Keep substantive DP, add PorI Approach

[Joseph E. Olson]

"Privileges, Immunities, and Substantive Due Process"  NYU Journal of Law & Liberty, Vol. 5, No. 1 TIMOTHY SANDEFUR, Pacific Legal Foundation - Economic Liberties Project Email: t...@pacificlegal.org In McDonald v. Chicago, the Supreme Court is being asked to reconsider its disastrous 1873 decision in The Slaughter-House Cases. This article seeks to discuss Slaughter-House in a broader context, to address two questions. First, what is the fundamental reason that Slaughter-House was wrongly decided? Although the decision has many flaws, I contend that the deepest reason, and the one that accounts for the case’s other errors, involves important abstract principles of federalism and sovereignty; in particular, the Slaughter-House Court failed to give effect to the principle of "paramount national citizenship" that was a component of Republican Party ideology and the most fundamental Second, is it true, as some scholars and judges contend, that overruling Slaughter-House and restoring vitality to the privileges or immunities clause would warrant abandoning the theory of "substantive due process”? If so, then the McDonald decision could herald an even more far-reaching revolution of law than it would at first appear. But in fact, "substantive due process" is not a mere substitute for the lost privileges or immunities clause, and overruling Slaughter-House should not coincide with an abandonment of theat theory. Rather, both doctrines are independent, constitutionally valid sources of protection against excessive state power. ******************************************************************* Professor Joseph Olson, J.D., LL.M.                                   o-   651-523-2142  Hamline University School of Law (MS-D2037)                    f-    651-523-2236 St. Paul, MN  55113-1235                                                 c-   612-865-7956 jol...@gw.hamline.edu                              http://law.hamline.edu/node/784

_______________________________________________
To post, send message to Firearmsregprof@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.