Privileges or Immunities on the Not-So High Seas

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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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.