Privileges or Immunities on the Not-So High Seas

120px-Lake_Chelan_from_hwy971_-_Navarre_Coulee_RoadI want to flag an interesting certiorari petition now pending in Courtney v. Danner.  Washington gives a private ferry company a monopoly for passenger traffic on Lake Chelan, which is a navigable waterway in the state.  This monopoly was challenged on the ground that one of the privileges or immunities of citizens provided under Section One of the Fourteenth Amendment is the “right to use the navigable waters of the United States.”  This right was expressly listed as one of the national privileges in The Slaughterhouse Cases.

The Ninth Circuit rejected the challenge.  The panel held that Slaughterhouse does not extend to the commercial use of a navigable waterway.  In other words, a state cannot (without a really good reason) bar people from taking their boats on Lake Chelen, but it can bar them from making money through navigation on the lake.

I’m not sure what to make of petitioner’s argument.  They don’t explain why Slaughterhouse should be read to include commercial navigation, though the petition does cite me in the text as an authority because I’m the biographer of John Bingham.  (I’m happy to accept authority without responsibility.)  Most of the petition is just a plea for the Justices to clarify Slaughterhouse.  I don’t see why they would take up that invitation, but it would be fun for constitutional scholars if they did.

You may also like...

2 Responses

  1. Brett Bellmore says:

    To clarify the reasoning, publishing a newspaper is also among those privileges and immunities; Could the government grant a particular firm the monopoly privilege of selling a newspaper in a given region, such that nobody else could sell newspapers, even though publishing one is a constitutional right?

    The reasoning would be the same. If you’re going to dignify the notion that you can have a right to do something, a right to accept money, but not a right to accept money for doing it.

    And to embrace that particular bit of unreason in the odious cause of establishing a monopoly, in the cause of restraint of trade, when one of the purposes for which the Constitution itself was adapted was to prevent trade from being restrained? The Ninth circuit should be embarrassed, even if prior evidence suggests they lack that capacity.

  2. Joe says:

    “one of the purposes for which the Constitution itself was adapted was to prevent trade from being restrained”

    So, tariffs, which “restrained trade” in various ways, were patently unconstitutional? Madison et. el. didn’t think so. Restraint of trade like various other things were a concern and certain ways were put in to address them in various ways. But, there is no absolute “no restraint of trade” clause in the Constitution & though some people thought monopolies nefarious, the proper usage of monopolies was a major matter of debate. Congress has the power over interstate commerce. If it wants, to promote trade as a whole in the aggregate, to grant a monopoly in some limited fashion, it is unclear to me that is it unconstitutional. But if vague “purposes” should clash with clear text, that would be “fun” I guess.

    Anyway, you might want to toss in a link to the petition, if it’s available. Seems like unless there is a dormant commerce clause or equal protection problem at issue, a state should have the power to regulate intrastate commerce to the degree of banning commercial shipping in a certain area. Providing a monopoly to a certain business is general practice that in itself hasn’t been deemed an issue in a range of areas. But, hey, congrats on the citation.