Litigation Update: Restoring the Lost Privileges or Immunities Clause?

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A new petition for certiorari at the U.S. Supreme Court presents an invaluable opportunity for the Court to revisit the Privileges or Immunities Clause. And it is unlike any opportunity in recent memory. First, it presents a question upon which every theory of the Fourteenth Amendment agrees: Does the Amendment protect a citizen against rights violations perpetrated by that citizen’s own state? The text and history of the provision, as well as Supreme Court precedent, unequivocally say “Yes,” but the lower courts have fundamentally misunderstood the Clause and rendered it impotent against one’s own state. Second, unlike most Privileges or Immunities cases, this case does not ask the Court to overrule the Slaughter-House Cases. Instead it asks for judicial protection of a right expressly recognized in Slaughter-House: the right to use the navigable waters of the United States, a right that was critically important to the freedmen at the time of the Fourteenth Amendment’s ratification. Thus, unlike recent cases such as McDonald, Timbs, and Ramos, in which the Court was able to avoid confronting the Privileges or Immunities Clause by ruling on alternative grounds, this case begins and ends with the Clause. It therefore offers an opportunity for the Court to begin—in a principled and incremental way—the process of revitalizing the provision that most recognize as the keystone of the Fourteenth Amendment. How have the courts construed this provision since its post-Civil War enactment? What should the Supreme Court do here? And should the oft-criticized Slaughter-House Cases be affirmed?

Tune in for a fascinating discussion of the original meaning of the Privileges or Immunities Clause and the unique case of Courtney v. Danner. Counsel of record for the plaintiffs in the case, Michael Bindas of the Institute for Justice (IJ), and Fourteenth Amendment scholar Christopher Green, Professor of Law and H.L.A. Hart Scholar in Law and Philosophy at the University of Mississippi School of Law, will join IJ attorney and moderator Adam Griffin for an exciting litigation update.

Featuring:

Michael Bindas, Senior Attorney, Institute for Justice

Prof. Christopher Green, Professor of Law and H.L.A. Hart Scholar in Law and Philosophy, University of Mississippi School of Law

Moderator: Adam Griffin, Constitutional Law Fellow, Institute for Justice

 

 

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Event Transcript

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome, everyone, to The Federalist Society’s Teleforum conference call as this afternoon, December 17, 2020, we’ve a moderated discussion of a Litigation Update: Restoring the Lost Privileges or Immunities Clause? I’m Nick Marr, Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that expressions of opinion on today’s call are those of our experts.

 

And now, before we begin the program, I’m just going to introduce our moderator before turning the floor over to him. So we’re very pleased to be joined this afternoon to moderate the discussion by Adam Griffin. He’s a Constitutional Law Fellow at the Institute for Justice. After Adam gives a little bit of opening remarks, introductions, we’ll go through the program, and then towards the end, we’ll be looking to you, the audience, for questions. So be thinking of those as we go along and have them in mind for when we get to that portion of the call. All right. With that, Adam, thanks very much for being with us here today. The floor is yours.

 

Adam Griffin:  Thanks, Nick, and thank you to The Federalist Society and everyone for tuning into this Teleforum today. The subject is one of great importance and interest, the original understanding of the Fourteenth Amendment’s keystone provision, the Privileges or Immunities Clause, and a petition for certiorari that asks the Court to revisit this important provision in the case of Courtney v. Danner. The Privileges or Immunities Clause was all but buried by the Supreme Court in its first two cases interpreting the Fourteenth Amendment, the Slaughter-House Cases, which rejected an economic liberty challenge by a group of butchers to a slaughterhouse monopoly in Louisiana, and Bradwell v. Illinois, rejecting a woman, Myra Bradwell’s, right to practice law in her state.

 

But even the constricted and constrained reading placed on the clause by these two cases left open a small space for the clause’s operation. Enter the right at issue and the cert petition we will discuss today -- the right to use the navigable waters of the United States, a right that even the Slaughter-House majority said the clause protected. But will the Court protect it in Courtney v. Danner?

 

Here to discuss this case and its implications for the Privileges or Immunities Clause is Michael Bindas, a Senior Attorney at the Institute for Justice and the lead attorney representing the Courtneys in their Privileges or Immunities challenge against the state of Washington. Mr. Bindas has been a leading force in the Institute for Justice’s defense of educational choice programs and now leads that initiative at IJ. And he represented Doug and Mary Ketchum at the United States’ Supreme Court and their 2019 win in the case of Tennessee Wine and Spirits Retailers Association v. Thomas.

 

Professor Christopher Green is a Professor of Law and H.L.A. Hart Scholar in Law and Philosophy at the University of Mississippi School of Law. He is one of the nation’s foremost experts on the Fourteenth Amendment and constitutional originalism. He has published countless articles on the Fourteenth Amendment, including an exceptional book, Equal Citizenship, Civil Rights, and the Constitution: the Original Sense of the Privileges or Immunities Clause, which I commend to all our listeners as a great exposition on the original meaning of the clause we will discuss today.

 

Also, fun fact, both Mr. Bindas and Professor Green clerked for the same judge on the Fifth Circuit, Judge Rhesa Barksdale. Thank you both for being here today to discuss this fascinating subject. Mr. Bindas, would you like to get us started today?

 

Michael Bindas:  Absolutely. Thank you, Adam. This case is about two brothers who have spent the last 23 years trying to travel 55 miles by boat, and they still haven’t reached their destination. Since 1997, Jim and Cliff Courtney have been trying to provide boat transportation on Lake Chelan. Lake Chelan’s a 55-mile-long lake in Washington State. And Jim and Cliff live at the far end of the lake in a remote community called Stehekin, and it’s only accessible in three ways: by foot, a very, very long hike; by boat; or by float plane.

 

Jim and Cliff’s families have several businesses in Stehekin. For example, Cliff owns a ranch with a rustic lodging facility at the far end of the lake. And for the past several decades, Jim and Cliff have been trying to make their community and their businesses more accessible. And they have tried to provide everything from a full-blown public ferry on Lake Chelan to transport passengers to and from Stehekin to something as simple as a shuttle for customers of their own businesses. But at every step of the way, they’ve been thwarted by a protectionist state licensing law known as a public convenience and necessity requirement.

 

Basically, this law allows the state of Washington to confer private monopolies for ferry service on the lake and keep out all other would-be competitors. And the state has interpreted this law so broadly that it applies even to bar Cliff from shuttling customers to and from his own business -- to and from the ranch. So back in 2011 we filed a lawsuit on behalf of Jim and Cliff Courtney challenging the public convenience and necessity requirement under, of all things, the Privileges or Immunities Clause of the Fourteenth Amendment.

 

Now, at this point, I can hear all the lawyers on the call saying, “Come on. That’s ridiculous. Everyone learns in law school that the Privileges or Immunities Clause is dead. The Slaughter-House Cases, as Akhil Amar famously put it, strangled the Privileges or Immunities Clause in the crib.”

 

But the clause is only mostly dead. To be sure, Professor Amar is right. Slaughter-House largely gutted the clause. I think most scholars of the Fourteenth Amendment would agree that the clause was meant to provide meaningful, substantive protections for the rights of the freedmen and all Americans, including the right to earn an honest living. Yet, in Slaughter-House, the Court held that the clause does not, in fact, protect a general right of economic liberty and instead held that the clause just protects a handful of so-called rights of national citizenship. And a general right to economic liberty was not among those rights.

 

But what was among the rights that Slaughter-House recognized as protected by the clause is the right to use the navigable waters of the United States. And that is precisely the right that Jim and Cliff wish to exercise. Lake Chelan is a navigable water of the United States. It’s been designated as such by the federal government, and Washington State has applied its public convenience and necessity law to flatly prohibit them from using this navigable water of the United States.

 

So we brought two claims on behalf of the Courtneys, both under the Privileges or Immunities Clause. We argued that, number one, as applied to a public ferry service and, number two, as applied to private transportation that’s limited to customers of their businesses, the public convenience and necessity statute abridges their right to use the navigable waters. The district court dismissed the first claim concerning a public ferry back in 2012. And the Ninth Circuit affirmed that dismissal back in 2013.

 

Basically, it held that public ferries have historically been the prerogative of the state, and whatever Slaughter-House meant by this right to use the navigable waters, it certainly wasn’t intended to upset this historic role that states have played in regulating public ferries. And we petitioned for cert on that claim in 2014. The Supreme Court called for a response. Ultimately, though, it declined to take the case.

 

So that left the Courtney’s second claim, the one concerning private transportation. Their argument is that the right to use the navigable waters must, at a minimum, protect their right to use those waters to take customers to and from their own businesses. Now, I won’t go into why it took us six years to finally get a resolution on that claim. That’s another story.

 

But ultimately, the district court dismissed the second claim. And in April of this year, the Ninth Circuit affirmed that dismissal. And it did so on two grounds. First, it held that the right to use the navigable waters of the United States derives from Congress’ Commerce Clause power. And therefore, the right must be limited to uses in interstate or foreign commerce. And since the Courtney’s claim involves what the Ninth Circuit called intrastate boat transportation, it was not protected according to the Ninth Circuit.

 

The second ground on which the Ninth Circuit ruled is that, according to the Ninth Circuit, the Privileges or Immunities Clause generally bars claims against a citizen’s own state. Now, we petitioned the Supreme Court for cert in September of this year. We asked it to resolve these two questions: is the right to use the navigable waters really just a right to use them in interstate or foreign commerce, or does it include the type of intrastate economic activities that the Courtneys wish to engage in? And number two, is the Privileges or Immunities Clause really a bar against claims against a citizen’s own state?

 

And our petition starts out by kind of recognizing the proud history of the right to use the navigable waters. It’s one that dates all the way back to Magna Carta, if not earlier. It was protected at English common law by the likes of Lord Coke. It was enshrined in the Northwest Ordinance, the organic law of our country. It’s a hugely significant right. This isn’t just two brothers in rural Washington trying to get people to and from a ranch. This is a profoundly important historical right.

 

The petition then goes on to kind of discuss the absurdity of the Ninth Circuit’s holding here. If the right to use navigable waters is really only a right to engage in interstate or foreign commerce over them, then it’s just constitutional surplusage. Those types of uses are already fully protected by the Commerce Clause, and the Ninth Circuit’s reasoning really reduces this right to a kind of constitutional redundancy. And the fact is other circuits have recognized that the public’s right to use the navigable waters includes purposes other than interstate or foreign commerce. So there is a split here among the circuits.

 

And now for the supposed bar on Privileges or Immunities Clause claims against the citizen’s own state, that’s what the Ninth Circuit held here. That flies in the face of the text of the clause itself. The clause, after all, reads “No state shall abridge the privileges or immunities of citizens of the United States.” When it says, “no state,” it presumably meant no state, including one’s own state. And in fact, the Supreme Court has on two occasions held expressly that the clause does protect citizens from their own states.

 

As for the history of the clause, it’s absolutely clear that the Framers and the ratifying public understood that the clause would protect the freedmen from the abuse of law, such as the Black Codes, their own southern state governments were enacting. So there’s no question that the clause in its text, in the present interpreting it, and in its history protects citizens against abridgments at the hands of their own state. So that’s a kind of short outline of the arguments in our petition.

 

But the last thing I’d like to talk about is some of the amicus support that we received in support of cert. We received three supportive briefs that are each fascinating and important and focus on a different topic. The first I’ll mention is from the Americans for Prosperity Foundation, and it really focuses on the historical origins of the right to use the navigable waters and examines the basis for that right’s protection as a right of national citizenship. It’s a fascinating historical overview.

 

Then, we received a brief from a group of prominent historians that really informs the original understanding of what it meant to use the navigable waters of the United States around the time of the Fourteenth Amendment’s ratification. This brief is fascinating. It documents the vital importance of the navigable waters to the economic livelihood of free Blacks before the Civil War and to the freedmen after the war. And it also documents the widespread efforts by southern governments to deprive Black Americans from using the navigable waters in both interstate and intrastate economic pursuits. It’s a fascinating, fascinating brief.

 

Equally fascinating is the third one that was filed by a group of prominent law professors, including Professor Green. It’s a group that really spans the ideological spectrum. But these law professors all agree that the Ninth Circuit just flatly got it wrong when it concluded that the Privilege or Immunities Clause generally bars claims against a citizen’s own state.

 

And as the brief demonstrates compellingly, the reason that the Ninth Circuit reached this conclusion is it conflated the Comity Clause or the Privileges and Immunities Clause of Article IV, Section 2 with the Privilege or Immunities Clause of the Fourteenth Amendment. That’s an inexcusable mistake, but surprisingly, it’s one that quite a few courts have made. It’s very disturbing, and it’s absolutely something that the Supreme Court needs to correct. And we hope it takes this case to do just that.

 

Adam Griffin:  Thank you, Michael. Professor Green?

 

Prof. Christopher Green:  Well, thanks again for the opportunity to be part of the call. I think that’s a good segue into our amicus brief. Really, I think most people looking at the amicus brief would say, “Well, yeah. The Privileges or Immunities Clause is wrongly thought to be gone.” The Slaughter-House majority did, in fact, think that it was not reducing the clause to nothing.

 

Independent of that, of course, there’s a broad, broad consensus that the Court was interpreting the clause to be too small. But it really is quite something that the Ninth Circuit in two different cases has said that they need to interpret the Privileges or Immunities Clause to be even smaller than the Court said in 1873. If you look at these details, it really is quite amazing just the way in which the Ninth Circuit has dealt with this.

 

So they first looked at this case in a 2008 case, and they said -- so in 1999, Saenz v. Roe resurrected in a small way the Privileges or Immunities Clause to protect the right not to be discriminated against when you’re a new resident of a state. So people moved to California, and California said you have to wait longer to get welfare benefits. The Court in ’99 said, “That’s not allowed.” So obviously, in Saenz, the plaintiffs there were citizens of the same state imposing the restriction. Okay.

 

So the Ninth Circuit looked at that, and they said, “Wow. That doesn’t seem to us like what the Court said in Slaughter-House because” -- they look at page 77 of Slaughter-House, and then the Court in this Merrifield case say -- they say, ‘Well, it’s true that you have a same state plaintiff in Saenz.’” And they say, “However, Saenz represents the Court’s only decision qualifying the bar on Privileges or Immunities claims against, quote, the power of the state governments over the rights of bracket there -- close bracket, own citizens citing Slaughter-House Cases page 77.” And this is the sentence from Merrifield which is quoted in the Courtney case that is under review now.

 

If you turn to page 77 of the Slaughter-House Cases, it really is just amazing. It’s talking about Article IV. It’s talking about the original Privileges and Immunities Clause in the original Constitution, which, of course, was about a state discriminating against citizens of a different state. So in the Ninth Circuit opinion of Merrifield, they just -- I mean, I think it was an honest mistake, but it was definitely a mistake. And the way the Court in Courtney has looked at that and doubled down on the mistake, it really is just -- I mean, in terms of kind of the craft of making sure that when you have pin cites that the material supports what you’re citing for just kind of amazing from a scholarly angle.

 

So our brief is, of course, a lot of people -- Justice Scalia was very famous for worrying about the Pandora’s box. Okay. So if we resurrect the Privileges or Immunities Clause, oh, my goodness, it’s going to be anything goes. It’s going to be monkeys swinging from the constitutional chandeliers. And there’s no saying what it’s going to be.

 

The brief in opposition has a footnote at the very end making this sort of argument. They say, “Oh, my goodness. We have no idea what’s going to happen if we resurrect the Privileges or Immunities Clause because all these professors have said all these different things about what the Privileges or Immunities Clause means.” One thing that’s striking, we have a politically very diverse group just in our amicus group, but there also is an overlapping consensus on this kind of claim from lots of different approaches to the Privileges or Immunities Clause.

 

So if you look at that footnote at the very end of the brief in opposition, I think careful students of the Privileges or Immunities Clause literature are going to think “This is not really nearly the Pandora’s box that you might think.” So the Washington State, they cite several -- they cite three different scholars who talk about the Privileges or Immunities Clause as an anti-discrimination provision. So John Harrison and David Currie and then also Raoul Berger says that it’s about discrimination. That is also the view of Ilan Wurman, who has a new book on the Privileges or Immunities Clause and the other parts of the Fourteenth Amendment.

 

It’s part of my own view in my book. But you have these antidiscrimination folks. Then, you have a couple of scholars who talk about -- so Bernard Siegan and Bruce Ackerman who say that the Privileges or Immunities Clause covers Lockean natural rights. One question that scholars are going to be familiar with -- is there really that much of a difference between those two views?

 

Historically, the people like Justice Field and Justice Bradley who had a strong natural rights reading of the Privileges or Immunities Clause, they always took pains to stress that there was -- that those sorts of rights were also subject to reasonable regulation in the common good. So if you had a restriction that was genuinely even handed -- that was in everybody’s interest, that didn’t discriminate, it was generally going to be okay, even under the natural rights reading. So if you had an even-handed regulation that would be okay under the antidiscrimination reading, it would also be okay under the natural rights reading. So it’s only the regulations that are going to be unjustifiably exclusionary that are going to run afoul of either of those interpretations of the clause.

 

Then, this footnote from Washington State in the current brief in opposition talks about a couple of famous folks, John Hart Ely and Robert Bork, who just didn’t know what the Privileges or Immunities Clause meant. Well, that’s, of course, common for lots of people how look into a little bit of the literature. They look at it, and they’re not sure. Of course, if the courts don’t know what the clause means, then they would have to defer to the legislative judgement. But what we’re saying is if you dig into the material you will actually be able to establish enough confidence to say that certain rights are covered by the clause.

 

And then, really the only issue left is whether the clause is limited to things in the Bill of Rights. So Washington State doesn’t cite Kurt Lash’s work, but his work would, I think, be a possible answer to give if he were right about the Privileges or Immunities clause. However, the Court has, in Saenz v. Roe, already rejected that view because rights related to discrimination in welfare against new residents, those are not constitutionally enumerated in the Bill of Rights or elsewhere in the Constitution. So Saenz has already undermined Lash’s view.

 

So once you take out Lash’s view, very related to Justice Black’s view of the Privileges or Immunities Clause -- once you take that out of the mix, all of the views of the Privileges or Immunities Clause that have significant scholarly support would support at least having some kind of scrutiny in a case like this. So you’ve got exclusionary licensing regimes that, on its face, looks like it could well be merely justified by cartel protection. Whether or not it is just cartel protection would depend on what kind of evidence the state could produce later on in the litigation.

 

However, because this case that was dismissed at the pleading stage -- okay. This is just a 12(b)6, not a Rule 56 situation. Because of that, they haven’t even been required to produce any evidence. So we don’t have any idea what evidence Washington can produce that would actually justify this kind of licensing regime.

 

The fact that we’re not to a summary judgement stage yet also really gives the Court a lot of leeway in terms of how heavily they want to keep this supposed Pandora’s box closed because remember, if you’re dismissing it at the pleadings, that means that no possible state of affairs could exist where this claim could work. But if you wanted to allow these claims but subject to an extraordinarily heavy burden of proof on the plaintiffs, that’s still something the Court could do.

 

They could say, “Well, let it go to discovery. Let the plaintiffs here present their evidence in a summary judgement motion if they get to that stage.” And then the Court wants to say, “But you need to have an overwhelmingly strong case in the evidence.” It’s still open for the Court to do that. So allowing this to even get past the pleading stage, it’s just a very, very easy call, I think, if you think the Privileges or Immunities Clause means anything at all.

 

You might think of it as if you have a balance pan -- a scale with two balance pans with the individual rights on one side and the government’s interest on the other, this is a balance pan that isn’t even allowed to operate. One side of the balance has not just been given a thumb on the scale, but it’s actually been nailed to the table. So we’re not saying -- the litigants here are not saying that there won’t be a really, really heavy thumb on the scale on the side of the government. They’re just saying it has to be some kind of weighing basis.

 

So you can easily reverse and send this back to conduct and analysis, putting a very heavy thumb on the scale on the side of the government. But the argument here is just that it needs to be a question. So all of those rambling thoughts, I think, give you some sense of why I think this is so interesting.

 

I think it’s an utterly fascinating case. I hope the justices look at the brief in opposition and say, “This really seems like something that’s worth, at least, a little bit of our time.” The task of a brief in opposition I was always taught is to make the case look boring, but I find it utterly fascinating.

 

Adam Griffin:  Thank you, Professor Green. Thank you, both. Those were really, really interesting remarks, and it sounds like an interesting case. I’ve got a few questions for each of you, and then we’ll open it up for audience questions. First, if you have a justice who might be sympathetic to your position on privileges or immunities and thinks the clause should do more work but is skeptical of Slaughter-House -- maybe thinks Slaughter-House is wrong but this right is one that was articulated in Slaughter-House -- is there any value in this case for someone who believes Slaughter-House was wrongly decided?

 

Michael Bindas:  Absolutely. I think there are really two ways to look at this case. One way is it’s an application of Slaughter-House. This case involves a right that Slaughter-House expressly recognized. And therefore, it can be resolved on the assumption that Slaughter-House was correctly decided. The case just asked the Court to explain the contours of a right that it already recognized and to reiterate what it’s already held -- that the clause protects citizens against their own states.

 

From that perspective, this is a very kind of modest incremental step in allowing the Privileges or Immunities Clause to do at least some of the work that it was meant to do. But then there’s another way of looking at it, and that is to focus on that fact that the Courtneys wish to use the navigable waters in pursuit of a livelihood -- for economic purposes and to look at the right to use the navigable waters as an economic right. And from that perspective, I think it would be attractive to the hypothetical justice who thinks Slaughter-House was perhaps wrongly decided but believes very much that the Privileges or Immunities Clause was meant, among other things, to protect economic rights -- the economic rights of the freedmen and of all Americans.

 

And from that perspective, when you consider the fact that the right at issue here is an economic one and that the Courtneys seek to use the navigable waters in pursuit of a livelihood, then protecting that right does honor what virtually all people agree -- it honors what virtually all people agree the Privileges or Immunities Clause was in large part meant to do, to protect the freedmen and all Americans in their ability to earn an honest living. So I think depending on the perspective you look at it, it will appeal to different justices.

 

But one other thing I would mention here is that this case is unusual in the sense that it’s not like other cases over the last five, ten years where the Supreme Court has been asked to revisit the Privileges or Immunities Clause or the Slaughter-House Cases. This case isn’t like, say, McDonald v. City of Chicago or Timbs v. Indiana where the Court was asked to revisit Slaughter-House and its progeny and perhaps overrule some of those cases in order to apply provisions of the Bill of Rights against the states. In those cases, number one, the Court ultimately declined not to go the privileges or immunities route, and it did so because, at the end of the day, it didn’t matter whether the vehicle of incorporation was the kind of substantive due process doctrine or rather the Privileges or Immunities Clause. The result was going to be the same.

 

In this case, it begins and ends with the Privileges or Immunities Clause. We know this is a right protected by the clause. The Court has already said so. The question is what exactly did the Court mean when it recognized that right, and does it apply in a case like this?

 

So this is very, in that respect, much different from these other occasions over the last decade or so when the Court has been invited to wade into these waters. And again, I think there’s something here for the justice who thinks Slaughter-House was correctly decided, but there’s also something here for the justice who is convinced that Slaughter-House was wrongly decided. And we certainly hope that the Court will take a look at the case and see the importance of providing some definition and some guidance as to what role the Privileges or Immunities Clause can play today.

 

Prof. Christopher R. Green:  If I can amplify that answer, I think that’s exactly right. In Slaughter-House, the sentence that they talk about the navigable waters of the United States, all nine justices in 1873 would have agreed with that sentence. So Justice Field and Justice Bradley, Chase, and Swayne, they want more than just the right to use navigable waters. But they certainly don’t want less.

 

If you just look at page 77, you see the error about confusing Article IV and the Fourteenth Amendment. If you look at page 79, the right to use the navigable waters of the United States, however they may penetrate the territory of the several states -- that’s how the Court describes it. The dissenters in Slaughter-House are going to love that.

 

So I see no reason to think that justices like Gorsuch or Thomas or possibly Roberts has given a slight indication they might be sympathetic in the Gundy dissent -- in joining Justice Gorsuch’s Gundy dissent. I think they can look at this language and say, “We also would agree with that.” Whether it goes beyond that and whether you take the occupational rights here and just say like any occupation within the state there’s an equal citizenship right related to that, that would be the next case. But it would depend on how they address this and how they considered it.

 

Adam Griffin:  Thank you, both, for those answers. That was great. I have another question, and this one’s more for Professor Green. But Mr. Bindas, if you want to weigh in, you can as well. Professor Green, you mentioned sort of the host of Fourteenth Amendment theories and how there’s a kind of convergence on the question here. But also, what is your own theory of the Privileges or Immunities Clause?

 

Can you briefly explain your own theory of what the clause does, how it would answer the question here? And also, even if both the majority and the dissent in Slaughter-House thought they were unenumerated rights, can you address whether the clause protect unenumerated rights, only enumerated rights, and if there’s a danger in having a clause protect more unenumerated rights?

 

Prof. Christopher R. Green:  Sure. So my reading -- and this is the reading roughly of Justice Field but David Cooley and John Harrison and even really it’s a form of the theory of Raoul Berger. And Stephen Markman, actually -- he’s a justice on the Michigan Supreme Court. He wrote a report for the Office of Legal Policy in 1987 concluding basically that Justice Field was right.

 

So what Justice Field says is that, just as Article IV is a ban on hostile and discriminating legislation by a state against citizens of a different state, the Fourteenth Amendment is a ban on hostile and discriminating legislation against any citizen of the United States. So the way I read it, I would say the privileges of citizens in the United States are the rights generally enjoyed by similarly situated -- the civil rights generally enjoyed by similarly situated citizens of the United States.

 

So if I’ve got a right and there’s another citizen of the United States who doesn’t have a right, that other citizen can point to me and say “I’m in the same situation as he is. You’re abridging my rights. The state that’s not giving me that right is abridging my rights by not giving me that right.” That, of course, raises the huge issue of who is similarly situated to who, which is the question, of course, that they consider all the time in Equal Protection Clause cases.

 

So is there a danger of having a very abstract open-ended Fourteenth Amendment? Yes, but it’s the same danger that we’ve had under current jurisprudence ever since the beginning. So given that the Court is asking those questions anyway, reinvigorating, taking those questions and putting them in terms of the Privileges or Immunities Clause gives it a historical pedigree and gives it a rationale for being tethered to traditional sources. So I really think it’s not without danger, but it’s much less dangerous to take a textually historically justified approach to, yes, an abstract and a very open-ended provision. But it’s less dangerous because you can rely on historical materials.

 

In terms of enumerated rights, I think if you look at the Civil Rights Acts of 1866 and 1875 those unambiguously cover unenumerated rights. The reason -- I think the single strongest reason to think that unenumerated rights do have to be covered come from the fact that the Democrats who opposed these civil rights acts -- they do not come up with this theory to oppose the Civil Rights Act until 1872. And actually, the guy who does it, Allen Thurman, senator from Ohio, he contradicts that theory two weeks before he unveils it. So you can actually see between January 1872 and February 1872 -- you can see Thurman developing that theory for the very first time.

 

And it’s just -- it’s the theory of those who opposed the Fourteenth Amendment when it gets unveiled. Things like the right to contract, the right to use common carriers, the right to give evidence, all of these things in the early Civil Rights Act which the Fourteenth Amendment was intended to constitutionalize in the Privileges or Immunities Clause, those are unenumerated rights. And it is very open ended. But you can definitely use tradition and I think a poll of which rights are generally given to citizens of the United States.

 

It’s not going to be completely open ended, certainly not as open ended as the substantive due process cases that we get, which really just seems like what the Court is in the mood to enforce today. So if you think this is opening a Pandora’s box, well, I think it’s taking the current stuff, putting it back in a Pandora’s box, and opening a perhaps somewhat smaller box. So if anything, it’s less dangerous under this approach.

 

Adam Griffin:  Thank you for that. That’s a great explanation of the clause and your theory, and it’s very interesting to see what the Court might do with the clause. Another question, first for you Michael — and both feel free to weigh in — the state alleges in its brief that this is really a case about ferry regulation and that states have always had power to license, regulate and even monopolize ferries. Is this case really about regulating ferries rather than the right to use the navigable waters, and how do we know?

 

Michael Bindas:  No, it’s not about regulating ferries. And the state in its brief in opposition lays out a kind of laundry list of cases that discuss ferries generally and state power to regulate. These are all public ferry cases that the state is relying on. That is not what the Courtneys are trying to do. That was their first claim, but they lost that claim in 2014.

 

What is in question now is the ability to use the navigable waters to transport customers to and from their own business. And the Ninth Circuit held that the right doesn’t include that type of intrastate economic activity. It’s not a public ferry. In fact, there’s a line of case law from the 19th and early 20th century that talks about and rejects the notion that boat transportation that is restricted to customers of a private business is a public ferry.

 

It’s very clear that a public ferry and the types of situations where these types of regulations have been sustained are situations where the transportation is available to the general public and the ferry is therefore treated as a common carrier. That’s just not what’s going on at this point with this claim. So even if you accept the notion that a state can confer exclusive franchises for a public ferry, I think that’s a dubious proposition.

 

But even if you accept the state’s power to confer that type of exclusive franchise in that type of situation, that’s simply not what is at issue now at this point in this case. This concerns private transportation. And the question is can a state flatly bar a citizen of the United States from using a navigable water of the United States to engage in this type of private transportation?

 

Prof. Christopher R. Green:  I’d add there these 19th century cases -- so a lot of them stem from Munn v. Illinois, and they look back to Matthew Hale’s De Portibus Maris treatise on using waterways. They do say, yeah, sometimes you have a rationale for giving a franchise to somebody, but it’s subject to scrutiny. So you can’t just give any franchise to anybody carte blanche. You’ve got to have certain conditions in the market before that makes any sense. And you’ve got this distinction between the use privatum and the use publicum.

 

And if you have any kind of bottlenecks in the market -- which would be, again, something you’d have to show with evidence. It’s not something you do at the pleading stage. If you don’t have some kind of bottlenecks, you can’t give somebody exclusive rights. There’s been no showing at all here that the lake is going to be filled with boats, and they’re just going to be bumping into each other or something like that. That would be something you’d have to show with evidence. The Munn cases like that -- they don’t support giving carte blanche to the state at all.

 

Adam Griffin:  Great. Thank you. We will now turn to audience questions. If you have a question, we look forward to having our experts hear those questions and answer.

 

Nick Marr:  Great. Thanks, Adam. We’ll go to our first question now.

 

John Crouch:  John Crouch in Arlington, Virginia. I don’t know as much about this as you all obviously, but I was surprised to hear about the Ninth Circuit ruling that anything is not interstate commerce. But you’re saying that navigation is the longstanding exception to the general rule that everything’s interstate commerce, or does this help with any other efforts to restrict what’s considered interstate commerce?

Michael Bindas:  That’s a great question, John. As you note, the Ninth Circuit would ordinarily take the view that Congress’ Commerce Clause power can reach just about anything and empower the government to regulate just about anything. Yet here, it construes this transportation on a navigable water of the United States to not be a use in interstate or foreign commerce. Presumably, the only thing that would satisfy the Ninth Circuit’s test for whether or not this is a protected use is transportation literally across the political border of two states or the United States and a foreign country.

 

So you have this just bizarre situation where the Court says this right derives from Congress’ Commerce Clause power, but it doesn’t interpret the right as broadly as it interprets the power. And I would say it’s a bizarre thing to infer that the right derives from that power in the first place. But even if you accept that premise of the Ninth Circuit’s decision, the Ninth Circuit certainly did not interpret the right as broadly as it would the power.

 

John Crouch:  Because there was that Hilton case way back saying that a fleet of carriages used only within Virginia was interstate commerce, so it being transportation didn’t seem to be a bar to that.

 

Michael Bindas:  Right. And there’s no question that the people who were traveling to and from the Courtneys’ ranch, for example, are coming from all parts of the country. There’s no question that part of the federal government’s reason for designating Lake Chelan is that it is susceptible to use in interstate commerce. The lake, in fact, connects to the Chelan River, which in turn connects to the Columbia, which goes out one way to the Pacific Ocean and the other way up into Canada.

 

The Ninth Circuit nevertheless held that this transportation does not involve interstate or foreign commerce because the transportation itself is occurring fully within the geographic borders of Washington State. And it took that, like I said, incredibly restrictive view of the right, even though it claimed to be interpreting the right in a light of Congress’ Commerce Clause power, which is, of course, far more expansive. I can’t explain that inconsistency, but that is another deeply disturbing aspect of the Ninth Circuit’s decision.

 

Prof. Christopher R. Green:  Yeah. This is Chris. The argument here, it really has shades of the argument the Court rejects resoundingly in Gibbons v. Ogden. So the idea that you’ve got transportation from one state to another, is that literally only the transportation right across the boundary? Or just naturally you think you can take an interstate transportation from a city, like Seattle, to Vancouver. You’re taking this interstate -- international trip even though your first few steps -- your first thousand steps are going to be in America. It’s just an absurdly restrictive view, I think.

 

Adam Griffin:  Well, Nick, do we have any more questions in the queue right now?

 

Nick Marr:  Yeah. We do have one.

Caller 2:  Yes, good afternoon. This may be the dumb question of the hour -- and thanks very much for the book recommendation, by the way. If I can manage the time, I’m sure going to try to pick that up. I was just curious if you could explicate a little bit sort of the basis for the understanding of the Privileges and Immunities Clause -- Clauses, for that matter, that are under discussion? I’ve had spitball conversations with colleagues, including the prospect that those words should be constrained to at least their common current legal usage, which is to say a privilege is, for example, a communication privilege -- you know, attorney-client, doctor-patient, etc. And an immunity is like immunity from prosecution pursuant, for example, to a plea deal.

 

And that therefore, under this theory, the very restrictive meaning of both of the Fourteenth Amendment clause as well as the Fourth Amendment clause -- or sorry, Article IV clause was really just about avoiding procedural chicanery state to state in the original Constitution and then states trying to undermine the purposes of the Fourteenth Amendment through those particular very narrow windows. I understand that the counter argument is that those words had broader meanings under the English common law, and I don’t know if you could give sort of thumbnail for those of us that aren’t quite as up to speed on that bit of legal history.

 

Prof. Christopher R. Green:  Yeah. So in terms of -- I mean, there’s a lot of technical usages of the terms “privilege” and “right.” So [inaudible 47:54], generations later after the Fourteenth Amendment, has this distinction between rights and privileges. There’s a bunch of distinctions about the right-privilege distinction. That, I think, is really anachronistic to read that back into reconstruction.

 

You can find lots of places where they talk about -- both Article IV and the Fourteenth Amendment where they talk about just rights and privileges. You find lots of places where they talk about rights and immunities. You can actually find a pretty extended discussion from John Sherman, who’s one of the Framers, saying, “Well, privileges and immunities, there’s not any clear distinction between them. They both mean just rights.”

 

The key term, I think, really isn’t -- we call it the Privileges or Immunities Clause and the Privileges and Immunities Clause. Those aren’t the key terms. The key term really is “citizen.” So if you’re a citizen, what do you get? If you are a free and equal citizen, that’s, I think, the implicit context of using that term in this setting. What do you get?

 

So if you look at the Civil Rights Act of 1866, that gives you the guide to what’s going on. You have the freedmen. They are made citizen. So these folks, these four million people are made citizens of the United States, and then they get a bunch of rights. Andrew Johnson in his veto message of the Civil Rights Act of 1866 -- he says -- I’m roughly paraphrasing. He says, “Four million of these freedmen have just emerged from slavery. Can it be reasonably supposed that they have a right to all the privileges and immunities of citizens of the United States?”

 

By enacting the Civil Rights Act of 1866 and then by enacting the Fourteenth Amendment, the Republicans are saying, “Yes, they do.” So to abridge the privileges or immunities of citizens of the United States is to give people fewer rights relative to the baseline of what everybody else is getting. So if you read “abridge” in that way as having an implicit baseline, there’s a bunch of material around that time talking about implicit similarly situated explanations.

 

So Article IV says the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states, just a story and lots of people in 1866 say, “Well, that is implicitly -- it’s not just any citizens. It’s the similarly situated citizens.” So if you look linguistically, you have a bunch of people when they say -- when you’re talking about the rights of citizens, you’re implicitly talking about the rights of similarly situated citizens. So with that in background, with a lot of the linguistic stuff about rights, privileges, and immunities being run together, those are, I think, the basic elements you need to make my sort of view work linguistically. But there are lots and lots of details.

 

Looking at the history of the Civil Rights Act, Trumbull and William Lawrence, they give very long speeches right before they pass it that are, I think, very strongly supportive of the idea that the Privileges or Immunities Clause is doing the work of constitutionalizing it. Schuyler Colfax, the Speaker of the House, gives a speech saying, “We passed an Act to say what the rights of citizens of the United States are, and that’s what we’re doing in the Privileges or Immunities Clause.” Lots of evidence like that that you need to dig into, but you very quickly get a lot of dirt under your fingernails.

 

Nick Marr:  So Adam, we don’t have any questions in the queue right now. We are coming up on the hour, so maybe we can offer a chance for closing remarks?

 

Adam Griffin:  Sounds good. Mr. Bindas, Professor Green, do you each want to offer closing remarks?

 

Michael Bindas:  Sure. I’d just like to thank The Federalist Society for hosting. I’d like to thank all the folks who called in and would just encourage the Court to take this case up to ensure that what Adam, as you correctly recognized at the outset -- what this provision that was meant to be the keystone, the cornerstone of the Fourteenth Amendment is not reduced to meaninglessness. Slaughter-House already greatly pared back the scope of the clause and the work that it was understood to do when it was ratified. The Ninth Circuit, if its decision is allowed to stand, will put the final nail in the coffin. And the Supreme Court shouldn’t let that happen.

 

Prof. Christopher R. Green:  Yeah. Not a whole lot to add. I think it’s a fascinating case that the Court really should take a look at.

 

Adam Griffin:  Thank you both so much for being on the call today. I think it was a really interesting discussion, and we’ll look forward to seeing what the Court decides to do with this case and if they decide to take it up. I’m sure we’ll follow up on the Fed-Soc website about the next developments. Thanks, everyone, for participating, and thank you to The Federalist Society.

 

Nick Marr:  Thanks very much, Adam. On behalf of The Federalist Society, I want to thank you, Adam, our moderator, and our panelists, Michael and Chris, for the benefit of your valuable time and expertise this afternoon, to our audience for calling in and your good questions. We can be reached for feedback by email at info@fed-soc.org. And as always, be keeping an eye on our website and your emails for announcements about upcoming Teleforum calls and events. Thank you all for joining us this afternoon. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.