By Quin at the Examiner;

The hearts of constitutional purists are beating harder today after Justice Neil Gorsuch joined Justice Clarence Thomas in a bid to restore sense and meaning to a key, but long ignored, clause of our nation’s founding document.

My colleague Erin Dunne has ably captured the top-line importance of the Supreme Court’s decision reining in an abuse of asset forfeiture laws, via which law-enforcement agencies seize property of those they arrest. I entirely concur with her analysis supporting the result. Beyond that, though, it is the concurring opinions by Gorsuch and Thomas that raise hopes, however faintly, for a return to jurisprudence more rooted in the Constitution’s text than in the expansive imagination of the court’s nine jurists.


Both Gorsuch and Thomas wrote Wednesday that the case Timbs v. Indianawould best be decided based not on the amorphous “due process” clause of the Constitution, but on the “privileges or immunities” clause of the 14th Amendment. The P/I clause, along with the privileges and immunities clause of Article IV, has been wrongly treated as dormant, or meaningless in practice, ever since the 1873 Slaughterhouse Cases. Or, more accurately, since the court misapplied Slaughterhouse in Maxwell v. Dow (1900) and other cases.

For years, Thomas has tried to revive P/I, but found few allies among his fellow justices. That’s why it’s significant that Gorsuch now has joined him in saying the clause has practical meaning after all.

When P/I was discarded, justices fumbled around looking for other clauses in the Constitution that would justify them in asserting that certain rights were guaranteed to citizens, against infringement by the states. They settled on the Constitution’s guarantee that “liberties” could not be taken away “without due process of law.” The natural reading of “due process,” of course, involves procedural matters, such as rights to a trial by jury rather than by judge. But the Supreme Court started shoving other “liberties” into the “due process” envelope until a new term, “substantive due process,” was invented.

The practical difference between P/I and substantive due process grew to large proportions. …[The rest of this column is at this link.]…


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