Litigation Update: Restoring the Lost Privileges or Immunities Clause?

A new petition for certiorari at the U.S. Supreme Court presents an invaluable opportunity for the Court to revisit the Privileges or Immunities Clause. And it is unlike any opportunity in recent memory. First, it presents a question upon which every theory of the Fourteenth Amendment agrees: Does the Amendment protect a citizen against rights violations perpetrated by that citizen’s own state? The text and history of the provision, as well as Supreme Court precedent, unequivocally say “Yes,” but the lower courts have fundamentally misunderstood the Clause and rendered it impotent against one’s own state. Second, unlike most Privileges or Immunities cases, this case does not ask the Court to overrule the Slaughter-House Cases. Instead it asks for judicial protection of a right expressly recognized in Slaughter-House: the right to use the navigable waters of the United States, a right that was critically important to the freedmen at the time of the Fourteenth Amendment’s ratification. Thus, unlike recent cases such as McDonald, Timbs, and Ramos, in which the Court was able to avoid confronting the Privileges or Immunities Clause by ruling on alternative grounds, this case begins and ends with the Clause. It therefore offers an opportunity for the Court to begin—in a principled and incremental way—the process of revitalizing the provision that most recognize as the keystone of the Fourteenth Amendment. How have the courts construed this provision since its post-Civil War enactment? What should the Supreme Court do here? And should the oft-criticized Slaughter-House Cases be affirmed?Tune in for a fascinating discussion of the original meaning of the Privileges or Immunities Clause and the unique case of Courtney v. Danner. Counsel of record for the plaintiffs in the case, Michael Bindas of the Institute for Justice (IJ), and Fourteenth Amendment scholar Christopher Green, Professor of Law and H.L.A. Hart Scholar in Law and Philosophy at the University of Mississippi School of Law, will join IJ attorney and moderator Adam Griffin for an exciting litigation update.Featuring:Michael Bindas, Senior Attorney, Institute for JusticeProf. Christopher Green, Professor of Law and H.L.A. Hart Scholar in Law and Philosophy, University of Mississippi School of LawModerator: Adam Griffin, Constitutional Law Fellow, Institute for Justice Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.