The classical judicial exposition of the meaning of this phrase is that of Justice Washington in Corfield v. Coryell,178 which was decided by him on circuit in 1823. The question at issue was the validity of a New Jersey statute which 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, . . .”179 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; ....”180
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.”181 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.”182 The precise holding of this case was confirmed in McCready v. Virginia;183 the logic of Geer v. Connecticut184 extended the same rule to wild game, and Hudson Water Co. v. McCarter185 applied it to the running water of a State. In Toomer v. Witsell,186 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.187
178 6 Fed. Cas. 546 (No. 3,230) (C.C.E.D. Pa., 1823).
179 Id. at 551-552.
180 Id. at 552.
181 Id.
182 Id.
183 94 U.S. 391 (1877).
184 161 U.S. 519 (1896).
185 209 U.S. 349 (1908).
186 334 U.S. 385 (1948).
187 Id. 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.
The virtual demise, however, of the state ownership theory of animals and natural resources188 compelled the Court to review and revise its mode of analysis of state restrictions that distinguished between residents and nonresidents189 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.190 Subsequent cases have recognized that the right to practice law191 and the right to seek employment on public contracts192 are to be considered fundamental activity.
188 The cases arose in the commerce clause context. See Douglas v. Seacoast Products, 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 County Water Co. v. McCarter, 209 U.S. 349 (1908), was overruled in Sporhase v. Nebraska, ex rel. Douglas, 458 U.S. 941 (1982).
189 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).
Second, finding a fundamental interest protected under the clause, in the particular case the right to pursue an occupation or common calling, the Court employed a two-pronged analysis to determine whether the State’s distinction between residents and non-residents 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.193 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.194
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.”195
190 Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371 (1978). The quotation is id. at 387.
191 Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985).
192 United Building & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208 (1984).
193 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 526-528, rather than giving the statute the ordinary presumption of constitutionality. See Mullaney v. Anderson, 342 U.S. 415, 418 (1952).
194 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).
195 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)).
Last modified: June 9, 2014