A new petition for certiorari filed by the Institute for Justice asks the Supreme Court to revisit the Privileges or Immunities Clause. But rather than urge the Court to overrule the Slaughter-House Cases in order to revitalize the Clause, this petition asks the Court to protect a right that Slaughter-House already recognized as a “privilege or immunity” of United States citizens: the right to use the navigable waters of the United States.
James and Clifford Courtney are fourth-generation residents of Stehekin, a small community in Washington State that is a popular summer destination. But Stehekin is not accessible by road. It is only accessible by foot, ferry, or flight. Therefore, Lake Chelan—a 55-mile-long lake designated a navigable water of the United States by the federal government—provides a critical means of access to Stehekin.
The Courtneys and their family members own and operate several businesses in Stehekin. Due to the historically inefficient methods of transportation that operated on the lake, they’ve long sought to provide alternative transportation for people traveling to and from Stehekin. They’ve tried to provide everything from a full-blown, public ferry to a simple shuttle for customers of Courtney-family businesses. But an anti-competitive state licensing scheme prevents them from doing so and has stood in their way for nearly a quarter of a century.
The licensing scheme, which exists to protect existing providers from competition, is onerous, prohibitively expensive, and designed to end in failure. In addition to other requirements, the applicant must prove that the “public convenience and necessity” requires the proposed service and, if a provider is already operating in the area, that the existing provider (1) does not oppose the new service, (2) has failed to provide reasonable and adequate service, or (3) has failed to provide the service described in its license. If the existing provider opposes the new service, then the applicant must go through a proceeding akin to a full civil lawsuit. In fact, the agency tasked with overseeing the licensing process acknowledges “protection from competition” as a rationale for the requirement.
Since 1997, the Courtneys have made four significant efforts to provide some form of boat service on Lake Chelan but have been thwarted by the licensing requirement every time. In fact, Jim Courtney spent approximately $20,000 in expenses applying for a license without ever obtaining one. After being continually frustrated by the requirement, Jim and Cliff sued to vindicate their right to use the navigable waters of the United States under the Privileges or Immunities Clause.
The right to use the navigable waters has a long pedigree in Anglo-American law, dating back to Magna Carta, the opinions of Sir Edward Coke, and the Commentaries of Blackstone. Then this right was enshrined into the organic law of the United States expressly in the Northwest Ordinance.
In addition, this right was especially critical to free Blacks in the 19th century, who relied on the right to use the navigable waters as a means of economic survival. Before and after the Civil War, however, Southern States flagrantly violated free Blacks’ right to use the navigable waters. Restrictive laws were passed, often at the behest of White boatman eager to suppress Black competition. Given this history, it only makes sense that when Slaughter-House recognized “the one pervading purpose” of the Fourteenth Amendment—“the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him”—one of those freedoms was “[t]he right to use the navigable waters of the United States, however they may penetrate the territory of the several States.” And Slaughter-House expressly held it was the Privileges or Immunities Clause that protects this right.
Yet in the Courtneys’ case, the Ninth Circuit issued a ruling that guts that right and the Privileges or Immunities Clause itself. Specifically, it held that (1) the right to use the navigable waters extends only to uses involving interstate or foreign commerce, and (2) the Privileges or Immunities Clause generally forecloses claims by citizens against their own state.
As the Courtneys note, the Ninth Circuit’s decision renders the right to use the navigable waters mere surplusage—a redundancy of the right to engage in interstate or foreign commerce. They point to Supreme Court precedent that consistently describes the right to use the navigable waters broadly, as well as to treatises and commentators from the period of the Fourteenth Amendment’s ratification, which recognized the right to use the navigable waters as separate and distinct from the right to engage in interstate or foreign commerce.
Moreover, the Privileges or Immunities Clause clearly states “No State . . . shall abridge the privileges or immunities of citizens of the United States.” And the Supreme Court has expressly held that “the fourteenth amendment prohibits any state from abridging the privileges or immunities of the citizens of the United States, whether its own citizens or any others.” Yet the Ninth Circuit concluded that the Privileges or Immunities Clause generally bars claims against a citizen’s own state.
The Courtneys have petitioned for certiorari to make clear that the Supreme Court meant what it said in Slaughter-House, that the right to use the navigable waters is protected, and that the Privileges or Immunities Clause means what it says, that “No State” may abridge that right. And while some Supreme Court Justices have expressed skepticism of the need to even reach the Privileges or Immunities Clause in other cases, none of the reasons they have proffered are present in this case. The Courtneys’ petition does not ask the Court to overturn Slaughter-House, it does not require the Court to determine the precise scope of rights that the Privileges or Immunities Clause protects, it does not ask the Court to recognize novel unenumerated rights not previously recognized by the Court, and it does not concern incorporation of a right contained in the Bill of Rights, which precedent has achieved through the Due Process Clause. Rather, the Courtneys’ case concerns a right the Court has long held is protected by the Privileges or Immunities Clause. As a result, the question of Privileges or Immunities is isolated for the Court’s consideration.
Although not argued in the petition for certiorari, it is interesting to note that a Justice could still rule in favor of the Courtneys and disagree with Slaughter-House’s interpretation of the Privileges or Immunities Clause. Many judges and scholars have called into question the decision in the Slaughter-House Cases, and for good reason. But while the Courtneys’ petition argues for a simple and direct application of Slaughter-House to protect the right to use the navigable waters, that right would be protected under the original meaning of the Privileges or Immunities Clause, too, regardless of the validity or invalidity of Slaughter-House.
The restriction at issue in Slaughter-House was a restriction on economic liberty. As Justice Stephen Field argued in his lead dissent: “Clearly among [the privileges or immunities of citizens] must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons.” In Slaughter-House, that right was infringed by a state law that created a slaughterhouse monopoly. But the Court held that Louisiana’s monopoly did not violate the Privileges or Immunities Clause because the right to earn an honest living free from arbitrary, irrational, and monopolistic laws was not a “privilege or immunity” of United States citizenship. Indeed, the Court construed the term “privileges or immunities of citizens of the United States” narrowly, so as to exclude most of our basic and fundamental rights. But “lest it should be said that no such privileges or immunities” exist, the majority proceeded to identify some, including the right at issue in the Courtneys’ case: “[t]he right to use the navigable waters of the United States.”
Even if, as most commentators agree, Slaughter-House was wrongly decided and if the Slaughter-House dissenters are right that the Privileges or Immunities Clause does protect the right to pursue a lawful calling, the Clause would still protect the right to use the navigable waters, as well. After all, the right to use the navigable waters passes the test Justice Clarence Thomas has articulated for when a right is protected under the Privileges or Immunities Clause. Although the right is not enumerated in the Constitution’s text, it is a “long recognized” right from English law, was accepted “at the time of the founding, [as] a longstanding right of Englishmen,” and “remained fundamental at the time of the Fourteenth Amendment.”
Moreover, the Courtneys’ case presents an interesting intersection of agreement between the majority and dissent in Slaughter-House. The majority expressly held that the right to use the navigable waters was protected. The dissent argued that the right to pursue one of the ordinary trades or callings of life was protected. On either ground, the right asserted by the Courtneys is protected.
The Courtneys want to use the navigable waters in pursuit of a livelihood, and they are prevented from doing so by a protectionist licensing scheme. If the Slaughter-House majority is right, that licensing scheme violates the Privileges or Immunities Clause as an infringement of the Courtneys’ right to use the navigable waters. If the Slaughter-House dissenters are right, it violates the Privileges or Immunities Clause as an infringement on the Courtneys’ right to pursue a lawful calling.
As a result, this case presents the Court with a unique vehicle to revisit the Privileges or Immunities Clause. It does not present a right enumerated in the Bill of Rights, as in McDonald, Timbs, and Ramos. But it also does not involve an unenumerated right that requires overturning Slaughter-House to protect. Rather, it involves a right with a deep pedigree in American law that is long recognized as protected by the Privileges or Immunities Clause. This makes for a fascinating-to-watch cert petition for anyone interested in the Fourteenth Amendment’s long dormant, but only mostly dead (for now), Privileges or Immunities Clause.