Thomas v. Scalia on the Constitutional Rights of Parents: Privileges or Immunities, or 'Spinach'?
Year: 2011
Type: preprint
Abstract: A debate has broken out between Justices Scalia and Thomas over which unenumerated rights, if any, should be deemed constitutionalized by 14th Amendment, and if so, by which of its clauses. In Troxel v. Granville, Scalia (dissenting), taking his usual narrow view of substantive due process (in off-bench speeches he has often called it spinach), expressed doubts as to whether parents' rights precedents such as Meyer v. Nebraska and Pierce v. Society of Sisters were rightly decided. But McDonald v. Chicago, where issue was incorporation of 2nd Amendment's individual firearms possession rights against states, Scalia at oral argument urged counsel for firearms owners actually to rely on substantive due process, saying even I've given in on that doctrine, and calling alternative -- Privileges or Immunities Clause -- the darling of commentariat. When McDonald decision came down, 5-4 victory for firearms owner relied for its fifth vote on Justice Thomas's separate concurrence rejecting substantive due process and making a determined case for a revival of Privileges or Immunities jurisprudence.This article traces these controversies through Troxel and McDonald, and speculates about recasting parental rights (as familiar from Meyer and Pierce) as Privileges or Immunities.
Source: SSRN Electronic Journal
Author: David M. Wagner
Institution: Regent University
Language: English
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W2283907914