I joined an Amicus Brief, along with Randy E. Barnett, W. Ely, Jr., Richard A. Epstein, Christopher R. Green, and Ilya Somin. The brief, authored by Tom Hungar, Robert Johnson, and the team at Gibson Dunn, was selected by the National Law Journal as the “Brief of the Week.” As a good sign, the Supreme Court called for a reply.
Today Noah Purcell, the Washington Solicitor General, filed a Brief in Opposition to certiorari. In the section of the brief explaining why this case is not a good vehicle, the Brief responds directly to our Amicus brief. Specifically, it charges that amici want to open up a “Pandora’s Box” with the Privileges or Immunities Clause:
Third, petitioners protest that their case is not a Pandora’s Box, suggesting it is akin to the right to travel analyzed in Saenz. Pet. 38. But the right to travel and establish residency was well-established; as the Saenz Court said, “it has always been common ground.” Saenz, 526 U.S. at 503. No such right is at issue here. To the contrary, an individual right to avoid state ferry certificate laws would open a Pandora’s Box regarding state powers to regulate. Moreover, that Pandora’s Box is the avowed intent of numerous articles cited by petitioners and authored by their amici. E.g., Randy E. Barnett, Does the Constitution Protect Economic Liberty, 35 Harv. J.L. & Pub. Pol’y 5 (Winter 2012); Josh Blackman & Ilya Shapiro, Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution In 2020, and Properly Extending the Right to Keep and Bear Arms to the States, 8 Geo. J.L. & Pub. Pol’y 1 (Winter 2010); James W. Ely, Jr., “To Pursue any Lawful Trade or Avocation”: The Evolution of Unenumerated Economic Rights in the Nineteenth Century, 8 U. Pa. J. Const. L. 917 (Sept. 2006); see also Jeffrey D. Jackson, Be Careful What You Wish For: Why McDonald v. City of Chicago’s Rejection of the Privileges or Immunities Clause May Not Be Such A Bad Thing for Rights, 115 Penn St. L. Rev. 561, 578 (Winter 2011) (“[T]he real driving force in the argument over privileges or immunities and due process has to do with unenumerated rights, their protection, and possible expansion.”).
The BIO cited the works of Randy Barnett, James W. Ely, and an article I co-authored with Ilya Shapiro, titled “Keeping Pandora’s Box Sealed.” Sealed. As in closed. The entire purpose of our article was to reintroduce the Privileges or Immunities Clause back into our constitutional jurisprudence without opening a Pandora’s Box. Ilya and I wrote the article to assuage the very concerns raised both here, and in McDonald.
Though, I am always grateful for citations in briefs to the Supreme Court, even if I am cited for the *exact* opposite of what I wrote.
Thankfully, in McDonald v. Chicago. Justice Thomas didn’t view the Privileges or Immunities Clause, the gem of the 14th Amendment, through such a jaundiced lens. The same can’t be said for the rest of the Nine.