1. United Building & Constr. Trades v. Camden, (1984)
2. Facts: The city of Camden N.J. passed a municipal ordinance requiring that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents.
3. Procedural Posture: π challenged the constitutionality of that ordinance under the Privileges and Immunities clause. The state supreme court of New Jersey rejected the attack on the grounds that the ordinance discriminates on the basis of municipal residency and not state residency, and thus declined to broaden the interpretation of the privileges and immunities clause beyond the literal language in the constitution.
4. Issue: Whether the Camden ordinance is constitutional under the privileges and immunities clause.
5. Holding: No.
6. ∆ Argument: The clause does not apply to a municipal ordinance. By its own language, it applies only to state laws which discriminate based on state residency. This ordinance discriminates equally against state residents and non-state residents as long as they are non-Camden residents. Even if it does apply to municipal ordinances, in this case the law is necessary to counteract grave social and economic ills, of which the out-of-city employees are a primary cause. Because they “live off of” Camden without residing in Camden, these out-of-city employees promote “middle-class flight” from Camden, resulting in a depleted tax base.
7. Majority Reasoning: First, the privileges and immunities clause does apply to strictly municipal ordinances because what would be unconstitutional if done by the state can be no more readily accomplished by the city acting under the authority of the state. Also, a person who lives out of state will be just as discriminated against regardless of whether the ordinance also discriminates against other state residents. The out-of-state resident has no chance to remedy the law by participating in the local political process. Determination of validity must therefore proceed under the two-step process. First, whether the ordinance burdens a “fundamental” privilege or immunity protected by the clause, and second, whether there is a good balancing reason for allowing it anyway. Although a Commerce Clause analysis can distinguish between cities acting as regulators (conflict with the dormant Commerce Clause) and cities acting as participants (no conflict), the privileges and immunities clause imposes a direct restraint on the local legislature without regard to whether they are acting as a participant. Clearly, the opportunity to seek employment with private employers, whether or not they work “for the city”, is a fundamental right protected by the clause. As to whether the law is nontheless justified, it can only discriminate against out-of-city residents who are shown to “constitute a peculiar source of the evil at which the statute is aimed.” Here, there are no findings as to whether the out-of-city residents are an “evil” with regard to Camden’s law, thus the case must be remanded for trial and specific findings to that extent.
8. Dissent Reasoning: The privileges and immunities clause has long been interpreted as applying only to state laws that discriminate against out-of-state residents. The majority cites no historical basis for broadening its scope. Furthermore, the out-of-state resident’s interests are adequately protected by the voters who are not residents of Camden, but still residents of New Jersey.
9. Notes: In Supreme Ct. of New Hampshire v. Piper (1985), the court struck down a state law prohibiting non-state residents from being admitted to the state bar under the privileges and immunities clause. The court found that Piper’s claim involved a “privilege” because the practice of law is “important to the national economy.” The court also found that there was no substantial justification for the difference in treatment between state residents and others. In Edwards v. California (1941); the court struck down the anti-Okie law which forbade bringing indigent persons into the state. The majority opinion relied entirely on the commerce clause, but a concurrence by Douglas stated that the privileges and immunities clause was a better rationale because the right of mobility of persons is more fundamental than that of products.
