Saenz V. Roe - Thomas's Dissent

Thomas's Dissent

Justice Thomas dissented separately, because he felt that the majority attributed a meaning to the Fourteenth Amendment Privileges or Immunities Clause that its framers did not intend. He lamented the decision of the Slaughterhouse Cases which basically turned the clause into a nullity. He looked to the historical meaning and use of the language in the clause, citing the Charter of 1606, which guaranteed the citizens of Virginia therein all the "Liberties, Franchises, and Immunities" of a person born in England. He also noted that the phrase was used in the Articles of Confederation, which was then imported into Article IV of the Constitution.

Finally, he suggested that the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment should be read the same way that Article IV's Privileges and Immunities Clause was interpreted. He cited Justice Bushrod Washington's interpretation of the latter clause in the famous case of Corfield v. Coryell and stated that this is what the framers of the Fourteenth Amendment had intended. Thomas made a case for the revival of the clause to protect fundamental rights of citizens.