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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