McDonald v. Chicago (Alito)

17 Oct

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of Article IV, both of which refer to state citizenship.5
(Emphasis added.) Second, the Court stated that a con-
trary reading would ““radically chang[e] the whole theory
of the relations of the State and Federal governments to
each other and of both these governments to the people,””
and the Court refused to conclude that such a change had
been made ““in the absence of language which expresses
such a purpose too clearly to admit of doubt.”” Id., at 78.
Finding the phrase “”privileges or immunities of citizens of
the United States”” lacking by this high standard, the
Court reasoned that the phrase must mean something
more limited.

Under the Court’’s narrow reading, the Privileges or
Immunities Clause protects such things as the right

““to come to the seat of government to assert any claim
[a citizen] may have upon that government, to trans-
act any business he may have with it, to seek its pro-
tection, to share its offices, to engage in administering
its functions . . . [and to] become a citizen of any State
of the Union by a bonâ fide residence therein, with the
same rights as other citizens of that State.”” Id., at
79-–80 (internal quotation marks omitted).

Finding no constitutional protection against state intru-
sion of the kind envisioned by the Louisiana statute, the
Court upheld the statute. Four Justices dissented. Jus-
tice Field, joined by Chief Justice Chase and Justices
Swayne and Bradley, criticized the majority for reducing
the Fourteenth Amendment’’s Privileges or Immunities
—————— ——————
The first sentence of the Fourteenth Amendment makes ““[a]ll per-
sons born or naturalized in the United States and subject to the juris-
diction thereof . . . citizens of the United States and of the State wherein
they reside.”” (Emphasis added.) The Privileges and Immunities Clause
of Article IV provides that “”[t]he Citizens of each State shall be entitled
to all Privileges and Immunities of Citizens in the several States.””
(Emphasis added.)

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Clause to ““a vain and idle enactment, which accomplished
nothing, and most unnecessarily excited Congress and the
people on its passage.”” Id., at 96; see also id., at 104.
Justice Field opined that the Privileges or Immunities
Clause protects rights that are ““in their nature . . . funda-
mental,”” including the right of every man to pursue his
profession without the imposition of unequal or discrimi-
natory restrictions. Id., at 96-–97. Justice Bradley’’s dis-
sent observed that “”we are not bound to resort to implica-
tion . . . to find an authoritative declaration of some of the
most important privileges and immunities of citizens of
the United States. It is in the Constitution itself.”” Id., at
118. Justice Bradley would have construed the Privileges
or Immunities Clause to include those rights enumerated
in the Constitution as well as some unenumerated rights.
Id., at 119. Justice Swayne described the majority’s nar-
row reading of the Privileges or Immunities Clause as
““turn[ing] . . . what was meant for bread into a stone.”” Id.,
at 129 (dissenting opinion).

Today, many legal scholars dispute the correctness of
the narrow Slaughter-House interpretation. See, e.g.,
Saenz v. Roe, 526 U. S. 489, 522, n. 1, 527 (1999) (THOMAS,
J., dissenting) (scholars of the Fourteenth Amendment
agree ““that the Clause does not mean what the Court said
it meant in 1873″”); Amar, Substance and Method in the
Year 2000, 28 Pepperdine L. Rev. 601, 631, n. 178 (2001)
(““Virtually no serious modern scholar-—left, right, and
center-—thinks that this [interpretation] is a plausible
reading of the Amendment””); Brief for Constitutional Law
Professors as Amici Curiae 33 (claiming an ““overwhelming
consensus among leading constitutional scholars”” that the
opinion is ““egregiously wrong””); C. Black, A New Birth of
Freedom 74–-75 (1997).

Three years after the decision in the Slaughter-House
Cases, the Court decided Cruikshank, the first of the three
19th-century cases on which the Seventh Circuit relied.

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