After Alaska amended its Constitution to establish a Permanent
Fund into which the State must deposit at least 25% of its mineral
income each year, the state legislature, in 1980, enacted a
dividend program to distribute annually a portion of the Fund's
earnings directly to the State's adult residents. Under the plan,
each adult resident receives one dividend unit for each year of
residency subsequent to 1959, the first year of Alaska's statehood.
Appellants, residents of Alaska since 1978, brought an action in an
Alaska state court challenging the statutory dividend distribution
plan as violative of,
inter alia, their right to equal
protection guarantees. The trial court granted summary judgment in
appellants' favor, but the Alaska Supreme Court reversed and upheld
the statute.
Held: The Alaska dividend distribution plan violates
the guarantees of the Equal Protection Clause of the Fourteenth
Amendment. Pp.
457 U. S.
58-65.
(a) Rather than imposing any threshold waiting period for
entitlement to dividend benefits or establishing a test of bona
fides of state residence, the dividend statute creates fixed,
permanent distinctions between an ever-increasing number of classes
of concededly bona fide residents based on how long they have lived
in the State.
Sosna v. Iowa, 419 U.
S. 393;
Memorial Hospital v. Maricopa County,
415 U. S. 250;
Dunn v. Blumstein, 405 U. S. 330; and
Shapiro v. Thompson, 394 U. S. 618,
distinguished. When a state distributes benefits unequally, the
distinctions it makes are subject to scrutiny under the Equal
Protection Clause, and generally a law will survive that scrutiny
if the distinctions rationally further a legitimate state purpose.
Pp.
457 U. S.
58-61.
(b) Alaska has shown no valid state interests that are
rationally served by the distinctions it makes between citizens who
established residence before 1959 and those who have become
residents since then. Neither the State's claimed interest in
creating a financial incentive for individuals to establish and
maintain residence in Alaska nor its claimed interest in assuring
prudent management of the Permanent Fund is rationally related to
such distinctions. And the State's interest in rewarding citizens
for past contributions is not a legitimate state purpose. Alaska's
reasoning could open the door to state apportionment of other
rights, benefits, and services according to length of residency,
and would
Page 457 U. S. 56
permit the states to divide citizens into expanding numbers of
permanent classes. Such a result would be clearly impermissible.
Pp.
457 U. S.
61-64.
619 P.2d 448,
reversed and remanded.
BURGER, C.J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ.,
joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL,
BLACKMUN, and POWELL, JJ., joined,
post, p.
457 U.S. 65. O'CONNOR, J., filed an
opinion concurring in the judgment,
post, p.
457 U. S. 71.
REHNQUIST, J., filed a dissenting opinion,
post, p.
457 U. S.
81.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
The question presented on this appeal is whether a statutory
scheme by which a State distributes income derived from its natural
resources to the adult citizens of the State in varying amounts,
based on the length of each citizen's residence, violates the equal
protection rights of newer state citizens. The Alaska Supreme Court
sustained the constitutionality of the statute.
619 P.2d 448
(1980). We stayed the distribution of dividend funds, 449 U.S. 989
(1980), and noted probable jurisdiction, 450 U.S. 908 (1981). We
reverse.
I
The 1967 discovery of large oil reserves on state-owned land in
the Prudhoe Bay area of Alaska resulted in a windfall to the State.
The State, which had a total budget of $124 million in 1969, before
the oil revenues began to flow into the state coffers, received
$3.7 billion in petroleum revenues during the 1981 fiscal year.
[
Footnote 1] This income will
continue, and
Page 457 U. S. 57
most likely grow for some years in the future. Recognizing that
its mineral reserves, although large, are finite, and that the
resulting income will not continue in perpetuity, the State took
steps to assure that its current good fortune will bring long-range
benefits. To accomplish this, Alaska, in 1976, adopted a
constitutional amendment establishing the Permanent Fund into which
the State must deposit at least 25% of its mineral income each
year. Alaska Const., Art. IX, § 15. The amendment prohibits the
legislature from appropriating any of the principal of the Fund,
but permits use of the Fund's earnings for general governmental
purposes.
In 1980, the legislature enacted a dividend program to
distribute annually a portion of the Fund's earnings directly to
the State's adult residents. Under the plan, each citizen 18 years
of age or older receives one dividend unit for each year of
residency subsequent to 1959, the first year of statehood. The
statute fixed the value of each dividend unit at $50 for the 1979
fiscal year; a one-year resident thus would receive one unit, or
$50, while a resident of Alaska since it became a State in 1959
would receive 21 units, or $1,050. The value of a dividend unit
will vary each year depending on the income of the Permanent Fund
and the amount of that income the State allocates for other
purposes. The State now estimates that the 1985 fiscal year
dividend will be nearly four times as large as that for 1979.
Appellants, residents of Alaska since 1978, brought this suit in
1980 challenging the dividend distribution plan as violative of
their right to equal protection guarantees and their constitutional
right to migrate to Alaska, to establish residency there, and
thereafter to enjoy the full rights of Alaska
Page 457 U. S. 58
citizenship on the same terms as all other citizens of the
State. The Superior Court for Alaska's Third Judicial District
granted summary judgment in appellants' favor, holding that the
plan violated the rights of interstate travel and equal protection.
A divided Alaska Supreme Court reversed and upheld the statute.
[
Footnote 2]
II
The Alaska dividend distribution law is quite unlike the
durational residency requirements we examined in
Sosna v.
Iowa, 419 U. S. 393
(1975);
Memorial Hospital v. Maricopa County, 415 U.
S. 250 (1974);
Dunn v. Blumstein, 405 U.
S. 330 (1972); and
Shapiro v. Thompson,
394 U. S. 618
(1969). Those cases involved laws which required new residents to
reside in the State a fixed minimum period to be eligible for
certain benefits available on an equal basis to all other
residents. [
Footnote 3] The
asserted purpose of the durational residency requirements was to
assure that only persons who had established bona fide residence
received rights and benefits provided for residents.
The Alaska statute does not impose any threshold waiting period
on those seeking dividend benefits; persons with less
Page 457 U. S. 59
than a full year of residency are entitled to share in the
distribution. Alaska Stat.Ann. § 43.23.010 (Supp.1981). [
Footnote 4] Nor does the statute
purport to establish a test of the bona fides of state residence.
Instead, the dividend statute creates fixed, permanent distinctions
between an ever-increasing number of perpetual classes of
concededly bona fide residents, based on how long they have been in
the State.
Appellants established residence in Alaska two years before the
dividend law was passed. The distinction they complain of is not
one which the State makes between those who arrived in Alaska after
the enactment of the dividend distribution law and those who were
residents prior to its enactment. Appellants instead challenge the
distinctions made within the class of persons who were residents
when the dividend scheme was enacted in 1980. The distinctions
appellants attack include the preference given to persons who were
residents when Alaska became a State in 1959 over all those who
have arrived since then, as well as the distinctions made between
all bona fide residents who settled in Alaska at different times
during the 1959 to 1980 period. [
Footnote 5]
Page 457 U. S. 60
When a state distributes benefits unequally, the distinctions it
makes are subject to scrutiny under the Equal Protection Clause of
the Fourteenth Amendment. [
Footnote
6] Generally, a law will survive that scrutiny if the
distinction it makes rationally furthers a legitimate state
purpose. Some particularly invidious distinctions are subject to
more rigorous scrutiny. Appellants claim that the distinctions made
by the Alaska law should be subjected to the higher level of
scrutiny applied to the durational residency requirements in
Shapiro v. Thompson, supra, and
Memorial Hospital v.
Maricopa County, supra. The State, on the other hand, asserts
that the law need only meet the minimum rationality test. In any
event, if the statutory scheme cannot pass even the minimal
Page 457 U. S. 61
test proposed by the State, we need not decide whether any
enhanced scrutiny is called for.
A
The State advanced and the Alaska Supreme Court accepted three
purposes justifying the distinctions made by the dividend program:
(a) creation of a financial incentive for individuals to establish
and maintain residence in Alaska; (b) encouragement of prudent
management of the Permanent Fund; and (c) apportionment of benefits
in recognition of undefined "contributions of various kinds, both
tangible and intangible, which residents have made during their
years of residency," 619 P.2d at 458. [
Footnote 7]
As the Alaska Supreme Court apparently realized, the first two
state objectives -- creating a financial incentive for individuals
to establish and maintain Alaska residence and assuring prudent
management of the Permanent Fund and the State's natural and
mineral resources -- are not rationally related to the distinctions
Alaska seeks to make between newer residents and those who have
been in the State since 1959. [
Footnote 8]
Page 457 U. S. 62
Assuming,
arguendo, that granting increased dividend
benefits for each year of continued Alaska residence might give
some residents an incentive to stay in the State in order to reap
increased dividend benefits in the future, the State's interest is
not in any way served by granting greater dividends to persons for
their residency during the 21 years prior to the enactment.
[
Footnote 9]
Nor does the State's purpose of furthering the prudent
management of the Permanent Fund and the State's resources support
retrospective application of its plan to the date of statehood. On
this score the State's contention is straightforward:
"[A]s population increases, each individual share in the income
stream is diluted. The income must be divided equally among
increasingly large numbers of people. If residents believed that,
twenty years from now, they would be required to share permanent
fund income on a per capita basis with the large population that
Alaska will no doubt have by then, the temptation would be great to
urge the legislature to provide immediately for the highest
possible percentage return on the investments of the permanent fund
principal, which would require investments in riskier
ventures."
Id. at 462. The State similarly argues that equal per
capita distribution would encourage rapacious development of
natural resources.
Page 457 U. S. 63
Ibid. Even if we assume that the state interest is
served by increasing the dividend for each year of residency
beginning with the date of enactment, is it rationally served by
granting greater dividends in varying amounts to those who resided
in Alaska during the 21 years prior to enactment? We think not.
The last of the State's objectives -- to reward citizens for
past contributions -- alone was relied upon by the Alaska Supreme
Court to support the retrospective application of the law to 1959.
However, that objective is not a legitimate state purpose. A
similar "past contributions" argument was made and rejected in
Shapiro v. Thompson, 394 U.S. at
394 U. S.
632-633:
"Appellants argue further that the challenged classification may
be sustained as an attempt to distinguish between new and old
residents on the basis of the contributions they have made to the
community through the payment of taxes. . . . Appellants' reasoning
would . . . permit the State to apportion all benefits and services
according to the past tax [or intangible] contributions of its
citizens.
The Equal Protection Clause prohibits such an
apportionment of state services."
(Emphasis added.) Similarly, in
Vlandis v. Kline,
412 U. S. 441
(1973), we noted that
"apportion[ment of] tuition rates on the basis of old and new
residency . . . would give rise to grave problems under the Equal
Protection Clause of the Fourteenth Amendment."
Id. at
412 U. S.
449-450, and n. 6. [
Footnote 10]
Page 457 U. S. 64
If the states can make the amount of a cash dividend depend on
length of residence, what would preclude varying university tuition
on a sliding scale based on years of residence -- or even limiting
access to finite public facilities, eligibility for student loans,
for civil service jobs, or for government contracts by length of
domicile? Could states impose different taxes based on length of
residence? Alaska's reasoning could open the door to state
apportionment of other rights, benefits, and services according to
length of residency. [
Footnote
11] It would permit the states to divide citizens into
expanding numbers of permanent classes. [
Footnote 12] Such a result would be clearly
impermissible. [
Footnote
13]
B
We need not consider whether the State could enact the dividend
program prospectively only. Invalidation of a portion of a statute
does not necessarily render the whole invalid unless it is evident
that the legislature would not have enacted the legislation without
the invalid portion.
Buckley v.
Page 457 U. S. 65
Valeo, 424 U. S. 1,
424 U. S. 108
(1976);
United States v. Jackson, 390 U.
S. 570,
390 U. S. 585
(1968);
Champlin Refining Co. v. Corporation Comm'n of
Oklahoma, 286 U. S. 210,
286 U. S. 234
(1932). Here we need not speculate as to the intent of the Alaska
Legislature; the legislation expressly provides that invalidation
of any portion of the statute renders the whole invalid:
"Sec. 4. If any provision enacted in sec. 2 of this Act [which
included the dividend distribution plan in its entirety] is held to
be invalid by the final judgment, decision or order of a court of
competent jurisdiction, then that provision is nonseverable, and
all provisions enacted in sec. 2 of this Act are invalid and of no
force or effect."
1980 Alaska Sess. Laws, ch. 21, § 4. However, it is of course
for the Alaska courts to pass on the severability clause of the
statute.
III
The only apparent justification for the retrospective aspect of
the program, "favoring established residents over new residents,"
is constitutionally unacceptable.
Vlandis v. Kline, supra,
at
412 U. S. 450.
In our view, Alaska has shown no valid state interests which are
rationally served by the distinction it makes between citizens who
established residence before 1959 and those who have become
residents since then.
We hold that the Alaska dividend distribution plan violates the
guarantees of the Equal Protection Clause of the Fourteenth
Amendment. Accordingly, the judgment of the Alaska Supreme Court is
reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.
Reversed and remanded.
[
Footnote 1]
Alaska Dept. of Revenue, Revenue Sources FY 1981-1983
(Sept.1981). (Includes General Fund unrestricted petroleum revenues
of $3.3 billion and petroleum revenues directly deposited in the
Permanent Fund in the amount of $400 million. An additional $900
million was transferred from the General Fund to the Permanent Fund
in the 1981 fiscal year.) The 1980 census reports that Alaska's
adult population is 270,265; per capita 1981 oil revenues amount to
$13,632 for each adult resident. Petroleum revenues now amount to
89% of the State's total government revenue.
Ibid.
[
Footnote 2]
The infusion of Permanent Fund earnings into state general
revenues also led the Alaska Legislature to enact a statute giving
residents a one-third exemption from state income taxes for each
year of residence; this operated to exempt entirely anyone with
three or more years of residency. The Alaska Supreme Court, again
by a 3-2 vote, held that this statute violated the State
Constitution's equal protection clause.
Williams v.
Zobel, 619 P.2d 422
(1980). Chief Justice Rabinowitz, the only justice in the majority
in both cases, found that the tax exemption statute, but not the
dividend distribution plan, could "be perceived as a penalty
imposed on a person who chooses to exercise his or her right to
move into Alaska." 619 P.2d at 458.
[
Footnote 3]
In the durational residency cases, we examined state laws which
imposed waiting periods on access to divorce courts,
Sosna v.
Iowa; eligibility for free nonemergency medical care,
Memorial Hospital v. Maricopa County; voting rights,
Dunn v. Blumstein; and welfare assistance,
Shapiro v.
Thompson.
[
Footnote 4]
Section 43.23.010(b) provides:
"For each year, an individual is eligible to receive payment of
the permanent fund dividends for which he is entitled under this
section if he"
"(1) is at least 18 years of age; and"
"(2) is a state resident during all or part of the year for
which the permanent fund dividend is paid."
The remainder of § 43.23.010 establishes the number of dividend
units residents are entitled to receive and the method of payment.
Section 43.23.010(f) provides that a resident entitled to benefits
under subsection (b) who was a resident for less than a full year
is entitled to a dividend prorated on the basis of the number of
months of state residence.
[
Footnote 5]
The Alaska statute does not simply make distinctions between
native-born Alaskans and those who migrate to Alaska from other
states; it does not discriminate only against those who have
recently exercised the right to travel, as did the statute involved
in
Shapiro v. Thompson, 394 U. S. 618
(1969). The Alaska statute also discriminates among long-time
residents and even native-born residents. For example, a person
born in Alaska in 1962 would have received $100 less than someone
who was born in the State in 1960. Of course, the native Alaskan
born in 1962 would also receive $100 less than the person who moved
to the State in 1960.
The statute does not involve the kind of discrimination which
the Privileges and Immunities Clause of Art. IV was designed to
prevent. That 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 is thus not applicable to this case.
[
Footnote 6]
The Alaska courts considered whether the dividend distribution
law violated appellants' constitutional right to travel. The right
to travel and to move from one state to another has long been
accepted, yet both the nature and the source of that right have
remained obscure.
See Jones v. Helms, 452 U.
S. 412,
452 U. S.
417-419, and nn. 12 and 13 (1981);
Shapiro v.
Thompson, supra, at
394 U. S.
629-631;
United States v. Guest, 383 U.
S. 745,
383 U. S.
757-759 (1966).
See also Z. Chafee, Three Human
Rights in the Constitution of 1787, pp. 188-193 (1956). In addition
to protecting persons against the erection of actual barriers to
interstate movement, the right to travel, when applied to residency
requirements, protects new residents of a state from being
disadvantaged because of their recent migration or from otherwise
being treated differently from longer term residents. In reality,
right to travel analysis refers to little more than a particular
application of equal protection analysis. Right to travel cases
have examined, in equal protection terms, state distinctions
between newcomers and longer term residents.
See Memorial
Hospital v. Maricopa County, 415 U. S. 250
(1974);
Dunn v. Blumstein, 405 U.
S. 330 (1972);
Shapiro v. Thompson, supra. This
case also involves distinctions between residents based on when
they arrived in the State, and is therefore also subject to equal
protection analysis.
[
Footnote 7]
These purposes were enumerated in the first section of the Act
creating the dividend distribution plan, 1980 Alaska Sess. Laws,
ch. 21, § 1(b):
"(b) The purposes of this Act are"
"(1) to provide a mechanism for equitable distribution to the
people of Alaska of at least a portion of the state's energy wealth
derived from the development and production of the natural
resources belonging to them as Alaskans;"
"(2) to encourage persons to maintain their residence in Alaska
and to reduce population turnover in the state; and"
"(3) to encourage increased awareness and involvement by the
residents of the state in the management and expenditure of the
Alaska permanent fund (art. IX, sec. 15, state constitution)."
Thus we need not speculate as to the objectives of the
legislature.
[
Footnote 8]
In response to the argument that the objectives of stabilizing
population and encouraging prudent management of the Permanent Fund
and of the State's natural resources did not justify the
application of the dividend program to the years 1959 to 1980, the
Alaska Supreme Court maintained that the retrospective aspect of
the program was justified by the objective of rewarding state
citizens for past contributions. 619 P.2d at 461-462, n. 37.
See also dissenting opinion of Justice Dimond,
id. at 469-471.
[
Footnote 9]
In fact, newcomers seem more likely to become dissatisfied and
to leave the State than well-established residents; it would thus
seem that the State would give a larger, rather than a smaller,
dividend to new residents if it wanted to discourage emigration.
The separation of residents into classes hardly seems a likely way
to persuade new Alaskans that the State welcomes them and wants
them to stay.
Of course, the State's objective of reducing population turnover
cannot be interpreted as an attempt to inhibit migration into the
State without encountering insurmountable constitutional
difficulties.
See Shapiro v. Thompson, 394 U.S. at
394 U. S.
629.
[
Footnote 10]
Even if the objective of rewarding past contributions were
valid, it would be ironic to apply that rationale here. As
Representative Randolph noted during debate in the state
legislature on the dividend statute:
"The pipeline is the entity that has allowed us all this
latitude to do all the things we're considering doing, not only
today but throughout the session. And without . . . newcomers, we
couldn't have built that pipeline. Without their skill, without
their ability, without their money, the pipeline wouldn't be there.
So I get a little bit tired of -- and I've got a hunch an awful lot
of people who have been here five or six or seven or ten years,
whatever we knock off as newcomers, get a little bit tired of being
chastized and penalized and discriminated against for having not
been born here or not have been here 30 or 40 or 50 years."
[
Footnote 11]
Apportionment would thus be prohibited only when it involves
"fundamental rights" and services deemed to involve "basic
necessities of life."
See Memorial Hospital v. Maricopa
County, 415 U.S. at
415 U. S.
259.
[
Footnote 12]
"Such a power in the States could produce nothing but discord
and mutual irritation, and they very clearly do not possess it."
Passenger
Cases, 7 How. 283,
48 U. S. 492
(1849) (Taney, C.J., dissenting).
[
Footnote 13]
Starns v. Malkerson, 326 F.
Supp. 234 (Minn.1970),
summarily aff'd, 401 U.S. 985
(1971), cannot be read as a contrary decision of this Court. First,
summary affirmance by this Court is not to be read as an adoption
of the reasoning supporting the judgment under review.
Fusari
v. Steinberg, 419 U. S. 379,
419 U. S. 391
(1975) (concurring opinion).
See also Colorado Springs
Amusements, Ltd. v. Rizzo, 428 U. S. 913,
920-921 (1976) (BRENNAN, J., dissenting);
Edelman v.
Jordan, 415 U. S. 651,
415 U. S. 671
(1974). Moreover, as we pointed out in
Vlandis v. Kline,
412 U. S. 441,
412 U. S.
452-453, n. 9 (1973), we considered the Minnesota
one-year residency requirement examined in
Starns a test
of bona fide residence, not a return on prior contributions to the
commonweal.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN,
and JUSTICE POWELL join, concurring.
I join the opinion of the Court, and agree with its conclusion
that the retrospective aspects of Alaska's dividend distribution
law are not rationally related to a legitimate
Page 457 U. S. 66
state purpose. I write separately only to emphasize that the
pervasive discrimination embodied in the Alaska distribution scheme
gives rise to constitutional concerns of somewhat larger
proportions than may be evident on a cursory reading of the Court's
opinion. In my view, these concerns might well preclude even the
prospective operation of Alaska's scheme.
I
I agree with JUSTICE O'CONNOR that these more fundamental
defects in the Alaska dividend distribution law are, in part,
reflected in what has come to be called the "right to travel."
[
Footnote 2/1] That right -- or,
more precisely, the federal interest in free interstate migration
-- is clearly, though indirectly, affected by the Alaska dividend
distribution law, and this threat to free interstate migration
provides an independent rationale for holding that law
unconstitutional. At the outset, however, I note that the frequent
attempts to assign the right to travel some textual source in the
Constitution seem to me to have proved both inconclusive and
unnecessary. JUSTICE O'CONNOR plausibly argues,
post at
457 U. S. 78-81,
that the right predates the Constitution, and was carried forward
in the Privileges and Immunities Clause of Art. IV. But equally
plausible, I think, is the argument that the right resides in the
Commerce Clause,
see Edwards v. California, 314 U.
S. 160,
314 U. S. 173
(1941), or in the Privileges and Immunities
Page 457 U. S. 67
Clause of the Fourteenth Amendment,
see id. at 177-178
(Douglas, J., concurring). In any event, in light of the
unquestioned historic recognition of the principle of free
interstate migration, and of its role in the development of the
Nation, we need not feel impelled to "ascribe the source of this
right to travel interstate to a particular constitutional
provision."
Shapiro v. Thompson, 394 U.
S. 618,
394 U. S. 630
(1969). It suffices that:
"'The constitutional right to travel from one State to another .
. . occupies a position fundamental to the concept of our Federal
Union. It is a right that has been firmly established and
repeatedly recognized."
"' . . . [T]he right finds no explicit mention in the
Constitution. The reason, it has been suggested, is that a right so
elementary was conceived from the beginning to be a necessary
concomitant of the stronger Union the Constitution created. In any
event, freedom to travel throughout the United States has long been
recognized as a basic right under the Constitution.'"
Id. at
394 U. S.
630-631, quoting
United States v. Guest,
383 U. S. 745,
383 U. S.
757-758 (1966).
As is clear from our cases, the right to travel achieves its
most forceful expression in the context of equal protection
analysis. But if, finding no citable passage in the Constitution to
assign as its source, some might be led to question the independent
vitality of the principle of free interstate migration, I find its
unmistakable essence in that document that transformed a loose
confederation of States into one Nation. A scheme of the sort
adopted by Alaska is inconsistent with the federal structure even
in its prospective operation.
A State clearly may undertake to enhance the advantages of
industry, economy, and resources that make it a desirable place in
which to live. In addition, a State may make residence within its
boundaries more attractive by offering direct benefits to its
citizens in the form of public services, lower taxes than other
States offer, or direct distributions of its
Page 457 U. S. 68
munificence. Through these means, one State may attract citizens
of other States to join the numbers of its citizenry. That is a
healthy form of rivalry: it inheres in the very idea of maintaining
the States as independent sovereigns within a larger framework, and
it is fully -- indeed, necessarily -- consistent with the Framers'
further idea of joining these independent sovereigns into a single
Nation. But a State cannot compound its offer of direct benefits in
the inventive manner exemplified by the Alaska distribution scheme:
for if each State were free to reward its citizens incrementally
for their years of residence, so that a citizen leaving one State
would thereby forfeit his accrued seniority, only to have to begin
building such seniority again in his new State of residence, then
the mobility so essential to the economic progress of our Nation,
and so commonly accepted as a fundamental aspect of our social
order, would not long survive.
II
The Court today reaffirms the important principle that, at least
with respect to a durational residency discrimination, a State's
desire "to reward citizens for past contributions" is clearly "not
a legitimate state purpose."
Ante at
457 U. S. 63. I
do not think it "odd,"
post at
457 U. S. 72,
that the Court disclaims reliance on the "right to travel" as the
source of this limitation on state power. In my view, the
acknowledged illegitimacy of that state purpose has a different
heritage -- it reflects not the structure of the Federal Union, but
the idea of constitutionally protected equality.
See Shapiro v.
Thompson, supra, at
394 U. S.
632-633 ("The Equal Protection Clause prohibits such an
apportionment of state services");
Vlandis v. Kline,
412 U. S. 441,
412 U. S. 450,
n. 6 (1973). The Constitution places the recently naturalized
immigrant from a foreign land on an equal footing with those
citizens of a State who are able to trace their lineage back for
many generations within the State's borders. The 18-year-old native
resident of a State is as much a citizen as the 55-year-old native
resident. But
Page 457 U. S. 69
the Alaska plan discriminates against the recently naturalized
citizen, in favor of the Alaska citizen of longer duration; it
discriminates against the 18-year-old native resident, in favor of
all residents of longer duration. If the Alaska plan were limited
to discriminations such as these, and did not purport to apply to
migrants from sister States, interstate travel would not be
noticeably burdened -- yet those discriminations would surely be
constitutionally suspect.
The Fourteenth Amendment guarantees the equal protection of the
law to anyone who may be within the territorial jurisdiction of a
State. That Amendment does not suggest by its terms that equal
treatment might be denied a person depending upon how long that
person
has been within the jurisdiction of the State. The
Fourteenth Amendment does, however, expressly recognize one
elementary basis for distinguishing between persons who may be
within a State's jurisdiction at any particular time -- by setting
forth the requirements for state citizenship. But it is significant
that the Citizenship Clause of the Fourteenth Amendment expressly
equates citizenship only with simple residence. [
Footnote 2/2] That Clause does not provide for, and
does not allow for, degrees of citizenship based on length of
residence. [
Footnote 2/3] And the
Equal Protection Clause would not tolerate such distinctions.
Page 457 U. S. 70
In short, as much as the right to travel, equality of
citizenship is of the essence in our Republic. As the Court notes,
States may not "divide citizens into expanding numbers of permanent
classes."
Ante at
457 U. S. 64.
It is, of course, elementary that the Constitution does not bar
the States from making reasoned distinctions between citizens:
insofar as those distinctions are rationally related to the
legitimate ends of the State, they present no constitutional
difficulty, as our equal protection jurisprudence attests. But we
have never suggested that duration of residence
vel non
provides a valid justification for discrimination. To the contrary,
discrimination on the basis of residence must be supported by a
valid state interest independent of the discrimination itself. To
be sure, allegiance and attachment may be rationally measured by
length of residence -- length of residence may, for example, be
used to test the bona fides of citizenship -- and allegiance and
attachment may bear some rational relationship to a very limited
number of legitimate state purposes.
Cf. Chimento v.
Stark, 353 F.
Supp. 1211 (NH),
summarily aff'd, 414 U.S. 802 (1973)
(7-year citizenship requirement to run for Governor); U.S.Const.,
Art. I, § 2, cl. 2, § 3, cl. 3; Art. II, § 1, cl. 5. But those
instances in which length of residence could provide a legitimate
basis for distinguishing one citizen from another are rare.
Permissible discriminations between persons must bear a rational
relationship to their
relevant characteristics. While some
imprecision is unavoidable in the process of legislative
classification, the ideal of equal protection requires attention to
individual merit, to individual need. In almost all instances, the
business of the State is not with the past, but with the present:
to remedy continuing injustices, to fill current needs, to build on
the present in order to better the future. The past actions of
individuals may be relevant in assessing their present needs; past
actions may also be relevant in predicting current ability and
future performance. In addition,
Page 457 U. S. 71
to a limited extent, recognition and reward of past public
service have independent utility for the State, for such
recognition may encourage other people to engage in comparably
meritorious service. But even the idea of rewarding past public
service offers scarce support for the "past contribution"
justification for durational residence classifications, since
length of residence has only the most tenuous relation to the
actual service of individuals to the State.
Thus, the past contribution rationale proves much too little to
provide a rational predicate for discrimination on the basis of
length of residence. But it also proves far too much, for "it would
permit the State to apportion all benefits and services according
to the past . . . contributions of its citizens."
Shapiro v.
Thompson, 394 U.S. at
394 U. S. 632-633. In effect, then, the past
contribution rationale is so far-reaching in its potential
application, and the relationship between residence and
contribution to the State so vague and insupportable, that it
amounts to little more than a restatement of the criterion for
discrimination that it purports to justify. But while duration of
residence has minimal utility as a measure of things that are, in
fact, constitutionally relevant, resort to duration of residence as
the basis for a distribution of state largesse does closely track
the constitutionally untenable position that the longer one's
residence, the worthier one is of the State's favor. In my view, it
is difficult to escape from the recognition that underlying any
scheme of classification on the basis of duration of residence we
shall almost invariably find the unstated premise that "some
citizens are more equal than others." We rejected that premise and,
I believe, implicitly rejected most forms of discrimination based
upon length of residence, when we adopted the Equal Protection
Clause.
[
Footnote 2/1]
What is notably at stake in this case, and what clearly must be
taken into account in determining the constitutionality of this
legislative scheme, is the national interest in a fluid system of
interstate movement. It may be that national interests are not
always easily translated into individual rights, but where the
"right to travel" is involved, our cases leave no doubt that it
will trigger intensified equal protection scrutiny.
See, e.g.,
Memorial Hospital v. Maricopa County, 415 U.
S. 250 (1974);
Dunn v. Blumstein, 405 U.
S. 330 (1972);
Shapiro v. Thompson,
394 U. S. 618
(1969). As the Court notes, the "right to travel" is implicated not
only by "actual barriers to interstate movement," but also by
"state distinctions between newcomers and longer-term residents."
Ante at
457 U. S. 60, n.
6.
[
Footnote 2/2]
"[A] citizen of the United States can, of his own volition,
become a citizen of any State of the Union by a
bona fide
residence therein, with the same rights as other citizens of that
State."
Slaughter-House
Cases, 16 Wall. 36,
83 U. S. 80
(1873).
See id. at
83 U. S. 112-113
(Bradley, J., dissenting) ("A citizen of the United States has a
perfect constitutional right to go to and reside in any State he
chooses, and to claim citizenship therein, and an equality of
rights with every other citizen").
[
Footnote 2/3]
The American aversion to aristocracy developed long before the
Fourteenth Amendment, and is, of course, reflected elsewhere in the
Constitution.
See Art. I, § 9, cl. 8 ("No Title of
Nobility shall be granted by the United States").
See also
Virginia Declaration of Rights (1776), in R. Rutland, The Birth of
the Bill of Rights, App. A (1955) ("no man, or set of men, are
entitled to exclusive or separate emoluments or privileges from the
community, but in consideration of publick services").
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
Page 457 U. S. 72
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
Page 457 U. S. 73
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
Page 457 U. S. 74
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.
I
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
Page 457 U. S. 75
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]
Page 457 U. S. 76
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
Page 457 U. S. 77
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
Page 457 U. S. 78
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.
II
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
Page 457 U. S. 79
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
Page 457 U. S. 80
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
Page 457 U. S. 81
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
457 U.S.
55fn3/1|>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").
JUSTICE REHNQUIST, dissenting.
Alaska's dividend distribution scheme represents one State's
effort to apportion unique economic benefits among its citizens.
Although the wealth received from the oil deposits of Prudhoe Bay
may be quite unlike the economic resources enjoyed by most States,
Alaska's distribution of that wealth is, in substance, no different
from any other State's allocation of economic benefits. The
distribution scheme being in the nature of economic regulation, I
am at a loss to see the rationality behind the Court's invalidation
of it as a denial of equal protection. This Court has long held
that state economic regulations are presumptively valid, and
violate the Fourteenth Amendment only in the rarest of
circumstances:
"When local economic regulation is challenged solely as
violating the Equal Protection Clause, this Court consistently
defers to legislative determinations as to the desirability of
particular statutory discriminations.
See, e.g., Lehnhausen v.
Lake Shore Auto Parts Co., 410 U. S. 356 (1973). Unless a
classification trammels fundamental personal rights or is drawn
upon inherently suspect distinctions such as race, religion, or
alienage, our decisions presume the constitutionality of the
statutory discriminations and require only that the classification
challenged be rationally related to a legitimate state interest.
States are accorded wide latitude in the regulation
Page 457 U. S. 82
of their local economies under their police powers, and rational
distinctions may be made with substantially less than mathematical
exactitude."
New Orleans v. Dukes, 427 U. S. 297,
427 U. S. 303
(1976).
See also Minnesota v. Clover Leaf Creamery Co.,
449 U. S. 456
(1981);
United States Railroad Retirement Board v. Fritz,
449 U. S. 166
(1980);
Hughes v. Alexandria Scrap Corp., 426 U.
S. 794 (1976).
Despite the highly deferential approach which we invariably have
taken toward state economic regulations, the Court today finds the
retroactive aspect of the Alaska distribution scheme violative of
the Fourteenth Amendment. The Court concludes that the State's
first two justifications are not rationally related to the
retroactive portion of the distribution scheme, and that the third
justification -- the reward of citizens for their past
contributions -- is not a legitimate state objective. But the
illegitimacy of a State's recognizing the past contributions of its
citizens has been established by the Court only in certain cases
considering an infringement of the right to travel, [
Footnote 4/1] and the majority itself
rightly declines to apply
Page 457 U. S. 83
the strict scrutiny analysis of those right-to-travel cases.
See ante at
457 U. S. 601.
The distribution scheme at issue in this case impedes no person's
right to travel to and settle in Alaska; if anything, the prospect
of receiving annual cash dividends would encourage immigration to
Alaska. The State's third justification cannot, therefore, be
dismissed simply by quoting language about its legitimacy from
right-to-travel cases which have no relevance to the question
before us.
So understood, this case clearly passes equal protection muster.
There can be no doubt that the state legislature acted rationally
when it concluded that dividends retroactive to the year of
statehood would "recognize the
contributions of various kinds,
both tangible and intangible,' which residents have made during
their years of state residency." 619 P.2d 448,
458 (Alaska 1980). Nor can there be any doubt that Alaska, perhaps
more than any other State in the Union, has good reason for
recognizing such contributions. [Footnote 4/2] Because
Page 457 U. S.
84
the distribution scheme is thus rationally based, I dissent
from its invalidation under the guise of equal protection analysis.
[Footnote 4/3] In striking down the
Alaskan scheme, the Court seems momentarily to have
forgotten
"the principle that the Fourteenth Amendment gives the federal
courts no power to impose upon the States their views of what
constitutes wise economic or social policy."
Dandridge v. Williams, 397 U.
S. 471,
397 U. S. 486
(1970).
[
Footnote 4/1]
The Court relies upon
Shapiro v. Thompson, 394 U.
S. 618 (1969), and
Vlandis v. Kline,
412 U. S. 441
(1973), in holding that Alaska may not justify its dividend
distribution scheme by a desire to reward its citizens for their
past contributions. In
Shapiro, however, the Court found
that the classification at issue "touche[d] on the fundamental
right of interstate movement," and therefore could be justified
only if it promoted a "
compelling state interest." 394
U.S. at
394 U. S. 638
(emphasis in original). Similarly,
Vlandis concerned the
right to move to and establish residency in Connecticut, and noted
only in dicta that rewarding citizens for their past contributions
was an impermissible state objective.
See 412 U.S. at
412 U. S.
449-450, and n. 6.
Although I have expressed my disagreement with this holding even
in the right-to-travel cases,
see Memorial Hospital v. Maricopa
County, 415 U. S. 250,
415 U. S.
286-287 (1974) (REHNQUIST, J., dissenting);
Vlandis
v. Kline, supra, at
412 U. S.
468-469 (same), there is no need to rely upon that
dissenting position here. The majority does not analyze this as a
right-to-travel case.
Compare ante at
457 U. S. 60-61,
with Memorial Hospital v. Maricopa County, supra, at
415 U. S.
261-262,
and Shapiro v. Thompson, supra, at
394 U. S. 634,
394 U. S.
638.
[
Footnote 4/2]
As the Alaska Supreme Court noted, those who have lived in
Alaska from the year of its statehood have borne unusual expenses
and hardships:
"'A government such as the one embodied in the Alaska
constitution, . . . with its complete range of governmental
services, was expensive for a State with limited sources of
taxation. Alaska could only boast a couple of pulp mills. . . . The
State's business enterprises were small, and catered mostly to
local needs. In addition, Alaska's population was modest, and
hardly amounted to more than that of a medium-sized city in the
continental United States."
"'Accordingly, revenues were small. Yet, the demands were great.
The State government had to provide all the governmental services
and social overhead required by modern American society. For
instance, it would have been relatively simple to build a few
roads, furnish normal police protection, and establish the
customary school facilities. But nothing was normal in Alaska; it
was and remains a land of superlatives. Subarctic engineering is
relatively new, but the State would have to face the problem of
permafrost conditions that frequently cause the roadtop to buckle
and heave. Police protection would have to be provided for an area
one-fifth the size of the forty-eight United States, but with very
few roads available. Flying would become a way of life for law
enforcement officials, as well as other Alaskans -- an expensive
way of life. 'Bush schools' scattered along the Aleutian chain,
through the Yukon Valley, and on the Seaward Peninsula and the
islands of southeastern Alaska were expensive to maintain. It was
not until the discovery of oil on a large scale that the picture
changed.'"
619 P.2d at 462, n. 37 (quoting C. Naske, An Interpretive
History of Alaskan Statehood 169-170 (1973)).
[
Footnote 4/3]
I also disagree with the suggestion of JUSTICE O'CONNOR that the
Alaska distribution scheme contravenes the Privileges and
Immunities Clause of Art. IV of the Constitution. That Clause
assures that nonresidents of a State shall enjoy the same
privileges and immunities as residents enjoy: "It 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). We long ago held that the Clause has no application to a
citizen of the State whose laws are complained of.
"The constitutional provision there alluded to did not create
those rights, which it called privileges and immunities of citizens
of the States. It threw around them in that clause no security for
the citizen of the State in which they were claimed or exercised.
Nor did it profess to control the power of the State governments
over the rights of its own citizens."
Slaughter-House
Cases, 16 Wall. 36,
83 U. S. 77
(1873).