Courtney v. Danner

In 1873, the Supreme Court all but redacted the Privileges or Immunities Clause from the Constitution—save for holding that the clause protects (among a very few other things) citizens’ right to use the navigable waters of the United States. Citizen: I would like to operate a private boat service on a navigable waterway, Lake Chelan in Washington state, to bring customers 55 miles to my resort that is unreachable by road. And the state has barred me from doing that for over 20 years solely to protect a ferry service it gave an exclusive franchise to (in 1929) from competition. A violation of the Privileges or Immunities Clause? Ninth Circuit (2013): We’re not sure the state is actually preventing you from operating. Go back to state court to make sure. Ninth Circuit (2020): Actually, you didn’t need to go back to state court. The proposed service doesn’t cross state lines, so you lose. (This is an IJ case. For a lovingly crafted longform podcast on the saga, click here.)

Tags: 2020, Economic Liberty, Ninth Circuit, Privileges or Immunities Clause

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