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 Immunities 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.