Constitutional Law I Privileges & Immunities Nov. 22, 2004

Fall, 2004con Law I - Manheim2 Privileges & Immunities Clause U.S. Const. art. IV, § 2, cl. 1 "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Note the placement of the clause  between the full faith & credit clause and the extradition clause  Article IV in general deals with sister-state relations Note a similar clause in 14 th Amendment  Privileges or Immunities clause deals with those rights of national citizenship

Fall, 2004con Law I - Manheim3 Origins Derived from Articles of ConfederationArticles of Confederation Purpose of Clause reseponse to trade wars under Articles to forge a single nation from quasi-autono- mous states (Toomer v. Witsell 1948 )  to maintain a Union rather than a mere 'league of States,'  to create a “more perfect Union” to give residents of each state the privileges of trade & commerce in other states

Fall, 2004con Law I - Manheim4 Effect Anti-discrimination principle Can’t discriminate on basis of state citizenship  only state-identity discrimination is covered e.g., residency requirements  only natural persons (citizens) are protected unlike DCC, which protects persons AND businesses Only applies to certain “fundamental rights”  e.g., rights of trade & commerce (incl. employment) States can discriminate WRT non-fund. rights  recreation contrast commercial and recreational fishing licenses  distribution of state’s largesse (e.g., subsidies)

Fall, 2004con Law I - Manheim5 Fundamental Rights So what rights are “fundamental” for P&I? Constitutional rights  Right to travel, access to civil institutions, courts Economic rights  employment, trade, commerce  It is here where P&I clause overlaps with DCC Fundamental for other constitutional purposes but not for P&I clause E.g., right to vote  Non-citizens have no right (under P&I) to political participation

Fall, 2004con Law I - Manheim6 Reasons for Discriminating Toomer v. Witsell (1948) Commerical shrimping within 3-mile limit of S.Car. limited to state residents Discrimination on basis of state identity? Respecting a “fundamental right”? Perfectly valid reasons? 1.Is there substantial reason for discriminating? 2.Does degree of discrimination bear close relation to those reasons? 3.Are non-citizens a peculiar source of the evil at which the statute is aimed?

Fall, 2004con Law I - Manheim7 Discrimination by Cities UBCTC v. Camden (1984) Employment discrimination based on residency  municipal laws are subject to P&I scrutiny (as well as all other const’l provisions) Discriminated class  NJ residents living outside of Camden they have no claim under P&I clause  Non-NJ residents their P&I claim is not diluted or defeated by fact that City discriminates against some in-state residents too in-staters can resort to political process (state legis)

Fall, 2004con Law I - Manheim8 Market Participant Exemption? UBCTC v. Camden (1984) DCC is implied limitation on state power  MPD is a judicially-created exception to judicially-created limit  Since DCC is based in federalism in 1st place  It is offset by another federalism-based concern interference with state proprietary functions P&I is express limitation on state power  Court has less leeway to create exceptions  Not a federalism concern, but “unity”

Fall, 2004con Law I - Manheim9 UBCTC v. Camden (1984) Substantial reason for different treatment? Expenditure of state funds Substantial relationship between the discrimination and the state's objective discriminates only to extent of spending state $  does not require discrimination by private employers Do non-residents pose a peculiar evil? they live “off” although not “in” Camden  i.e., take but do not give (especially WRT urban flight) Remand for fact-finding Factors underlying MPD may be relevant

Fall, 2004con Law I - Manheim10