By George F. Will
The U.S. Court of Appeals for the 9th Circuit has risen to the challenge of making one of the Supreme Court’s worst precedents worse. On Friday, however, the Supreme Court will consider whether to hear the case the 9th Circuit botched.
It concerns whether Jim and Cliff Courtney have a right to run a boat service on a lake in Washington state, or whether the brothers have only such rights as the state government acknowledges. The case implicates a decision the Supreme Court made 148 years ago, and that it made worse with a decision 83 years ago.
Since 1997, the Courtney brothers have been trying to get state permission to conduct a boat service to bring mostly vacationers to their ranch and their tiny town, which is accessible only by boat or chartered plane at one end of a narrow, 55-mile long lake. The brothers’ marathon trek through thickets of red tape has included the state’s denying them a “certificate of public convenience and necessity,” which is required before anyone can challenge the existing ferry providers. At least 17 states have such anti-competitive laws to protect certain entrenched businesses by forcing potential competitors to demonstrate that those businesses are inadequate.
On Friday, the Courtneys — represented by the Institute for Justice, a David that regularly slays governmental Goliaths — will wield the Constitution as a cudgel against Washington state and the 9th Circuit. The 14th Amendment, ratified in 1868, stipulates: “No state shall . . . abridge the privileges or immunities of citizens of the United States.” This was written to protect freed slaves in the post-Civil War South by guaranteeing the panoply of rights (“privileges or immunities”) deriving from national citizenship rather than state residency. These should have included the rights enumerated in the Bill of Rights, and those unenumerated in the Constitution but (in the Ninth Amendment’s language) “retained by the people.”
Five years later, however, the Supreme Court eviscerated this guarantee. It ruled against persons challenging, in the name of economic liberty, a Louisiana law requiring that all butchering of animals in New Orleans must be done by one politically favored slaughterhouse. The court held, 5 to 4, that, contrary to the clear intent of its framers, the privileges or immunities clause protects only a few rights of national citizenship that were already protected before the 14th Amendment’s ratification. One of those was the “right to use the navigable waters of the United States.”
In the Slaughterhouse Cases, the court narrowed the privileges or immunity clause into a near nullity. In ruling against the Courtney brothers in 2020, the 9th Circuit narrowed it further, holding that it protects only the right to use navigable waters in interstate — not intrastate — transportation. According to the 9th Circuit, the 14th Amendment stipulation that “no state” shall deny a citizen’s privileges or immunities means no state except the citizen’s own state.
An amicus brief submitted by some historians makes mincemeat of the 9th Circuit’s idea that the amendment intended this. The historians demonstrate that denying African Americans the right to use intrastate waterways was a widespread practice adopted to protect White boatmen from competition from African American boatmen, part of a program to lock African Americans into post-Civil War peonage.
The Courtney brothers are not attempting to re-litigate the court’s 1873 vandalism against the 14th Amendment. Today’s court would flinch from recognizing that the privileges or immunities clause requires the court to take seriously the Ninth Amendment’s affirmation of “rights retained by the people.” The Courtney brothers are attempting only to secure enforcement of a portion of the shrunken remnant of the privileges or immunities clause, the affirmation of rights pertaining to navigable waters.
And the brothers are not challenging the spurious dichotomy that the Supreme Court concocted in 1938. Without citing any supportive constitutional text, there being none, the court held that economic liberty should be accorded protections markedly weaker than those given to “fundamental” rights. The court did not explain — how could it? — what is more fundamental to the core American values of individual autonomy and self-sufficiency than the right freely to apply one’s talents to earning a living.
What the Supreme Court did in 1938 enabled the 9th Circuit to tell the Courtney brothers that economic rights are not generally protected by the privileges or immunities clause. By hearing and affirming the Courtney brothers’ argument, the Supreme Court can place a minor limit on the major damage it caused in 1873 and 1938.
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