Shawn wrote in
news:89b63f71-d12c-4d90-9ffd-cc03f554b140@t41g2000yqt.googlegroups.com :
> On Mar 5, 10:56 pm, Alfred Montestruc wrote:
>> http://www.ij.org/index.php?option=com_content&task=view&id=1634&It
> em...
>
> Would it really change things in the long run? Even if this case is
> reversed, the pre-New Deal Court will still strike down legislation
> that violate economic liberties such as freedom of contract, and the
> New Deal era Courts will reverse those decisions. I may be wrong, but
> I don't see much long term change with a decision the other way, it
> might just be that some justices will use the Privileges and
> Immunities Clause to strike down certain laws instead of the Due
> Process clause.
>
> Thanks,
> Shawn
>
There is at least one possible consequence of using the Privileges or
Immunities Clause [1] of the 14th Amendment instead of substantive due
process to safeguard fundamental substantive rights. It is that the P or I
Clause appplies only to *citizens* ("No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
States") whereas the Due Process Clause applies to *persons.*
So if the Court protected fundamental substantive rights solely through the P
or I clause there would be the danger that such rights could be denied to
aliens. One answer of course is that any legislation discriminating in favor
of citizens against legal aliens could be found unconstitutional under the
Equal Protection Clause. It could, but would it? It is only relatively
recently, with *Graham v. Richardson* 403 US 365(1971)
http://laws.findlaw.com/us/403/365.html that SCOTUS has looked upon laws
discriminating in favor of citizens against aliens as suspect.
[1] In the past, I have called it the Privileges *and* Immunities Clause, but
that term should be reserved to the clause in the original Consitution
(Article IV, Section 2, Clause 1) that "The Citizens of each State shall be
entitled to all Privileges and Immunities of Citizens in the several
States."
--
David Tenner
dtenner@ameritech.net |
