John Kramer
John Kramer · March 21, 2014

Arlington, Va.
It is the kind of legal case that inspires law students to become law professors and constitutional scholars. And that’s why today, a coalition of the nation’s top constitutional historians and legal scholars urged the U.S. Supreme Court to hear the appeal of an important case involving a government-imposed ferry monopoly in Washington state. In an amicus curiae, or “friend of the court,” brief, historian James Ely and law professors Randy Barnett, Richard Epstein, Ilya Somin, Christopher Green and Josh Blackman encouraged the court to review the 9th U.S. Circuit Court of Appeals decision upholding the monopoly in Courtney v. Danner. The 9th Circuit’s decision, the scholars argue, is based on a fundamentally flawed historical account of a key component of the Constitution: the Privileges or Immunities Clause of the 14th Amendment.

The Institute for Justice filed its cert petition in the case earlier this month asking the U.S. Supreme Court to overturn the lower court rulings.

For nearly two decades, brothers Jim and Cliff Courtney have tried to offer a convenient alternative to the current ferry monopoly on Washington’s 55-mile-long Lake Chelan. Their efforts, however, have been thwarted by Washington’s requirement of a “certificate of public convenience and necessity” to provide ferry service on the lake. The state will only issue a certificate if the lake’s current ferry operator—that is, the monopoly holder—consents or the applicant can prove to the government, in a costly legal proceeding, that the public convenience and necessity require another ferry. The existing ferry operator gets to participate in that proceeding and effectively veto new entry into the market.

Not surprisingly, since the public convenience and necessity requirement was imposed, the state has granted one—and only one—certificate for ferry service on Lake Chelan. The same ferry operator has held it since 1929.

Jim and Cliff filed a federal constitutional challenge to the certificate requirement in October 2011. The requirement and resulting monopoly, they argue, violate the Privileges or Immunities Clause of the 14th Amendment. That clause was adopted in the wake of the Civil War to protect the newly freed slaves, whose economic rights were still being routinely violated by Southern states. In the notorious Slaughter-House Cases, decided in 1873, the Supreme Court held that although the clause does not protect a general, open-ended right to economic liberty, it does protect certain rights of national citizenship. The court identified some of those rights, many of which have an economic component. They include the “right to use the navigable waters of the United States”—the very right the Courtneys wish to exercise.

Unfortunately, the district court dismissed the Courtneys’ lawsuit in April 2012, and the 9th Circuit affirmed that decision in December 2013. According to the 9th Circuit’s misguided opinion, the rights that the Privileges or Immunities Clause protects are, with one limited exception, necessarily non-economic in nature and, therefore, the right to use the navigable waters of the United States is merely a right to navigate such waters—not to use them in economic activity. The 9th Circuit’s decision effectively guts the clause of any meaningful protection.

The friend of the court brief filed today undertakes a thorough review of the history of the Privileges or Immunities Clause and convincingly demonstrates the errors of the 9th Circuit’s take on that history and the clause’s purpose.

“The 9th Circuit’s removal of economic activity from the scope of the clause cannot be reconciled with history demonstrating that economic freedom lay at the provision’s core,” the brief argues. “Slaughter-House never suggested that economic activity was excluded from the scope of the[] national privileges or immunities” recognized in that case, and the history of the clause “flatly contradicts the 9th Circuit’s refusal to apply the right to ‘use’ navigable federal waters to [the Courtneys’] intended use of the waters for economic activity. The framers of the Privileges or Immunities Clause did not act to secure the right to ‘use’ the navigable waters only for yacht racing, sport fishing, or pleasure cruises.”

The brief concludes by emphasizing that the Privileges or Immunities Clause “was enacted as one of our Nation’s great bulwarks of liberty” and that this “milestone of history should not be regarded as a dead end.”