Article IV, Section 2, Clause 1:

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

In Corfield v. Coryell,1 Justice Bushrod Washington (while riding circuit) held that a state could discriminate against nonresidents who sought to harvest oysters and clams in state waters, despite the Privileges and Immunities Clause.2 The precise holding of Corfield was confirmed by the Supreme Court fifty years later in the 1877 case McCready v. Virginia, which upheld a Virginia law permitting only Virginians to catch or plant oysters in state rivers.3 In cases blending Commerce Clause and Privileges and Immunities challenges, Geer v. Connecticut extended the same rule to wild game,4 while Hudson Water Co. v. McCarter applied it to water rights.5

The virtual demise of the state ownership theory of animals and natural resources in the Commerce Clause context6 compelled the Court to review its precedents on distinctions between residents and nonresidents related to natural resources. In Baldwin v. Fish & Game Commission of Montana, the Court addressed a challenge to Montana’s laws for elk-hunting licenses, which charged nonresidents higher fees than residents.7 The Court was asked to overrule the Privileges and Immunities Clause holdings of Corfield, Geer, and McCready as having “no remaining vitality.” 8 Baldwin declined to do so, holding that while state control over wildlife is “not exclusive and absolute,” recreational hunting was not a fundamental right under the Privileges and Immunities Clause.9 Because recreational activity—in contrast to “common callings” 10 —was not “a means to the nonresident’s livelihood,” the state could distinguish between residents and nonresidents consistently with the Privileges and Immunities Clause.11

Footnotes

1

See ArtIV.S2.C1.7 Privileges and Immunities of Citizens Defined.

2

Corfield v. Coryell, 6 F. Cas. 546, 552 (Washington, Circuit Justice, C.C.E.D. Pa. 1823).

3

94 U.S. 391, 395–96 (1877).

4

161 U.S. 519 (1896), overruled by Hughes v. Oklahoma, 441 U.S. 322 (1979).

5

209 U.S. 349, 357 (1908), overruled by Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982).

6

See Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 284 (1977) ( “The ‘ownership’ language of cases such as [Geer and McCready] must be understood as no more than a 19th-century legal fiction expressing ‘the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.’” (citing Toomer v. Witsell, 344 U.S. 385, 402 (1948)).

7

436 U.S. 371, 372–74 (1978).

8

Id. at 386.

9

Id. at 386–88.

10

See ArtIV.S2.C1.10 Occupations and Privileges and Immunities Clause.

11

Baldwin, 436 U.S. at 388; cf. Toomer v. Witsell, 334 U.S. 385, 403 (1948) (holding that commercial shrimping “like other common callings, is within the purview of the privileges and immunities clause” ).