April 28, 2014

Do constitutional protections end where “professional concerns” begin?

By Do constitutional protections end where “professional concerns” begin?

The Constitution forbids states from interfering with certain individual rights. For instance, states aren’t allowed to censor speech or deprive people of the right to travel from one state to another. But does that protection end as soon as a person exercises a right for commercial or professional reasons? That’s the question at issue in a case which PLF is urging the Supreme Court to consider.

Businessmen James and Clifford Courtney wants to start a ferry operation to take people across Lake Chelan in Washington. That state requires that any ferry operation get a license—one of those “certificate of need” laws that we’ve often challenged, which allows existing businesses to outlaw their own competition. When the Courtneys were denied a license, they filed a lawsuit arguing that the licensing requirement violated their rights under the Privileges or Immunities Clause of the Fourteenth Amendment.

Readers of the Liberty Blog know that that Clause was largely destroyed by the Supreme Court’s infamous decision in the Slaughter-House Cases in 1873, a decision that deprived the Fourteenth Amendment of much of its force. There, the Court said that although the Constitution forbids states from depriving people of the “privileges or immunities” of American citizens, that phrase refers to only a very narrowly limited set of individual rights—and the right to earn a living was not one of them. That decision was wrong, and we’re working on getting the Court to overrule it. But what’s interesting about the Courtneys’ case is that it involves one of the few rights that the Slaughter-House decision said is protected by the Privileges or Immunities Clause: the right to use the navigable waters of the United States.

Among the very short list of rights that the Slaughter-House decision promised to protect under that Clause was “[t]he right to use the navigable waters of the United States, however they may penetrate the territory of the several States.” The Courtneys argue that this state law interferes with this right, and therefore violates the Privileges or Immunities Clause, no matter what one thinks about the old Slaughter-House decision. And there’s a good precedent for that argument. In 1999, the Supreme Court issued a decision called Saenz v. Roe, declaring that a California law that provided lower welfare benefits to people who had just moved in from other states, violated the Privileges or Immunities Clause because “[d]espite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter–House Cases…it has always been common ground that this Clause protects…the right to travel.” Thus the California law was unconstitutional. In the same way, the Courtneys argue that their federal right to use the waterways is violated by Washington’s irrational licensing law.

Sadly, the Ninth Circuit Court of Appeals threw the case out. It ruled that the Constitution only protects the right to use waterways “in a general sense,” but not for a “specific professional venture.” Since “the driving force behind this litigation is the Courtneys’ desire to operate a particular business…an activity driven by economic concerns,” constitutional protections do not apply. In other words, constitutional protections cease when you engage in a commercial activity.

As we argue in our friend of the court brief, this argument makes no sense. The right to use waterways that the Slaughter-House Court had in mind was primarily a commercial right—the justices would probably have laughed at the idea of a general or recreational right to use the nation’s waterways. They were well aware of decisions that had upheld the right to use waterways for commercial purposes. Worse, the Ninth Circuit’s decision would lead to weird results: a passenger on a boat has a fundamental right to travel, receiving the highest constitutional protections…while the captain of the boat has no constitutional right to navigate the ship, because he’s only got a “professional” concern? And what about the Saenz case? You have the right to travel across state lines…but not if you do so for a specific professional concern? The Supreme Court has repeatedly said the opposite.

The Slaughter-House Cases has left the Fourteenth Amendment in terrible disarray. Lawyers today really don’t know how to answer even the most basic questions about the Privileges or Immunities Clause. What level of scrutiny is applied in such cases? What does “abridgement” mean, and how does it differ from “deprivation”? Do some rights get more protection under it than others (which is how the Due Process Clause is applied today)? Unless the Supreme Court takes cases like this one, we may never know. Whatever one thinks about the Slaughter-House decision—and we don’t think much of it—these questions still must be answered. The Court should take the Courtneys’ case and begin to give us those answers.

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