All Privileges and Immunities of Citizens in the Several States

The classical judicial exposition of the meaning of this phrase is that of Justice Washington in Corfield v. Coryell,184 which was decided by him on circuit in 1823. The question at issue was the validity of a New Jersey statute that prohibited “any person who is not, at the time, an actual inhabitant and resident in this State” from raking or gathering “clams, oysters or shells” in any of the waters of the state, on board any vessel “not wholly owned by some person, inhabitant of and actually residing in this State. . . . The inquiry is,” wrote Justice Washington, “what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union . . . .”185 He specified the following rights as answering this description: “Protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government must justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefits of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State . . . .”186

After thus defining broadly the private and personal rights which were protected, Justice Washington went on to distinguish them from the right to a share in the public patrimony of the state. “[W]e cannot accede” the opinion proceeds, “to the proposition . . . that, under this provision of the Constitution, the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any particular State, merely upon the ground that they are enjoyed by those citizens; much less, that in regulating the use of the common property of the citizens of such State, the legislature is bound to extend to the citizens of all other States the same advantages as are secured to their own citizens.”187 The right of a state to the fisheries within its borders he then held to be in the nature of a property right, held by the state “for the use of the citizens thereof;” the state was under no obligation to grant “co-tenancy in the common property of the State, to the citizens of all the other States.”188 The precise holding of this case was confirmed in McCready v. Virginia;189 the logic of Geer v. Connecticut190 extended the same rule to wild game, and Hudson Water Co. v. McCarter191 applied it to the running water of a state. In Toomer v. Witsell,192 however, the Court refused to apply this rule to free-swimming fish caught in the three-mile belt off the coast of South Carolina. It held instead that “commercial shrimping in the marginal sea, like other common callings, is within the purview of the privileges and immunities clause” and that a severely discriminatory license fee exacted from nonresidents was unconstitutional.193

The virtual demise of the state ownership theory of animals and natural resources194 compelled the Court to review and revise its mode of analysis of state restrictions that distinguished between residents and nonresidents195 in respect to hunting and fishing and working with natural resources. A two-pronged test emerged. First, the Court held, it must be determined whether an activity in which a nonresident wishes to engage is within the protection of the clause. Such an activity must be “fundamental,” must, that is, be essential or basic, “interference with which would frustrate the purposes of the formation of the Union, . . . ” Justice Washington’s opinion on Circuit in Coryell afforded the Court the standard; while recognizing that the opinion relied on notions of natural rights, the Court thought he used the term “fundamental” in the modern sense as well. Such activities as the pursuit of common callings within the state, the ownership and disposition of privately held property within the state, and the access to the courts of the state, had been recognized in previous cases as fundamental and protected against unreasonable burdening; but sport and recreational hunting, the issue in the particular case, was not a fundamental activity. It had nothing to do with one’s livelihood and implicated no other interest recognized as fundamental.196 Subsequent cases have recognized that the right to practice law197 and the right to seek employment on public contracts198 are to be considered fundamental activity. Contrariwise, accessing public records through a state freedom of information act was held not to be a fundamental activity, and a state may limit such access to its own citizens.199

Second, finding a fundamental interest protected under the clause, in the particular case the right to pursue an occupation or common calling, the Court used a two-pronged analysis to determine whether the state’s distinction between residents and nonresidents was justified. Thus, the state was compelled to show that nonresidents constituted a peculiar source of the evil at which the statute was aimed and that the discrimination bore a substantial relationship to the particular “evil” they are said to represent, e.g., that it is “closely tailored” to meet the actual problem. An Alaska statute giving residents preference over nonresidents in hiring for work on the oil and gas pipelines within the state failed both elements of the test.200 No state justification for exclusion of new residents from the practice of law on grounds not applied to long-term residents has been approved by the Court.201

Universal practice has also established a political exception to the clause to which the Court has given its approval. “A State may, by rule uniform in its operation as to citizens of the several States, require residence within its limits for a given time before a citizen of another State who becomes a resident thereof shall exercise the right of suffrage or become eligible to office.”202

Footnotes

184
6 Fed. Cas. 546 (No. 3,230) (C.C.E.D. Pa., 1823). [Back to text]
185
6 Fed. Cas. at 551–52. [Back to text]
186
6 Fed. Cas. at 552. [Back to text]
187
6 Fed. Cas. at 552. [Back to text]
188
6 Fed. Cas. at 552. [Back to text]
189
94 U.S. 391 (1877). [Back to text]
190
161 U.S. 519 (1896). [Back to text]
191
209 U.S. 349 (1908). [Back to text]
192
334 U.S. 385 (1948). [Back to text]
193
334 U.S. at 403. In Mullaney v. Anderson, 342 U.S. 415 (1952), an Alaska statute providing for the licensing of commercial fishermen in territorial waters and levying a license fee of $50.00 on nonresident and only $5.00 on resident fishermen was held void under Art. IV, § 2 on the authority of Toomer v. Witsell. [Back to text]
194
The cases arose in the Commerce Clause context. See Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284 (1977) (dictum). Geer v. Connecticut, 161 U.S. 519 (1896), was overruled in Hughes v. Oklahoma, 441 U.S. 322 (1979); Hudson Water Co. v. McCarter, 209 U.S. 349 (1908), was overruled in Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982). [Back to text]
195
Although the clause specifically refers to “citizens,” the Court treats the terms “citizens” and “residents” as “essentially interchangeable.” Austin v. New Hampshire, 420 U.S. 656, 662 n.8 (1975); Hicklin v. Orbeck, 437 U.S. 518, 524 n.8 (1978). [Back to text]
196
Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371, 387 (1978). [Back to text]
197
Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). [Back to text]
198
United Building & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208 (1984). [Back to text]
199
McBurney v. Young, 569 U.S. ___, No. 12–17, slip op. at 4 (2013). The Court further found that any incidental burden on a nonresident’s ability to earn a living, own property, or exercise another “fundamental” activity could largely be ameliorated by using other available authorities. The Court emphasized that the primary purpose of the state freedom of information act was to provide state citizens with a means to obtain an accounting of their public officials. [Back to text]
200
Hicklin v. Orbeck, 437 U.S. 518 (1978). Activity relating to pursuit of an occupation or common calling the Court recognized had long been held to be protected by the clause. The burden of showing constitutional justification was clearly placed on the state, id. at 526–28, rather than giving the statute the ordinary presumption of constitutionality. See Mullaney v. Anderson, 342 U.S. 415, 418 (1952). [Back to text]
201
Barnard v. Thorstenn, 489 U.S. 546 (1989); Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988); Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). For the application of this test, see Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287, 296–99 (1998). [Back to text]
202
Blake v. McClung, 172 U.S. 239, 256 (1898). Of course as to suffrage, see Dunn v. Blumstein, 405 U.S. 330 (1972), but not as to candidacy, the principle is now qualified under the Equal Protection Clause of the Fourteenth Amendment. Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371, 383 (1978) (citing Kanapaux v. Ellisor, 419 U.S. 891 (1974); Chimento v. Stark, 353 F. Supp. 1211 (D.N.H.), aff’d, 414 U.S. 802 (1973)). [Back to text]