5. Fundamental Rights. So what rights are 'fundamental' fo

1

• Privileges Immunities
• March 29, 2006

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 full
  faith credit clause and the extradition clause
• Article IV in general deals with sister-state
  relations
• Note a similar clause in 14th Amendment
• Privileges or Immunities clause deals with rights
  of national citizenship
• Obviously intended to add a set of rights beyond
  Art. IV

3
Origins

• Derived 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

4
Effect

• Anti-discrimination principle
• Cant 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
  licenses
• distribution of states largesse (e.g., subsidies)

5
Fundamental Rights

• So what rights are fundamental for PI?
• Constitutional rights
• Right to travel, access to civil institutions,
  courts
• Economic rights
• employment, trade, commerce
• Rights can be fundamental under some
  con-stitutional clauses, but not PI and vice
  versa
• E.g., Equal Protection right to vote
• Non-citizens have no right (under PI)
  to political participation
• E.g., government employment

PI clause overlaps with DCC
How does the Court know?
6
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 PI clause
• Non-NJ residents
• their PI 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 cant
• But wont NJ residents living outside of Camden,
  act as a virtual voice for non-residents
• Rehnquist State could enact series of
  municipal-based discriminatory laws

7
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 place
• It is offset by another federalism-based concern
• interference with state proprietary functions
• PI is an express limitation on state power
• Court has less leeway to create exceptions
• Not a federalism concern, but one of unity

8
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

9
P I Clause Test

• Is there discrimination (against individuals) on
  the basis of their state identity?
• Does the discrimination involve a privilege or
  immunity (fundamental right)?
• 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?

10
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 PI fundamental right?
• Is there a substl reason for discriminating?
• Is degree of discrimination (compare Piper v NH)
  sufficiently close to States 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
11
S.Ct. of Virginia v. Friedman (1988)

• Rehnquist dissent
• Does he simply agree with the policy of the VA
  law? Is that good enough?
• Isnt 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 plaintiffs injury?
• Perhaps, no standing?

12
Reach of the PI Clause

• Barnard v. Thorstenn (1989)
• The Virgin Islands is a possession, not a state
  why is PI 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 Columbia
• See 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 PI doesntapply to fed govt, because of
  home rule, DC/posssessions are treated as states

13
(No Transcript)