Amicus Curiae Brief — Tenn. Wine & Spirits Retailers Ass'n v. Byrd, 139 S. Ct. 52 (2018) (No. 18-96)

No. 18-96

3n the

Supreme Court of the United States

TENNESSEE WINE AND SPIRITS RETAILERS ASSOCIATION,

Petitioner,

Vv.

ZACKARY W. BLAIR, £7'AL.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICI CURIAE LAW PROFESSORS

IN SUPPORT OF RESPONDENT AFFLUERE

INVESTMENTS, INC.

JEREMY M. BYLUND

Counsel of Record

MARISA C. K

GABRIEL KRIMM*

KING & SPALDING LLP

1700 Pennsylvania Ave., NW

Washi DC 20006

m law.com

(202) 737-0500

*Admitted only in Tennessee.

Practice supervised by principals

of the Firm.

Counsel for Amici Curiae

December 20, 2018

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ....................cccccceccceeeees ii

INTEREST OF AMICI CURIAE........0...........0000000 1

SUMMARY OF ARGUMENT .....00.... ees 3

IE trseinteiietncnrscmstenssesnenemsemnnmssnnenennanesnennccene 5

|. The Fourteenth Amendment’s Privileges

Or Immunities Clause Protects The

Fundamental Rights Of United States

Eee 5

ll. The Fundamental Rights of United

States Citizenship Include All Rights Of

Contract And Property Guaranteed To

Citizens Under State Law............................. 14

Ill. Tennessee Law Violates The Privileges

Or Immunities Clause By Denying New

Residents Contract And Property Rights

Afforded To Other State Citizens. ................ 18

SUEY snensncicterscrnnsenscsansncncnssnecneuseenemesencesne 23

‘i

TABLE OF AUTHORITIES

CASES

Byrd v. Tenn. Wine & Retailers Ass'n,

883 F.3d 608 (6th Cir. 2018) ........................00 3

Corfield v. Coryell,

6 F. Cas. 546 (C.C.E.D. Pa. 1825).............. passim

District of Columbia v. Heller,

I saa as enirianinmenentndemtion 14

Dred Scott v. Sanford,

60 U.S. (19 How.) 393 (1857) ...................ccccccceeee 6

Esquivel-Quintana v. Sessions,

yk nn 7

Lucia v. SEC,

ee 4,5

McDonald v. City of Chicago,

8 EE passim

Moore v. Illinois,

55 U.S. (14 How.) 13 (1852) ................0ccccsenes ——

Planned Parenthood of Southeastern Pa. v. Casey,

A a ee 22

Ross v. Crow,

ee CE cvccnetensenenensemnnntetigneneeatie 18

Saenz v. Roe,

CD encccpcisnenecescvasuenreeesmanenst passim

Slaughter-House Cases,

83 U.S. (16 Wall.) 36 (1872) ...................c ons 21

see

Whole Women’s Health v. Hellerstadt,

ERR ee 20

STATUTES

Civil Rights Act of 1866, ch. 31, 14 Stat. 27.......... =

Tenn. Cede Ann. § 57-3-204 20... 3, 18, 19

CONSTITUTIONAL PROVISIONS

ES ee ae ee 20

U.S. Const. art. I, § 10.............. a)

SF, eee eee 5, 20

EE DS Ee eee ee eT 4

ES a RTS 13

U.S. Const. amend. XIV, § 1........................0.. 6, 7, 22

Ee 21

Te ee 21

LEGISLATIVE MATERIAL

Cong. Globe, 39th Cong., Ist Sess. (1866) ........ passim

The Declaration of Independence (U.S. 1776)............ x

Report of the Joint Committee on

I 16

OTHER AUTHORITIES

Akhil Reed Amar,

Substance and Method in the Year 2000,

CO 8

iv

Akhil Reed Amar,

The Bill of Rights (1998) ..................0....... 8, 10, 11

Richard L. Aynes,

Ink Blot Or Not: The Meaning of Privileges

and/or Immunities,

11 U. Pa. J. Const. L. 1295 (2009) ................... 8,9

Jack M. Balkin & Sanford Levinson,

Thirteen Ways of Looking at Dred Scott,

82 Chi.-Kent L. Rev. 49 (2007)....................... 6, 10

James E. Bond,

No Easy Walk to Freedom (1997)............... passim

Robert J. Cottrol,

Reconstruction Amendment Historiography:

et eee

23 Rutgers L.J. 249 (1992) .............-.0000--cce 6, 16

Robert J. Cottrol & Raymond T. Diamond,

The Second Amendment: Toward an

Afro-Americanist Reconsideration,

a cuncneenninen 15

Michael Kent 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) ........................... 7,11

Michael Kent Curtis,

Michael Kent Curtis,

Resurrecting the Privileges or Immunities Clause

and Revising the Slaughter-House Cases Without

Exhuming Lochner: Individual Rights and the

Fourteenth Amendment,

38 B.C. L. Rev. 1 (1996) ........0.00.0.ccccccceceeeeee 15, 16

James W. Ely, Jr.,

Buchanan and the Right to Acquire Property,

48 Cumb. L. Rev. 423 (2018) ..00000000 0 eee 11

Richard A. Epstein,

Further Thoughts on the Privileges or Immunities

Clause of the Fourteenth Amendment,

1 N.Y.U. J. L. & Liberty 1096 (2005)............... 22

Richard A. Epstein,

Of Citizens and Persons: Reconstructing

the Privileges or Immunities Clause of the

Fourteenth Amendment,

1 N.Y.U. J. L. & Liberty 334 (2005)................... 22

Eric Foner, Reconstruction

EEE ee 14, 15, 16

Christopher R. Green,

The Original Sense of tne (Equal) Protection

Clause: Pre-Enactment History,

19 Geo. Mason U. Civ. Rts. L.J. 1 (2008)..... 16, 17

Christopher R. Green,

The Original Sense of the (Equal) Protection

Clause: Subsequent Interpretation and

toplicati

19 Geo. Mason U. Civ. Rights L.J. 219 (2009)... 17

Richard White,

The Republic for Which It Stands

SE aA gat Reece Brine A 5, 14, 15, 16

Rebecca E. Zietlow,

The Rights of Citizenship: Two Framers,

Two Amendments,

11 U. Pa. J. Const. L. 1269 (2009) ................. 7,17

]

INTEREST OF AMICI CURIAE*

Amici curiae are law professors and experts in the

field of constitutional law. Each has published works

commenting on the Fourteenth Amendment and the

Privileges or Immunities Clause specifically.

Amici submit this brief to elucidate the original

public meaning of the Fourteenth Amendment's

Privileges or Immunities Clause. Read in light of that

meaning, the Clause prohibits states from

circumscribing the property and contract rights of

United States citizens based on duration of state

residency. Amici urge this Court to apply the

Privileges or Immunities Clause according to its

original meaning and invalidate the Tennessee

residency requirements at issue in this case.

The signatories to the brief are as follows:

Professor Emeritus Richard L. Aynes, The

University of Akron School of Law.

Professor James W. Ely, dJr., Vanderbilt

University Law School.

Professor Richard A. Epstein, New York

University School of Law.

Professor Christopher R. Green, The

University of Mississippi School of Law.

* Petitioner's and respondents’ letters giving blanket consent to

amicus briefs are on file with the Clerk of Court. No counsel for

a party authored this brief in whole or in part, and no person

other than amici or their counsel made a monetary contribution

to this briefs preparation or submission.

2

Professor Ilya Somin, Scalia Law School —

George Mason University.

Professor Rebecca E. Zietlow, The University

of Toledo College of Law.

3

SUMMARY OF ARGUMENT

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-of-

residency 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).

4

The “original public meaning” of the Privileges or

Immunities Clause should direct this Court’s judicial

decisionmaking. 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.

5

ARGUMENT

I. The Fourteenth Amendment’s Privileges Or

Immunities Clause Protects The

Fundamental Rights Of United States

Citizenship.

Provisions of the Constitution must be interpreted

by reference to their original public meaning. E.z.,

Lucia, 138 S. Ct. at 2056 (THOMAS, J., concurring).

Read according to its original public meaning, the

Privileges or Immunities Clause prohibits states from

abridging the fundamental rights of United States

citizenship.

Prior to the Civil War, citizenship was primarily

a local, rather than a national, concern. See Richard

White, The Republic for Which It Stands 59 (2017);

James E. Bond, No Easy Walk to Freedom 216 (1997).

To be sure, a person could be a “Citizen of the United

States.” See U.S. Const. art. II, § 1, cl. 5. But

antebellum Americans considered “the United States”

a plural collective, rather than a fully cohesive whole.

People “commonly said ... ‘the United States are,”

instead of the now-common “is.” White, supra, at xvii.

Consistent with this understanding, one achieved

national citizenship only through local citizenship—

that is, by birthright or naturalization in one of the

states or territories. Cf. Moore v. Illinois, 55 U.S. (14

How.) 13, 20 (1852) (“Every citizen of the United

States is also a citizen of a State or territory.”).

With the adoption of the Fourteenth Amendment,

however, the reverse became true. The Amendment’s

first sentence declared that “[ajll persons born or

naturalized in the United States ... are citizens of the

6

United States and of the State wherein they reside.”

See U.S. Const. amend. XIV, §1. This provision

“significantly altered our system of government” by

binding the states to respect all national citizens

within their borders. McDonald, 561 U.S. at 807

(THOMAS, J.).

Never had that shift been more necessary.

Though the Thirteenth Amendment had formally

abolished slavery, it had not explicitly recognized

freedpeople as members of the body politic. Another

amendment was necessary to overrule “[pjerhaps the

most fundamental holding” of Dred Scott v. Sanford,

60 U.S. (19 How.) 393 (1857), “that ‘blacks’ were not

‘African-Americans—they were persons of African

descent who lived in America, but they could never

truly be called Americans.” Jack M. Balkin & Sanford

Levinson, Thirteen Ways of Looking at Dred Scott, 82

Chi.-Kent L. Rev. 49, 55 (2007). That opinion had

“used citizenship as the central dividing line between

those who possess basic rights and those who did not.”

Id. at 56. Accordingly, the Fourteenth Amendment

“unambiguously overruled” Dred Scott and

“recognize|d|] black Americans as” citizens of the

United States. McDonald, 561 U.S. at 807-08

(THOMAS, J.).

That citizenship meant very little, however,

unless it worked as a shield against the “nearly

absolute” authority states still exercised over their

inhabitants. Robert J. Cottrol, Reconstruction

Amendment Historiography: The Quest for Racial and

Intellectual Maturity, 23 Rutgers L.J. 249, 252 (1992).

The abolition of slavery notwithstanding, the states

retained the myriad residual powers not delegated to

7

the national government, see U.S. Const. amend. X,

allowing them to control most of the critical matters of

everyday life. The Union’s victory in the war thus

required a “Second Founding” to revise antebellum

federalism. Rebecca E. Zietlow, The Rights of

Citizenship: Two Framers, Two Amendments, 11 U.

Pa. J. Const. L. 1269, 1270 (2009).

As part of that project, the Fourteenth

Amendment’s second sentence gave meaning to

national citizenship by protecting its “privileges” and

“immunities” from state abridgement. U.S. Const.

amend. XIV, § 1. Although the text does not identify

those privileges and immunities explicitly, the phrase

was never the enigma some have made it out to be.

See Michael Kent Curtis, Historical Linguistics,

Inkblots, and Life After Death: The Privileges or

Immunities of Citizens of the United States, 78 N.C. L.

Rev. 1071, 1074 (2000). By careful review of the text,

context, and history of the Privileges or Immunities

Clause, this Court can discern and apply that

meaning. All three of those guides show that, in

prohibiting state abridgment of the “privileges or

immunities” of national citizens, the Privileges or

Immunities Clause bound the states to respect certain

fundamental rights.

The Court should “begin, as always, with the

text.” Esquivel-Quintana v. Sessions, 137 S. Ct. 1562,

1568 (2017) (THOMAS, J.). Though less commonplace

now, nineteenth-century readers would have

understood the words “privileges” and “immunities” to

simply mean “rights.” See, e.g., Akhil Reed Amar, The

Bill of Rights 165-69 (1998); Curtis, Historical

Linguistics, supra, at 1094-1138; see generally

8

McDonald, 561 U.S. at 813-22 (giving a full account of

original public meaning). And “these were not simply

lawyers’ terms.” Richard L. Aynes, Ink Blot Or Not:

The Meaning of Privileges and/or Immunities, 11 U.

Pa. J. Const. L. 1295, 1298 (2009). Indeed, they were

“part of the public understanding of the era.” /d.

Thus, in the eyes of the public at the time of

enactment, the Clause quite literally guaranteed

“United States citizens a certain collection of rights ...

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

808 (THOMAS, J.).

Of course, determining what specific rights fall

into that collection requires a broader view of context

and history. “Look[ing] to history” reveals that this

practice of guaranteeing certain fundamental rights

by law was in accord with deep-rooted Anglo-

American legal tradition. Saenz, 526 U.S. at 522

(THOMAS, J.). According to that tradition, government

existed primarily—if not exclusively—to preserve

certain natural and inalienable rights. See, e.g., The

Declaration of Independence para. 2 (U.S. 1776). In

safeguarding those rights and their necessary

components legally, free governments solidified the

“privileges’ or ‘immunities’ of citizenship.” Mcdonald,

561 U.S. at 815 (THOMAS, J.); see Akhil Reed Amar,

Substance and Method in the Year 2000, 28 Pepp. L.

Rev. 601, 632 (2001); Bond, supra, at 256. A reference

to the “privileges and immunities of citizenship” thus

connoted not only basic protections of “life, liberty, and

the pursuit of happiness,” but also the “facilitators” of

such rights, including enforcement of property and

contract interests. See Bond, supra, at 255.

9

By the 1860s, Americans had long been securing

such privileges and immunities through written

constitutions—whether colonial, state, or national.

See Saenz, 526 U.S. at 522-24 & nn.2~—3 (THOMAS, J.).

Read against that textual and historical backdrop, the

Fourteenth Amendment’s reference to the “privileges”

and “immunities” of national citizenship naturally

refers to the fundamental rights secured through the

nation’s federal system of government. Those rights

include not only the protections against government

power contained in the Bill of Rights, but also the vast

reservoir of state-secured citizenship rights

guaranteed through the Constitution’s establishment

of the federal structure. See U.S. Const. art. I, § 10

(specific prohibitions on state power); id. art. IV, § 2,

cl. 1 (guaranteeing interstate comity in the “privileges

and immunities” of citizenship); id. § 4 (guaranteeing

a “Republican Form of Government” in every state).

The drafters’ decision to borrow language from

the “Comity” Clause of Article [V further supports this

view. This textual “link ... is not accidental.” Aynes,

supra, at 1299. Given the obvious similarities

between the two provisions, “it can be assumed that

the public’s understanding of the [Privileges or

Immunities Clause] was informed by its

understanding of the [Comity Clause].”. McDonald,

561 U.S. at 819 (Thomas, J.).

Importantly, the Constitution's original reference

to the “privileges and immunities” of citizens had, by

the 1860s, been “famously” interpreted to incorporate

the traditional common law view of fundamental

citizenship rights, which had always been enjoyed by

the citizens of the several states. Id. (THOMAS, J.); see

10

Saenz, 526 U.S. at 524-26 & nn.4—6; Amar, The Bill of

Rights, supra, at 176. Writing for his Circuit Court in

Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1825),

Justice Bushrod Washington had explained that

Article [TV demanded interstate comity in “those

privileges and immunities which are, in their nature,

fundamental; which belong, of right, to the citizens of

all free governments; and which have, at all times,

been enjoyed by the citizens of the several states which

compose this Union, from the time of their being free,

independent, and sovereign.” 6 F. Cas. at 551

(emphasis added). Though too “tedious” to list, those

rights included at least “the enjoyment of life and

liberty,” consistent with local law, as well as the rights

needed to “take, hold and dispose of property.” /d. at

551-52. So prevalent was the Corfield opinion that

“|w|hen Congress gathered to debate the Fourteenth

Amendment, Members frequently, if not as a matter

of course, appealed” to Justice Washington's

understanding of the privileges and immunities of

citizenship. Saenz, 526 U.S. at 526 (THOMAS, J.,

dissenting). Indeed, they argued “that the

Amendment was necessary to guarantee the

fundamental rights that Justice Washington

identified.” Id.

Importantly, the fundamental rights Justice

Washington identified were not all enumerated in the

Constitution. Though the text mentioned some of

them directly, others were protected indirectly

through guarantees of interstate comity and

intrastate republican government. Cf. Balkin &

Levinson, supra, at 57 (explaining the fundamental!

rights view of the Comity Clause shared among the

drafters of the Fourteenth Amendment). In fact,

11

“Justice Washington’s enumerations of privileges was

largely drawn from the declaration of rights in state

constitutions of the Revolutionary era.” James W. Ely,

Jr., Buchanan and the Right to Acquire Property, 48

Cumb. L. Rev. 423, 429 (2018).

The contemporaneous debates confirm that the

Clause acted as a bulwark to stop states from

trampling over these fundamental rights of the newly

freedpersons. Whether or not they indicate legislative

intent, “|s}tatements by legislators can ... demonstrate

the manner in which the public used or understood a

particular word or phrase.” McDonald, 561 U.S. at

828 (THOMAS, J.); see also Curtis, Historical

Linguistics, supra, at 1146. This is especially true

when evidence indicates “that those statements were

disseminated to the public.” McDonald, 561 U.S. at

828. With respect to the Privileges or Immunities

Clause, a broad range of public debate shows

widespread understanding that it prohibited states

from encroaching on any fundamental right of

citizenship. See Amar, The Bill of Rights, supra, at

226; cf. Curtis, Historical Linguistics, supra, at 1146.

To begin, two “particularly significant”

congressional speeches—one from Representative

John Bingham and the other from Senator Jacob

Howard—adopt this interpretation. McDonald, 561

U.S. at 829 (Thomas, J.). Bingham sponsored the

Amendment in the House of Representatives. £.g.

Michael Kent Curtis, No State Shall Abridge 57

(1986). It is telling that his first draft hewed closely

to the language of Article [V. See Cong. Globe, 39th

Cong., Ist Sess. 1089, 1091 (1866). More telling,

though, is Bingham’s description of the privileges and

12

immunities referred to in Article IV as the privileges

and immunities of citizens of the United States. See

id. at 1089, 1093, 1095. Indeed, Bingham urged his

colleagues that the Fourteenth Amendment would

perfect the Constitution by “securing to all the citizens

in every State all the privileges and immunities of

citizens” generally. Jd. at 1090. The Clause was

therefore crucial—and distinct from the Comity

Clause—because it prevented’ states from

discriminating against their own citizens in the

fundamental rights of citizenship. See id. at 1094.

Howard, who managed the final bill in the Senate,

see Curtis, No State Shall Abridge, supra, at 91,

described its ultimate wording in a similar way.

Though the Clause had by then taken on a clearer

reference to national citizenship, see Cong. Globe,

supra, at 2764, Howard affirmed Bingham’s earlier

conception of the privileges and immunities inherent

in that status. See id. at 2765; cf. Corfield, 6 F. Cas.

at 551 (interpreting the language to refer to

“fundamental” rights “which belong ... to the citizens

of all free governments’).

Moreover, in further defining that class of rights,

Howard explicitly referred to the Bill of Rights and

Justice Washington’s opinion in Corfield. See Cong.

Globe, supra, at 2764. Thus, Howard explained, “[t]he

great object of the first section of this amendment is ...

to restrain the power of the States and compel them at

all times to respect these great fundamental

guarantees.” Jd. at 2766 (emphasis added). As

pertained to Reconstruction, this provision

“protect[ed] the black man in his fundamental rights

as a citizen,” that is, “those fundamental rights lying

13

at the basis of all society.” /d. (emphasis added).

Indeed, Howard saw this as the very definition of

“republican government,” id., which the Constitution

guaranteed in every state, see U.S. Const. Art. IV, § 4.

Those outside of Congress adopted Bingham and

Howard’s views. In the Southern ratification debates

specifically, representatives for and against the

Amendment shared a common understanding that it

would protect the “natural” and “inalienable” rights of

free persons, Bond, supra, at 255, “and the civil rights

necessary to their exercise,” id. at 9. See id. at 54

(North Carolina), 136 (South Carolina), 199

(Arkansas), 224 (Texas). Indeed, “[t|he evidence is ...

overwhelming that the privileges and immunities

clause was ... understood to [reach] those civil rights

which poreene needed in order to protect and exercise

their natural rights” of life, liberty, and the pursuit of

happiness. Bond, supra, at 257. Those rights,

contemporaries believed, constituted the core

privileges and immunities of citizenship under the

free government of the United States. See id. at 255.

Thus, the text, context, history, and

contemporaneous debate all point to a singular

conclusion: The Privileges or Immunities Clause

protects the fundamental rights of United States

citizenship from state government interference.

14

Il. The Fundamental Rights of United States

Citizenship Include All Rights Of Contract

And Property Guaranteed To Citizens

Under State Law.

The same textual, contextual, and historical clues

just discussed further fix the rights of national

citizenship to include all contract and property rights

recognized under state law. Cf. District of Columbia

v. Heller, 554 U.S. 570, 592 (2008) (looking to history

to fix the parameters of the right to bear arms).

By the close of the Civil War, it had become

apparent to the nation’s leaders that true

emancipation required abolition “not in form only, but

in substance.” Cong. Globe, supra, at 91; see Eric

Foner, Reconstruction 251 (Updated ed. 2014).

Accordingly, the new constitutional right to be free

from slavery required complementary legal

protections, Foner supra, at 29; see also, e.g., Cong.

Globe, supra, at 1094 (“Restore those States with a

majority of rebels to political power, and ... the

disenfranchised colored citizens will be utterly

powerless.”), necessitating nationwide establishment

of a new economic freedom through basic civil rights.

White, supra, at 60-61. In other words, the rights of

freedpeople had to include “those rights essential for

... enter[ing] the world of contract, to compete on equal

terms as free laborers.” Foner, supra, at 244; see Cong.

Globe, supra, at 588-89; White, supra, at 66; see also

White, supra, at 57 (“As long as the Radicals

emphasized the larger Republican’ goals of

nationalism, free labor, and contract freedom, they

could exert tremendous influence.”).

15

Yet “the South was not prepared to accord ...

general liberties to the newly emancipated black

population.” Robert J. Cottrol & Raymond T.

Diamond, The Second Amendment: Toward an Afro-

Americanist Reconsideration, 80 Geo. L.J. 309, 343

(1991). Indeed, the Confederate fight against

abolition had already morphed into a new, subtler

legal effort to “maintain control over the former

slaves.” Id. at 344. Throughout the South, state

governments enacted so-called “Black Codes,” aiming

“to stabilize the black work force and limit its

economic options apart from plantation labor.” Foner,

supra, at 199. In the main, these laws limited or

outright denied newly freed slaves’ movement, as well

as their contract and property rights. Michael Kent

Curtis, Resurrecting the Privileges or Immunities

Clause and Revising the Slaughter-House Cases

Without Exhuming Lochner: Individual Rights and

the Fourteenth Amendment, 38 B.C. L. Rev. 1, 31

(1996); cf. White, supra, at 81 (“What was developing

in the South was a coercive labor system, which ...

depended on extralegal violence, coercive laws,

burdensome debt relations, and the use of convict

labor to limit alternatives.”). Contemporary observers

noted that the Black Codes at once mandated

employment, see Cong. Globe, supra, at 588-89, 1691,

1124, and imbued employers and state governments

with the powers of slave master. In addition to

punishing “vagrancy” by forced labor, the Codes

restricted or outright denied the freedpeople’s ability

to travel, id. at 516, 651, buy or rent real estate, id. at

517, 589, 1838, buy and sell goods, id. at 517, 589, or

otherwise engage in business, Bond, supra, at 3.

16

Although this was predominantly a Southern

phenomenon, it was not confined there. “[Mjany

Northern states, though they banned slavery, had

discriminated against free blacks.” Curtis,

Resurrecting, supra, at 32. Several Midwestern and

Western states had even closed their borders to blacks

entirely, fearing an impending migration. Foner,

supra at 26.

Because states retained power over local matters

of property and contract, undoing this system of de

facto slavery required broad national restrictions on

traditione! state prerogatives. See Cottrol,

Reconstruction Amendment Historiography, supra, at

252. Congress had thus proposed the Fourteenth

Amendment, at least in part, as a constitutional

enforcement of the Civil Rights Act of 1866. White,

supra, at 73; see Report of the Joint Committee on

Reconstruction 15 (1866).

Nowhere was that clearer than in the Privileges

or Immunities Clause. Indeed, “the very notion of civil

rights refers historically to the rights of citizens.”

Christopher R. Green, The Original Sense of the

(Equal) Protection Clause: Pre-Enactment History, 19

Geo. Mason U. Civ. Rts. L.J. 1, 26 (2008). Thus, “[a]

provision guaranteeing the privileges or immunities of

citizens [was] ... a ... natural way to constitutionalize

an act protecting civil rights.” Jd. At least those

debating ratification understood it as such. Bond,

supra, at 124; see id. at 57-58.

The Civil Rights Act thus provides a window into

the sort of state-based, civil rights included in the

fundamental rights of national citizenship. In fact,

Representative “Bingham believed that the Act did

17

nothing more than ... state [those] rights.” Zietlow,

supra, at 1283. Importantly, the Act did so through a

detailed list of specific protections, rather than by

general reference. After granting freedpeople national

citizenship in language similar to the Fourteenth

Amendment, the Act preserved for “such citizens ...

the same right, in every State and Territory in the

United States, to make and enforce contracts, to sue,

be parties, and give evidence, to inherit, purchase,

lease, sell, hold, and convey real and personal property,

and to full and equal benefit of all laws and

proceedings for the security of person and property.”

Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, 27

(emphasis added).

This passage thus serves to spell out the

implications of applying the Privileges or Immunities

Clause to intrastate citizenship rights. As free

governments, the states all granted their citizens the

civil rights necessary to preserve life, liberty, and

property. See Corfield, 6 F. Cas. at 552. In granting

these privileges and immunities of citizenship, the

states now had to grant them to all United States

citizens equally. See Civil Rights Act of 1866, § 1; see

generally Green, supra (explaining that the Privileges

or Immunities Clause, not the Equal Protection

Clause, was originally understood as enforcing racial

equality with regard to civil rights); Christopher R.

Green, The Original Sense of the (Equal) Protection

Clause: Subsequent Interpretation and Application, 19

Geo. Mason U. Civ. Rights L.J. 219 (2009) (same).

Thus, just as the Constitution had always prohibited

discrimination against the citizens of other states in

the privileges and immunities of citizenship, the law

now prohibited discrimination against any citizen of

18

the United States with regard to those fundamental

civil rights.

In sum, the fundamental rights of national

citizenship guaranteed by the Privileges’ or

Immunities Clause include at least the full civil rights

of property and contract protected under state law.

McDonald, 561 U.S. at 834—35 (THOMAS, J.). These

rights were indispensable to the freedpeople. Without

them, they could not leave the plantation, reunite

their families, and better their economic positions.

And though the necessity of that guarantee is

admittedly less extreme today, it still stands as an

essential benefit of United States citizenship

protected under the Fourteenth Amendment.

Ifl. Tennessee Law Violates The Privileges Or

Immunities Clause By Denying New

Residents Contract And Property Rights

Afforded To Other State Citizens.

The invalidity of the Tennessee licensing law

inescapably follows from the above.

To begin, the law is, at bottom, a circumscription

of certain basic contract and property rights. To

complete a retail sale of an “alcoholic spirituous

beverage||,” Tenn. Code Ann. § 57-3-204(a), is to

execute a contract exchanging rights in personal

property, see, e.g., Ross v. Crow, 68 Tenn. 420, 420—21

(1877). Moreover, a host of other basic contract and

property transactions feed into that ultimate sale. At

the very least, a retailer must purchase or rent real

estate and acquire and maintain inventory in order to

facilitate sales. A retailer may also need to hire

employees or independent contractors for ancillary

19

services. By requiring a retailer’s license for alcohol

sales, Tennessee has necessarily circumscribed this

entire subset of contract and property rights.

More importantly, in denying the license to

Tennesseans based on the duration of their state

residency, the law abridges their fundamental rights

as United States citizens. As explained above, the

fundamental rights of United States citizenship

include the right to enjoy local contract and property

protections in any State as do other citizens of that

State. The state law at issue here permits the sale of

alcohol through a valid retailer’s license. But an

applicant is not even eligible to be considered for a

license unless and until he establishes “bona fide

residen[cy]” in Tennessee for “the two-year period

immediately preceding” the date of application. Id. §

57-3-204(b)(2)(A) (emphasis added); see id. §§ 57-3-

204(b)(3)(A)(B), (D). To renew that same license, an

applicant must have maintained Tennessee residency

“for at least ten ... consecutive years.” Id. (emphasis

added); see id. §§ 57-3-204(b)(3)(A)B), (D).

The law’s clear and explicit terms therefore

separate citizens of the United States, as license

applicants, into two distinct classes. Some—the

preferred, established residents of Tennessee—can

apply for an initial license forthwith and renew that

license immediately upon its expiration. Others—

disfavored newcomers like the Ketchums—must wait

two years to apply for the initial license and eight

more years for a right to renew. In restricting license

eligibility based on residency duration, Tennessee law

thus denies the basic rights of mobility and free labor

20

that the Reconstruction generation fought so nobly to

secure.

Neither should that denial go uncorrected by

virtue of the subject matter at hand. “A law either

infringes a constitutional right, or not; there is nc

room for the judiciary to invent tolerable degrees of

encroachment.” Whole Women’s Health v. Hellerstadt,

136 S. Ct. 2292, 2329-30 (2016) (THOMAS, J.,

dissenting). In this case, the duration-of-residency

requirement infringes the constitutional right to enjoy

state-recognized civil rights, full stop.

This is not to say that all duration-of-residency

requirements violate the Privileges or Immunities

Clause. Again, only those laws bearing on what

nineteenth century Americans would have understood

to constitute fundamental rights of citizenship fall

within the Clause’s ambit. Notably, that order does

not include political rights—such as voting, holding

office, and sitting on juries—which occupied a separate

rung in the hierarchy of rights as understood by

nineteenth-century Americans. Bond, supra, at 255—

56. States had always discriminated among their own

citizens with respect to political rights, most notably

suffrage. And the Constitution itself denies citizens

the right to hold office on the bases of age and

residency. See U.S. Const. art. I, § 2, cl. 2; id. § 3, cl.

3.; id. art. I, § 1, cl. 5. Accordingly—and despite

warning from detractors that the Privileges or

Immunities Clause was sufficient to do so, see Bond,

supra, at 37—banning racial and_ sexual

discrimination at the ballot box required further

revision of the Constitution. See U.S. Const. amends.

XV, XIX.

21

In addition to political rights, the Clause quite

clearly does not reach entitlements such as welfare

benefits. See Saenz, 526 U.S. at 527 (THOMAS, J.). A

share in such public resources would amount to

“cotenancy in the common property of the state,”

Corfield, 6 F. Cas. at 552, and thus need not extend to

all citizens equally. But when it comes to civil rights

of contract and property, the Clause clearly mandates

nondiscrimination against United States citizens.

In sum, the law at issue denies United States

citizens basic Tennessee contract and property rights

solely because they have not lived in the state long

enough. In so doing, it necessarily violates the

Fourteenth Amendment’s Privileges or Immunities

Clause.

***

Amici acknowledge that much of the forgoing

departs from the reasoning and interpretation

underlying this Court’s Privileges or Immunities

Clause jurisprudence. In particular, the Slaughter-

House Cases, 83 U.S. (16 Wall.) 36 (1872), interpreted

the Clause to protect a more limited scope of

citizenship rights owing their existence only to

national law. See id. at 74—75.

“Legal scholars agree,” however, “that the Clause

does not mean what the [Slaughter-House| Court said

it meant.” Saenz, 526 U.S. at 522 n.1 (THOMAS, J.).

And the effect of the Slaughter-House ruling has been

to hollow-out the “stronger class of rights” the

Fourteenth Amendment guarantees to citizens over

other persons. Richard A. Epstein, Further Thoughts

on the Privileges or Immunities Clause of the

22

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

1097 (2005); see Richard A. Epstein, Of Citizens and

Persons: Reconstructing the Privileges or Immunities

Clause of the Fourteenth Amendment, 1 N.Y.U. J. L. &

Liberty 334 (2005); see also U.S. Const. amend. XIV, §

1 (protecting the “privileges or immunities” of “citizens

of the United States,” but only prohibiting

deprivations of “due process” and “equal protection of

the laws” with regard to “any person”).

Moreover, “this Court’s marginalization of the

[Privileges or Immunities] Clause” has not—indeed,

could not—change the text’s true meaning and force,

which the Court should consider more deeply now.

McDonald, 561 U.S. at 809 (THOMAS, J.). After all,

“stare decisis is only an ‘adjunct’ of” this Court’s “duty

... to decide by [its] best lights what the Constitution

means.” /d. at 812 (quoting Planned Parenthood of

Southeastern Pa. v. Casey, 505 U.S. 833, 963 (1992)

(REHNQUIST, C.J., concurring in judgment in part and

dissenting in part)). In this case, text, context, and

history supply the “guiding principle[s]” so lacking in

this Court’s ““fundamental’ rights” jurisprudence. /d.

at 811. Those same guides demand affirmance on

Privileges or Immunities grounds.

23

CONCLUSION

The judgment of the Sixth Circuit should be

affirmed on the grounds that the Tennessee law

violates the Privileges or Immunities Clause of the

Fourteenth Amendment.

Respectfully submitted,

Counsel for Amici Curiae

December 20, 2018