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09/19/2020

A Privileges or Immunities Case for the Supreme Court?
Michael Ramsey

Via the Institute for Justice, Courtney v. Danner is a rare case raising a substantial claim under the modern version of the Fourteenth Amendment's privileges or immunities clause.  As the IJ explains:

Jim and Cliff Courtney have spent 23 years trying to travel 55 miles by boat—and they have yet to reach their destination. With the petition they filed yesterday asking the U.S. Supreme Court to review their case, the brothers hope their next stop will be before the nation’s High Court.

Since 1997, the brothers from Washington state have been fighting for their right to use the nation’s waters in pursuit of a livelihood. But rather than allow Jim and Cliff to pursue a living on the 55-mile-long Lake Chelan in the northern Cascades, the State of Washington has instead used a century-old public ferry licensing law to prevent them from even shuttling customers of their family’s own businesses at the far end of the lake. The Courtneys challenged the state’s bar on their use of Lake Chelan, and after nearly a decade of litigation, the 9th U.S. Circuit Court of Appeals dismissed their case. But now the Courtneys are teaming with the Institute for Justice to ask the U.S. Supreme Court to review that decision.

Jim and Cliff’s case hinges on the interpretation of a constitutional provision and a landmark precedent that are well-known to constitutional scholars: the Privileges or Immunities Clause of the Constitution’s 14th Amendment and the Slaughter-House Cases, an 1873 decision in which the U.S. Supreme Court upheld the power of states to create monopolies in certain industries. But, interestingly, in that case, the justices held that among the rights (known then as “privileges or immunities”) that states have to respect is the “right to use the navigable waters of the United States”—the very right at the heart of Jim and Cliff’s case and their private boat service.

According to the State of Washington and the 9th Circuit, however, that right is essentially meaningless. ...

From the petition:

The Ninth Circuit ... constru[ed] the right to use the navigable waters ... only [to] encompass[ ] uses that “involve interstate or foreign commerce,” ... and Washington’s ban on “intrastate boat transportation” therefore “does not affect the Courtneys’ privileges or immunities as citizens of the United States.” In so holding, the Ninth Circuit reduced a distinct right derived from national citizenship to a mere redundancy of the right to engage in interstate or foreign commerce.

And  further:

[T]he Ninth Circuit concluded that the Clause generally bars claims against one’s own State—a conclusion that resulted from its conflation of the Privileges or Immunities Clause of the Fourteenth Amendment with the Privileges and Immunities Clause of Article IV, section 2. The latter clause is limited to protecting out-of-state residents. As Slaughter House held, it does not control “the power of the State governments over the rights of its own citizens.” Slaughter-House, 83 U.S. (16 Wall.) at 77; ... But the Ninth Circuit cited this passage from Slaughter-House for the proposition that the Fourteenth Amendment’s Privileges or Immunities Clause “in general bar[s] . . . claims against the power of the State governments over the rights of [their] own citizens.” ...  In so doing, the Ninth Circuit relied on its prior decision in Merrifield, where it enshrined this mistake in the court’s published precedent. This is the constitutional equivalent of mixing apples and oranges—a mistake surprisingly common...

I'm not entirely sure that the right to use intra-state navigable waters is a privilege or immunity of U.S. citizenship -- but the clause has to have meant something, and that's one of the few things the Court has actually said it meant.  So it's rather embarrassing if even that right turns out to mean nothing. It would be great if this case inspired some originalist rethinking of the clause.

Also I think the petition is right that the Ninth Circuit seriously misread both Slaughter-House and the privileges or immunities clause.  The Article IV privileges and immunities clause doesn't allow claims against one's home state (it's an anti-discrimination rule).  But the privileges or immunities clause surely does, as to the rights it protects (the difficult question is which rights it protects).  That's exactly how Slaughter-House described the two clauses; it just read the Amendment's protected rights very narrowly (83 U.S. at 77-79).  If the Amendment protects rights derived from national citizenship, of course those rights apply to both in-state and out-of-state claimants.  It makes no sense to say, in Courtney for example, that out-of-state claimants might have a right to use Lake Chelan as a privilege of U.S. citizenship but in-state residents do not. 

(Note: I blogged about an earlier version of this case here. Thanks to Michael Bindas of IJ for the pointer.)