In The

Supreme Court of the United States




Decided June 14, 1982

Justice O’Connor, Concurring

Topic: Civil Rights*Court vote: 8–1
Note: No other Justices joined this opinion.
Citation: 457 U.S. 55 Docket: 80–1146Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, concurring in the judgment.

The Court strikes Alaska's distribution scheme, purporting to rely solely upon the Equal Protection Clause of the Fourteenth Amendment. The phrase "right to travel" appears only fleetingly in the Court's analysis, dismissed with an observation that "right to travel analysis refers to little more than a particular application of equal protection analysis." Ante at 457 U. S. 60, n. 6. The Court's reluctance to rely explicitly on a right to travel is odd, because its holding depends on the assumption that Alaska's desire "to reward citizens for past contributions... is not a legitimate state purpose." Ante at 457 U. S. 63. Nothing in the Equal Protection Clause itself, however, declares this objective illegitimate. Instead, as a full reading of Shapiro v. Thompson, 394 U. S. 618 (1969), and Vlandis v. Kline, 412 U. S. 441 (1973), reveals, the Court has rejected this objective only when its implementation would abridge an interest in interstate travel or migration.

I respectfully suggest, therefore, that the Court misdirects its criticism when it labels Alaska's objective illegitimate. A desire to compensate citizens for their prior contributions is neither inherently invidious nor irrational. Under some circumstances, the objective may be wholly reasonable. [ Footnote 3/1 ] Even a generalized desire to reward citizens for past endurance, particularly in a State where years of hardship only recently have produced prosperity, is not innately improper. The difficulty is that plans enacted to further this objective necessarily treat new residents of a State less favorably than the longer term residents who have past contributions to "reward." This inequality, as the Court repeatedly has recognized, conflicts with the constitutional purpose of maintaining a Union, rather than a mere "league of States." See Paul v. Virginia, 8 Wall. 168, 75 U. S. 180 (1869). The Court's task, therefore, should be (1) to articulate this constitutional principle, explaining its textual sources, and (2) to test the strength of Alaska's objective against the constitutional imperative. By choosing instead to declare Alaska's purpose wholly illegitimate, the Court establishes an uncertain jurisprudence. What makes Alaska's purpose illegitimate? Is the purpose illegitimate under all circumstances? What other state interests are wholly illegitimate? Will an "illegitimate" purpose survive review if it becomes "important" or "compelling"? [ Footnote 3/2 ] These ambiguities in the Court's analysis prompt me to develop my own approach to Alaska's scheme.

Alaska's distribution plan distinguishes between long-term residents and recent arrivals. Stripped to its essentials, the plan denies non-Alaskans settling in the State the same privileges afforded longer term residents. The Privileges and Immunities Clause of Art. IV, which guarantees "[t]he Citizens of each State... all Privileges and Immunities of Citizens in the several States," addresses just this type of discrimination. [ Footnote 3/3 ] Accordingly, I would measure Alaska's scheme against the principles implementing the Privileges and Immunities Clause. In addition to resolving the particular problems raised by Alaska's scheme, this analysis supplies a needed foundation for many of the "right to travel" claims discussed in the Court's prior opinions.


Our opinions teach that Art. IV's Privileges and Immunities Clause "was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy." Toomer v. Witsell, 334 U. S. 385, 334 U. S. 395 (1948). The Clause protects a nonresident who enters a State to work, Hicklin v. Orbeck, 437 U. S. 518 (1978), to hunt commercial game, Toomer, supra, or to procure medical services, Doe v. Bolton, 410 U. S. 179 (1973). [ Footnote 3/4 ] A fortiori, the Privileges and Immunities Clause should protect the "citizen of State A who ventures into State B" to settle there and establish a home.

In this case, Alaska forces nonresidents settling in the State to accept a status inferior to that of old-timers. In its first year of operation, the distribution scheme would have given $1,050 to an Alaskan who had lived in the State since statehood. A resident of 10 years would have received $500, while a one-year resident would have received only $50. In effect, therefore, the State told its citizens:

Your status depends upon the date on which you established residence here. Those of you who migrated to the State cannot share its bounty on the same basis as those who were here before you.

Surely this scheme imposes one of the "disabilities of alienage" prohibited by Art. IV's Privileges and Immunities Clause. See Paul v. Virginia, supra, at 75 U. S. 180.

It could be argued that Alaska's scheme does not trigger the Privileges and Immunities Clause, because it discriminates among classes of residents, rather than between residents and nonresidents. This argument, however, misinterprets the force of Alaska's distribution system. Alaska's scheme classifies citizens on the basis of their former residential status, imposing a relative burden on those who migrated to the State after 1959. Residents who arrived in Alaska after that date have a less valuable citizenship right than do the old-timers who preceded them. Citizens who arrive in the State tomorrow will receive an even smaller claim on Alaska's resources. The fact that this discrimination unfolds after the nonresident establishes residency does not insulate Alaska's scheme from scrutiny under the Privileges and Immunities Clause. Each group of citizens who migrated to Alaska in the past, or chooses to move there in the future, lives in the State on less favorable terms than those who arrived earlier. The circumstance that some of the disfavored citizens already live in Alaska does not negate the fact that "the citizen of State A who ventures into [Alaska]" to establish a home labors under a continuous disability. [ Footnote 3/5 ]

If the Privileges and Immunities Clause applies to Alaska's distribution system, then our prior opinions describe the proper standard of review. In Baldwin v. Montana Fish and Game Comm'n, 436 U. S. 371 (1978), we held that States must treat residents and nonresidents "without unnecessary distinctions" when the nonresident seeks to "engage in an essential activity or exercise a basic right." Id. at 436 U. S. 387. On the other hand, if the nonresident engages in conduct that is not "fundamental" because it does not "bea[r] upon the vitality of the Nation as a single entity," the Privileges and Immunities Clause affords no protection. Id. at 436 U. S. 387, 436 U. S. 383.

Once the Court ascertains that discrimination burdens an "essential activity," it will test the constitutionality of the discrimination under a two-part test. First, there must be " something to indicate that non-citizens constitute a peculiar source of the evil at which the statute is aimed.'" Hicklin v. Orbeck, supra, at 437 U. S. 525 -526 (quoting Toomer v. Witsell, supra, at 334 U. S. 398 ). Second, the Court must find a "substantial relationship" between the evil and the discrimination practiced against the noncitizens. 437 U.S. at 437 U. S. 527.

Certainly the right infringed in this case is "fundamental." Alaska's statute burdens those nonresidents who choose to settle in the State. [ Footnote 3/6 ] It is difficult to imagine a right more essential to the Nation as a whole than the right to establish residence in a new State. Just as our federal system permits the States to experiment with different social and economic programs, New State Ice Co. v. Liebmann, 285 U. S. 262, 285 U. S. 311 (1932) (Brandeis, J., dissenting), it allows the individual to settle in the State offering those programs best tailored to his or her tastes. [ Footnote 3/7 ] Alaska's encumbrance on the right of nonresidents to settle in that State, therefore, must satisfy the dual standard identified in Hicklin.

Alaska has not shown that its new residents are the "peculiar source" of any evil addressed by its disbursement scheme. The State does not argue that recent arrivals constitute a particular source of its population turnover problem. Indeed, the State urges that it has a special interest in persuading young adults, who have grown to maturity in the State, to remain there. Brief for Appellees 35, n. 24. Nor is there any evidence that new residents, rather than old, will foolishly deplete the State's mineral and financial resources. Finally, although Alaska argues that its scheme compensates residents for their prior tangible and intangible contributions to the State, nonresidents are hardly a peculiar source of the "evil" of partaking in current largesse without having made prior contributions. A multitude of native Alaskans -including children and paupers -may have failed to contribute to the State in the past. Yet the State does not dock paupers for their prior failures to contribute, and it awards every person over the age of 18 dividends equal to the number of years that person has lived in the State.

Even if new residents were the peculiar source of these evils, Alaska has not chosen a cure that bears a "substantial relationship" to the malady. As the dissenting judges below observed, Alaska's scheme gives the largest dividends to residents who have lived longest in the State. The dividends awarded to new residents may be too small to encourage them to stay in Alaska. The size of these dividends appears to give new residents only a weak interest in prudent management of the State's resources. As a reward for prior contributions, finally, Alaska's scheme is quite ill-suited. While the phrase "substantial relationship" does not require mathematical precision, it demands at least some recognition of the fact that persons who have migrated to Alaska may have contributed significantly more to the State, both before and after their arrival, than have some natives.

For these reasons, I conclude that Alaska's disbursement scheme violates Art. IV's Privileges and Immunities Clause. I thus reach the same destination as the Court, but along a course that more precisely identifies the evils of the challenged statute.


The analysis outlined above might apply to many cases in which a litigant asserts a right to travel or migrate interstate. [ Footnote 3/8 ] To historians, this would come as no surprise. Article IV's Privileges and Immunities Clause has enjoyed a long association with the rights to travel and migrate interstate.

The Clause derives from Art. IV of the Articles of Confederation. The latter expressly recognized a right of "free ingress and regress to and from any other State," in addition to guaranteeing "the free inhabitants of each of these states... [the] privileges and immunities of free citizens in the several States." [ Footnote 3/9 ] While the Framers of our Constitution omitted the reference to "free ingress and regress," they retained the general guaranty of "privileges and immunities." Charles Pinckney, who drafted the current version of Art. IV, told the Convention that this Article was "formed exactly upon the principles of the 4th article of the present Confederation." 3 M. Farrand, Records of the Federal Convention of 1787, p. 112 (1934). Commentators, therefore, have assumed that the Framers omitted the express guaranty merely because it was redundant, not because they wished to excise the right from the Constitution. [ Footnote 3/10 ]

Early opinions by the Justices of this Court also traced a right to travel or migrate interstate to Art. IV's Privileges and Immunities Clause. In Corfield v. Coryell, 6 F.Cas. 546, 552 (No. 3,230) (CC ED Pa. 1823), for example, Justice Washington explained that the Clause protects the "right of a citizen of one state to pass through, or to reside in any other state." Similarly, in Paul v. Virginia, 8 Wall. at 75 U. S. 180, the Court found that one of the "undoubt[ed]" effects of the Clause was to give "the citizens of each State... the right of free ingress into other States, and egress from them...." See also Ward v. Maryland, 12 Wall. 418, 79 U. S. 430 (1871). Finally, in United States v. Wheeler, 254 U. S. 281, 254 U. S. 297 -298 (1920), the Court found that the Clause fused two distinct concepts: (1) "the right of citizens of the States to reside peacefully in, and to have free ingress into and egress from" their own States, and (2) the right to exercise the same privileges in other States.

History, therefore, supports assessment of Alaska's scheme, as well as other infringements of the right to travel, under the Privileges and Immunities Clause. This Clause may not address every conceivable type of discrimination that the Court previously has denominated a burden on interstate travel. I believe, however, that application of the Privileges and Immunities Clause to controversies involving the "right to travel" would at least begin the task of reuniting this elusive right with the constitutional principles it embodies. Because I believe that Alaska's distribution scheme violates the Privileges and Immunities Clause of Art. IV, I concur in the Court's judgment insofar as it reverses the judgment of the Alaska Supreme Court.


[ Footnote 3/1 ]

A State, for example, might choose to divide its largesse among all persons who previously have contributed their time to volunteer community organizations. If the State graded its dividends according to the number of years devoted to prior community service, it could be said that the State intended "to reward citizens for past contributions." Alternatively, a State might enact a tax credit for citizens who contribute to the State's ecology by building alternative fuel sources or establishing recycling plants. If the State made this credit retroactive, to benefit those citizens who launched these improvements before they became fashionable, the State once again would be rewarding past contributions. The Court's opinion would dismiss these objectives as wholly illegitimate. I would recognize them as valid goals and inquire only whether their implementation infringed any constitutionally protected interest.

[ Footnote 3/2 ]

The Court's conclusion that Alaska's scheme lacks a rational basis masks a puzzling aspect of its analysis. By refusing to extend any legitimacy to Alaska's objective, the Court implies that a program designed to reward prior contributions will never survive equal protection scrutiny. For example, the programs described in n. 1, supra, could not survive the Court's analysis even if the State demonstrated a compelling interest in rewarding volunteer activity or promoting conservation measures. The Court's opinion, although purporting to apply a deferential standard of review, actually insures that any governmental program depending upon a "past contributions" rationale will violate the Equal Protection Clause.

[ Footnote 3/3 ]

While the Clause refers to "Citizens," this Court has found that

the terms 'citizen' and 'resident' are 'essentially interchangeable'... for purposes of analysis of most cases under the Privileges and Immunities Clause.

Hicklin v. Orbeck, 437 U. S. 518, 437 U. S. 524, n. 8 (1978) (quoting Austin v. New Hampshire, 420 U. S. 656, 420 U. S. 662, n. 8 (1975)). This opinion, therefore, will refer to "nonresidents" of Alaska, as well as to "noncitizens" of that State.

It is settled that the Privileges and Immunities Clause does not protect corporations. See Paul v. Virginia, 8 Wall. 168 (1869). The word "Citizens" suggests that the Clause also excludes aliens. See, e.g., id. at 75 U. S. 177 (dictum); L. Tribe, American Constitutional Law § 63, p. 411, n. 18 (1978). Any prohibition of discrimination aimed at aliens or corporations must derive from other constitutional provisions.

[ Footnote 3/4 ]

See generally 79 U. S. Maryland, 12 Wall. 418, 79 U. S. 430 (1871) (The Clause "plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union for the purpose of engaging in lawful commerce, trade, or business, without molestation; to acquire personal property; [and] to take and hold real estate...").

[ Footnote 3/5 ]

See Note, A Constitutional Analysis of State Bar Residency Requirements under the Interstate Privileges and Immunities Clause of Article IV, 92 Harv.L.Rev. 1461, 1464-1465, n. 17 (1979) (labeling contrary argument "technical").

As the Court points out, ante at 457 U. S. 59 -60, n. 5, Alaska's plan differentiates even among native Alaskans, by tying their benefits to date of birth. If the scheme merely distributed benefits on the basis of age, without reference to the date beneficiaries established residence in Alaska, I doubt it would violate the Privileges and Immunities Clause. Under those circumstances, a 25-year-old Texan establishing residence in Alaska would acquire the same privileges of citizenship held by a 25-year-old native Alaskan. The scheme would not treat the citizen who moves to the State differently from citizens who already reside there. The Court does not explain whether it would find such an age-based scheme objectionable.

[ Footnote 3/6 ]

The "burden" imposed on nonresidents is relative to the benefits enjoyed by residents. It is immaterial, for purposes of the Privileges and Immunities Clause, that the nonresident may enjoy a benefit in the new State that he lacked completely in his former State. The Clause addresses only differences in treatment; it does not judge the quality of treatment a State affords citizens and noncitizens.

[ Footnote 3/7 ]

See also Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 294 U. S. 523 (1935) (the Constitution "was framed upon the theory that the peoples of the several states must sink or swim together, and that, in the long run, prosperity and salvation are in union, and not division"); Paul v. Virginia, 8 Wall. at 75 U. S. 180 ("Indeed, without some provision of the kind removing from the citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists"); Edwards v. California, 314 U. S. 160, 314 U. S. 173 (1941) (Constitution prohibits "attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders").

[ Footnote 3/8 ]

Any durational residency requirement, for example, treats nonresidents who have exercised their right to settle in a State differently from longer term residents. This is not to say, however, that all such requirements would fail scrutiny under the Privileges and Immunities Clause. The durational residency requirement upheld in Sosna v. Iowa, 419 U. S. 393 (1975) (one year to obtain divorce), for example, would have survived under the analysis outlined above. In Sosna, the State showed that nonresidents were a peculiar source of the evil addressed by its durational residency requirement. Those persons could misrepresent their attachment to Iowa and obtain divorces that would be susceptible to collateral attack in other States. Iowa adopted a reasonable response to this problem by requiring nonresidents to demonstrate their bona fide residency for one year before obtaining a divorce. I am confident that the analysis developed in Hicklin v. Orbeck, 437 U. S. 518 (1978), will adequately identify other legitimate durational residency requirements.

[ Footnote 3/9 ]

Even before adoption of the Articles, a few of the Colonies explicitly protected freedom of movement. The Rhode Island Charter gave members of that Colony the right "to passe and repasse with freedome, into and through the rest of the English Collonies, upon their lawful and civill occasions." Z. Chafee, Three Human Rights in the Constitution of 1787, p. 177 (1956). The Massachusetts Body of Liberties provided:

Every man of or within this Jurisdiction shall have free libertie, not with standing any Civill power, to remove both himselfe and his familie at their pleasure out of the same, provided there be no legall impediment to the contrarie.

Id. at 178. Massachusetts showed some of the same liberality to foreigners entering the Colony:

If any people of other Nations professing the true Christian Religion shall flee to us from the Tiranny or oppression of their persecutors, or from famyne, warres, or the like necessary and compulsarie cause, They shall be entertayned and succoured among us, according to that power and prudence god shall give us.

Ibid.. These attitudes contrasted with the more restrictive views prevailing in 17th-century Europe. See generally id. at 163-171.

[ Footnote 3/10 ]

See, e.g., id. at 185; Note, The Right to Travel and Exclusionary Zoning, 26 Hastings L.J. 849, 858-859 (1975); Comment, The Right to Travel: In Search of a Constitutional Source, 55 Neb.L.Rev. 117, 119-120, n. 14 (1975); Comment, A Strict Scrutiny of the Right to Travel, 22 UCLA L.Rev. 1129, 1130, n. 7 (1975).

See also Austin v. New Hampshire, 420 U.S. at 420 U. S. 661 (footnotes omitted) (Article IV of the Articles of Confederation 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"); United States v. Wheeler, 254 U. S. 281, 254 U. S. 294 (1920) ("the text of Article IV, § 2, of the Constitution makes manifest that it was drawn with reference to the corresponding clause of the Articles of Confederation, and was intended to perpetuate its limitations; and... that view has been so conclusively settled as to leave no room for controversy").

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