|Building Trades & Construction Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden
88 N.J. 317, 443 A.2d 148, reversed and remanded.
[ Rehnquist ]
[ Blackmun ]
Building Trades & Construction Trades Council of Camden County and Vicinity v. Mayor and Council of the City of Camden
APPEAL FROM THE SUPREME COURT OF NEW JERSEY
JUSTICE BLACKMUN, dissenting.
For over a century, the underlying meaning of the Privileges and Immunities Clause of the Constitution's Article [p224] IV [n1] has been regarded as settled: at least absent some substantial, noninvidious justification, a State may not discriminate between its own residents and residents of other States on the basis of state citizenship. [n2] See generally Hicklin v. Orbeck, 437 U.S. 518, 523-526 (1978); Toomer v. Witsell, 334 U.S. 385, 395 (1948); Hague v. CIO, 307 U.S. 496, 511 (1939) (opinion of Roberts, J.); Slaughter-House Cases, 16 Wall. 36, 77 (1873); Paul v. Virginia, 8 Wall. 168, 180 (1869). Today, however, the Court casually extends the scope of the Clause by holding that it applies to laws that discriminate among state residents on the basis of municipal residence, simply because discrimination on the basis of municipal residence disadvantages citizens of other States "ipso facto." Ante at 216-217. This novel interpretation arrives accompanied by little practical justification, and no historical or textual support whatsoever. Because I believe that the Privileges and Immunities Clause was not intended to apply to the kind of municipal discrimination presented by this case, I would affirm the judgment of the Supreme Court of New Jersey. [n3]
The historical underpinnings of the Privileges and Immunities Clause are not in serious dispute. The Clause was derived from the fourth Article of Confederation, [n4] and was [p225] designed to carry forward that provision's prescription of interstate comity. Austin v. New Hampshire, 420 U.S. 656, 660-661 (1975); United States v. Wheeler, 254 U.S. 281, 294 (1920); Slaughter-House Cases, 16 Wall. at 75. Both the text of the Clause and the historical record confirm that the Framers meant to foreclose any one State from denying citizens of other States the same "privileges and immunities" accorded its own citizens. See Austin v. New Hampshire, 420 U.S. at 660-661. James Madison complained during the Constitutional Convention of
Acts of Virga. & Maryland which give a preference to their own citizens in cases where the Citizens [of other States] are entitled to equality of privileges by the Articles of Confederation. [n5]
Alexander Hamilton, who deemed the Privileges and Immunities Clause "the basis of the Union," The Federalist No. 80, p. 502 (B. Wright ed.1961), expressly linked the Clause with the concern over state parochialism that gave rise to the federal courts' diversity jurisdiction under Article III:
[I]n order to [ensure] the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial [p226] between the different States and their citizens. . . .
While the Framers thus conceived of the Privileges and Immunities Clause as an instrument for frustrating discrimination based on state citizenship, there is no evidence of any sort that they were concerned by intrastate discrimination based on municipal residence. The most obvious reason for this is also the most simple one: by the time the Constitution was enacted, such discrimination was rarely practiced, and even more rarely successful. [n6] Even had attempts to practice the kind of economic localism at issue here been more widespread, moreover, there is little reason to believe that the Framers would have devoted their limited institutional resources to bringing such conduct within the ambit of the Privileges and Immunities Clause. Whatever the weaknesses of the new state governments in suppressing sectional conflicts that gave rise to outright physical violence, like Shays' Rebellion in 1786-1787, the States had more than adequate powers to prevent localities from disrupting the States' internal economic affairs through discriminatory ordinances and regulations. By the time the Constitution was adopted, most state legislatures had assumed the power to grant and alter municipal charters and the power to legislate with respect to municipal affairs. [n7] Even before the Revolution, the colonial legislatures had shown themselves willing and able to exercise this authority to override local protectionist ordinances. In 1746, for example, the New York Assembly dismantled a cartel of New York City lawyers by requiring the city to open its Mayor's Court to qualified lawyers from [p227] throughout the colony. [n8] As a result, the Framers had every reason to believe that intrastate discrimination based on municipal residence could and would be dealt with by the States themselves in those instances where it persisted. [n9]
In light of the historical context in which the Privileges and Immunities Clause was adopted, it hardly is surprising that none of this Court's intervening decisions has suggested that the Clause applies to discrimination on the basis of municipal residence. To the contrary, while the Court never has addressed the question directly, [n10] it repeatedly has proceeded on the assumption that the "Privileges and Immunities of Citizens" to which the Clause refers are entitlements held equally by all citizens of a State. Thus, in Paul v. Virginia, [p228] supra, the Court stated that the Clause safeguards the enjoyment of "those privileges and immunities which are common to the citizens [in a State] under their constitution and laws by virtue of their being citizens." 8 Wall. at 180. In Blake v. McClung, 172 U.S. 239 (1898), the Court condemned a Tennessee statute that granted a priority to resident creditors over nonresident creditors on the assumption that the State's rules governing debtor-creditor relations "will be applied by its courts in all appropriate cases between citizens of that State, without making any distinction between them." Id. at 254 (emphasis in original). In Travellers' Insurance Co. v. Connecticut, 185 U.S. 364 (1902), the Court rejected a Privileges and Immunities Clause challenge to a Connecticut statute that taxed nonresident stockholders at a nominally higher rate than resident stockholders, on the ground that the direct differential was roughly offset by municipal taxes paid only by residents. The Court recognized that the burden borne by nonresidents might exceed that borne by residents in a particular year, but pointed out that "a like inequality will exist between residents of different localities in the State by reason of the different rates of taxation in those localities"; the disparate burden was permissible under these circumstances because
[y]ou cannot put one resident against one nonresident stockholder and, by a comparison of their different burdens, determine the validity of the legislation any more than you can place a stockholder resident in one municipality over against a stockholder resident in another municipality and, by comparison of their different burdens, determine the validity of the tax law in respect to resident stockholders.
Id. at 369 (emphasis added). In each case, the underlying assumption has been that the constitutionality vel non of a particular statute under the Privileges and Immunities Clause turns on whether the statute deprives nonresidents of benefits enjoyed in common by state residents by virtue of their residence simpliciter. Indeed, I had understood the Court to have reaffirmed this principle only two Terms ago in Zobel v. Williams, 457 U.S. [p229] 56 (1982). In Zobel, the Court held that an Alaska statute which allocated state treasury refunds to state residents on the basis of the length of their residence violated the Equal Protection Clause. The Court declined, however, to hold that the statute violated the Privileges and Immunities Clause. It observed that the statute "does not simply make distinctions between native-born Alaskans and those who migrate to Alaska from other states;" instead, it "also discriminates among long-time residents and even native-born residents." 457 U.S. at 59, n. 5. As a result:
The statute does not involve the kind of discrimination which the Privileges and Immunities Clause of Art. IV was designed to prevent. That Clause "was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy." Toomer v. Witsell, 334 U.S. 385, 395 (1948). The Clause is thus not applicable to this case.
Id. at 60, n. 5.
I am somewhat at a loss to understand how the Court's decision today can be reconciled with its reasoning in Zobel. [n11] The Alaska statute at issue in Zobel fell outside the scope of [p230] the Privileges and Immunities Clause for the elementary reason that it did not discriminate between state residents and nonresidents on the basis of state residence; rather, it discriminated among state residents in a way that disadvantaged nonresidents as well, but did not thereby implicate the underlying concerns of the Privileges and Immunities Clause. The Camden ordinance presently before the Court occupies precisely the same position.
The Court's decision clashes with other Privileges and Immunities Clause precedents as well. The Court recognizes, as it must, that the Privileges and Immunities Clause does not afford state residents any protection against their own State's laws. See, e.g., Bradwell v. Illinois, 16 Wall. 130, 138 (1873); Slaughter-House Cases, 16 Wall. at 77. When this settled rule is combined with the Court's newly fashioned rule concerning municipal discrimination, however, it has the perverse effect of vesting non-New Jersey residents with constitutional privileges that are not enjoyed by most New Jersey residents themselves. This result is directly contrary to the Court's longstanding position that the Privileges and Immunities Clause does not give nonresidents "higher and greater privileges than are enjoyed by the citizens of the state itself." Bank of Augusta v. Earle, 13 Pet. 519, 586 (1839); accord, Shaffer v. Carter, 252 U.S. 37, 53 (1920); Detroit v. Osborne, 135 U.S. 492, 498 (1890). When judicial alchemy transmutes gold into lead in this fashion, it is time for the Court to reexamine its reasoning.
Finally, the Court fails to attend to the functional considerations that underlie the Privileges and Immunities Clause. The Clause has been a necessary limitation on state autonomy not simply because of the self-interest of individual States, but because state parochialism is likely to go unchecked by state political processes when those who are disadvantaged are, by definition, disenfranchised as well. The Clause remedies this breakdown in the representative process by requiring state residents to bear the same burdens that they choose to place on nonresidents;
by constitutionally [p231] tying the fate of outsiders to the fate of those possessing political power, the framers insured that their interests would be well looked after.
J. Ely, Democracy and Distrust 83 (1980). As a practical matter, therefore, the scope of the Clause may be measured by asking whether failure to link the interests of those who are disadvantaged with the interests of those who are preferred will consign the former group to "the uncertain remedies afforded by diplomatic processes and official retaliation." Toomer v. Witsell, 334 U.S. at 39; see Austin v. New Hampshire, 420 U.S. at 662.
Contrary to the Court's tacit assumption, discrimination on the basis of municipal residence is substantially different in this regard from discrimination on the basis of state citizenship. The distinction is simple but fundamental: discrimination on the basis of municipal residence penalizes persons within the State's political community as well as those without. The Court itself points out that, while New Jersey citizens who reside outside Camden are not protected by the Privileges and Immunities Clause, they may resort to the State's political processes to protect themselves. Ante at 217. What the Court fails to appreciate is that this avenue of relief for New Jersey residents works to protect residents of other States as well; disadvantaged state residents who turn to the state legislature to displace ordinances like Camden's further the interests of nonresidents as well as their own. [n12] [p232] Nor is this mechanism for relief merely a theoretical one; in the past decade, several States, including California and Georgia, have repealed or forbidden protectionist ordinances like the one at issue here. [n13] In short, discrimination on the basis of municipal residence simply does not consign residents of other States, in the words of Toomer, supra, to "the uncertain remedies afforded by diplomatic processes and official retaliation." The Court thus has applied the Privileges and Immunities Clause without regard for the political ills that it was designed to cure. [n14] [p233]
It still might be possible to redeem the Court's decision if it were compelled by the language of the Privileges and Immunities Clause. The Court itself, however, concedes that its interpretation of the Clause does not attach readily to a constitutional provision phrased solely in terms of state citizenship. Ante at 216. The Court seeks to defend its excursion beyond the frontiers of the constitutional language on the ground that it never has read the Privileges and Immunities Clause literally to apply only to classifications based on state citizenship. Ibid. The examples it cites, however, are hardly compelling support. Mullaney v. Anderson, 342 U.S. 415 (1952), held not that the Privileges and Immunities Clause applies ex proprio vigore to discrimination by a territorial legislature based on territorial residence, but rather that Congress had made the Privileges and Immunities Clause applicable to the Territory of Alaska by statute. See 342 U.S. at 419-420. [n15] See also Haavik v. Alaska Packers [p234] Assn., 263 U.S. 510, 515 (1924). Even if Mullaney v. Anderson set forth the proposition for which it is cited, moreover, the practical similarity between discrimination based on territorial residence and discrimination based on state residence has no parallel here. Similarly, while the Court unquestionably has come to treat the terms "citizen" and "resident" in this area as "essentially interchangeable," Austin v. New Hampshire, 420 U.S. at 662, n. 8, it has done so not out of a general disregard for the Constitution's language, but rather because the practical relationship between residence and citizenship is close enough that discrimination on the basis of the one criterion effectively amounts to discrimination based on the other. Cf. Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 79 (1920); Currie & Schreter, Unconstitutional Discrimination in the Conflict of Laws: Privileges and Immunities, 69 Yale L.J. 1323, 1344 (1960). These decisions are not, therefore, license for the Court to set aside the language of the Privileges and Immunities Clause as an inconvenient obstacle to a preferred result. Whenever this Court has departed from the literal language of the Clause in the past, it has remained faithful to the underlying purposes of the Clause. For the reasons already set forth, I believe that the Court's decision today does not satisfy that requirement.
Needless to say, my view of the constitutional question in this case does not depend on my personal opinion about the desirability of the course on which Camden has embarked. I do not find "beggar thy neighbor" economic policies any more [p235] attractive when practiced by municipalities than when practiced by States or nations. The unedifying sight of localities fighting for parochial gain at one another's expense gives new urgency to Benjamin Franklin's reputed warning that "we must . . . all hang together, or most assuredly we shall all hang separately." R. Clark, Benjamin Franklin 286 (1983). At the risk of restating the obvious, however, the issue before us is not the desirability of the ordinance, but its constitutionality -- more particularly, its constitutionality under the Privileges and Immunities Clause. [n16] Because I believe that the Clause does not apply to discrimination based on municipal residence, I dissent.
1. "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." U.S.Const., Art. IV, § 2, Cl. 1.
2. As the Court points out, it has come to treat the terms "citizen" and "resident" interchangeably for purposes of Privileges and Immunities Clause analysis. Ante at 216. For the sake of simplicity, I shall do the same, except where the context requires a distinction to be drawn.
3. I agree with the Court that the Camden ordinance is not insulated from scrutiny under the Privileges and Immunities Clause merely because it is a municipal ordinance, rather than a state statute. Ante at 214-215. See Woodruff v. Parham, 8 Wall. 123, 140 (1869) (dictum). I also agree that appellant's equal protection challenge to the ordinance's durational requirement has been mooted by the deletion of that provision in 1983. Ante at 213. See Hall v. Beals, 396 U.S. 45, 48 (1969).
The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively. . . .
Articles of Confederation, Art. 4, 1 Stat. 4.
5. 1 M. Farrand, Records of the Federal Convention of 1787, p. 317 (1911) (footnote omitted).
6. See, e.g., E. Griffith, History of American City Government: The Colonial Period 132-143 (1972 ed.). The common trend in colonial cities in the two generations before the Revolution was for preexisting restrictions on trade and craft work by "outsiders" to lapse into desuetude under the pressures of increasing population mobility. See id. at 135, 141-143.
7. See McBain, The Legal Status of the American Colonial City, 40 Pol.Sci.Q. 177, 192-200 (1925).
8. Griffith, supra, at 143, 341.
9. The idea that the Framers intended the Privileges and Immunities Clause to reach discrimination based on municipal residence appears even more implausible if one assumes that the Framers literally meant to confine the Clause's protections to "Privileges and Immunities of Citizens." If the purpose of the Clause were simply to relieve citizens of other States "from the disabilities of alienage" and guarantee them "the advantages resulting from citizenship," Paul v. Virginia, 8 Wall. 168, 180 (1869), the Clause necessarily would not be implicated by an ordinance like Camden's; the benefits created by such an ordinance are not an incident of state citizenship, even for residents of the municipality itself.
10. The Court had a remarkably similar New Orleans ordinance before it in Chadwick v. Kelley, 187 U.S. 540 (1903), but declined to reach the Privileges and Immunities Clause question because the party challenging the ordinance was himself a resident of New Orleans. Id. at 546. See also Gallup v. Schmidt, 183 U.S. 300 (1902); Downham v. Alexandria Council, 10 Wall. 173 (1870). Few decisions by state and federal courts have considered the question. See, e.g., Ward Baking Co. v. Fernandina, 29 F.2d 789 (SD Fla.1928); Mount Pleasant v. Clutch, 6 Iowa 546 (1858); In re Jarvis, 66 Kan. 329, 71 P. 576 (1903); Fecheimer Bros. & Co. v. Louisville, 84 Ky. 306, 2 S.W. 65 (1886); State ex rel. Greenwood v. Nolan, 108 Minn. 170, 122 N.W. 255 (1909); Rothermel v. Meyerle, 136 Pa. 250, 20 A. 583 (1890). Academic commentary on the question is limited. See R. Howell, The Privileges and Immunities of State Citizenship 45-47 (1918); Eule, Laying the Dormant Commerce Clause to Rest, 91 Yale L.J. 425, 449, n. 128 (1982); Meyers, The Privileges and Immunities of Citizens in the Several States, pt. 2, 1 Mich.L.Rev. 364, 383 (1903).
11. JUSTICE O'CONNOR, who concurred in the judgment in Zobel, wrote separately to express the contrary view that the Privileges and Immunities Clause applied to the Alaska statute even though the statute arguably "discriminates among classes of residents, rather than between residents and nonresidents." 457 U.S. at 75. The Court's apparent reliance on JUSTICE O'CONNOR's concurrence, see ante at 217-218, and its failure to note the position of the Court in Zobel are one measure of the inconsistency between today's decision and Zobel. Even JUSTICE O'CONNOR's reasoning, however, does not support the result the Court reaches today. For JUSTICE O'CONNOR, the critical effect of the Alaska statute was that
[e]ach group of citizens who migrated to Alaska in the past, or chooses to move there in the future, lives in the State on less favorable terms than those who arrived earlier;
a nonresident who moved to Alaska "labors under a continuous disability" because of his prior residence in another State. 457 U.S. at 75. Here, in contrast, the Camden ordinance imposes no "continuous disability" on anyone who takes up residence in the city.
12. The Court suggests that reliance on the state political process is misplaced because the Camden ordinance itself "was adopted pursuant to a comprehensive statewide program applicable in all New Jersey cities," and has received "state sanction and approval." Ante at 217, n. 9. The Court misrepresents the nature of both the statewide program and the "sanction and approval" given the Camden ordinance. The ordinance was enacted pursuant to a state statute designed solely to further equal opportunity and affirmative action in New Jersey public works contracting; the New Jersey Supreme Court itself accepted appellees' argument that the state statute "does not contemplate any residency requirement." 88 N.J. 317, 328, 443 A.2d 148, 153 (1982). In turn, the ordinance was approved by a state agency whose sole mandate was to ensure that the ordinance was not inconsistent with the minimum affirmative action requirements of the state statute. Id. at 329, 443 A.2d at 154. The municipal residency requirement thus has neither been embraced by the state legislature nor approved by any state agency with the authority to reject the ordinance on the basis of the residency requirement alone. Under these circumstances, the Court's observation reduces to the pedestrian point that the Camden ordinance has been adopted by the city, and has yet to be displaced by the state legislature. That fact says nothing at all about the likelihood that the ordinance will be repealed in the future, of course, particularly should it develop on remand that interested parties like appellant ultimately must seek political rather than judicial vindication.
13. See Eisinger, Municipal Residency Requirements and the Local Economy, 64 Soc.Sci.Q. 85, 87 (1983); Note, The Constitutionality of Residency Requirements for Municipal Employees, 24 Emory L.J. 446, 448, n. 7 (1975); Note, Municipal Employee Residency Requirements and Equal Protection, 84 Yale L.J. 1684, n. 3 (1975).
14. Rather than respond directly to these considerations, the Court finds it easier to take issue with what it characterizes as "the dissent's proposed blanket exemption" from the Privileges and Immunities Clause "for all classifications that are less than statewide." Ante at 465 U.S. 217"]217, n. 9. The Court's refusal to accept such an exemption is understandable; what is curious is why the Court attributes the exemption to this dissent. As I indicate below, I am no less prepared than the Court has been in the past to apply the Privileges and Immunities Clause when the classification at issue is practically equivalent to those explicitly identified by the Clause. If the Alaska Legislature were to try to rehabilitate the "Alaska Hire" statute invalidated in 217, n. 9. The Court's refusal to accept such an exemption is understandable; what is curious is why the Court attributes the exemption to this dissent. As I indicate below, I am no less prepared than the Court has been in the past to apply the Privileges and Immunities Clause when the classification at issue is practically equivalent to those explicitly identified by the Clause. If the Alaska Legislature were to try to rehabilitate the "Alaska Hire" statute invalidated in Hicklin v. Oreck, 437 U.S. 518 (1978), by excluding "the residents of one remote county" from the hiring preference, ante at 220, n. 10, for example, the classification would come within the ambit of the Clause because it would bear the same sort of practical relationship to a classification based on state citizenship as do classifications based on state residence. The Court fails to explain why a classification that benefits all state residents other than the residents of a single locality stands in the same position, in terms of the practical considerations underlying the Clause, as a classification that benefits only the residents of one locality.
The Court raises the alternative prospect that a State might evade the Privileges and Immunities Clause by dividing itself in half and granting the residents in each half of the State employment preferences over residents in the other half of the State. Ante at 217-218, n. 9. The Clause exists to protect against those classifications that a State's political process cannot be relied on to prevent, however, not those that it can, and there is no reason to believe that state residents will be willing to forgo access to employment in one half of a State merely to obtain privileged access to jobs in the other half. The fact that no State has attempted anything resembling the Court's proposed maneuver in the two centuries since the adoption of the Clause, despite the fact that none of this Court's precedents has foreclosed the option, strongly suggests that state political processes can be trusted to prevent this kind of Balkanization. The Court cannot justify deforming the Constitution's response to real problems by invoking imaginary and unrealistic ones.
Section 3 [of the Organic Act of Alaska] provides
The Constitution of the United States . . . shall have the same force and effect within the said Territory as elsewhere in the United States.
37 Stat. 512, 48 U.S.C. § 23. And § 9 extends the legislative power of the Territory to "all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States,. . . ." 37 Stat. 512, 514, 48 U.S.C. § 77. In the light of these sections, we cannot presume that Congress authorized the Territorial Legislature to treat citizens of States the way States cannot treat citizens of sister States. . . . [T]he Territorial Legislature, particularly in the regulation of fisheries, was granted no greater power over citizens of other States than a State legislature has.
342 U.S. at 420.
16. I argued without success last Term that, absent congressional authorization, ordinances like Camden's violate the dormant Commerce Clause. White v. Massachusetts Council of Construction Employers, Inc., 460 U.S. 204, 215 (1983) (opinion concurring in part and dissenting in part). Although the Privileges and Immunities Clause and the Commerce Clause embody closely related principles of interstate relations, I agree with the Court that, in certain circumstances, the two Clauses "set different standards for state conduct." Ante at 220. This is one such circumstance; the Commerce Clause entails a substantive policy of unimpeded interstate commerce that is impermissibly undermined by local protectionism even when intrastate commerce is penalized as well. See Dean Milk Co. v. Madison, 340 U.S. 349, 354, and n. 4 (1951).