Reply To Brief In Opposition To Cert Filed in Privileges or Immunities Case

May 12th, 2014

The Institute for Justice has filed a reply to Washington’s brief in opposition to certiorari in Courtney v. Danner, the privileges or immunities clause case I signed an Amicus brief for. I would highlight the final section of the brief that rebuts the government’s unfounded assertion that Amici have an “avowed intent” to open a Pandora’s Box, when in fact our argument–based on an article I co-authored with Ilya Shapiro–aims to rely on text and history to keep the Pandora’s Box closed.

VI. Amici Would Properly Tether The Privi- leges Or Immunities Clause – Not Open A Pandora’s Box

Finally, the WUTC baselessly accuses the Courtneys and amici of having the “avowed intent” of opening a Pandora’s Box. Br. Opp’n 16, 17. The articles the WUTC cites in support of its accusation advocate an interpretation of the Privileges or Immunities Clause that is tethered to its history and original public meaning. Effectuating the aims of those who framed and ratified the clause – which “emerged from a generation of struggle” and “through the bloodshed of war,” Br. Amici History and Law Professors 20 – is not opening a “Pandora’s Box.” Nor, for that matter, is clarifying the contours of a right that this Court has already recognized, which is all the Courtneys ask this Court to do.

Very well said. This case should be scheduled for conference shortly.