Clark Neily
My friend and former boss at the Institute for Justice, Chip Mellor, passed away earlier this month, and I’m still trying to process the loss. Chip was a towering figure in libertarian circles. Besides founding one of the nation’s premier public interest law firms together with now-Arizona Supreme Court Justice Clint Bolick, Chip mentored a generation of libertarian constitutional lawyers and activists whom he inspired with his unflagging optimism, uncompromising standards, and clarity of vision. As a tribute to his memory, I’d like to share a few personal anecdotes that are special to me and will hopefully provide some sense of Chip’s enormous contribution to the cause of freedom.
1. Be willing to lose. When Chip offered me a job at IJ in the spring of 2000, I was a young litigator coming off of a judicial clerkship in Washington, DC, and four years at a large law firm in my home state of Texas. Having realized that a career in BigLaw was not for me—and having spent a year watching lawyers from DOJ and the DC Attorney General’s office advocate for maximum government power with minimum accountability—I yearned to join IJ’s “merry band” of bureaucrat-suing litigators.
Following several rounds of interviews, Chip took me out for dinner to make the offer. As our dishes were being cleared away, he fixed me with his trademark fatherly football-coach gaze and told me something I’ll never forget: “If you take this job, you’ll have to make peace with something you won’t like.” “What’s that?” I asked. “Losing,” he said.
Of course, Chip was not warning me that IJ had low standards or that its lawyers are more complacent than others—on the contrary. Instead, what Chip sought to convey was that he, Clint, and other trailblazing IJers like communications guru John Kramer had chosen a set of institutional goals that were the professional equivalent of summiting Mt. Everest in a raging blizzard without supplemental oxygen—on a unicycle. Thus, no matter how hard we worked, no matter how persuasive our arguments, and no matter how just our cause, we were going to lose cases—including ones we deserved to win on the law, the facts, and the quality of our advocacy. And boy, was he right.
One reason for that is because, like Cato, IJ seeks to overturn longstanding Supreme Court precedent that arbitrarily divides constitutional rights into two distinct categories consisting of purportedly “fundamental” rights like free speech and religion that are entitled to meaningful judicial protection, and nonfundamental “liberty interests” such as occupational freedom and property rights that receive no meaningful judicial protection. Utterly arbitrary and textually baseless as that dichotomy is, most modern judges—including even self-professed originalists—remain deeply committed to it and unwilling to seriously engage contrary arguments.
Bottom line, Chip understood that if you’re a libertarian litigator trying to overturn decades of unabashedly government-empowering constitutional malpractice and you aren’t losing, then you simply aren’t bringing the right cases. Amen to that.
2. The “privilege” of earning an honest living. When Chip and Clint created the Institute for Justice in 1991, their most ambitious goal was to resurrect the Fourteenth Amendment’s Privileges or Immunities Clause as the primary source of protection for individual rights against state and local governments—including particularly the right of occupational freedom. Understanding what an ambitious goal that was (and remains!) requires a bit of history.
The Fourteenth Amendment was ratified in 1868 in response to Southern states’ oppression of newly freed blacks and their white supporters following the Civil War. It prohibits states from infringing the privileges or immunities of United States citizens and from denying any person due process of law or equal protection of the laws. Those terms are necessarily broad and imprecise because the nature of the evil they were meant to combat—again, the attempt to keep a whole class of people in a state of constructive servitude—was itself all-encompassing and constantly evolving.
Unfortunately, the Supreme Court largely eviscerated the Privileges or Immunities Clause in the aptly named Slaughter-House Cases (1873), which involved a challenge to a Louisiana law that required butchers to do their work within a designated area while paying fees to politically connected private interests for the privilege of using their facilities. A sharply divided 5–4 Court rejected the butchers’ argument that occupational freedom is among the privileges or immunities of American citizenship and held instead that the term referred only to a narrow and idiosyncratic set of “national” rights such as the ability to call for the protection of the federal government when on the high seas.
Virtually everyone now agrees that Slaughter-House was wrongly decided, and IJ, Cato, and others have waged a decades-long campaign to persuade the Court to overturn it. But the justices have repeatedly rebuffed those efforts and continue to hold that occupational freedom is a nonfundamental right “protected” only by the almost infinitely permissive rational basis test under the controversial theory of substantive due process.
In 2010, however, an unexpected opportunity arose to reconsider the Privileges or Immunities Clause in a setting not foreclosed by Slaughter-House: gun rights. That opportunity was created by the court’s 2008 decision in District of Columbia v. Heller (2008) (litigated by me, Cato chairman emeritus Bob Levy, and Alan Gura), which held that the Second Amendment prohibits the federal government from infringing the right to keep and bear arms. But because the Bill of Rights does not apply directly against the states, Heller left open the question of whether the Fourteenth Amendment likewise protects gun ownership from infringement by state and local governments. The answer to that question is plainly yes, and it is equally clear from the relevant history that the right of armed self-defense is among the privileges or immunities of American citizens.
And that’s precisely how Alan Gura—who had successfully argued Heller two years before—presented the issue to the Supreme Court in McDonald v. City of Chicago (2010), which challenged a municipal ban on handguns. Rejecting the conventional wisdom that he should lead with substantive due process—a legal doctrine long denigrated by conservatives in particular—Alan chose instead to put his faith in text, history, and confidence that the justices would be committed not just to reaching the right result, but to doing so according to the best reading of the Constitution.
Whoops.
At oral argument, it became clear immediately that eight of the justices had zero interest in revisiting Slaughter-House or taking a fresh look at the Privileges or Immunities Clause. Indeed, Justice Scalia even mocked Alan for his presumption in asking the court to reverse its own manifestly erroneous precedent:
Well, I mean, what you argue is the darling of the professoriate, for sure, but it’s also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process? Which, as much as I think it’s wrong, I have—even I have acquiesced in it.”
In the end, only Justice Thomas—in a magnificent but solo concurrence—would choose the correct path of protecting the fundamental right to own a gun via the Privileges or Immunities Clause rather than substantive due process.
Walking out of the Supreme Court after the McDonald argument was the only time I ever saw Chip Mellor look truly deflated. The justices’ collective indifference to the relevant text and history, together with their staunch refusal to revisit the court’s momentous error in Slaughter-House, strongly suggested that Chip’s lifelong goal of restoring the Privileges or Immunities Clause to its rightful place as the Fourteenth Amendment’s principle font of individual rights would not be achieved any time soon—or perhaps ever.
As a result, countless unenumerated rights, including but not limited to occupational freedom, would continue to be denied, disparaged, and/or marginalized by a Court that often seems more interested in securing the prerogatives of government than the blessings of liberty. Chip was right to be dismayed that day.
3. Judicial engagement. Finally, Chip was among the first to recognize that judges were not merely applying different levels of scrutiny in constitutional cases, as they proclaimed, but were instead genuinely grappling with the facts and law in some cases while fully abdicating the judicial role in others. The term Chip coined to describe the former was “judicial engagement,” and he tapped me to flesh out the concept by creating IJ’s Center for Judicial Engagement and ultimately writing a book about it.
In that book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, I sought to explain the difference between real and fake judging—engagement versus abdication—and show that there truly was a categorical difference (and not merely one of degree) between the way judges decide cases involving fundamental rights and those involving purportedly nonfundamental rights, like occupational freedom. Along the way, I realized a profound truth about constitutional adjudication, namely, that it is impossible in most cases to assess the constitutionality of the government’s actions if you don’t ask why the government is doing whatever it’s doing—i.e., what end(s) is the government pursuing with the freedom-restricting policy at issue?
It turns out the exact same exercise of power can be constitutional or unconstitutional, depending on why it was undertaken. And if you don’t bother to ask that question—as the Supreme Court has held that judges should not in most cases—then you simply can’t determine the constitutionality of a given law or policy. Consider the following illustration, which does not appear in the book because it occurred to me later.
Imagine police are going around a given neighborhood ordering people to stay inside until further notice. They do not purport to be enforcing any law or judicial decree—instead, they’re simply insisting that people not leave their homes indefinitely, or face arrest if they do. Query: Are the police acting constitutionally or unconstitutionally?
Having presented this hypothetical to dozens of people, the most common response is that the unilateral order to stay indoors violates the Constitution. But a healthy minority of people pause, think about it, and say, “Wait, I need to know more.” And that’s exactly right—they do need to know more.
Let’s say there’s been a terrorist bombing at a sporting event in Boston, and police have tracked the perpetrators to the neighborhood in question and are telling people to stay indoors for their safety and to make it easier to apprehend the suspects. That seems constitutional, given the combination of exigent circumstances and compelling government interest.
But now imagine it’s forty or fifty years earlier, and the neighborhood is located somewhere in the South instead of New England. Also, there’s an election tomorrow, and the neighborhood where police are ordering people to stay indoors until further notice has a certain racial demographic. That looks more like the use of force to subvert an election, which is plainly unconstitutional.
Again, it’s the same exercise of government power but with opposite constitutional implications depending on why it was undertaken. When judges make a genuine effort to figure out what ends the government is pursuing, that’s judicial engagement; and when they do not, that’s judicial abdication. And because the default standard of review in constitutional cases is the rational basis test—which explicitly calls for judges to base their rulings on “conceivable” justifications, including palpably insincere ones for which there is no supporting evidence—judicial engagement turns out to be the exception and not the rule in constitutional litigation.
This conception of engagement versus abdication is a powerful insight whose simple but compelling logic has garnered a growing following among scholars, activists, and even judges. And it has the potential to help tear down nearly a century of power-aggrandizing and freedom-restricting legal doctrine catalyzed by the so-called New Deal Revolution of the mid-1930s.
Sadly, Chip will not be able to participate in the celebration should that come to pass. But if I’m still around when it does, I’m sure I won’t be the only one to tip a glass to him in a silent and grateful toast.
