Amicus Curiae Brief — Ursula Newell-Davis, et al., Petitioners v. Courtney N. Phillips, in Her Official Capacity as Secretary of the Louisiana Department of Health, et al.

No. 22-1208

IN THE

Supreme Court of the United States

_________________________________________________

URSULA NEWELL-DAVIS, ET AL.,

Petitioners,

v.

COURTNEY N. PHILLIPS, IN HER OFFICIAL CAPACITY AS

SECRETARY OF THE LOUISIANA

DEPARTMENT OF HEALTH, ET AL.,

Respondents.

____________________________________________________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

____________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONERS

————

Michael Pepson

Counsel of Record

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

July 13, 2023

i

TABLE OF CONTENTS

Table of Authorities ...................................................... ii

Interest of Amicus Curiae ............................................ 1

Summary of Argument ................................................. 2

Argument ....................................................................... 6

I.

The Right to Pursue a Common Occupation

Is Deeply Rooted ............................................. 6

II.

The Fourteenth Amendment’s Privileges or

Immunities Clause Protects Deeply Rooted

Negative Rights .............................................. 9

III. This Court Should Squarely Overrule the

Slaughter-House Cases ................................ 16

A. The

Slaughter-House

Cases

Are

Demonstrably Erroneous ............................. 16

B. Enforcing the Privileges or Immunities

Clause’s Original Public Meaning Will Not

Open Pandora’s Box ..................................... 18

IV. This Court Also Should Abandon Carolene

Products Footnote Four ............................... 21

Conclusion ................................................................... 22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Adamson v. California,

332 U.S. 46 (1947) ................................................. 15

Allen v. Tooley,

80 Eng. Rep. 1055 (K.B. 1614) ............................... 7

Am. Legion v. Am. Humanist Ass’n,

139 S. Ct. 2067 (2019) ..................................... 18, 19

Barsky v. Bd. of Regents,

347 U.S. 442 (1954) ................................................. 8

Borden’s Farm Prod. Co. v. Baldwin,

293 U.S. 194 (1934) ............................................... 20

Buffington v. McDonough,

143 S. Ct. 14 (2022) ............................................... 22

Corfield v. Coryell,

6 F. Cas. 546 (C.C.E.D. Pa. 1823) .............. 3, 13, 19

Davenant v. Hurdis,

72 Eng. Rep. 769 (K.B. 1599) ................................. 7

Dent v. West Virginia,

129 U.S. 114 (1889) ................................................. 8

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022) ....................................... 9, 19

iii

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) .................................... 9

Golden Glow Tanning Salon, Inc. v. City

of Columbus,

52 F.4th 974 (5th Cir. 2022) ....................... 6, 7, 8, 9

Greene v. McElroy,

360 U.S. 474 (1959) ............................................... 20

Haaland v. Brackeen,

599 U.S. ____ (2023) .............................................. 11

Hettinga v. United States,

677 F.3d 471 (D.C. Cir. 2012)............................... 20

Kennedy v. Bremerton School District,

142 S. Ct. 2407 (2022) ........................................... 11

Mallory v. Norfolk S. R.R. Co.,

600 U.S. ____ (2023) .............................................. 10

McBurney v. Young,

569 U.S. 221 (2013) ............................................... 13

McDonald v. Chicago,

561 U.S. 742 (2010) .................. 8, 10, 15, 16, 17, 18

Mills v. Rogers,

457 U.S. 291 (1982) ............................................... 18

Moore v. Harper,

600 U.S. ____ (2023) .............................................. 11

iv

Nordyke v. King,

563 F.3d 439 (9th Cir. 2009) ................................ 19

N.Y. State Rifle & Pistol Ass’n v. Bruen,

142 S. Ct. 2111 (2022) ................................. 6, 11, 19

Patel v. Tex. Dep’t of Licensing &

Regulation,

469 S.W.3d 69 (Tex. 2015) ...................... 6, 8, 16, 20

Saenz v. Roe,

526 U.S. 489 (1999) ............................. 12, 13, 16, 17

Slaughter-House Cases,

83 U.S. (16 Wall.) 36 (1872) ......3, 7, 10, 13, 14, 15,

16, 18

The Antelope,

23 U.S. (10 Wheat.) 66 (1825) ................................ 8

The Case of the Monopolies,

77 Eng. Rep. 1260 (K.B. 1602) ............................... 7

The Case of the Tailors of Ipswich,

77 Eng. Rep. 1218 (K.B. 1610) ............................... 7

The Pocket Veto Case,

279 U.S. 655 (1929) ............................................... 11

Timbs v. Indiana,

139 S. Ct. 682 (2019) ............................................. 15

Tiwari v. Friedlander,

26 F.4th 355 (6th Cir. 2022) ........................... 20, 22

v

Tyler v. Hennepin County,

143 S. Ct. 1369 (2023) ........................................... 11

United States v. Carolene Products,

304 U.S. 144 (1938) ........................................... 5, 21

United States v. Vaello-Madero,

142 S. Ct. 1539 (2022) ..................................... 15, 16

Washington v. Glucksberg,

521 U.S. 702 (1997) ......................................... 19, 20

Whole Woman’s Health v. Hellerstedt,

579 U.S. 582 (2016) ............................................... 21

Constitution

U.S. Const. Art. IV, § 2, cl. 1 ........................................ 3

U.S. Const. amend. XIV, § 1 .............................. 3, 9, 10

Statutes

La. Admin. Code tit. 48, § 12523(A) ............................ 4

Other Authorities

Akhil Reed Amar, America’s

Constitution: A Biography (2006) ........................ 12

Akhil Reed Amar, Foreword: The

Document and the Doctrine,

114 Harv. L. Rev. 26 (2000)...................... 12, 16, 17

vi

Akhil Reed Amar, The Bill of Rights

and the Fourteenth Amendment,

101 Yale L.J. 1193 (1992) ..................................... 12

Randy E. Barnett & Evan D. Bernick,

The Original Meaning of the

Fourteenth Amendment (2021) ............... 11, 12, 17

Amy Coney Barrett, Countering the

Majoritarian Difficulty,

32 Const. Comment. 61 (2017) ............................. 20

Josh Blackman & Ilya Shapiro, Keeping

Pandora’s Box Sealed: Privileges or

Immunities, The Constitution in

2020, and Properly Extending The

Right to Keep and Bear Arms To The

States,

8 Geo. J.L. & Pub. Pol’y 1 (2010) ...... 11, 12, 13, 18,

19, 20

William Blackstone, Commentaries on

the Laws of England ......................................... 7, 10

Steven G. Calabresi & Larissa C.

Leibowitz, Monopolies and the

Constitution: A History of Crony

Capitalism,

36 Harv. J.L. & Pub. Pol’y 983 (2013) ......... 6, 7, 14

Michael Curtis, Historical Linguistics,

Inkblots, and Life After Death: The

Privileges or Immunities of Citizens

of the United States,

78 N.C. L. Rev. 1071 (2000).................................. 10

vii

James W. Ely Jr., “To Pursue Any

Lawful Trade or Avocation”: The

Evolution of Unenumerated

Economic Rights in the Nineteenth

Century,

8 U. Pa. J. Const. L. 917 (2006) ............................. 6

Richard A. Epstein, Further Thoughts

on the Privileges or Immunities

Clause of the Fourteenth

Amendment,

1 N.Y.U. J.L. & Liberty 1096 (2005).................... 17

Declaration of Independence (1776)............................ 2

John Harrison, Reconstructing the

Privileges or Immunities Clause,

101 Yale L. J. 1385 (1992) .............................. 14, 16

Magna Carta, ch. 20 (1215) ......................................... 7

Magna Carta, ch. 29 (1225) ..................................... 3, 7

Michael McConnell, Ways to Think

About Unenumerated Rights,

2013 U. Ill. L. Rev. 1985 (2013) ........................... 10

Timothy Sandefur, A Rebuilding the

Fourteenth Amendment: The

Prospects and the Pitfalls,

12 NYU J.L. & Liberty 278 (2019)......................... 8

Timothy Sandefur, State Powers and the

Right to Pursue Happiness,

21 Tex. Rev. Law & Pol. 323 (2016)................... 2, 3

viii

Timothy Sandefur, The Right to Earn a

Living,

6 Chap. L. Rev. 207 (2003) ..................................... 7

Kevin Schmidt & Thomas Kimbrell,

Permission to Care: How Certificate

of Need Laws Harm Patients and

Stifle Health Care Innovation,

Americans for Prosperity

Foundation (Oct. 20, 2021),

https://americansforprosperityfound

ation.org/wpcontent/uploads/2021/10/Permissionto-Care-AFPF-CON-report.pdf ...................... 1, 2, 5

Ilya Shapiro & Josh Blackman, The

Once and Future Privileges or

Immunities Clause,

26 Geo. Mason L. Rev. 1207 (2019) ....................... 7

J. Story,

Commentaries on the Constitution of

the United States (1833)......................................... 9

Jeffrey S. Sutton, 51 Imperfect

Solutions: States and the Making of

American Constitutional Law (2018) .................. 19

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Under Supreme Court Rule 37.2, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioners.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society. One

of those key ideas is that the Constitution protects

liberty—including economic liberty. As part of this

mission, it appears as amicus curiae before federal

and state courts.

AFPF has an interest in this case because it

believes the Fourteenth Amendment’s Privileges or

Immunities Clause protects both individual rights

enumerated in the Bill of Rights and fundamental

liberties deeply rooted in our history and tradition,

including economic liberties, against state invasion

and arbitrary government regulation.

AFPF also opposes certificate of need (CON) laws.

See, e.g., Kevin Schmidt & Thomas Kimbrell,

Permission to Care: How Certificate of Need Laws

1 All parties have received timely notice of amicus curiae’s intent

to file this brief. Amicus curiae states that no counsel for any

party authored this brief in whole or in part, and no entity or

person, aside from amicus curiae or its counsel, made any

monetary contribution intended to fund the preparation or

submission of this brief.

2

Harm Patients and Stifle Health Care Innovation,

Americans for Prosperity Foundation (Oct. 20, 2021)

[hereinafter “Permission to Care”];2 Br. of Amicus

Curiae AFPF in Support of Pet’r, Tiwari v.

Friedlander, No. 22-42 (U.S., filed Aug. 22, 2022).

More broadly, AFPF opposes cronyism, rent seeking,

and protectionist legislation that shields special

interest groups from competition by creating

senseless barriers to entry.

SUMMARY OF ARGUMENT

Our Nation is founded on the idea that the rights

to “Life, Liberty and the pursuit of Happiness” are

“unalienable.” Declaration of Independence ¶2 (1776).

And that “to secure these rights, Governments are

instituted among Men, deriving their just powers from

the consent of the governed[.]” Id. As the signers of the

Declaration understood, these unalienable liberties,

all deeply rooted in our history and tradition at the

Founding, are not contingent on or provided by

government but are natural rights we possess by

virtue of our humanity. Among these preexisting

negative liberties is the right to pursue a common,

lawful occupation without arbitrary government

regulation.

Positive law has also recognized economic liberty

for centuries. “Lord Coke wrote a series of decisions

striking down restrictions on economic liberty under

the law of the land clause of the Magna Carta.”

2 https://americansforprosperityfoundation.org/wp-

content/uploads/2021/10/Permission-to-Care-AFPF-CONreport.pdf.

3

Timothy Sandefur, State Powers and the Right to

Pursue Happiness, 21 Tex. Rev. Law & Pol. 323, 323–

24 (2016); see Magna Carta, ch. 29 (1225). Our

founding document likewise protects “Privileges and

Immunities,” U.S. Const. Art. IV, § 2, cl. 1, including

the fundamental right to earn a living, as Justice

Bushrod Washington famously explained in Corfield

v. Coryell, 6 F. Cas. 546, 551–52 (C.C.E.D. Pa. 1823).

Section 1 of the Fourteenth Amendment, U.S. Const.

amend. XIV, § 1, protects these same “Privileges or

Immunities” against state invasion, as Justice Field

explained in his dissent in the Slaughter-House Cases,

83 U.S. (16 Wall.) 36, 95–98 (1872).

But the Slaughter-House majority mistakenly

nullified the protection provided by the Fourteenth

Amendment’s Privileges or Immunities Clause for a

large swath of deeply rooted, fundamental,

unalienable negative rights, including the right to

earn an honest living free from arbitrary government

regulation, and instead left intact protection of only a

short list of rights deemed “national.”3 Broad

application of this demonstrably erroneous decision

has had pernicious practical consequences for the

lives and livelihoods of countless individuals, as this

case well illustrates.

Petitioner, Ms. Ursula Newell-Davis, is “a mother,

social worker, [and] entrepreneur,” Pet. App. 79a, who

3 See Br. of Amicus Curiae AFPF in Support of Pet’rs, Courtney

v. Danner, No. 20-361, at 13–15, 20–21 (U.S., filed Nov. 2, 2020)

(identifying access to the navigable waters of the United States

as a right of national citizenship specifically recognized in The

Slaughter-House Cases, 83 U.S. at 79–80).

4

“want[s] to be able to provide respite services for

parents of special needs children who qualify for such

care.” Pet. App. 82a. She is eminently qualified to do

so. See Pet. App. 79a–80a (¶¶2–5). Louisiana law,

however, bars Ms. Newell-Davis from even applying

for a license to provide respite services unless state

officials deign to declare these critical services

“needed” after conducting a “Facility Need Review”

(FNR). See La. Admin. Code tit. 48, § 12523(A). And

here, these unelected bureaucrats arbitrarily denied

Ms. Newell-Davis’s FNR for reasons unrelated to her

qualifications. Pet. 6–10 & n.4; Pet. App. 4a. This

scheme is patently unconstitutional. It beggars belief

to contend the state’s mere desire to “ease[] its

regulatory burden” of administering the program, see

Pet. 8 (citing ROA.2420, ROA.2440), is a legitimate

government interest sufficient to sustain the economic

regulation at issue here. That makes no sense. Nor

does the state have evidence to support this claim. See

Pet. 8 (citing ROA.2457-2458, ROA.2417-2420). Ms.

Newell-Davis’s right to pursue her calling should not

turn on bureaucratic grace.4 Yet, as the decision below

recognized, this Court’s precedent “foreclosed”

Petitioners’ “Privileges or Immunities Clause claim.”

Pet. App. 2a.

This state of affairs should not be allowed to

continue. And this case provides an ideal vehicle to

overturn the Slaughter-House Cases and return to the

“The Department does not have any internal documents,

procedures, or protocol to guide the four-person FNR Committee

in determining whether a new provider is ‘needed.’” Pet. 6 n.4

(citing ROA.2703:16-25, ROA.2771:20-2772:4, ROA.2748:142749:18, ROA.2761:1-13).

4

5

Fourteenth Amendment’s Privileges or Immunities

Clause’s original public meaning. The law at issue is

a clear violation of the Clause’s protection of the

fundamental right to earn an honest living in a lawful

occupation free from arbitrary regulation. After all,

the law here bars people like Ms. Newell-Davis from

even applying for a license to enter a long-recognized

lawful profession—indeed, to provide care for children

with special needs—without the government’s

permission. Cf. Permission to Care, supra. Nor would

overruling the Slaughter-House Cases—which a broad

and growing consensus of jurists and scholars agree

were wrongly decided—provide a permission slip for

judicial activism, inviting courts to “find” new rights

nowhere to be found in the Constitution or rooted in

our history or tradition. The “privileges or

immunities” entitled to protection are preexisting,

deeply rooted in history and tradition at the time of

ratification and inherent in the concept of ordered

liberty.

This case also provides an opportunity for this

Court to jettison United States v. Carolene Products

footnote four’s judicially created dichotomy between

favored and disfavored fundamental rights, see 304

U.S. 144, 152 n.4 (1938), as well as its problematic

theory of tiered-scrutiny review, and restore

consistency to the treatment of individual negative

rights.

For the foregoing reasons, this Court should grant

the Petition.

6

ARGUMENT

I.

The Right to Pursue a

Occupation Is Deeply Rooted.

Common

“Economic liberty is deeply rooted in this Nation’s

history and tradition[.]” Patel v. Tex. Dep’t of

Licensing & Regulation, 469 S.W.3d 69, 122 (Tex.

2015) (Willett, J., concurring) (cleaned up). “Cases

stretching back centuries treat economic liberty as

constitutionally protected—we crossed that Rubicon

long ago[.]” Id. at 95 (Willett, J., concurring); see

James W. Ely Jr., “To Pursue Any Lawful Trade or

Avocation”: The Evolution of Unenumerated Economic

Rights in the Nineteenth Century, 8 U. Pa. J. Const. L.

917, 953 (2006); see also Steven G. Calabresi &

Larissa C. Leibowitz, Monopolies and the

Constitution: A History of Crony Capitalism, 36 Harv.

J.L. & Pub. Pol’y 983, 989–1016 (2013). “[T]he right to

earn a living” has particularly “deep roots in our

Nation’s history and tradition.”5 Golden Glow

Tanning Salon, Inc. v. City of Columbus, 52 F.4th 974,

981 (5th Cir. 2022) (Ho, J., concurring); see Ely, 8 U.

Pa. J. Const. L. at 953 (“[T]he right to pursue callings

and make contracts can be traced far into the past[.]”).

“For over a century before our Founding, English

5 To be sure, “there is an ongoing scholarly debate on whether

courts should primarily rely on the prevailing understanding of

an individual right when the Fourteenth Amendment was

ratified in 1868 when defining its scope (as well as the scope of

the right against the Federal Government).” N.Y. State Rifle &

Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2138 (2022). But both at

the Founding and in 1868, when the Fourteenth Amendment

was ratified, the right to earn a living was well established.

7

courts protected the right to pursue one’s occupation

against arbitrary government restraint.” Golden

Glow, 52 F.4th at 982 (Ho, J., concurring); see, e.g.,

Allen v. Tooley, 80 Eng. Rep. 1055 (K.B. 1614); The

Case of the Tailors of Ipswich, 77 Eng. Rep. 1218 (K.B.

1610); The Case of the Monopolies, 77 Eng. Rep. 1260

(K.B. 1602); Davenant v. Hurdis, 72 Eng. Rep. 769

(K.B. 1599).6 See generally Calabresi & Leibowitz, 36

Harv. J.L. & Pub. Pol’y at 989–1003; Timothy

Sandefur, The Right to Earn a Living, 6 Chap. L. Rev.

207, 209–17 (2003).

“[W]hen the Colonies separated from the mother

country no privilege was more fully recognized or

more completely incorporated into the fundamental

law of the country than that every free subject in the

British empire was entitled to pursue his happiness

by following any of the known established trades and

occupations of the country.” Slaughter-House, 83 U.S.

(16 Wall.) at 105 (Field, J., dissenting); see 1 William

Blackstone, Commentaries on the Laws of

England 415 (“At common law every man might use

what trade he pleased.”). The right to earn a living

“has a far stronger historical pedigree than other

rights that the Court has held to be protected by the

Fourteenth Amendment[.]” Ilya Shapiro & Josh

Blackman, The Once and Future Privileges or

Immunities Clause, 26 Geo. Mason L. Rev. 1207, 1224

(2019).

Against this backdrop, “it’s not surprising that

various scholars have determined that the right to

6 Cf. Magna Carta, ch. 29 (1225); id. ch. 20 (1215) (preserving to

free men the tools of their livelihood against fines).

8

earn a living . . . should thus be protected under our

jurisprudence of unenumerated rights.” Golden Glow,

52 F.4th at 984 (Ho, J., concurring). And for good

reason. After all, “[l]iberty is not provided by

government; liberty preexists government. It is not a

gift from the sovereign; it is our natural birthright.

Fixed. Innate. Unalienable.” Patel, 469 S.W.3d at 92–

93 (Willett, J., concurring). Among other things, this

means “[s]elf-ownership, the right to put your mind

and body to productive enterprise, is not a mere

luxury to be enjoyed at the sufferance of governmental

grace, but is indispensable to human dignity and

prosperity.” Id.; see Timothy Sandefur, A Rebuilding

the Fourteenth Amendment: The Prospects and the

Pitfalls, 12 NYU J.L. & Liberty 278, 300 (2019)

(“economic liberty and private property are

fundamental human rights”). Exactly so.7

Indeed, “[t]he great values of freedom are in the

opportunities afforded man to press to new horizons,

to pit his strength against the forces of nature, to

match skills with his fellow man.” Barsky v. Bd. of

Regents, 347 U.S. 442, 472 (1954) (Douglas, J.); see

Dent v. West Virginia, 129 U.S. 114, 121 (1889) (“This

right may in many respects be considered as a

distinguishing feature of our republican institutions.

7 At the Founding and when the Fourteenth Amendment was

ratified, “both the States and the Federal Government had long

recognized the inalienable rights of their citizens.” McDonald v.

City of Chi., 561 U.S. 742, 822 (2010) (Thomas, J., concurring in

part, concurring in judgment). Among those inalienable rights is

the right to earn a living. See The Antelope, 23 U.S. (10 Wheat.)

66, 120 (1825) (Marshall, C.J.) (“That every man has a natural

right to the fruits of his own labour, is generally admitted[.]”).

9

Here all vocations are open to every one on like

conditions.”). And as Judge Ho observed, “the right to

engage in productive labors is essential to ensuring

the ability of the average American citizen to exercise

most of their other rights.” Golden Glow, 52 F.4th at

984 (concurring). That sums up well the importance of

the negative right at issue here.

II.

The Fourteenth Amendment’s Privileges

or Immunities Clause Protects Deeply

Rooted Negative Rights.

The Fourteenth Amendment’s Privileges or

Immunities Clause protects not only the individual

rights enumerated in the Bill of Rights but also

safeguards deeply rooted, yet unenumerated, negative

rights, such as the right to earn an honest living in a

lawful profession free from arbitrary regulation.

“Constitutional analysis must begin with ‘the

language of the instrument,’ which offers a ‘fixed

standard’ for ascertaining what our founding

document means.” Dobbs v. Jackson Women’s Health

Org., 142 S. Ct. 2228, 2244–45 (2022) (quoting

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 186–89

(1824)); 1 J. Story, Commentaries on the Constitution

of the United States § 399, p. 383 (1833)). Section 1 of

the Fourteenth Amendment provides in no uncertain

terms that “[n]o State shall make or enforce any law

which shall abridge the privileges or immunities of

10

citizens of the United States.”8 U.S. Const. amend.

XIV, § 1. “On its face, this appears to grant the

persons just made United States citizens a certain

collection of rights—i.e., privileges or immunities—

attributable to that status.” McDonald, 561 U.S. at

808 (Thomas, J., concurring in part, concurring in

judgment).

“At the time of Reconstruction, the terms

‘privileges’ and ‘immunities’ had an established

meaning as synonyms for ‘rights.’ The two words,

standing alone or paired together, were used

interchangeably with the words ‘rights,’ ‘liberties,’

and ‘freedoms,’ and had been since the time of

Blackstone.”9 Id. at 813 (Thomas, J., concurring in

part and concurring in judgment) (citing 1 W.

Blackstone, Commentaries *129); see Michael Curtis,

Historical Linguistics, Inkblots, and Life After Death:

The Privileges or Immunities of Citizens of the United

States, 78 N.C. L. Rev. 1071 (2000) (surveying

historical usage of “privileges” and “immunities”);

semble Mallory v. Norfolk S. R.R. Co., 600 U.S. ____

(2023) (slip op., 6) (Alito, J., concurring in part,

concurring in judgment) (referencing “substantive

rights” that “may have originally been intended to

reside” in and “that might otherwise be guaranteed by

“The historical record suggests that the Privileges or

Immunities Clause was the heart and soul of the Fourteenth

Amendment.” Michael McConnell, Ways to Think About

Unenumerated Rights, 2013 U. Ill. L. Rev. 1985, 1995 (2013).

9 “The terms, privileges and immunities, are not new in the

amendment; they were in the Constitution before the

[Fourteenth] amendment was adopted.” Slaughter-House, 83

U.S. (16 Wall.) at 97 (Field, J., dissenting).

8

11

the Fourteenth Amendment’s

Immunities Clause”).

Privileges

and

But constitutional analysis does not take place in

a vacuum divorced from history and deeply rooted

traditions. See Moore v. Harper, 600 U.S. ____ (2023)

(slip op., 24) (“We have long looked to ‘settled and

established practice’ to interpret the Constitution.”

(quoting The Pocket Veto Case, 279 U.S. 655, 689

(1929)). The Constitution’s common-law backdrop and

historical practice and tradition at the time of

ratification may be probative of original public

meaning.10 See Kennedy v. Bremerton School District,

142 S. Ct. 2407, 2428 (2022); Bruen, 142 S. Ct. at 2130;

Tyler v. Hennepin County, 143 S. Ct. 1369, 1375–76

(2023). So too here.

“To the framers of the Fourteenth Amendment, the

meaning of privileges or immunities was clear: they

included not only the Bill of Rights but also the rights

protected under common law, such as those set out in

the Declaration of Independence. This included the

right ‘to work in an honest calling and contribute by

your toil in some sort to yourself, to the support of your

fellow-men, and to be secure in the enjoyment of the

fruits of your toil.’”11 Josh Blackman & Ilya Shapiro,

Statutes enacted contemporaneously with constitutional

amendments may also provide evidence of a constitutional

provision’s original public meaning. See Haaland v. Brackeen,

599 U.S. ____ (2023) (slip op., 28).

11 “Any plausible list of the privileges or immunities of

citizenship must include economic-liberty rights—the exercise of

10

12

Keeping Pandora’s Box Sealed: Privileges or

Immunities, The Constitution in 2020, and Properly

Extending The Right to Keep and Bear Arms To The

States, 8 Geo. J.L. & Pub. Pol’y 1, 61 (2010) (quoting

Akhil Reed Amar, America’s Constitution: A

Biography 389–90 (2006) (quoting Rep. John

Bingham)). “[M]embers of the Thirty-ninth Congress

regularly linked the Bill of Rights with the classic

common-law rights of individuals exemplified in

Blackstone, Corfield, and the Civil Rights Act of

1866.”12 Akhil Reed Amar, The Bill of Rights and the

Fourteenth Amendment, 101 Yale L.J. 1193, 1269

(1992). And as Justice Thomas has observed:

The colonists’ repeated assertions that

they maintained the rights, privileges

and immunities of persons “born within

the realm of England” and “natural born”

persons suggests that, at the time of the

founding, the terms “privileges” and

“immunities” (and their counterparts)

were understood to refer to those

fundamental rights and liberties

specifically enjoyed by English citizens,

and more broadly, by all persons. . . .

which may, of course, be reasonably regulated.” Randy E.

Barnett & Evan D. Bernick, The Original Meaning of the

Fourteenth Amendment 354 (2021).

12 Cf. Akhil R. Amar, Foreword: The Document and the Doctrine,

114 Harv. L. Rev. 26, 124 (2000) (“[T]he Fourteenth Amendment

incorporates more than the Bill of Rights. Magna Carta, the

English Petition of Right, the Declaration of Independence, state

bills of rights—all these, too, were proper sources of guidance for

interpreters in search of fundamental rights and freedoms.”).

13

Justice Bushrod Washington’s landmark

opinion in Corfield v. Coryell reflects

this historical understanding.

Saenz v. Roe, 526 U.S. 489, 524 (1999) (Thomas, J.,

dissenting) (citation omitted).

Justice Bushrod Washington explained in Corfield

that Article IV’s Privileges and Immunities Clause

protects, among other things, “the right to acquire and

possess property of every kind . . . . The right of a

citizen of one state to pass through, or to reside in any

other state, for purposes of trade, agriculture,

professional pursuits, or otherwise . . . [and] to take,

hold and dispose of property, either real or

personal[.]”13 6 F. Cas. at 551–52. The Reconstruction

understanding of “privileges or immunities” tracks

that of the Founders, as set forth in Corfield. See

Slaughter-House, 83 U.S. (16 Wall.) at 96 (Field, J.,

dissenting) (“The amendment does not attempt to

confer any new privileges or immunities upon citizens,

or to enumerate or define those already existing.”).

“Justice Washington’s opinion [in Corfield] served as

an authoritative explication of the meaning of

privileges or immunities[.]” Blackman & Shapiro, 8

Geo. J.L. & Pub. Pol’y at 9. It “indisputably influenced

the Members of Congress who enacted the Fourteenth

Amendment.” Saenz, 526 U.S. at 526 (Thomas, J.,

13 This Court has observed “the right to pursue a common calling

. . . has long been seen as one of the privileges of citizenship”

protected under Article IV. McBurney v. Young, 569 U.S. 221,

229 (2013) (citing Corfield, 6 F. Cas. at 552). That “Clause

protects the right of citizens to ply their trade, practice their

occupation, or pursue a common calling.” Id. at 227 (cleaned up).

14

dissenting) (citing John Harrison, Reconstructing the

Privileges or Immunities Clause, 101 Yale L. J. 1385,

1418 (1992)). Justice Field’s dissent in the SlaughterHouse Cases—which were decided in 1872 only four

years after the Fourteenth Amendment was ratified—

likewise reflects the influence of Corfield on the

Reconstruction era understanding of the fundamental

liberties recognized as privileges and immunities.

As Justice Field explained: “The terms, privileges

and immunities, are not new in the amendment; they

were in the Constitution before the amendment was

adopted. They are found in” Article IV’s Privileges and

Immunities Clause. Slaughter-House, 83 U.S. (16

Wall.) at 97 (Field, J., dissenting). Accordingly,

Justice Field looked to Justice Washington’s opinion

in Corfield, describing it as “a sound construction of

the clause in question.” Id. (Field, J., dissenting).

Drawing from Justice Washington’s exposition of

privileges and immunities in Corfield, Justice Field

wrote: “The privileges and immunities designated are

those which of right belong to the citizens of all free

governments[, including] . . . the right to pursue a

lawful employment in a lawful manner, without other

restraint than such as equally affects all persons.” Id.

(Field, J., dissenting).

Justice Bradley elaborated on this point: “[T]he

right of any citizen to follow whatever lawful

employment he chooses to adopt (submitting himself

to all lawful regulations) is one of his most valuable

rights, and one which the legislature of a State cannot

invade, whether restrained by its own constitution or

not.” Id. at 113–14 (Bradley, J., dissenting). Justice

Bradley continued:

15

For the preservation, exercise, and

enjoyment of these rights the individual

citizen, as a necessity, must be left free

to adopt such calling, profession, or trade

as may seem to him most conducive to

that end. Without this right he cannot be

a freeman. This right to choose one’s

calling is an essential part of that liberty

which it is the object of government to

protect; and a calling, when chosen, is a

man’s property and right. Liberty and

property are not protected where these

rights are arbitrarily assailed.

Id. at 116 (dissenting).

In sum, as Justice Field’s and Justice Bradley’s

opinions in the Slaughter-House Cases recognize, the

Fourteenth Amendment’s Privileges or Immunities

Clause,

as

originally

understood,

protects

fundamental deeply rooted unenumerated negative

rights, including the right to pursue a common

occupation free from arbitrary regulation. That is, the

Clause confirms that the privileges and immunities

protected against federal infringement, as described

by Corfield, are also protected against state

invasion.14 See United States v. Vaello-Madero, 142 S.

14 The Fourteenth Amendment’s Privileges or Immunities Clause

also confirmed that all individual rights enumerated in the Bill

of Rights apply against the States. See McDonald, 561 U.S. at

805–58 (Thomas, J., concurring in part and concurring in

judgment); Timbs v. Indiana, 139 S. Ct. 682, 691 (2019)

(Gorsuch, J., concurring); Adamson v. California, 332 U.S. 46,

71–72 (1947) (Black, J., dissenting).

16

Ct. 1539, 1550 n.3 (2022) (Thomas, J., concurring)

(“[T]he Privileges or Immunities Clause may have

confirmed that States specifically could not abridge

the rights of national citizenship[.]”).

III.

This Court Should Squarely Overrule the

Slaughter-House Cases.

A. The

Slaughter-House

Demonstrably Erroneous.

Cases

Are

Unfortunately, Justice Field’s and Justice

Bradley’s well-reasoned opinions did not carry the

day. Instead, the Slaughter-House majority rejected

the view that the Clause “was intended as a protection

to the citizen of a State against the legislative power

of his own State[.]” 83 U.S. (16 Wall.) at 74. In so

doing, “the Court all but read the Privileges or

Immunities Clause out of the Constitution[.]”15 Saenz,

526 U.S. at 521 (Thomas, J., dissenting); see Harrison,

101 Yale L. J. at 1387, 1414. “The SlaughterHouse Cases sapped the Clause of any meaning.”

Saenz, 526 U.S. at 527 (Thomas, J., dissenting); see

Amar, 114 Harv. L. Rev. at 123 n.327 (noting

Slaughter-House Cases “(on the most straightforward

and conventional reading) basically read the clause—

“Slaughter-House involved special-interest favoritism

masquerading as a public-health measure, a law granting a

private corporation an exclusive benefit at the expense of

hundreds of local butchers.” Patel, 469 S.W.3d at 98 n.40 (Willett,

J., concurring). “There, this Court upheld a Louisiana statute

granting a monopoly on livestock butchering in and around the

city of New Orleans to a newly incorporated company.”

McDonald, 561 U.S. at 851 (Thomas, J., concurring in part,

concurring in judgment) (citing Slaughter-House, 83 U.S. 36).

15

17

the central clause of Section

[Fourteenth] Amendment.”).

1!—out

of

the

The Slaughter-House Cases were wrongly decided.

As Professor Amar has explained: “Virtually no

serious modern scholar . . . thinks this a plausible

reading of the Amendment.” Amar, 114 Harv. L. Rev.

at 123 n.327; see, e.g., Barnett & Bernick, supra, 206;

Richard A. Epstein, Further Thoughts on the

Privileges or Immunities Clause of the Fourteenth

Amendment, 1 N.Y.U. J.L. & Liberty 1096, 1098

(2005) (“In the eyes of virtually all historians, there is

little doubt that Slaughter-House is wrong”). See

generally Pet. 26 n.9 (surveying scholarship). As

Justice Thomas put it, “[l]egal scholars agree on little

beyond the conclusion that the Clause does not mean

what the Court said it meant in 1873.” Saenz, 526 U.S.

at 522 n.1 (dissenting). In short, this precedent is

demonstrably erroneous and should therefore be

overruled.

B. Enforcing the Privileges or Immunities

Clause’s Original Public Meaning Will Not

Open Pandora’s Box.

Overruling the Slaughter-House Cases would not

threaten federalism or open the floodgates to judicial

activism.16 As Justice Thomas has explained: “The

mere fact that the Clause does not expressly list the

rights it protects does not render it incapable of

As Justice Thomas has suggested, “[b]efore invoking the

Clause, . . . [this Court] should endeavor to understand what the

framers of the Fourteenth Amendment thought that it meant.”

Saenz, 526 U.S. at 528 (Thomas, J., dissenting).

16

18

principled judicial application. The Constitution

contains many provisions that require an examination

of more than just constitutional text to determine

whether a particular act is within Congress’ power or

is otherwise prohibited.” McDonald, 561 U.S. at 854

(2010) (concurring in part, concurring in judgment).

For example, it would strain credulity to assert that

the Framers of the Fourteenth Amendment intended

the Privileges or Immunities Clause to confer positive

entitlements. See Blackman & Shapiro, 8 Geo. J.L. &

Pub. Pol’y at 7 (“No, the Constitution cannot be

properly read to protect positive rights. Pandora’s box

will thus remain sealed.”).

Nor does enforcing the Privileges or Immunities

Clause threaten our system of federalism. As Justice

Thomas has suggested: “The better view, in light of

the States and Federal Government’s shared history

of recognizing certain inalienable rights in their

citizens, is that the privileges and immunities of state

and federal citizenship overlap. This is not to say that

the privileges and immunities of state and federal

citizenship are the same.” McDonald, 561 U.S. at 853

(concurring in part, concurring in judgment). Justice

Swayne’s dissent in Slaughter-House put it thus: “The

citizen of a State has the same fundamental rights as

a citizen of the United States, and also certain others,

local in their character, arising from his relation to the

State, and in addition, those which belong to the

citizen of the United States, he being in that relation

also.” 83 U.S. (16 Wall.) at 126.

In other words, not all rights protected under state

law qualify as privileges or immunities protected

under the Fourteenth Amendment. See Mills v.

Rogers, 457 U.S. 291, 300 (1982); Am. Legion v. Am.

19

Humanist Ass’n, 139 S. Ct. 2067, 2094 (2019)

(Kavanaugh, J., concurring) (“[T]he Constitution sets

a floor for the protection of individual rights. The

constitutional floor is sturdy and often high, but it is

a floor.”). See generally Jeffrey S. Sutton, 51 Imperfect

Solutions: States and the Making of American

Constitutional Law (2018). Instead, the Privileges or

Immunities Clause safeguards liberty by protecting

against state oppression. And the negative liberties it

does protect were all well-established beyond

peradventure when it was ratified. After all, the

Constitution’s “meaning is fixed according to the

understandings of those who ratified it.” Bruen, 142

S. Ct. at 2132.

Viewed through this lens, the Privileges or

Immunities Clause protects “those fundamental

rights and liberties which are, objectively, deeply

rooted in this Nation’s history and tradition, and

implicit in the concept of ordered liberty, such that

neither liberty nor justice would exist if they were

sacrificed.” 17 Washington v. Glucksberg, 521 U.S. 702,

720–21 (1997) (cleaned up); see Blackman & Shapiro,

8 Geo. J.L. & Pub. Pol’y at 30. In other words, “such a

right would need to be rooted in the Nation’s history

and tradition.” Dobbs, 142 S. Ct. at 2248 n.22 (citing

Corfield, 6 F. Cas. at 551–52). This properly cabins the

Privileges or Immunities Clause’s scope to its original

public meaning, guarding against novel expansion or

17 This formulation of the relevant inquiry “appears to arrive at

a result similar to that urged by the dissenters from the Supreme

Court’s opinion in Slaughter-House.” Nordyke v. King, 563 F.3d

439, 446 n.5 (9th Cir. 2009) (O’Scannlain, J.), vacated and

remanded, 611 F.3d 1015 (9th Cir. 2010) (en banc).

20

judicial creativity. See Blackman & Shapiro, 8 Geo.

J.L. & Pub. Pol’y at 86. Cf. Hettinga v. United States,

677 F.3d 471, 481 (D.C. Cir. 2012) (Brown, J.,

concurring); Patel, 469 S.W.3d at 95 (Willett, J.,

concurring) (“[T]here is a fateful difference between

active judges who defend rights and activist judges

who concoct rights.”).

The right to earn a living in a lawful profession

free from arbitrary regulation easily meets this test.

Indeed, this “Court has repeatedly declared that the

right to pursue a lawful calling ‘free from

unreasonable

governmental

interference’

is

guaranteed under the federal Constitution, and is

‘objectively, deeply rooted in this Nation’s history and

tradition.’” Patel, 469 S.W.3d at 93 (Willett, J.,

concurring) (quoting Greene v. McElroy, 360 U.S. 474,

492 (1959); Glucksberg, 521 U.S. at 703).

IV.

This Court Also Should Abandon Carolene

Products Footnote Four.

At a minimum, this Court should grant certiorari

on the first question presented. As Petitioners

explain, “accepting the Fifth Circuit’s argument under

due process would eviscerate rational basis scrutiny

altogether.”18 Pet. 15. And if allowed to stand, the

decision below would transform the rebuttable

presumption, under this Court’s jurisprudence, that

18 Cf. Tiwari v. Friedlander, 26 F.4th 355, 368–69 (6th Cir. 2022)

(Sutton, C.J.) (acknowledging criticisms of rational-basis test),

cert. denied, 143 S. Ct. 444 (2022); Hettinga, 677 F.3d at 480

(Brown, J., concurring) (similar); Patel, 469 S.W.3d at 98–99

(Willett, J., concurring) (similar).

21

economic legislation is constitutional into a rubberstamp, rendering rational-basis review a nullity; “a

rule of law which makes legislative action

invulnerable to constitutional assault.” 19 Borden’s

Farm Prod. Co. v. Baldwin, 293 U.S. 194, 209 (1934).

Cf. Amy Coney Barrett, Countering the Majoritarian

Difficulty, 32 Const. Comment. 61, 71 (2017) (“A

rational basis test ought not mean that courts are

obliged to accept explanations that beggar all belief.”).

More broadly, this case provides an ideal vehicle

for this Court to revisit this Court’s footnote four in

Carolene Products, 304 U.S. at 152 n.4, which

relegated our fundamental, unalienable, economic

liberties to second-class status. As Justice Thomas

has explained: “[O]ur Constitution renounces the

notion that some constitutional rights are more equal

than others. . . . A law either infringes a constitutional

right, or not; there is no room for the judiciary to

invent tolerable degrees of encroachment.” Whole

Woman’s Health v. Hellerstedt, 579 U.S. 582, 643

(2016) (dissenting). But Carolene Products footnote

four did just that, purporting to create a false

dichotomy between economic and other negative

liberty rights. This inconsistent treatment has no

basis in the Constitution’s original public meaning.

And this case provides an opportunity for this Court

to “create consistency across individual rights” by

repudiating this wayward footnote and restoring the

19 Under this Court’s precedent, any presumption that legislation

is constitutional “is a presumption of fact, of the existence of

factual conditions supporting the legislation. As such, it is a

rebuttable presumption.” Borden’s Farm Prods., 293 U.S. at 209;

see Carolene Prods., 304 U.S. at 152.

22

Constitution’s original public meaning. See Tiwari, 26

F.4th at 369. Cf. Buffington v. McDonough, 143 S. Ct.

14, 17–22 (2022) (Gorsuch, J., dissenting from the

denial of certiorari).

There is no principled reason why fundamental

economic liberties deeply rooted in our history and

tradition should receive less constitutional protection

than other fundamental rights. And this Court should

make plain that all fundamental rights—whether

economic or not—are entitled to the same high level of

protection against government infringement.

CONCLUSION

This Court should grant the Petition.

Respectfully submitted,

Michael Pepson

Counsel of Record

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

July 13, 2023