When I was in law school, I once asked a professor about the tenth amendment. Why wasn’t that relevant in the case we were discussing?
“Oh, we don’t pay attention to that one anymore.” was the answer.
I was flabbergasted. We don’t pay attention to part of the fundamental, binding law of the nation? How exactly do you ignore parts of the constitution? And who, exactly, decides?
But that’s what we’ve been doing for years now. During the liberal ascension of the last 40 years, people just decided to ignore parts of the constitution that they (liberals) didn’t like.
The same thing happened to the Privileges and Immunities clause of the Fourteenth Amendment.. In The Slaughter House Cases, the court effectively said “Oh, we don’t pay attention to that one”
Now the clause has come roaring back from the grave, all courtesy of the man who may turn out to be one of the great justices – Clarence Thomas:
“Today, the Privileges or Immunities Clause has risen from the grave. Only a plurality was willing to use the Due Process Clause to apply an individual right to the states. The crucial fifth vote was provided by Justice Thomas’ extensive fifty-six-page originalist opinion that rested solely on the Privileges or Immunities Clause. Neither Justice Alito for the plurality, nor Justices Stevens or Breyer in dissent, even attempted to impeach Justice Thomas’ analysis, which now stands uncontradicted in the Supreme Court Reports. Decades of academic research that has lead to a remarkable consensus among constitutional scholars that The Slaughter-House Cases was wrongly decided have now been vindicated. Only a remarkably tepid and barely defended assertion of stare decisis by Justice Alito now stands in the way of a complete restoration of the ‘lost’ Privileges or Immunities Clause at the heart of Section One of the Fourteenth Amendment.”
And Justice Kennedy – with his unforgiveable vote against the first amendment in CLS v Hastings – is going to be considered one of the very worst – the very antithesis of what a Supreme Court judge should be. Sweet mystery of life, indeed. ”
Thomas exposes the nonsense that has been going on for years. The Court has been pretending that the due process clause somehow protected or even created substantive rights that could be “discovered” by the court. This was a results oriented approach. If they wanted the right to exist, it existed. If they didn’t want it to, it didn’t.