Other People’s McDonald thoughts

Sebastian at Snowflakes in Hell has a good post up about Thomas’ concurrence in McDonald, and he makes one very good point that I wish the other justices had the intestinal fortitude to follow.

I wish we had four more on the Court like him, because I generally agree with Thomas that stare decisis should not stand when it’s in clear conflict with the text and meaning of the Constitution, as it is here. [emphasis mine]

As I noted yesterday, the majority essentially took the coward’s way out, refusing to overturn a plainly wrong decision and re-establish the clear meaning of the P-or-I clause of the 14th Amendment in favour of taking the easy path using previously established incorporation guidelines under the Due Process clause. They chose to bow to the legal false god of stare decisis rather than to follow the plain text and meaning of the Constitution, because the correct path would have lead to the need to reevaluate a large body of existing incorporation precedent. They chose the easy path over the right path.

Realistically, using the Due Process clause as a basis for selective incorporation is as much a stretch of the plain language of the 14th as the neutering of P-or-I was. The Due Process clause reads:

nor shall any State deprive any person of life, liberty, or property, without due process of law;

That clause makes no reference to the rights of citizens as guaranteed by the Constitution or the other Amendments, only to “life, liberty, or property.” Yes, it can be argued that many of the protections of the Bill of Rights are essential to liberty, and that to deprive someone of one of those protections deprives them of liberty. But there is the point – it must be argued, for each one, under Due Process. This process of Selective Incorporation is a farce, because the plain meaning of the P-or-I clause, and the clear intent of the amendment – as it was understood then and now – is to ensure that all the protections of the Bill of Rights are to bind the states, as well as binding the Federal government.

Any other interpretation cheapens the 14th Amendment, the Bill of Rights, and the Constitution itself, and all eight Supreme Court Justices who did not choose to incorporate and restore the P-or-I clause should be ashamed for their failure to do what is right over what is convenient.

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