Con Law Center Amicus Briefs

Document Type

Court Filing

Publication Date

11-2020

Abstract

The Privileges or Immunities Clause of the Fourteenth Amendment recognized that all United States citizens have fundamental rights derived from their national citizenship. It provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” U.S. Const. Amend. XIV, § 1. While the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), may have eroded the scope of the rights the Privileges or Immunities Clause encompassed, the decision undoubtedly expressed the wellknown prevailing view that certain privileges or immunities were protected by the Clause, including the one at issue here: the “right to use the navigable waters of the United States.”

This case has wide-reaching implications that require this Court’s intervention. Despite the clear instruction in Slaughter-House that the Privileges or Immunities Clause of the Fourteenth Amendment does protect certain rights, the Ninth Circuit and other courts have, over the years, chipped away at those protections. This case will enable the Court to restore, in a modest and incremental way, the Fourteenth Amendment’s protections of individual liberties and to reaffirm what it made clear in Slaughter-House and subsequent case law: where those rights are concerned, the Privileges or Immunities Clause protects citizens from their own states’ actions. The framers of the Fourteenth Amendment intended as much; it is no coincidence that the Privileges or Immunities Clause, the Equal Protection Clause, and Due Process Clause are part of the same sentence of text. Below, the Ninth Circuit founded its decision on a major interpretive error that has eroded the protections of the Privileges or Immunities Clause. Federal courts, the Ninth Circuit included, have mistakenly conflated two similarly named, yet entirely distinct, portions of the Constitution: the Privileges or Immunities Clause of the Fourteenth Amendment, which unequivocally protects American citizens from the actions of their own state governments, and the Privileges and Immunities Clause of Article IV, Section 2, which does not provide those protections. This repeated error has cudgeled the Privileges or Immunities Clause of the Fourteenth Amendment to within an inch of its life. While this faulty analysis has cropped up repeatedly in cases from multiple jurisdictions, the Ninth Circuit anchored its decision here in its flawed opinion in Merrifield v. Lockyer, 547 F.3d 978 (2008). In Merrifield, the Ninth Circuit incorrectly stated that the Fourteenth Amendment’s Privileges or Immunities Clause barred “claims against ‘the power of the State governments over the rights of [their] own citizens.’” Id. at 983 (quoting Slaughter-House, 83 U.S. (16 Wall.) at 77). What Merrifield failed to grasp is that this alleged bar applies only to the Privileges and Immunities Clause of Article IV, Section 2, not to the Privileges or Immunities Clause of the Fourteenth Amendment. That error turns the Privileges or Immunities Clause of the Fourteenth Amendment on its head, resulting in an interpretation completely at odds with the clause’s historical context. The framers drafted the Privileges or Immunities Clause as a solution to the Southern states’ attempts to strip newly freed black citizens of their individual rights. Because the Privileges and Immunities Clause of Article IV, Section 2 was insufficient to shield citizens from discrimination by their own states, the Privileges or Immunities Clause of the Fourteenth Amendment bridged an essential gap in the Constitution’s guarantees for individual rights. Given that purpose, it makes sense that the Privileges or Immunities Clause would protect the rights of national citizenship from infringement by all states, including one’s own. For the reasons below, amici respectfully request that this Court review the Ninth Circuit’s interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment—and enforce its decision in Slaughter-House that the Privileges or Immunities Clause protects the right of every American to use this nation’s navigable waters, including in his or her own state’s.

Publication Title

U.S. Supreme Court

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