Constitutional Law I

Privileges & ImmunitiesMarch 29, 2006

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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 full faith & credit clause and the extradition clauseArticle IV in general deals with sister-state relations

Note a similar clause in 14th AmendmentPrivileges or Immunities clause deals with rights of national citizenship

Obviously intended to add a set of rights beyond Art. IV

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OriginsDerived from Articles of Confederation Purpose of Clause response 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

NB: state “citizen” and “resident” are synonymous

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EffectAnti-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”Corfield v. Coryell (1823) (Washington, Cir. Justice)

Inability to draw any distinction would nullify state identity States can discriminate WRT non-fund. rights

contrast commercial and recreational fishing licensesdistribution of state’s largesse (e.g., subsidies)

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Fundamental RightsSo what rights are “fundamental” for P&I? Constitutional rights

Right to travel, access to civil institutions, courts

Economic rightsemployment, trade, commerce

Rights can be fundamental under some con-stitutional clauses, but not P&I; and vice versa E.g., Equal Protection right to vote

Non-citizens have no right (under P&I) to political participation

E.g., government employment

P&I clause overlaps with DCC

How does the Court know?

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UBCTC v. Camden (1984)Residency discrimination in city employment Compare White v. Mass. Council Discriminated classes

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 legislature), but out-of-staters can’t

But won’t NJ residents living outside of Camden, act as a “virtual voice” for non-residents

Rehnquist: State could enact series of municipal-based discriminatory laws

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Market Participant Exemption?UBCTC v. Camden (1984) DCC is an implied limitation on state power

MPD is a judicially-created exception to a judicially-created constitutional restriction

Since DCC is based in federalism in 1st placeIt is offset by another federalism-based concern

interference with state proprietary functions P&I is an express limitation on state power

Court has less leeway to create exceptionsNot a federalism concern, but one of “unity”

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UBCTC v. Camden (1984)Substantial reason for different treatment? Expenditure of state fundsSubstantial 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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P & I Clause Test1.Is there discrimination (against

individuals) on the basis of their state identity?

2.Does the discrimination involve a “privilege or immunity” (“fundamental right”)?

3.Is there a substantial reason for discriminating?

Does degree of discrimination bear close relation to those reasons?

Are non-citizens a peculiar source of the evil at which the statute is aimed?

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S.Ct. of Virginia v. Friedman (1988)Admission to bar for VA residents on motion Why sue the Supreme Court?Is there discrimination against out-staters?Is practicing law a P&I “fundamental right”?Is there a subst’l reason for discriminating? Is degree of discrimination (compare Piper v NH) sufficiently close to State’s proffered reasons? Does state allegiance obviate need to pass an exam? Can state achieve goals by less discriminatory means?

What “evil” is state concerned about?Are non-residents a peculiar source of that evil?

Although these

appear as separate questions, they are

really only 2 ways to ask same thing

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S.Ct. of Virginia v. Friedman (1988)Rehnquist dissent: Does he simply agree with the policy of the VA law? Is that good enough?

Isn’t he right that VA could abandon the resident preference instead of extending it to non-residents?How does that help out-staters?If this is the possible consequence of all anti-discrimination claims, then how can a court remedy plaintiff’s injury?

Perhaps, no standing?

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Reach of the P&I ClauseBarnard v. Thorstenn (1989) The Virgin Islands is a possession, not a state; why is P&I applicable? Puerto Rico, etc?See Art. IV, § 3 ¶ 2: “The Congress shall have power to

dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States”

District of ColumbiaSee Art. I, § 8 ¶ 16: “Congress shall have power … To

exer-cise exclusive legislation in all cases whatsoever, over such district … as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the US”

While P&I doesn’tapply to fed gov’t, because of home rule, DC/posssessions are treated as states

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