Privileges or Immunities on the Not-So High Seas
I 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.