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03/24/2014

Barnett, Blackman et al.: Does the Privileges or Immunities Clause Protect Economic Rights?
Michael Ramsey

Josh Blackman, Randy Barnett and other leading property and economic rights scholars have filed an amicus brief supporting a grant of certiorari to review a Ninth Circuit decision that denied a claim to use navigable waterways as unprotected by the Slaughter-House Cases.  As the brief describes:  

Yet the Ninth Circuit below refused to recognize even those aspects of the Privileges or Immunities Clause that Slaughter-House retained. Applying the same overarching historical narrative deployed in Slaughter-House to downplay still further the extent to which the Clause was intended to effect any significant change, the Ninth Circuit announced that the rights enumerated in Slaughter-House must be “narrowly construed” when applied to “economic activities.” Courtney v. Goltz, 736 F.3d 1152, 1161 (9th Cir. 2013). The court thus held that the “economic rights protected by” the Clause are “limited to the right of travel,” and that the right to use navigable federal waterways does not include the right to “utilize those waters for a very specific professional ven ture.” Id. at 1160, 1161 & n.5 (internal quotation marks omitted).

Certiorari is warranted to repudiate the Ninth Circuit’s further evisceration of the Privileges or Immunities Clause. The Clause was drafted in response to widespread restrictions of economic liberty, including limitations on the economic activities of former slaves. And the framers of the Clause used language commonly understood to incorporate a long tradition of natural law rights, including the right to pursue a lawful trade. The Ninth Circuit’s removal of economic activity from the scope of the Clause cannot be reconciled with history demonstrating that economic freedom lay at the provision’s core.

(Via Josh Blackman's Blog).  The Brief is signed by Professors Randy Barnett, Josh Blackman, James Ely, Richard Epstein, Christopher Green and Ilya Somin.

Randy Barnett has more here.

It's an interesting well-argued brief -- I reviewed an earlier draft & didn't sign on only because the Fourteenth Amendment isn't my area of expertise.  But it seems right to me.