Rights Under the Privileges and Immunities Clause

Article IV, Section 2, Clause 1 of the United States Constitution states:

"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

The idea of privileges and immunities is so important to constitutional law that it also appears in the Fourteenth Amendment.

Privileges and Immunities: History and Practice

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

"The primary purpose of this clause, like the clauses between which it is located . . . was to help fuse into one Nation a collection of independent sovereign States."¹ Precedent for this clause was a much wordier and a somewhat unclear² clause of the Articles of Confederation. "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, paupers, vagabonds and fugitives from justice excepted, 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, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively . . . ."³ In the Convention, the present clause was presented, reported by the Committee on Detail, and adopted all in the language ultimately approved.⁴ Little commentary was addressed to it,⁵ and we may assume with Justice Miller that "[t]here 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. In the Articles of Confederation we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase."⁶

Changing Theories

At least four theories have been proffered regarding the purpose of this clause. First, the clause is a guarantee to the citizens of the different states of equal treatment by Congress; in other words, it is a species of equal protection clause binding on the National Government. Though it received some recognition in the Dred Scott case,⁷ particularly in the opinion of Justice Catron,⁸ this theory is today obsolete.⁹ Second, the clause is a guarantee to the citizens of each state of the natural and fundamental rights inherent in the citizenship of persons in a free society, the privileges and immunities of free citizens, which no state could deny to citizens of other states, without regard to the manner in which it treated its own citizens. This theory found some expression in a few state cases¹⁰ and best accords with the natural law-natural rights language of Justice Washington in Corfield v. Coryell.¹¹

Learn More: Dred Scott v. Sandford Case Summary

If it had been accepted by the Court, this theory might well have endowed the Supreme Court with a reviewing power over restrictive state legislation as broad as that which it later came to exercise under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, but it was firmly rejected by the Court.¹² Third, the clause guarantees to the citizen of any state the rights which he enjoys as such even when he is sojourning in another state; that is, it enables him to carry with him his rights of state citizenship throughout the Union, unembarrassed by state lines. This theory, too, the Court rejected.¹³ Fourth, the clause merely forbids any state to discriminate against citizens of other states in favor of its own. It is this narrow interpretation that has become the settled one. "It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them 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 their laws."¹⁴

The recent cases emphasize that interpretation of the clause is tied to maintenance of the Union. "Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States. Only 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."¹⁵ Although the clause "was intended to create a national economic union," it also protects noneconomic interests relating to the Union.¹⁶

Hostile discrimination against all nonresidents infringes the clause,¹⁷ but controversies between a state and its own citizens are not covered by the provision.¹⁸ However, a state discrimination in favor of residents of one of its municipalities implicates the clause, even though the disfavored class consists of in-state as well as out-of-state inhabitants.¹⁹ The clause should not be read so literally, the Court held, as to permit states to exclude out-of-state residents from benefits through the simple expediency of delegating authority to political subdivisions.²⁰ A violation can occur whether or not a statute explicitly discriminates against out-of-state interests.²¹

How Was the Privileges and Immunities Clause Implemented?

The Privileges and Immunities Clause is self-executory, that is to say, its enforcement is dependent upon the judicial process. It does not authorize penal legislation by Congress. Federal statutes prohibiting conspiracies to deprive any person of rights or privileges secured by state laws,²² or punishing infractions by individuals of the right of citizens to reside peacefully in the several states and to have free ingress into and egress from such states,²³ have been held void.

Who Are "Citizens of Each State?"

In the Dred Scott case,²⁴ the Court answered it in the negative. "Citizens of each State," Chief Justice Taney argued, meant citizens of the United States as understood at the time the Constitution was adopted, and descendants of slaves "of the African race" were not then regarded as capable of citizenship.²⁵ The only category of national citizenship added under the Constitution comprised aliens, naturalized in accordance with acts of Congress.²⁶ In dissent, Justice Curtis not only denied the Chief Justice's assertion that there were no slave descendants who were citizens of states in 1789 but further argued that, although Congress alone could determine what classes of aliens should be naturalized, the states retained the right to extend citizenship to classes of persons born within their borders who had not previously enjoyed citizenship and that one upon whom state citizenship was thus conferred became a citizen of the state in the full sense of the Constitution.²⁷ So far as persons born in the United States, and subject to the jurisdiction thereof are concerned, the question was put at rest by the Fourteenth Amendment.

Do Corporations Qualify?

At a comparatively early date, the claim was made that a corporation chartered by a state and consisting of its citizens was entitled to the benefits of the comity clause in the transaction of business in other states. It was argued that the Court was bound to look beyond the act of incorporation and see who were the incorporators. If it found these to consist solely of citizens of the incorporating state, it was bound to permit them through the agency of the corporation to exercise in other states such privileges and immunities as the citizens thereof enjoyed. In Bank of Augusta v. Earle,²⁸ this view was rejected. The Court held that the comity clause was never intended to give "to the citizens of each State the privileges of citizens in the several States, and at the same time to exempt them from the liabilities which the exercise of such privileges would bring upon individuals who were citizens of the State. This would be to give the citizens of other States far higher and greater privileges than are enjoyed by the citizens of the State itself."²⁹ A similar result was reached in Paul v. Virginia,³⁰ but by a different course of reasoning. The Court there held that a corporation, in this instance, an insurance company, was "the mere creation of local law" and could "have no legal existence beyond the limits of the sovereignty"³¹ which created it; even recognition of its existence by other states rested exclusively in their discretion. Later recent cases held that this discretion is qualified by other provisions of the Constitution notably the Commerce Clause and the Fourteenth Amendment.³² By reason of its similarity to the corporate form of organization, a Massachusetts trust has been denied the protection of this clause.³³

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,34 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 . . . ."³⁵ 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 . . . ."³⁶

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."³⁷ 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."³⁸ The precise holding of this case was confirmed in McCready v. Virginia;³⁹ the logic of Geer v. Connecticut⁴⁰ extended the same rule to wild game, and Hudson Water Co. v. McCarter⁴¹ applied it to the running water of a state. In Toomer v. Witsell,⁴² 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.⁴³

The virtual demise of the state ownership theory of animals and natural resources⁴⁴ compelled the Court to review and revise its mode of analysis of state restrictions that distinguished between residents and nonresidents⁴⁵ 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.⁴⁶ Subsequent cases have recognized that the right to practice law⁴⁷ and the right to seek employment on public contracts⁴⁸ 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.⁴⁹

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.⁵⁰ 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.⁵¹

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."⁵²

Discrimination in Private Rights

Not only has judicial construction of the comity clause excluded certain privileges of a public nature from its protection, but the courts also have established the proposition that the purely private and personal rights to which the clause admittedly extends are not in all cases beyond the reach of state legislation which differentiates citizens and noncitizens. Broadly speaking, these rights are held subject to the reasonable exercise by a state of its police power, and the Court has recognized that there are cases in which discrimination against nonresidents may be reasonably resorted to by a state in aid of its own public health, safety and welfare. To that end a state may reserve the right to sell insurance to persons who have resided within the state for a prescribed period of time.⁵³ It may require a nonresident who does business within the state⁵⁴ or who uses the highways of the state⁵⁵ to consent, expressly or by implication, to service of process on an agent within the state. Without violating this section, a state may limit the dower rights of a nonresident to lands of which the husband died seized while giving a resident dower in all lands held during the marriage,⁵⁶ or may leave the rights of nonresident married persons in respect of property within the state to be governed by the laws of their domicile, rather than by the laws it promulgates for its own residents.⁵⁷ But a state may not give a preference to resident creditors in the administration of the property of an insolvent foreign corporation.⁵⁸ An act of the Confederate Government, enforced by a state, to sequester a debt owed by one of its residents to a citizen of another state was held to be a flagrant violation of this clause.⁵⁹

Access to Courts

The right to sue and defend in the courts is one of the highest and most essential privileges of citizenship and must be allowed by each state to the citizens of all other states to the same extent that it is allowed to its own citizens.⁶⁰ The constitutional requirement is satisfied if the nonresident is given access to the courts of the state upon terms that, in themselves, are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically the same as those accorded to resident citizens.⁶¹ The Supreme Court upheld a state statute of limitations that prevented a nonresident from suing in the state's courts after expiration of the time for suit in the place where the cause of action arose⁶² and another such statute which that suspended its operation as to resident plaintiffs, but not as to nonresidents, during the period of the defendant's absence from the state.⁶³ A state law making it discretionary with the courts to entertain an action by a nonresident of the state against a foreign corporation doing business in the state was sustained because it was applicable alike to citizens and noncitizens residing out of the state.⁶⁴ A statute permitting a suit in the courts of the state for wrongful death occurring outside the state, only if the decedent was a resident of the state, was sustained, because it operated equally upon representatives of the deceased whether citizens or noncitizens.⁶⁵ Being patently nondiscriminatory, a Uniform Reciprocal State Law to secure the attendance of witnesses from within or without a state in criminal proceedings, whereunder an Illinois resident, while temporarily in Florida, was summoned to appear at a hearing for determination as to whether he should be surrendered to a New York officer for testimony in the latter state, does not violate this clause.⁶⁶

Taxation

In the exercise of its taxing power, a state may not discriminate substantially between residents and nonresidents. In Ward v. Maryland,⁶⁷ the Court set aside a state law that imposed specific taxes upon nonresidents for the privilege of selling within the state goods that were produced in other states. Also found to be incompatible with the comity clause was a Tennessee license tax, the amount of which was dependent upon whether the person taxed had his chief office within or without the state.⁶⁸ In Travis v. Yale & Towne Mfg. Co.,⁶⁹ the Court, although sustaining the right of a state to tax income accruing within its borders to nonresidents,⁷⁰ held the particular tax void because it denied to nonresidents exemptions which were allowed to residents. The "terms 'resident' and 'citizen' are not synonymous," wrote Justice Pitney," . . . but a general taxing scheme . . . if it discriminates against all non-residents, has the necessary effect of including in the discrimination those who are citizens of other States . . . ." ⁷¹ Where there were no discriminations between citizens and noncitizens, a state statute taxing the business of hiring persons within the state for labor outside the state was sustained.⁷²

The Court returned to the privileges-and-immunities restrictions upon disparate state taxation of residents and nonresidents in Lunding v. New York Tax Appeals Tribunal.⁷³ In this case, the state denied nonresidents any deduction from taxable income for alimony payments, although it permitted residents to deduct such payments. Although it observed that approximate equality between residents and nonresidents was required by the clause, the Court acknowledged that precise equality was neither necessary nor in most instances possible. But it was required of the challenged state that it demonstrate a "substantial reason" for the disparity, and the discrimination must bear a "substantial relationship" to that reason.⁷⁴ A state, under this analysis, may not deny nonresidents a general tax exemption provided to residents that would reduce their tax burdens, but it could limit specific expense deductions based on some relationship between the expenses and their in-state property or income. Here, the state flatly denied the exemption. Moreover, the Court rejected various arguments that had been presented, finding that most of those arguments, while they might support targeted denials or partial denials, simply reiterated the state's contention that it need not afford any exemptions at all. This section of the Constitution does not prevent a territorial government, exercising powers delegated by Congress, from imposing a discriminatory license tax on nonresident fishermen operating within its waters.⁷⁵

However, what at first glance may appear to be a discrimination may turn out not to be when the entire system of taxation prevailing in the enacting state is considered. On the basis of overall fairness, the Court sustained a Connecticut statute that required nonresident stockholders to pay a state tax measured by the full market value of their stock while resident stockholders were subject to local taxation on the market value of that stock reduced by the value of the real estate owned by the corporation.⁷⁶ Occasional or accidental inequality to a nonresident taxpayer is not sufficient to defeat a scheme of taxation whose operation is generally equitable.⁷⁷ In an early case the Court brushed aside as frivolous the contention that a state violated this clause by subjecting one of its own citizens to a property tax on a debt due from a nonresident secured by real estate situated where the debtor resided.⁷⁸

Footnotes

1. Toomer v. Witsell, 334 U.S. 385, 395 (1948).
2. The Federalist No. 42 (James Madison).
3. 1 F. Thorpe ed., The Federal and State Constitutions, H. Doc. No. 357, 59th Cong., 2d Sess. (1909), 10.
4. 2 The Records of the Federal Convention of 1787, at 173, 187, 443 (Max Farrand ed., 1937).
5. "It may be esteemed the basis of the Union, that 'the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.' And if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which its is founded." The Federalist No. 80 (Alexander Hamilton).
6. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 75 (1873).
7. Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
8. 60 U.S. at 518, 527–29.
9. Today, the Due Process Clause of the Fifth Amendment imposes equal protection standards on the Federal Government. Bolling v. Sharpe, 347 U.S. 497 (1954); Schneider v. Rusk, 377 U.S. 163, 168 (1964); Shapiro v. Thompson, 394 U.S. 618, 641–42 (1969).
10. Campbell v. Morris, 3 H. & McH. 288 (Md. 1797); Murray v. McCarty, 2 Munf. 373 (Va. 1811); Livingston v. Van Ingen, 9 Johns. Case. 507 (N.Y. 1812); Douglas v. Stephens, 1 Del. Ch. 465 (1821); Smith v. Moody, 26 Ind. 299 (1866).
11. 6 F. Cas. 546, 550 (No. 3230) (C.C.E.D. Pa. 1823). (Justice Washington on circuit), quoted infra, "All Privileges and Immunities of Citizens in the Several States." "At one time it was thought that this section recognized a group of rights which, according to the jurisprudence of the day, were classed as 'natural rights'; and that the purpose of the section was to create rights of citizens of the United States by guaranteeing the citizens of every State the recognition of this group of rights by every other State. Such was the view of Justice Washington." Hague v. CIO, 307 U.S. 496, 511 (1939) (Justice Roberts for the Court). This view of the clause was asserted by Justices Field and Bradley, Slaughter House Cases, 83 U.S. at 97, 117–18 (dissenting opinions); Butchers' Union Slaughter-House and Live-Stock Landing Co. v. Crescent City Live-Stock Landing and Slaughter-House Co., 111 U.S. 746, 760 (1884) (Justice Field concurring), but see infra, and was possibly understood so by Chief Justice Taney. Scott v. Sandford, 60 U.S. (19 How.) 393, 423 (1857). See also id. at 580 (Justice Curtis dissenting). The natural rights concept of privileges and immunities was strongly held by abolitionists and their congressional allies who drafted the similar clause into 1 of the Fourteenth Amendment. Graham, Our 'Declaratory' Fourteenth Amendment, reprinted in H. Graham, Everyman's Constitution: Historical Essays on the Fourteenth Amendment, the Conspiracy Theory, and American Constitutionalism 295 (1968).
12. McKane v. Durston, 153 U.S. 684, 687 (1894); see also cases cited infra.
13. City of Detroit v. Osborne, 135 U.S. 492 (1890).
14. Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1869) (Justice Field for the Court; but see supra); see also Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 77 (1873); Chambers v. Baltimore & O.R.R., 207 U.S. 142 (1907); Whitfield v. Ohio, 297 U.S. 431 (1936).
15. Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371, 383 (1978). See also Austin v. New Hampshire, 420 U.S. 656, 660–65 (1975) (clause "implicates not only the individual's right to nondiscriminatory treatment but also, perhaps more so, the structural balance essential to the concept of federalism." Id. at 662); Hicklin v. Orbeck, 437 U.S. 518, 523–24 (1978).
16. Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 281–82 (1985). See also Doe v. Bolton, 410 U.S. 179, 200 (1973) (discrimination against out-of-state residents seeking medical care violates clause).
17. Blake v. McClung, 172 U.S. 239, 246 (1898); Travis v. Yale & Towne Mfg. Co., 252 U.S. 60 (1920).
18. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 138 (1873); Cole v. Cunningham, 133 U.S. 107 (1890). But see Zobel v. Williams, 457 U.S. 55, 71 (1982) (Justice O'Connor concurring).
19. United Building & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208 (1984).
20. 465 U.S. at 217. The holding illustrates what the Court has referred to as the "mutually reinforcing relationship" between the Commerce Clause and the Privileges and Immunities Clause. Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 280 n.8 (1985) (quoting Hicklin v. Orbeck, 437 U.S. 518, 531 (1978)). See, e.g., Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951) (city protectionist ordinance that disadvantages both out-of-state producers and some in-state producers violates the Commerce Clause).
21. "[A]bsence of an express statement . . . identifying out-of-state citizenship as a basis for disparate treatment is not a sufficient basis for rejecting [a] claim." Hillside Dairy, Inc. v. Lyons, 539 U.S. 59, 67 (2003).
22. United States v. Harris, 106 U.S. 629, 643 (1883). See also Baldwin v. Franks, 120 U.S. 678 (1887).
23. United States v. Wheeler, 254 U.S. 281 (1920).
24. Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
25. 60 U.S. at 402.
26. 60 U.S. at 403–11.
27. 60 U.S. at 572–90.
28. 38 U.S. (13 Pet.) 519 (1839).
29. 38 U.S. at 586.
30. 75 U.S. (8 Wall.) 168 (1869).
31. 75 U.S. at 181.
32. Crutcher v. Kentucky, 141 U.S. 47 (1891).
33. Hemphill v. Orloff, 277 U.S. 537 (1928).
34. 6 F. Cas. 546 (No. 3,230) (C.C.E.D. Pa., 1823).
35. 6 F. Cas. at 551–52.
36. 6 F. Cas. at 552.
37. 6 F. Cas. at 552.
38. 6 F. Cas. at 552.
39. 94 U.S. 391 (1877).
40. 161 U.S. 519 (1896).
41. 209 U.S. 349 (1908).
42. 334 U.S. 385 (1948).
43. 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.
44. 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).
45. 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).
46. Baldwin v. Montana Fish & Game Comm'n, 436 U.S. 371, 387 (1978).
47. Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985).
48. United Building & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208 (1984).
49. McBurney v. Young, 569 U.S. 221, 228–29 (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.
50. 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).
51. 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).
52. 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)).
53. La Tourette v. McMaster, 248 U.S. 465 (1919).
54. Doherty & Co. v. Goodman, 294 U.S. 623 (1935).
55. Hess v. Pawloski, 274 U.S. 352, 356 (1927).
56. Ferry v. Spokane, P. & S. Ry., 258 U.S. 314 (1922), followed in Ferry v. Corbett, 258 U.S. 609 (1922).
57. Conner v. Elliott, 59 U.S. (18 How.) 591, 593 (1856).
58. Blake v. McClung, 172 U.S. 239, 248 (1898).
59. Williams v. Bruffy, 96 U.S. 176, 184 (1878).
60. Chambers v. Baltimore & O.R.R., 207 U.S. 142, 148 (1907); McKnett v. St. Louis & S.F. Ry., 292 U.S. 230, 233 (1934).
61. Canadian Northern Ry. v. Eggen, 252 U.S. 553 (1920).
62. 252 U.S. at 563.
63. Chemung Canal Bank v. Lowery, 93 U.S. 72, 76 (1876).
64. Douglas v. New York, N.H. & H.R.R., 279 U.S. 377 (1929).
65. Chambers v. Baltimore & O.R.R., 207 U.S. 142 (1907).
66. New York v. O'Neill, 359 U.S. 1 (1959). Justices Douglas and Black dissented.
67. 79 U.S. (12 Wall.) 418, 424 (1871). See also Downham v. Alexandria Council, 77 U.S. (10 Wall.) 173, 175 (1870).
68. Chalker v. Birmingham & N.W. Ry., 249 U.S. 522 (1919).
69. 252 U.S. 60 (1920).
70. 252 U.S. at 62–64. See also Shaffer v. Carter, 252 U.S. 37 (1920). In Austin v. New Hampshire, 420 U.S. 656 (1975), the Court held void a state commuter income tax, inasmuch as the State imposed no income tax on its own residents and thus the tax fell exclusively on nonresidents' income and was not offset even approximately by other taxes imposed upon residents alone.
71. 252 U.S. 60, 78–79 (1920).
72. Williams v. Fears, 179 U.S. 270, 274 (1900).
73. 522 U.S. 287 (1998).
74. 522 U.S. at 298.
75. Haavik v. Alaska Packers Ass'n, 263 U.S. 510 (1924).
76. Travellers' Ins. Co. v. Connecticut, 185 U.S. 364, 371 (1902).
77. Maxwell v. Bugbee, 250 U.S. 525 (1919).
78. Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879). Cf. Colgate v. Harvey, 296 U.S. 404 (1935), in which discriminatory taxation of bank deposits outside the state owned by a citizen of the state was held to infringe a privilege of national citizenship, in contravention of the Fourteenth Amendment. Colgate v. Harvey was overruled by Madden v. Kentucky, 309 U.S. 83, 93 (1940).