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Be Careful What You Wish For: Why Mcdonald V. City Of Chicago's Rejection Of The Privileges Or Immunities Clause May Not Be Such A Bad Thing For Rights, Jeffrey D. Jackson
Be Careful What You Wish For: Why Mcdonald V. City Of Chicago's Rejection Of The Privileges Or Immunities Clause May Not Be Such A Bad Thing For Rights, Jeffrey D. Jackson
Jeffrey D Jackson
On June 28, 2010, the United States Supreme Court handed down its much-awaited decision in McDonald v. City of Chicago, in which it held that the Second Amendment was incorporated against the States through the Fourteenth Amendment's Due Process Clause. In so doing, it rejected the opportunity to overrule its much-reviled opinion in The Slaughter-House Cases and incorporate the Second Amendment through the Fourteenth Amendment's Privileges or Immunities Clause. Thus ended what was probably the last, best attempt to revive what many consider to be the original meaning of privileges or immunities.
Although no doubt disappointing to those who saw …
Putting Rationality Back Into The Rational Basis Test: Saving Substantive Due Process And Redeeming The Promise Of The Ninth Amendment, Jeffrey D. Jackson
Putting Rationality Back Into The Rational Basis Test: Saving Substantive Due Process And Redeeming The Promise Of The Ninth Amendment, Jeffrey D. Jackson
Jeffrey D Jackson
ABSTRACT
Substantive due process as currently practiced is broken. This doctrine, which provides that the Due Process Clauses of the Fifth and Fourteenth Amendments contain substantive limits on the power of federal and state governments, has been an important protector of rights since its beginnings in English law. However, as currently practiced by the United States Supreme Court, the tiered-scrutiny formulation of substantive due process is illusory. While the United States Supreme Court professes to follow the tiered-scrutiny doctrine set out in cases such as Washington v. Glucksberg, where fundamental rights are subjected to strict scrutiny and all other claimed …