Thomas v. Scalia on the Constitutional Rights of Parents: Privileges or Immunities, or 'Spinach'?

Posted: 16 Aug 2013 Last revised: 24 Apr 2014

See all articles by David M. Wagner

David M. Wagner

Research Fellow; Regent University - School of Law

Date Written: November 15, 2011


A debate has broken out between Justices Scalia and Thomas over which unenumerated rights, if any, should be deemed constitutionalized by the 14th Amendment, and if so, by which of its clauses. In Troxel v. Granville, Scalia (dissenting), taking his usual narrow view of substantive due process (in off-bench speeches he has often called it "spinach"), expressed doubts as to whether parents' rights precedents such as Meyer v. Nebraska and Pierce v. Society of Sisters were rightly decided.

But in McDonald v. Chicago, where the issue was the incorporation of the 2nd Amendment's individual firearms possession rights against the states, Scalia at oral argument urged counsel for firearms owners actually to rely on substantive due process, saying "even I've given in" on that doctrine, and calling the alternative -- the Privileges or Immunities Clause -- "the darling of the commentariat." When the McDonald decision came down, the 5-4 victory for the firearms owner relied for its fifth vote on Justice Thomas's separate concurrence rejecting substantive due process and making a determined case for a revival of Privileges or Immunities jurisprudence.

This article traces these controversies through Troxel and McDonald, and speculates about recasting parental rights (as familiar from Meyer and Pierce) as Privileges or Immunities.

Keywords: Scalia, Thomas, Privileges, Immunities,Troxel, McDonald, Meyer, Pierce, parents,14th Amendment, substantive due process, Privileges of Immunities Clause

Suggested Citation

Wagner, David M., Thomas v. Scalia on the Constitutional Rights of Parents: Privileges or Immunities, or 'Spinach'? (November 15, 2011). Regent University Law Review, Vol. 24, No. 1, 2011. Available at SSRN:

David M. Wagner (Contact Author)

Research Fellow ( email )

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United States

Regent University - School of Law ( email )

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