February 1, 2012

Fourth Circuit reaffirms that the right to earn a living is protected by the Constitution

By Fourth Circuit reaffirms that the right to earn a living is protected by the Constitution

In McBurney v. Young, issued today, the Fourth Circuit Court of Appeals rejected a plaintiff’s argument that a Virginia law interfered with his right to engage in his trade, but reaffirmed that this right is protected by the Privileges And Immunities Clause of Article IV (precursor to the Fourteenth Amendment’s Privileges or Immunities Clause):

The ability to pursue one’s profession or “common calling” is one of the limited number of foundational rights protected under the Privileges and Immunities Clause. Toomer v. Witsell, 334 U.S. 385, 396 (1948); see also United Bldg. & Constr. Trades Council v. Camden, 465 U.S. 208, 219 (1984) (“Certainly, the pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause.”). Indeed, “[m]any, if not most, of [the Supreme Court’s] cases expounding the Privileges and Immunities Clause have dealt with this basic and essential activity.” Camden, 465 U.S. at 219. The Supreme Court has found the following provisions to impermissibly burden an individual’s right to pursue a common calling—requiring nonresidents to pay substantially more for annual licenses to trade in goods (Ward v. Maryland, 79 U.S. (12 Wall.) 418 (1870)); requiring nonresidents to pay substantially more to engage in a particular profession (Toomer, 334 U.S. 385); requiring nonresident commercial fisherman to pay ten times more for commercial fishing licenses (Mullaney v. Anderson, 342 U.S. 415 (1952)); resident-based hiring preferences for employment in the field of oil and gas development (Hicklin v. Orbeck, 437 U.S. 518 (1978)); limiting admission to the practice of law to residents (Piper, 470 U.S. 274); local rule limiting admission to the practice of law within a federal district court bar to individuals who lived in or maintained an office in the state, even if nonresidents could be admitted pro hac vice (Frazier v. Heebe, 482 U.S. 641 (1987)); and limiting admission by motion to the practice of law to residents, even if nonresidents could be admitted by examination (Friedman, 487 U.S. 59). Similarly, in Tangier Sound Waterman’s Ass’n v. Pruitt, 4 F.3d 264 (4th Cir. 1993), we held that a Virginia statute “tripling the nonresident commercial fisherman’s harverster’s license fee” “effects a restriction” on the “right to earn a living.” Id. at 265, 266. And in O’Reilly v. Board of Appeals, 942 F.2d 281 (4th Cir. 1991), we held that the county’s use of residency as a determining factor in awarding Passenger Vehicle Licenses, which were required for individuals to operate taxi services within the county, burdened nonresidents’ rights under the Privileges and Immunities Clause.

Sadly, federal courts continue to ignore the fact that, whereas the Article IV Privileges And Immunities Clause prohibits states from discriminating against residents of other states when it comes to the right to earn a living, the Fourteenth Amendment’s Privileges or Immunities Clause prohibits your own state from interfering with the same right.

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