Equality under the Privileges and Immunities Clauses
Elaborates upon the intent “to secure and perpetuate mutual friendship and intercourse among the people of the different States in this union,” and to establish equal treatment and freedom of movement for the free inhabitants of each state to pass unhindered between the states, excluding “paupers, vagabonds, and fugitives from justice.” All these people are entitled to equal rights established by the state into which they travel. If a crime is committed in one state and the perpetrator flees to another state, he will be extradited to and tried in the state in which the crime was committed. Articles of Confederation
Equality under the Privileges and Immunities Clauses under Article IV, Section 2, of the United States Constitution, non-citizens of a state are assured that in their “fundamental” privileges and immunities they will be accorded equality with citizens of the state. Corfield v. Coryell, 6 Fed. Cas. No.1312 at 551 (E.D.Pa.1823). Mitchell v. United States, supra note 77; Gibbons v. Ogden, 9 Wheat.1 (U.S.1824); Houston, East & W. Texas Ry. Co. v. United States, 234 U.S.342 (1914); Railroad Commission v. Chicago, B.& Q. Rr., 25 7 U.S. 563 (1922). Comment, 40 Mica. L. Rv. 711, 728 (1942). Note, 42 COL.L. Rev. 139, 140 (1942).
A valid privileges and immunities claim requires proof of two elements: (1) whether the interest or right being burdened is “fundamental” and thus, protected by the Clause, see The Slaughter-House Cases, 83 U.S. (16 Wall) at 76; and (2) if it is, whether there are “substantial” reasons for the discrimination and “whether the degree of discrimination bears a close relation to them,” Toomer v. Witsell, 334 U.S. 385, 396, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460 (1948).
We first decide whether the right being burdened — direct public employment — is one that is “fundamental.” As the Supreme Court stated in Baldwin v. Fish & Game Commission, 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978), “[o]nly with respect to those `privileges’ and `immunities’ bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally.” Id. at 383, 98 S.Ct. at 1860. The Court’s formulation of the controlling standard is but the beginning of analysis.
In Camden, the Supreme Court came close to deciding the issue of whether public employment is a “fundamental” privilege protected by the Privileges and Immunities Clause. Camden involved a challenge to a city ordinance that required at least 40% of the employees of the contractors and subcontractors working on city projects to be Camden residents. The Court stated that the threshold determination was “whether an out-of-state resident’s interest in employment on public works contracts in another State is sufficiently `fundamental’ to the promotion of interstate harmony so as to `fall within the purview of the Privileges and Immunities Clause.'” Camden, 465 U.S. at 218, 104 S.Ct. at 1027 (quoting Baldwin, 436 U.S. at 388, 98 S.Ct. at 1862-63).
Although Camden refers to public employment as a “subspecies” of “common callings,” the public/private distinction can be justified on the basis of the history of the language associated with the clauses. The Privileges and Immunities Clause traces its origin to the language employed in the Fourth Article of the Articles of Confederation. That Article used terms that were referable to private employment, e.g., “trade” and “commerce.” See David S. Bogen, The Individual Liberties
Within the Body of the Constitution: A Symposium: The Privileges and Immunities Clause of Article IV, Case W.Res.L.Rev. 794, 831 (1987) (suggesting that “[d]espite uncertainty, one function of article IV … remained clear: it prohibited states from imposing any restriction not applicable to residents on nonresidents engaged in trade or commerce”).
When the articles of the Constitution were drafted, the language of both the Privileges and Immunities Clause and the Commerce Clause was taken from the Fourth Article of the Articles of Confederation. It is on this historical basis that the distinction between public and private employment remains viable here. See Thomas H. Day, Note, Hiring Preference Acts: Has the Supreme Court Rendered Them Violations of the Privileges and Immunities Clause?, 54 Fordham L.Rev. 271, 278 (1985) (discussing the distinction the Court has drawn between private and government employment); see also Bogen, supra at 856 (stating that “[t]he right to engage in a trade or business is a privilege or immunity of citizenship”); Mark P. Gergen, The Selfish State and the Market, 66 Tex. L.Rev. 1097, 1129 (1988) (noting that early cases striking down state laws under the Privileges and Immunities Clause involved the “core privileges of trade and commerce”).
The Camden court recognized this distinction when it concluded that “[t]he opportunity to seek employment with such private employers is `sufficiently basic to the livelihood of the Nation,’ … as to fall within the purview of the Privileges and Immunities Clause even though the contractors and subcontractors are themselves engaged in projects funded in whole or part by the city.” Id. at 221-22, 104 S.Ct. at 1029 (quoting Baldwin, 436 U.S. at 388, 98 S.Ct. at 1863).
We agree with the district court in this case that the public/private distinction has not been abandoned. Based on our reading of the Supreme Court cases in this area, we hold that direct public employment is not a privilege or fundamental right protected by the Privileges and Immunities Clause of Article Four.
In light of our holding that there is no fundamental right implicated here, it is unnecessary for this court to discuss the second issue of “substantial relatedness.
The Court noted that the origin of both clauses is found in the Fourth Article of the Articles of Confederation. In relevant part, that Article states: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 … 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….The Privileges and Immunities Clause focuses on the perspective of the individual.” 832 F.Supp. at 860 n. 4; see generally Bogen, The Privileges and Immunities Clause, supra.
The question presented in this appeal is whether Delaware’s Freedom of Information Act (“FOIA”), 29 Del. Code Ann. § 10003, violates the Privileges and Immunities Clause of the United States Constitution by restricting noncitizens’ rights to access, inspect, and copy public documents. We conclude that it does. Accordingly, we will affirm the District Court’s orders granting summary judgment in favor of Matthew Lee and enjoining the State of Delaware from limiting FOIA benefits to its own citizens. Lee v. Minner 458 F.3d 194 (3d Cir. 2006)
When the articles of the Constitution were drafted, the language of both the Privileges and Immunities Clause and the Commerce Clause was taken from the Fourth Article of the Articles of Confederation. It is on this historical basis that the distinction between public and private employment remains viable here. See Thomas H. Day, Note, Hiring Preference Acts: Has the Supreme Court Rendered Them Violations of the Privileges and Immunities Clause?, 54 Fordham L.Rev. 271, 278 (1985) (discussing the distinction the Court has drawn between private and government employment); see also Bogen, supra at 856 (stating that “[t]he right to engage in a trade or business is a privilege or immunity of citizenship”); Mark P. Gergen, The Selfish State and the Market, 66 Tex. L.Rev. 1097, 1129 (1988) (noting that early cases striking down state laws under the Privileges and Immunities Clause involved the “core privileges of trade and commerce”). Salem Blue Collar Wkrs. Ass’n v. City of Salem 33 F.3d 265 (3d Cir. 1994)
In the first instance, we must determine whether the Act “burdens one of those privileges and immunities protected by the clause. ” United Bldg., 465 U.S. at 218. In other words, the test is whether the “right” at issue is fundamental to the promotion of interstate harmony and bears upon the vitality of the Nation as a single union. See id. Typically the right to employment is considered fundamental under the Privileges and Immunities Clause. Id. at 221 (“Certainly, the pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause. “). But “direct public employment,” where the state imposes a restriction on its own hiring practice, is not an actionable right. Salem Blue Collar Workers Ass’n v. City of Salem, 33 F.3d 265, 270 (3d Cir. 1994) (“[W]e hold that direct public employment is not a privilege or fundamental right protected by the Privileges and Immunities Clause of Article Four”), cert. denied, 115 S. Ct. 1105 (1995). A. L. Blades Sons, Inc. v. Yerusalim 121 F.3d 865 (3d Cir. 1997)
Presumably, these rights of national citizenship were protected against state infringement since the beginning of the Republic under the Supremacy Clause, U.S. Const. art. VI, § 2. Schoonejongen v. Curtiss-Wright Corporation 143 F.3d 120 (3d Cir. 1998)
The Privileges and Immunities Clause applies only “with respect to those `privileges’ and `immunities’ bearing on the vitality of the Nation as a single entity.” Id. at 279 (quoting Baldwin v. Montana Fish Game Commission, 436 U.S. 371, 383 (1978)). The United States Supreme Court has found that “one of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.” Piper, 470 U.S. at 280 (quoting Toomer v. Witsell, 334 U.S. 385, 396 (1948)). The Supreme Court has recognized the practice of law as a privilege under the Privileges and Immunities Clause, “and that a nonresident who passes a state bar examination and otherwise qualifies for practice has an interest protected by the Clause.” Barnard v. Thorstenn, 489 U.S. 546, 553 (1989); see also Supreme Court of Virginia v. Friedman, 487 U.S. 59, 65 (1988); Piper, 470 U.S. at 279-83. The practice of law is protected by the Privileges and Immunities Clause because it plays a vital role in the nation’s economy and facilitates the vindication of individual and societal rights. Piper, 470 U.S. at 280-81.
If a state statute or regulation imposes identical requirements on residents and nonresidents alike and it has no discriminatory effect on nonresidents, it does not violate the Privileges and Immunities Clause. Lutz v. City of York, Pennsylvania, 899 F.2d 255, 263 (3d Cir. 1990). But when a challenged restriction deprives nonresidents of a privilege or immunity protected by this clause, it is invalid unless “(i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State’s objective.” Piper, 470 U.S. at 284. In addressing these questions, we consider, among other things, whether less restrictive means of regulation are available. Barnard, 498 U.S. at 552-53. Of course, we must distinguish between incidental discrimination against nonresidents and discrimination that imposes too heavy a burden on their privileges. See id. at 557. Tolchin v. the Supreme Court of New Jersey 111 F.3d 1099 (3d Cir. 1997)
The “privileges, or immunities” referred to in R.S. Section 1979 are the “Privileges and Immunities” of Article IV, Section 2, of the Constitution and the “privileges or immunities” of the Fourteenth Amendment. These “privileges and immunities” and “privileges or immunities”, as was pointed out by Mr. Justice Miller in the Slaughter-House cases, 16 Wall. 36, 83 U.S. 36, 75, 21 L.Ed. 394, are the same as those to be first found in our constitutional history “* * * in the fourth of the Articles of the old Confederation.” U.S.C.A., Constitution. Mr. Justice Miller went on to say that “In the Constitution of the United States, * * * the corresponding provision is found in section two of the fourth article, in the following words: `The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.’ There can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each.” See Nos. 7 and 22 of the Federalist Papers. Valle v. Stengel 176 F.2d 697 (3d Cir. 1949)
As was pointed out in the Slaughter-House Cases, 16 Wall. 36, 83 U.S. at pp. 76-77, 21 L.Ed. 394, quoting from the decision in Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357, “`The privileges and immunities which are common to the citizens of each State in the several States, by the provision in question, are those privileges and immunities which are common to the citizens in the latter States under their constitution and laws by virtue of their being citizens.'”, and in the case last cited it was also said that the privileges and immunities clause insures to the citizens “* * * in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness ; and it secures to them in other States the equal protection of the laws”. These are rights growing essentially out of citizenship of the United States and all that that citizenship implies. If a man cannot make or enforce a contract already made because of the interference of a State officer he is being denied a civil right. He cannot support himself or his family or earn a living under the system to which we adhere. The liberty involved is in fact the liberty of contract. Cf. Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832. To refuse to an individual the liberty of contract is to put him beyond the pale of capitalism. Thus ostracized, he cannot engage in the acquisition of property or in the pursuit of happiness. It is clear that the Supreme Court has held that the words “Privileges and Immunities” of Article IV, Section 2, protect the right of a citizen to engage in lawful commerce, trade or business without molestation or harassment. See Ward v. Maryland, 12 Wall. 163, 79 U.S. 418, 430, 20 L.Ed. 260. The “Privileges and Immunities” clause also guarantees the right of the individual citizen to engage in the pursuit of happiness. Paul v. Virginia, supra. The field of human rights covered by the privileges and immunities clause is indeed a broad one. The individual defendants, acting in concert, if the allegations of the complaint are to be believed, have denied to the plaintiffs the privileges and immunities of citizenship. Valle v. Stengel 176 F.2d 697 (3d Cir. 1949)
Appellants next argue that Rule 204 violates Article IV’s Privileges and Immunities Clause by depriving them of the right to practice law in Pennsylvania. See U.S. Const. art. IV, § 2. While Appellants are correct that the practice of law is a fundamental right for Privileges and Immunities purposes, see Supreme Court of N.H. v. Piper, 470 U.S. 274, 281, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985), the Clause does not foreclose a state’s ability to treat residents and nonresidents differently, Saenz v. Roe, 526 U.S. 489, 502, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999). It bars only “discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.” Id. (internal quotation mark omitted). Nat’l Ass’n for the Advancement of Multijurisdiction Practice v. Castille 799 F.3d 216 (3d Cir. 2015)