Author: Timothy Sandefur
I’ve just finished reading Justice Thomas’ powerful and persuasive opinion in McDonald v. Chicago. Scholarly, moving, and logical, it’s an example of Thomas at his best. Although he doesn’t take the more big-picture view of the Fourteenth Amendment’s purposes that we did in our brief, Justice Thomas provides a solid argument that the privileges or immunities clause was intended as a crucial protection for the natural and common law rights that pre-existed American citizenship and with which all Americans are blessed—at least, in the understanding of the Amendment’s authors. The phrase “privileges or immunities” is an ancient one, and the men who wrote the Fourteenth Amendment “did not consider many of the rights indentified [by these words] as new entitlements, but as inalienable rights of all men, given legal effect by their codification in the Constitution’s text.”
Among the most vital of the rights that the post-Civil War Congress hoped (vainly, as it turned out) to protect was the right of the freedmen to defend themselves against violence at the hands of white supremacists, who were not only armed, but often served in positions of government authority. It was the sheriffs who carried out the Colfax Massacre that Thomas discusses on p. 53 of his opinion, and the local militia commander who led the Hamburg Massacre he mentions the same page. It was to protect the fundamental right of self-defense—along with other fundamental rights, such as the right to earn a living at a lawful occupation—that the Congress enacted the Fourteenth Amendment and the Civil Rights Acts of the late nineteenth century.
Although it’s sad to see the other justices simply ignore Justice Thomas’ expert marshaling of the historical evidence, his opinion today gives hope that in a future decision, the Court will face up to its critical 1873 error and correct it by giving the Constitution’s text the respect it deserves.
Update: Note, by the way, that Justice Thomas’ opinion is the fifth vote for reversal, and therefore is arguably the controlling opinion under the “Marks doctrine.”