Con Law Center Amicus Briefs

Document Type

Court Filing

Publication Date

12-20-2018

Abstract

This case concerns whether a State may forbid United States citizens from plying a lawful trade based purely on the duration of their in-state residency. Tennessee law permits the retail sale of alcohol by anyone holding a state-issued retailer’s license. See Tenn. Code Ann. § 57-3-204. But the law restricts both the grant and renewal of such licenses based on the duration of an applicant’s Tennessee residency. See id. §§ 57-3-204(b)(2)(A), (3)(A)–(B), (3)(D). The Sixth Circuit held that those restrictions violate the negative (also known as the dormant) Commerce Clause and severed them from the rest of the statute. See Byrd v. Tenn. Wine & Retailers Ass’n, 883 F.3d 608 (6th Cir. 2018). The court did not reach the separate issue of whether the duration-ofresidency provisions also violate the Privileges or Immunities Clause of the Fourteenth Amendment. Unfortunately, “the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of [this Court’s] Fourteenth Amendment jurisprudence.” Saenz v. Roe, 526 U.S. 489, 527–28 (1999) (THOMAS, J., dissenting). As originally understood, the Privileges or Immunities Clause prohibits the duration-of-residency provisions at issue in this case. Amici submit this brief to explain why the Court can affirm the Sixth Circuit on that distinct and “more straightforward” basis. McDonald v. City of Chicago, 561 U.S. 742, 820 (2010) (THOMAS, J., concurring in part and concurring the in judgment). The “original public meaning” of the Privileges or Immunities Clause should direct this Court’s judicial decision making. Lucia v. SEC, 138 S. Ct. 2044, 2056 (2018) (THOMAS, J., concurring). The Clause protects those “fundamental rights that belong to all citizens of the United States.” Saenz, 526 U.S. at 526 (THOMAS, J.). Under our federal system, that order of rights doubtless includes all state-recognized civil rights necessary for “the enjoyment of life and liberty,” including rights “to acquire and possess property” consistent with local law. McDonald, 561 U.S. at 820 (Thomas, J.) (quoting Corfield v. Coryell, 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1825)). The Privileges or Immunities Clause thus requires that each State extend to all United States citizens the same contract and property rights enjoyed by citizens generally under state law, irrespective of residency duration. As United States citizens who have recently moved to Tennessee, Douglas and Mary Ketchum are entitled to the protections of the Privileges or Immunities Clause. Were Tennessee to deny the Ketchums an alcohol retailer’s license solely on duration-of-residency grounds, it would be stripping them of contract and property rights afforded to other Tennesseans. Such an act would clearly abridge the Ketchums’ fundamental rights as United States citizens and, in so doing, would violate the Privileges or Immunities Clause.

Publication Title

U.S. Supreme Court

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