The U.S. Supreme Court receives around 10,000 petitions each
year from various parties seeking review of their cases. Among the
current crop of contenders, one case in particular
stands out as worthy of the Court’s attention:
Courtney
v. Danner.
At issue is a Washington state law granting de facto
monopoly privileges to companies providing commercial ferry
service. According to the state, entrepreneurs hoping to break into
that line of work must first obtain a government-issued certificate
of “public convenience and necessity.” Among other requirements,
applicants must show that an existing certificate holder “has not
objected to the issuance of the certificate as prayed for.” In
other words, established ferry businesses get to veto the
applications of their would-be competitors.
The results are just what you would expect. For example, at Lake
Chelan, a 55-mile long stretch of water popular with outdoor
enthusiasts, the Lake Chelan Boat Company has been the sole
certificate holder since 1929, and has repeatedly convinced the
state to keep new competitors at bay. In effect, the company enjoys
a state-sanctioned monopoly that comes at the expense of both other
businesses and the recreation-seeking public.
In 2011, the entrepreneurs James and Clifford Courtney,
represented by the Institute for Justice, challenged the
monopolistic law in federal court, arguing it violated the 14th
Amendment, which reads: “No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the
United States.” As support for their argument, the Courtneys cited
the Supreme Court’s 1873 decision in
The Slaughter-House Cases, which recognized the “right
to use the navigable waters of the United States” among the
privileges or immunities of national citizenship. To be clear, the
Courtneys take no issue with any health or safety regulations; they
seek only to invalidate the monopoly law.
Yet the U.S. Court of Appeals for the 9th Circuit
ruled against them, arguing that because the Courtneys sought
to engage in “an activity driven by economic concerns,” they
deserved no judicial protection. In fact, the 9th Circuit ruled,
neither Slaughter-House nor the Privileges or Immunities
Clause should offer any meaningful shield for economic liberty. “A
reasonable interpretation of the right to ‘use the navigable waters
of the United States,’ and the one we adopt,” the 9th Circuit
declared, “is that it is a right to navigate the waters of
the United States.”
That ruling transformed Slaughter-House from one of the
Supreme Court’s most regrettable opinions into something even
worse. Let me explain.
The issue before the Supreme Court back in 1873 was whether a
Louisiana law granting a private corporation an exclusive
slaughter-house monopoly for the city of New Orleans violated the
recently-ratified 14th Amendment. In its five-to-four opinion, the
Court not only upheld the monopoly, it gutted the Privileges or
Immunities Clause in the process, holding that the clause placed no
limit whatsoever on the power of the states to control the lives
and liberties of their residents. To rule otherwise, argued the
majority opinion of Justice Samuel F. Miller, would “fetter and
degrade the State governments.”
That decision turned the text and history of the 14th Amendment
on its head. As Justice Stephen Field remarked in his
Slaughter-House dissent, the Privileges or Immunities
Clause was designed to protect a broad range of fundamental rights
from state infringement, including “the right of free labor.” As
Field stressed, “the fourteenth amendment does afford such
protection, and was so intended by the Congress which framed and
the states which adopted it.”
Field got it right and the majority got it wrong. The 14th
Amendment was drafted in 1866 and ratified in 1868 in direct
response to the widespread injustices occurring throughout the
former Confederacy in the aftermath of the Civil War. Among those
injustices were the Black Codes, a web of regulations and
ordinances designed to rob the recently freed slaves of their
rights to own property, possess guns for self-defense, make
contracts, file lawsuits, earn a living, and move freely in search
of better opportunities. In Opelousas, Louisiana, for example, the
local government declared, “No negro or freedman shall be permitted
to rent or keep a house within the limits of the town under any
circumstance,” nor shall any freedman “sell, barter, or exchange
any articles of merchandise” without written permission from white
officials. Similar laws restricted the rights of the freedmen’s
white unionist allies.
All such laws plainly violated the principles of free labor and
economic liberty, and the Privileges or Immunities Clause was
designed to put a stop to the violations. Indeed, as the clause’s
author, Republican Congressman John Bingham of Ohio, once
explained, among the privileges or immunities protected by the 14th
Amendment from state infringement was “the right to work in an
honest calling and contribute by your toil in some sort to the
support of your fellowmen, and to be secure in the enjoyment of the
fruits of your toil.”
The Slaughter-House majority ignored that historical
evidence, ruling instead that the Privileges or Immunities Clause
protected only a narrow set of rights stemming from national
citizenship, such as the right to “free access to [the nation’s]
seaports, through which all operations of foreign commerce are
conducted,” and the aforementioned “right to use the navigable
waters of the United States.”
That outcome was more than bad enough. But in the Lake Chelan
case now before the Supreme Court, the 9th Circuit sunk even
further by effectively rewriting Slaughter-House to
recognize only a non-economic right to “navigate” U.S.
waters. This deficient interpretation not only runs counter to the
original meaning of the 14th Amendment, it violates the clear
meaning of the (abysmal) Slaughter-House precedent.
That is too much. The Supreme Court should take the case,
overrule the 9th Circuit, and restore a small bit of sanity to
America’s Privileges or Immunities Clause jurisprudence.
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