I joined an Amicus Brief filed today in Courtney v. Danner, a case that asks the Supreme Court to reverse a ruling of the 9th Circuit that misinterpreted the Privileges or Immunities Clause of the 14th Amendment. The brief was signed by Randy E. Barnett, myself, James W. Ely, Jr., Richard A. Epstein, Christopher R. Green, and Ilya Somin.
Here is the summary of the argument.
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 signif- icant change, the Ninth Circuit announced that the rights enumerated in Slaughter-House must be “nar- rowly construed” when applied to “economic activi- ties.” 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 “uti- lize those waters for a very specific professional ven- ture.” Id. at 1160, 1161 & n.5 (internal quotation marks omitted).2
Certiorari is warranted to repudiate the Ninth Circuit’s further evisceration of the Privileges or Immunities Clause. The Clause was drafted in re- sponse 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.
Update: More from Randy Barnett.
Courtney v. Danner is a case brought by the Institute for Justice challenging a government-imposed ferry monopoly as irrational and arbitrary, and therefore violative of the Fourteenth Amendment. Anyone who knows me knows that I believe the Supreme Court’s 1873 decision in The Slaughter-House Cases was an egregious mistake that has distorted the meaning of the Fourteenth Amendment ever since. Yet today, Richard Epstein, Ilya Somin, James Ely, Josh Blackman, Chistopher Green and I submitted an amicus brief in this case urging the Supreme Court to grant cert and uphold Slaughter-House! We make this claim because, in denying this challenge, the U.S. Court of Appeals for the Ninth Circuit eviscerated one of the few rights of thatSlaughter-House affirmed as among the “privileges or immunities of citizens of the United States”: the right “to use the navigable waters of the United States.” The Ninth Circuit ruled that this right did not include the use of navigable waters for economic purposes.