Supreme Court

A 14th Amendment Case That Deserves the Supreme Court's Attention

It's time to breathe some life back into the Privileges or Immunities Clause.

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In The Slaughter-House Cases (1873), the U.S. Supreme Court left for dead the Privileges or Immunities Clause of the 14th Amendment. Taking a page from The Princess Bride, a new constitutional case is asking the Court to recognize that the clause "is only mostly dead."

The case is Courtney v. Danner. At issue is one Washington state family's 23-year odyssey to secure the right to ferry customers to and from its ranch via the waters of Lake Chelan. State law requires would-be ferry operators to first obtain a certificate declaring the "public convenience and necessity" of their enterprise. As part of that process, would-be operators must show that any existing ferry business in the area "has not objected to the issuance of the certificate as prayed for." In other words, a settled firm gets to veto the arrival of any new competitor.

Here's how the Slaughter-House decision factors in. In that 1873 ruling, the Supreme Court rejected the arguments of a group of Louisiana butchers who claimed that a state law granting monopoly powers to a slaughterhouse corporation deprived them of their right to earn a living, one of the privileges or immunities of U.S. citizenship secured against state infringement by the recently ratified 14th Amendment.

Writing for the 5–4 majority, Justice Samuel Miller held that the Privileges or Immunities Clause placed virtually no limits on state power and did virtually nothing to protect individual rights from state infringement. To hold otherwise, he wrote, would make the Supreme Court "a perpetual censor upon all legislation of the states." The butchers were out of luck.

Miller's Slaughter-House opinion did, however, recognize a very small handful of rights that the 14th Amendment does protect. Among them was the "right to use the navigable waters of the United States."

Lake Chelan is a federally designated navigable water of the United States, which means that the Courtneys have a clear constitutional case to make against Washington's anti-competitive stance and have the Slaughter-House precedent—as problematic as it is—squarely on their side.

"The Courtneys have been trying for nearly a quarter century to exercise their right to use the navigable waters of the United States, and the State of Washington has prevented them from doing so at every turn," notes a petition seeking review filed by the Courtneys and their lawyers at the Institute for Justice. "Theirs is not some abstract, hypothetical complaint. It is a concrete, tangible injury—an injury redressable in the Privileges or Immunities Clause."

The Supreme Court should take the case and begin the long overdue process of breathing some life back into the Privileges or Immunities Clause.

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  3. In The Slaughter-House Cases (1873), the U.S. Supreme Court left for dead the Privileges or Immunities Clause of the 14th Amendment. Taking a page from The Princess Bride, a new constitutional case is asking the Court to recognize that the clause “is only mostly dead.”

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  6. I see Gorsuch aligning with Thomas. What I don’t know is if there’s enough interest on the court to signal some 14th Amendment relevance. The “navigable waters” angle makes this an easy way to show some interest.

  7. Can’t they just give their guests a canoe or kayak? Sell it as an exercise class?

  8. “has not objected to the issuance of the certificate as prayed for.”

    You really do have to “pray for” state permission these days, since legal and effective administration seems to be non-existing.

  9. What we need (and are not likely to get) are enough judges on SCOTUS so that we can go back a clear Slaughterhouse from the books. Time between passage of the 14th and undoing by SCOTUS has got to be one of the shortest flips in history.

  10. 1873 was when Anthony Comstock confiscated and burned books, images and items from the mail. Under God’s loving, Christian Comstock law, a mom’s letter to daughter explaining the rhythm method would make mom liable to 10 years on a chain gang and a fine in gold today worth $295,000. Usurping the postal monopoly for pietistic looting and torture was quickly followed by a financial panic–another Republican tradition.

  11. I’m confused, didn’t SCOTUS deny this petition in 2014?

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