Gales v. Anderson, 13 Ill. 413 (1851), is an interesting Illinois case that—in an echo of the Charles River Bridge case two decades earlier—found that a law establishing a ferry across the Mississippi would not be presumed to forbid the state from allowing other, competing ferries to start up. The people who held the permit to run the first ferry complained about the fact that after they had been running it for a while, the county granted a permit to another business to operate a new ferry nearby—thus interfering with their business. But, they insisted, they weren’t arguing in favor of a monopoly in the ferry business—heavens, no! They pointed out that their permit actually required them to run more frequent ferries if demand so warranted. Therefore, there was no danger of a monopoly, because they could be trusted to operate more ferries if need be. This proved that there was no necessity for a new company to compete against them, and that the government should not have granted the second ferry a permit.
This is precisely the same argument made today by existing taxi monopolists who oppose the introduction of Uber and other ride-sharing companies. They argue that their government licenses entitle them to be free from such competition—but that this isn’t a monopoly because the licenses require them to operate more taxis if sufficient consumer demand is proven. We can trust them, in other words, to operate without free competition because, after all, the government has ordered them to serve any increase in demand.
In the Gales case, the Illinois Supreme Court rejected this argument, for reasons that apply equally well a century and a half later:
If [government officials have] a right to grant a ferry license in such a way as to prevent [them] from establishing other ferries, which, in their judgments, or in the judgments of their successors, the public good might require, they might impose an intolerable burden upon the community for all time to come. It is no answer to say, that the law enjoins upon the grantees of the franchise to put on as many boats...as the public convenience may require.... If the commissioners have the right to grant to one man, or one company, the entire monopoly of ferrying to and from a particular city, they may grant to one an exclusive right to do all the ferrying in the county; and such a monopoly would not only shock the sense of propriety of every reflecting mind, but would be in palpable violation of the spirit and intent of the law. We all know...that, where there is an extensive line of travel, the public accommodation is not sufficiently subserved by placing in the hands of one man, or one company, an exclusive right to do all the ferrying, although they may be required by law to provide sufficient boats to do the business. The terrors of a legal prosecution are not sufficient to procure that prompt, eager and zealous desire to accommodate the public which are secured by the stimulating influence of rivalry.
In fact, the court noted, the first ferry company had already started improving its customer service in response to competition from the new company:
The evidence in this case shows that the ferry-men upon the complainants’ boat were much less accommodating, and that the public was much less efficiently served, before [their competitors’] boat was put on, than has been the case since. Formerly, it was a very common, if not a universal, practice, on the complainants’ boat, to refuse to carry over a single passenger or team; but they would wait till others should arrive before they would make the trip; and it was not unfrequent [sic] for them to delay for hours, for no other cause. We are also told by the witnesses, that the public convenience has been materially promoted by the establishment of a new ferry, in securing the passage of the river at times when the old ferry could not or did not run. During one winter, the horse ferry-boat run from fifty to sixty days, when the steam ferry-boat refused to cross at all, but was laid up; and yet, if it had not been demonstrated by the actual running of the defendants' boat, it might have been very difficult to establish in a court of justice that, during that time, the complainants' boat might have been run with safety. These considerations...show the wisdom of the law in withholding from the county commissioners’ court the power to grant a license which will prevent them afterwards from establishing such other ferries as the public good may require.
The Constitution was the crowning labor of the authors of the Declaration of Independence. It was established to perpetuate, in the form of an organic law, those rights which the Declaration had promulgated, and which the sword of Washington had secured—“We hold these truths to be self evident--that all men are created equal, that they are endowed with certain inalienable rights,—that among these are life, liberty, and the pursuit of happiness.” Such are the emphatic words which our country took upon its lips, when it first claimed its place among the nations of the earth. These were its baptismal vows. And the preamble of the Constitution renews them, when it declares its objects to be, among other things, “to establish justice, to promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." Mark; it is not to establish injustice--not to promote the welfare of a class, or of a few slaveholders, but the general welfare; not to foster the curse of slavery, but to secure the blessings of liberty. And the declared opinions of the fathers were all in harmony with these instruments.... It is apparent that our Constitution was formed by lovers of Human Freedom.
In this week's Pacific Legal Foundation podcast, I talk with PLF attorney Harold Johnson about the principles of the Declaration of Independence, and how those principles relate to three recent court victories for freedom.
My friend Trevor Burrus does a superb job calmly explaining the Obergefell decision to some ranting loon.
My favorite bit is when the loon says that the Tenth Amendment "came before" the Fourteenth Amendment. As if that somehow makes it more important than the Fourteenth. (Hint: later amendments trump earlier ones.)
What is the right at issue in the same-sex marriage case? Justice Kennedy explains that it’s not just a right of two people to form a relationship: it’s the right to state recognition and respect of that relationship. Marriage, he writes, “supports a two-person union”—it’s not the union itself, but a state certification of that union that provides “recognition, stability, and predictability,” as well as a removal of “stigma” that might apply to unrecognized marriages. More, the law provides a “constellation of benefits” on the condition of marriage: “[states] have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority…” etc.
The past several days have brought some Supreme Court rulings that are uncongenial to many conservatives and libertarians: in King, the Court ruled that subsidies under Obamacare are available in federal as well as state exchanges; in Obergefell, the Court ruled that the Fourteenth Amendment does not permit states to ban same-sex marriages; today it ruled that the Arizona election districting rules are constitutional even though those rules were established by a ballot initiative and not by “the legislature,” as the Constitution provides. The reaction to some of these rulings among some has been little short of hysteria. One writer claims that Chief Justice Roberts has “overthrown” the Constitution. Reason says the Supreme Court “fucked us” (though they try to be cleverer about it). A twitter user says that the Supreme Court is now more lawless than the Stuart monarchs…and so forth.
The outcome is right, but once again, Justice Kennedy’s efforts to produce something lasting and profound is a failure, and results in an opinion easy to ridicule, and lacking the logical infrastructure necessary to support the conclusion. That lends undeserved credence to the wrongheaded dissenting opinions, and particularly Justice Thomas’s, which is the best of them, but leaves the most important questions totally unaddressed. In short, all the opinions are sloppy or beside the point, and while the result is good, these flaws in the reasoning bode ill for the future.
The problem comes at the confluence of the Due Process of Law and Equal Protection Clauses. Due Process of Law forbids the government from taking away your life, liberty, or property for arbitrary reasons or in arbitrary ways. So, for example, the government can’t take away your stuff or throw you in jail on a “because I say so” basis. Equal Protection, on the other hand, says the government cannot discriminate against you—it can’t treat you differently from other people, without some good reason. The two things do, indeed, tend to overlap: for you to be discriminated against for no good reason (Equal Protection) is a kind of arbitrary treatment (Due Process of Law). But they are not always the same thing. The government can take certain things away from you without violating Due Process of Law, because you had no right to those things; yet that same deprivation might violate Equal Protection because it is taking those things away on a discriminatory basis.
This is my personal blog. The opinions expressed here are my own, and in no way represent those of the staff, management, or clients of the Pacific Legal Foundation, the Cato Institute, or the McGeorge School of Law.