1. Constitutional Law I Spring 2004Con Law I Privileges & Immunities April 29, 2004

2. 2 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

3. 3 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

4. 4 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 puts premium on defining state citizenship (eg, students) Only applies to certain “fundamental rights”  e.g., rights of trade & commerce (incl. employment) States can discriminate WRT non-fund. rights  recreation compare commercial and recreational fishing licenses  distribution of state’s largesse (e.g., subsidies)

5. 5 Fundamental Rights Finding fundamental rights Corfield v. Coryell (1823)  “belong of right to citizens of all free governments”  natural rights theories of early courts rejected No normative rights Despite similarity to DCC, the P&I clause creates no fundamental rights  states do not have to permit anything, incl interstate trade, under this clause Only prohibition is - they can’t discriminate  ie, allow residents a fund. right, but deny to others

6. 6 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

7. 7 Fundamental Rights Baldwin v. Montana Fish & Game (1978) Elk hunting license: residents $4, non-res $151 “Privileges & Immunities” are those issues that bear on nation as single entity Is recreational elk hunting a basic right of national well-being?

8. 8 Reasons for Discriminating Toomer v. Witsell (1948) Shrimping during “open season” 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 discirmination bear close relation to those reasons? 3.Are non-citizens a peculiar source of the evil at which the statute is aimed?

9. 9 Reasons for Discriminating Supreme Court of NH v. Piper (1985) Only NH residents can practice law in state Is practice of law a “fundamental right”? Right to practice trade or profession Instrumental in securing rights of others Justifications Substantial reason for differential treatment?  Fidelity to court rules; ethics; availability; pro bono Substantial relation between discrim & reason  No evidence that non-residents frustrate objectives  Less-restrictive means available (e.g. local office) Peculiar source of evil  Hardly, since former residents are still allowed analysis of ends analysis of means note Rehnquist dissent

10. 10 Discrimination by Cities UBCTC v. Camden (1984) Discrimination in employment based on city 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)

11. 11 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 protects congress’ power over IC  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”

12. 12 Market Participant Exemption? 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

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