Privileges and Immunities - Case Take Aways

Question 1

Toomer v. Witsell

Answer 1

Toomer v. Witsell - Shrimp Fishing Licenses: $25 in-state and $2,500 out-of-state

Privileges and Immunities Clause is not absolute: There are situations where there are perfectly valid independent reasons for discrimination against out-of-staters

In each case, court must analyze whether substantial reasons (beyond the mere fact that they are citizens of another state) for the discrimination exist and whether the degree of discrimination bears a close relation to those reasons. The court held the statute unconstitutional for the following reasons:

• The practical effect was a monopoly on catching shrimp that is virtually exclusionary.
• Conservation is a legitimate reason, but the number of boats did not go down after the statute was passed and less restrictive means existed to further the interests related to the environmental impact

Question 2

United Building & Construction Trades Council of Camden County v. Mayor & Council of the City of Camden

Answer 2

United Building & Construction Trades Council of Camden County v. Mayor & Council of the City of Camden - 40% of Construction Employees must be Camden, New Jersey residents

Privileges & Immunities Clause covers Municipal / Local Ordinances as well as State laws

• Municipality derives its authority from the State (Smaller Scale: Citizen → Resident)
• The ordinance is not immune from the Privileges and Immunities Clause merely because some in-state residents are similarly disadvantaged in terms of the fundamental right of the pursuit of a common calling.

Objective of Camden was to prevent the evil of Camden residents working elsewhere and of non-residents earning Camden money and paying taxes elsewhere is not substantial

• Remanded for fact-finding so that the New Jersey courts could determine whether the right of a pursuit of livelihood was at stake here.

Take Away: Reducing unemployment might be an adequate justification but is subject to the analysis that there was a substantial reason to target out-of-staters to solve the problem

Question 3

Lester Baldwin v. Fish & Game Commn. Of Montana

Answer 3

Lester Baldwin v. Fish & Game Commn. Of Montana - Higher license fees for out-of-state hunters

Elk hunting is not a means to the non-resident’s livelihood and does not fall within the purview of the Privileges and Immunities Clause.

• Appellants’ interest in sharing the limited resource of Elk on more equal terms with Montana residents is not protected
• The mastery of the animal and the trophy are the ends that are sought; appellants are not totally excluded from these.

Fails on Step 1: Does the law burden one of the privileges and immunities protected by the Clause? No

_For a Nation composed of individual states are some distinctions are permitted when they do not hinder the formation, the purpose, or the development of a single Union of those states _

Question 4

Supreme Court of New Hampshire v. Kathryn A. Piper

Answer 4

Supreme Court of New Hampshire v. Kathryn A. Piper - Vermont resident wants bar license in N.H.

Court considers the practice of law as protected under the Privileges and Immunities clause because it involves the pursuit of livelihood

• Practice of law also fundamental to interstate commerce

Fails Scrutiny:

• New Hampshire offers substantial legitimate reasons for their rule, but the analysis fails on the substantial relationship between the means employed and the interest served
• The availability of less restrictive alternatives was very influential in Court’s rejection of the New Hampshire rule because none their proffered objectives meet the test of “substantiality” such that the means chosen bear the necessary relationship to the state’s objectives