State of Affairs

With Government, The Slope Is, In Fact, Slippery

With Government, The Slope Is, In Fact, Slippery

The Masterpiece Cakeshop case forces us to ask just how far we want anti-discrimination laws to go.

It started with ferries.

Lord Chief Justice Hale considered the question of ferry regulation in De Portibus Maris in 1670. Even if a man owns the land and docks on both sides of a river, and owns a ferry that can be used to take people and cargo between them, he does not have the right to operate a public conveyance without the king’s permission. The king, Lord Hale insisted, has

a right of franchise or privilege, that no man may set up a common ferry for all passengers, without a prescription time out of mind, or a charter from the king. He may make a ferry for his own use or the use of his family, but not for the common use of all the king’s subjects passing that way; because it doth in consequence tend to a common charge, and is become a thing of public interest and use, and every man for his passage pays a toll, which is a common charge, and every ferry ought to be under a public regulation, viz., that it give attendance at due times, keep a boat in due order, and take but reasonable toll; for if he fail in these he is finable. So if one owns the soil and landing-places on both banks of a stream, he cannot use them for the purposes of a public ferry, except upon such terms and conditions as the body politic may from time to time impose; and this because the common good requires that all public ways shall be under the control of the public authorities. This privilege or prerogative of the king, who in this connection only represents and gives another name to the body politic, is not primarily for his profit, but for the protection of the people and the promotion of the general welfare.

The legal abstraction here is not too far removed from the physical facts of the case: The would-be ferryman may own his boat, and he may own docks on both sides of the river, but he does not own the river itself, which is part of the commons and therefore to be regulated in the common interest, which is what is meant by “general welfare.” Where private property intersects with the public sphere, Lord Hale concluded, “it ceases to be juris privati only,” because it is “affected with a public interest.”

The Problem with “Public Interest”

This line of thinking has long been upheld as the common-law basis for regulation of private property and private enterprise in general. Lord Hale’s argument about ferries was over time expanded upon and applied to enterprises that did not rely directly on the king’s waterways or other public property but were instead merely involved in commerce that touched these indirectly: wharves and warehouses, for example, and, in the United States, grain silos, the regulation of which was challenged, unsuccessfully, in the Supreme Court case Munn v. Illinois, in which the Court’s opinion cited and relied heavily upon Lord Hale and his royal ferry licensure.

Somewhere along the way, the principle that business transacted on and by means of public property may be regulated for the public good was abstracted beyond recognition, and instead of asking who may use the rivers for commercial purposes and on what terms, the law instead assumed that the movement and storage of goods could be regulated at any point on the theory that they probably crossed a river or were carried down the king’s highway at some time.

There was no limitation to this: However many degrees of separation there might have been between a certain subsequent transaction and the king’s interest in maintaining the waterways for public use, the king’s interest was never diminished. Lord Hale didn’t have it quite right: Goods weren’t “affected” with a public interest — they were infected by it, and the infection was and is incurable. Hence the existence of natural commons such as rivers and other navigable waterways, along with such contributions to the general welfare as public roads and waterfront improvements, became a general license for regulation. This is the origin of Senator Warren’s “You didn’t build that!” school of rhetoric.

“Interstate Commerce” Is the New “Public Interest”

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