendment. Leading with a smear campaign against the Slaughterhouse Cases and culminating with today’s argument in McDonald, conservatives have certainly put up a good fight.

Despite an effort to promote the Privileges and Immunities Clause as being somehow more restrained than “substantive due process,” it was apparent that the justices saw at least partly through the charade. A parenthetical on SCOTUSblog tells the tale:

(In fact, when Gura near the end of the argument returned to the podium for his rebuttal, his time was used up by Justices Ginsburg and Anthony M. Kennedy exploring what other rights might come into being if the Court gave new life to the “privileges or immunities” clause. He responded that he could not provide a full list, to which Justice Scalia retorted: “Doesn’ t that trouble you?” It was obvious that it troubled the Court.)

A more appropriate question might have been, “Why does the Constitution need two open ended clauses?” Or perhaps, “What does anyone gain by replacing one open ended clause with another?”

And if, as Roger Pilon states over on Bench Memos, “[most 14th Amendment cases] should have been decided under the more substantive Privileges or Immunities Clause,” might not one be forgiven for wondering what the point is in promoting this distinction without a difference? When the Court can turn Due Process (among other things) into “emanations from penumbras” into a “right to privacy” into a right to abortion on demand, it seems unlikely that any amount of “history,” no matter how much “better [it] informed the Court,” would have done anything to have “better checked the Court’s occasional activism.” After all, activism happens when a court ignores the overwhelming weight of text and history to arrive at a preferred decision.

I continue to be disappointed that conservatives have generally failed to remain true to the principles of judicial restraint when it comes to carrying guns. As I said at the time, the Court in Heller got to the right conclusion — individual right, no flat ban on handguns — but did so in a terribly activist way with an opinion I would not have joined. In this case, however, I continue to believe that incorporation is nowhere to be found in the Constitution and that, while a respect for precedent may council against disicorporating the Bill of Rights, there is no reason to extend its impropriety beyond where it has already gone.

The language of the First Amendment is simple and absolute: “Congress shall make no law … abridging the freedom of speech.”  Based on that language, the operation of the amendment is not difficult to understand: It points out a thing which Congress may not do.  The amendment is written without reference to persons or corporations and without reference to the type, content, or character of speech.  If a law is an abridgment of the freedom of speech, Congress shall make no law causing it.

Nobody has argued that the law in question is anything other than an abridgment of (corporate) speech.

The lack of reference to personhood in the First Amendment is noteworthy in light of some of the other “rights” to which a person-corporation would presumably be entitled.  The most frequent straw man that I have seen is to the right of a person-corporation to vote.  But this comparison is untenable when the text of the First Amendment is compared to the text of the Fifteenth, which speaks of “[t]he right of the citizens of the United States.” (emphasis added)  Neither the majority in Citizens United nor the First Amendment rest the right secured on citizenship, whereas the Fifteenth Amendment does so explicitly.

The notion that Citizens United is somehow dependent on a concept of corporate personhood is further discredited by considering the original understanding of what the Bill of Rights sought to accomplish.  One of the founding era arguments against the Bill of Rights was the understanding that none of the things which it explicitly forbade Congress from doing were within Congress’s power in the first place.  Nowhere do the Articles of the Constitution suggest that Congress has the authority to limit the freedom of speech.  Nowhere does the Constitution suggest that Congress gets additional power when legislating against a corporation.  The Articles, thus, reinforce the understanding that corporate personhood is entirely irrelevant to the conclusions reached by the Court in Citizens United.

Although the attempted reducto ad absurdum argument of corporate personhood sounds interesting, in reality it is little more than a meaningless straw man.  Corporate personhood is not required for the Court to have decided Citizens United as it did, and the Court gave no particular indication that it was doing so.  While there may be other precedents that point in the direction of regarding corporations as human beings, I am sure that Citizens United, if read honestly, does not belong listed among them.

The basic function of the judicial process is to determine what law applies to a given set of facts.  In making that determination, courts look to the laws passed by Congress, to the dictates of treaties and other legally binding agreements to which the US is a party, and to the Constitution to determine which laws are applicable.  Courts have a number of ways to deal with laws that conflict with one another.  Among statutes, or between statutes and treaties, the usual rule is that whatever happened most recently overrides older law if the conflict is unavoidable.  The famous exception to this usual rule applies when a law comes up against the Constitution; in that case, the Constitution overrides the statute or treaty. Determining whether the Constitution has overridden some other law is what we know as Judicial Review.  And, while we regularly talk about courts “striking down” laws, my understanding of the physics of that action are really closer to a court saying “we cannot apply this law to any set of facts.”  The statute still exists, but the law it creates is unusable.

Implicit in that entire process is the fact that what the courts are evaluating are, indeed, laws.  Because the (originalist) Constitution only enables Congress to pass laws within certain enumerated categories, it naturally follows that anything which does not follow from that authority cannot be considered a law. Because courts are not in the business of applying things which are not laws, it must follow that the courts cannot find constitutional any penalty which results from a law beyond the federal government’s authority to create.

In other words, the government may very well impose an individual mandate and hope that most people comply, and their doing so would seem to be just outside the realm of court review.  But the instant they impose a penalty on people who do not obey the individual mandate — the instant they seek to impose a fine — the courts now have a subject to address which is well inside the proper judicial role.  The courts can, and should, find the individual mandate unconstitutional because it imposes penalties which the federal government has no authority to impose.

People like the Christmas Bomber sit at an interesting mid point between domestic terrorists like Timothy McVeigh and radical Islamic terrorists like those detained at Guantanamo Bay.  There is little doubt that the Christmas Bomber is, himself, a radical Islamic terrorist.  However, despite his allegiance, the details of his attack more closely mirror the events of Guantanamo Bay than they do the events on the foreign battlefield where the Guantanamo detainees were captured — the Christmas Bomber was legally traveling to America and he was arrested on American soil.

All of the arguments holding that the Christmas Bomber should be tried by the military flow, ultimately, from his association with al Qaeda.  This begs the question of whether a person’s trial rights depend in some fundamental way on the groups with which they associate.  There is a good deal of logic to answering that question affirmatively.  After all, al Qaeda is a known terrorist organization which has accomplished multiple attacks against the United States both at home and overseas, and which is willing to say that they are at war with us, even if we are unwilling to return the courtesy.  On the other hand, the very fact that we are unwilling to say that we are at war with al Qaeda (or to do so only haphazardly) is symptomatic with a major problem with predicating rights on associations.

The trouble with linking rights to associations is the arbitrary nature of how associations might be viewed.  The merits of a particular group are decided by the government; al Qaeda may look and act like a terrorist organization, but the United States only recognizes them as such because of decisions made by the folks in Washington DC.  But aside from the sheer irrationality of the conclusion, what prevents those same politicians from declaring another group — say, America’s veterans — to be terrorists undeserving of rights?

In the absence of a deep principle separating terrorist organizations from politically disfavored groups or McVeigh-style domestic terrorists, I find it troubling that so many conservatives are so eager to put the Christmas Bomber into military detention, even though I agree that it is where he belongs.  Even more troubling, though, is the fact that even though I agree he belongs in the military system, I can think of no great principle separating him from McVeigh.

In the absence of such a principle, I find myself in reluctant disagreement with the prevailing wisdom of my fellow conservatives.  The power to commit a person, captured on American soil, to military rather than civilian detention is too great a power to leave in the hands of government discretion.  The potential for abuse as a means to silence political rather than national enemies is too great to be left available to this or any future President.

The history of the Privileges and Immunities Clause in the 14th Amendment is best understood by reference to the Slaughterhouse Cases which gave the clause its first judicial interpretation.  The Slaughterhouse Cases involved a challenge to a state law in which Louisiana established a state-wide slaughterhouse corporation and prohibited the slaughter of animals in any facility not operated by that corporation.  The law was challenged broadly on 14th Amendment grounds, including the Privileges and Immunities Clause.

Critics contend that the Slaughterhouse Cases effectively “gutted” the Privileges and Immunities Clause and now hope to use that Clause as a vehicle for a new, “conservative” foundation for incorporation.  But would a flawed doctrine by any other line of constitutional authority not smell as sweet to the activists who seek to promote the rule of judges over the text of the Constitution?  Are the advocates in McDonald prepared to argue that years of complaining about the constitutional fallacy of “substantive due process” is really no more interesting than a semantic disagreement; that the judicial authority they have decried has been there the whole time, just under a different name?

A simple reading of the text and reference to the parallel P&I provision of the original Constitution reveals that the language of the Privileges and Immunities Clause cannot support incorporation.  In Slaughterhouse, the Supreme Court noted that “[The original P&I Clause's] sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.”  In other words, a state cannot discriminate against the citizens of another state.

The 14th Amendment takes the same language and adds only the slightest change.  Whereas the original P&I Clause referred to the “Citizens of the several States” (US Const. Article 4, Section 1), the new clause referred to the “citizens of the United States.” (US Const. Amdt. 14, Section 1)  This second clause comes immediately after a blanket grant of US citizenship to “all persons born or naturalized in the United States” and of state citizenship to “the state wherein they reside.”  Anyone residing in a state, or who otherwise has state citizenship, is covered by the original P&I Clause.  However, the 14th Amendment created a class of people (admittedly more hypothetical than real) who may be citizens of the United States, having been “born or naturalized” here, but do not “reside” in any state, and therefore hold no state citizenship.  The 14th Amendment P&I Clause extends coverage to those people as well.

Nowhere can I recall having heard an argument that the privileges and immunities granted by any state are automatically incorporated against the rest through the original Privileges and Immunities Clause.  Such an understanding of the P&I Clause would surely have seemed bizarre to the founders, and is strange to us today.  The minor linguistic changes between the original and the 14th Amendment P&I clauses are certainly not significant enough to invite the creation of an incorporation doctrine.

As the Supreme Court considered in the Slaughterhouse Cases (with emphasis added):

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

All this and more must follow, if the proposition of the 78 plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court 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. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

I am equally convinced, and believe that the P&I argument in McDonald must fail.

As I understand the background of the case, it arises out of the new Tennessee law which allows guns to be carried in restaurants which sell alcohol, but not in bars.  The law works by repealing most of an earlier provision that prohibited guns in any alcohol-serving establishment.  A group of permit holders challenged the law in court, seeking a declaration that the law is unconstitutionally vague.  The law is vague, they claim, because it fails to clearly distinguish between restaurants (where guns are allowed) and bars (where they are not).  The judge agreed and struck down the law, which, by my understanding, reverts everything to the pre-law conditions where guns are prohibited wherever alcohol is sold.

Examining the results of the case closely, it becomes apparent that the court’s decision, however the opinion was written, was an exercise of judicial policymaking.  In order to even be heard in court, the challengers would have needed to show that they were harmed by the vagueness of the law (or, if this is a declaratory judgment, that they are likely to be harmed by it).  The only way someone is harmed by vagueness in the law is if they violate the law unknowingly.  The only possible way to violate the law unknowingly is to carry a gun into a bar that they thought was a restaurant.

The court’s decision purports to solve this problem by (effectively) making it illegal to carry guns in restaurants.  But this is not a solution at all.  Under the court’s decision, it is still illegal to carry a gun into a bar that you think is a restaurant.  Nothing changes except that a great number of legal carries now become illegal carries, causing harm to the rights of restaurateurs and patrons who had no problem having guns at the table.

Assuming that the law truly is vague on this point, the court had two valid options available.

The first option is a variation on the option chosen by the court: Eliminate the distinction between restaurants and bars.  However, the distinction would need to be eliminated in favor of gun carriers, because that is the only way to remove the hazard of being caught with a gun in a bar that you thought was a restaurant.  This option eliminates the vagueness entirely, and solves the problem at hand.  The downside, however, is that it rewrites the law to produce a result, guns in bars, which was expressly rejected by the political process.  Though not the atrocity of the actual opinion, this choice would still have been activist.

The second option is effectively to punt: Dismiss the case and leave the law, as it is, intact.  Over time, courts will be called on to decide whether or not particular establishments are restaurants or bars, building a body of common law precedent in the absence of legislative definition.  This sort of case by case decision making is certainly not as clean as a proper definition from the legislature, but it is a common procedure undertaken by the courts which ultimately yields a workable standard.  Further, while true that some people will end up on the wrong side of uncertainty, the Rule of Lenity will generally protect these people from harm.

It is that final option which the court should have selected.  Instead, the court chose to deviate from the duly enacted will of the people in pursuit of an outcome which does not resolve any harm the law may have caused.  Such a decision is hard to reconcile with anything other than an apparent policy preference from a judge now translated into law.