BALDWIN
v. MONTANA FISH AND GAME COMM'N
436 U.S. 371 (1978)
(This is an edited version of the decision to focus on how the
Court defines the privileges and immunities of state citizenship.)
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This case presents issues, under the Privileges and Immunities Clause
of the Constitution's Art. IV, 2, and the Equal Protection Clause of
the Fourteenth Amendment, as to the constitutional validity of
disparities, as between residents and nonresidents, in a State's
hunting license system.
For the 1975 hunting season, a Montana resident could purchase a
license solely for elk for $4. The nonresident, however, in order to
hunt elk, was required to purchase a combination license at a cost of
$151; this entitled him to take one elk and two deer. For the 1976
season, the Montana resident could purchase a license solely for elk
for $9. The nonresident, in order to hunt elk, was required to purchase
a combination license at a cost of $225; this entitled him to take one
elk, one deer, one black bear, and game birds, and to fish with hook
and line. A resident was not required to buy any combination of
licenses, but if he did, the cost to him of all the privileges granted
by the nonresident combination license was $30. The nonresident thus
paid 7 1/2 times as much as the resident, and if the nonresident wished
to hunt only elk, he paid 25 times as much as the resident.
Appellants strongly urge here that the Montana licensing scheme for the
hunting of elk violates the Privileges and Immunities Clause of Art.
IV, 2 of our Constitution. That Clause is not one the contours of which
have been precisely shaped by the process and wear of constant
litigation and judicial interpretation over the years since 1789. The
Privileges and Immunities Clause originally was not isolated from the
Commerce Clause, now in the Constitution's Art. I, 8. In the Articles
of Confederation, where both Clauses have their source, the two
concepts were together in the fourth Article. Their separation may have
been an assurance against an anticipated narrow reading of the Commerce
Clause.
Perhaps because of the imposition of the Fourteenth Amendment upon our
constitutional consciousness and the extraordinary emphasis that the
Amendment received, it is not surprising that the contours of Art. IV,
2, cl. 1, are not well developed, and that the relationship, if any,
between the Privileges and Immunities Clause and the "privileges or
immunities" language of the Fourteenth Amendment is less than clear. We
are, nevertheless, not without some pronouncements by this Court as to
the Clause's significance and reach.
The first is that of Mr. Justice Field, writing for a unanimous Court
in Paul v. Virginia, 8 Wall.
168, 180 (1869). He emphasized
nationalism, the proscription of discrimination, and the assurance of
equality of all citizens within any State:
"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. It has been justly said that no
provision in the Constitution has tended so strongly to constitute the
citizens of the United States one people as this."
The most recent general pronouncement is that authored by MR. JUSTICE
MARSHALL for a nearly unanimous Court in Austin v. New Hampshire, 420
U.S. 656, 660 -661 (1975), stressing the Clause's "norm of comity" and
the Framers' concerns:
"The Clause thus establishes a norm of
comity without specifying the particular subjects as to which citizens
of one State coming within the jurisdiction of another are guaranteed
equality of treatment. The origins of the Clause do reveal, however,
the concerns of central import to the Framers. During the
preconstitutional period, the practice of some States denying to
outlanders the treatment that its citizens demanded for themselves was
widespread. The fourth of the Articles of Confederation was intended to
arrest this centrifugal tendency with some particularity. . . .
. . . . .
"The discriminations at which this
Clause was aimed were by no means eradicated during the short life of
the Confederation, and the provision was carried over into the comity
article of the Constitution in briefer form but with no change of
substance or intent, unless it was to strengthen the force of the
Clause in fashioning a single nation."
When the Privileges and Immunities
Clause has been applied to specific
cases, it has been interpreted to prevent a State from imposing
unreasonable burdens on citizens of other States in their pursuit of
common callings within the State, in the ownership and disposition of
privately held property within the State, and in access to the courts
of the State.
It has not been suggested, however,
that state citizenship or residency may never be used by a State to
distinguish among persons. Suffrage, for example, always has been
understood to be tied to an individual's identification with a
particular State. No one would suggest that the Privileges and
Immunities Clause requires a State to open its polls to a person who
declines to assert that the State is the only one where he claims a
right to vote. The same is true as to qualification for an elective
office of the State. Nor must a State always apply all its laws or all
its services equally to anyone, resident or nonresident, who may
request it so to do. 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. Here we must decide into which category falls a distinction
with respect to access to recreational big-game hunting.
Appellants have demonstrated nothing to convince us that we should
completely reject the Court's earlier decisions. In his opinion in
Coryell, Mr. Justice Washington included in his list of situations, in
which he believed the States would be obligated to treat each other's
residents equally, only those where a nonresident sought to engage in
an essential activity or exercise a basic right. Certainly Mr. Justice
Field and the Court invoked the same principle in Paul v. Virginia. So,
too, did the Court by its holdings in Ward v. Maryland, Canadian
Northern R. Co. v. Eggen, and Blake v. McClung when it was concerned
with the pursuit of common callings,
the ability to transfer property, and access to courts,
respectively. And comparable status of the activity involved was
apparent in Toomer, the commercial-licensing case. With respect to such basic and essential
activities, interference with which would frustrate the purposes of the
formation of the Union, the States must treat residents and
nonresidents without unnecessary distinctions.
Does the distinction made by Montana between residents and nonresidents
in establishing access to elk hunting threaten a basic right in a way
that offends the Privileges and Immunities Clause? Merely to ask the
question seems to provide the answer. Elk hunting by nonresidents in
Montana is a recreation and a sport. It is not a means to the
nonresident's livelihood. The mastery of the animal and the trophy are
the ends that are sought; appellants are not totally excluded from
these.
Appellants' interest in sharing this limited resource on more equal
terms with Montana residents simply does not fall within the purview of
the Privileges and Immunities Clause. Equality in access to Montana elk
is not basic to the maintenance or well-being of the Union. Appellants
do not - and cannot - contend that they are deprived of a means of a
livelihood by the system or of access to any part of the State to which
they may seek to travel. We do not
decide the full range of activities that are sufficiently basic to the
livelihood of the Nation that the States may not interfere with a
nonresident's participation therein without similarly interfering with
a resident's participation. Whatever rights or activities may be
"fundamental" under the Privileges and Immunities Clause, we are
persuaded, and hold, that elk hunting by nonresidents in Montana is not
one of them.