Erwin Chemerinsky on why he thinks the Supreme Court’s McBurney decision is wrong

As you will recall, in late April, the Supreme Court decided McBurney v. Young,
holding unanimously that neither the Privileges and
Clause of Article IV nor the dormant
Commerce Clause of the United States Constitution prevents a state from limiting the
right of access to the state's public records to its own citizens. (For early commentary on the decision, go here.)

Now, law professor and dean Erwin Chemerinksy has weighed in with this ABA Journal piece, saying that the unaminous Court was unanimously wrong. A few excerpts:

[T]he court upheld the ability of a state to give its own citizens a right
to government records while denying this to out-of-staters. This is
troubling on many levels. First, it is a very cramped reading of the
Privileges and Immunities Clause. In the past, the Supreme Court has
stressed that this provision has the broad goal of keeping a state doing
exactly what is involved in this case: creating a right for its
residents that it denies to those from other states. … It makes no sense to limit the Privileges and Immunities Clause to those
rights that are protected by the Constitution. … If Virginia had a
law that made it a crime for non-Virginia residents to criticize the
governor of Virginia, that would violate the Privileges and Immunities
Clause, but it would be invalidated as infringing the First Amendment.
The Privileges and Immunities Clause is important in exactly the
situation of McBurney, where a state creates a right for its own citizens but denies that right to out-of-staters. Second, the court significantly underestimates the importance of
allowing all to have access to a state's records. The fact that freedom
of information laws are only several decades old–Virginia's was adopted
in 1968–is not dispositive, or even relevant, to assessing their
importance. Freedom of information laws provide a key way for people to
learn of a government's activities. All affected by a government entity
should be able to have access to its information. … Finally, the court offers no justification for allowing a state to
discriminate against those from other states in this way. Because the
court said that the Privileges and Immunities Clause and the dormant
commerce clause did not apply it went no further to assess whether there
is any reason for this discrimination. … The Supreme Court is correct, of course, that no state is required to
have a freedom of information act. But every state does. And the
constitutional principles preventing states from discriminating against
out-of-staters are clear and broad enough that the court should have
held that a state may not discriminate in an area that is so important
to government accountability and the free flow of information.

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