A question for the great legal minds and constitutional experts on this forum.

tippet

hardcore flyfishing addict
The U.S. Constitution, Article IV, Section 2 states: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

I have found commentary on this that states, "A citizen of one State going to or transacting business in another is entitled in the latter State to the privileges and immunities enjoyed by its citizens. The State cannot legislate against him or otherwise disfavor him. The intent was that the citizen of one state should not be an alien in another. In any state he has the protection of the government of that state, the enjoyment of life and liberty with the right to acquire and possess property, the right to pursue and obtain happiness, to institute actions in court, and generally to possess what the citizen of the State possesses. Numerous cases have arisen under this clause where States have attempted to favor their own citizens to the prejudice of the citizens of other States. Such laws are void for conflict with this clause."

From my perspective, this is relevant to my fishing experience in other states in two ways:

1. The State of Montana expressly prohibits licensed, out-of-state anglers to freely fish certain highly desirable streams on certain days of the week. This is highly discriminatory and appears to be blatantly unconstitutional.

2. Having to pay high out-of-state fishing license fees (while I understand the rationale) also is discriminatory. If the intent of this clause of the Constitution truly is that the legal citizens of one state are not to be considered aliens in another state, it follows that states should charge one fishing license fee for U.S. Citizens and not discriminate against residents of other states, based on the Constitution.

Have there been Supreme Court decisions that have allowed states to water down and, in effect, abuse the intent of this clause in the constitution? Or are these just examples of what is likely a plethora of laws that have yet to be struck down, despite their violation of the constitution. (An example of a non-fishing example of this type of law: I own a second home in another state, while maintaining Washington as my state of residence. Because I am not a resident of the state in which my second home is located, my property tax is almost double what it would be if I declared that state to be my state of residence.)

Is this just another example of the breakdown of the rule of law in this country, where we now see so many conflicting laws, selective enforcement of existing laws, etc? Any insights from those of you with a greater understanding of the Constitution, Supreme Court decisions, and the law than I have?
 

KerryS

Ignored Member

The Privileges and Immunities Clause

According to the currently prevailing interpretation, the Privileges and Immunities Clause entitles a citizen of one state, while sojourning in other states, to equal treatment with local citizens. That is to say, the Clause prohibits discrimination on the basis of a citizen’s state of residence. The antidiscrimination rule extends to certain fundamental rights that a state may afford its own citizens, including rights of travel, residence, trade, employment, property, and others. Still, despite the mention of “all privileges and immunities,” some rights fall outside the antidiscrimination rule; the states remain free to discriminate in favor of their own citizens as to the political rights of voting and office-holding, and non-fundamental activities like recreational hunting and fishing.
 

Merle

Active Member
I don’t know the answers, but another example that immediately came to my mind was out of state versus in state tuition rates at colleges and universities.
 

Rocking Chair Fan

No more hot spotting
IMHO asking for legal advice, especially constitutional expertise, on a web site whether it is for fishing, porn or cooking, or whatever is fraught with inevitable failure. You get what you pay for. Here you do not pay any anything, so in return you will not get anything...
 
Last edited:

jamma

Active Member
The only thing I can come up with is that would only apply to federal laws. States have the right to make their own laws as long they don't interfere with federal jurisdiction. For example: Federal lands vs. public lands. You may live in a state that allows recreational marijuana but can still be arrested for possession if caught using on federal lands or property.
 

Rob Allen

Active Member
The U.S. Constitution, Article IV, Section 2 states: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

I have found commentary on this that states, "A citizen of one State going to or transacting business in another is entitled in the latter State to the privileges and immunities enjoyed by its citizens. The State cannot legislate against him or otherwise disfavor him. The intent was that the citizen of one state should not be an alien in another. In any state he has the protection of the government of that state, the enjoyment of life and liberty with the right to acquire and possess property, the right to pursue and obtain happiness, to institute actions in court, and generally to possess what the citizen of the State possesses. Numerous cases have arisen under this clause where States have attempted to favor their own citizens to the prejudice of the citizens of other States. Such laws are void for conflict with this clause."

From my perspective, this is relevant to my fishing experience in other states in two ways:

1. The State of Montana expressly prohibits licensed, out-of-state anglers to freely fish certain highly desirable streams on certain days of the week. This is highly discriminatory and appears to be blatantly unconstitutional.

2. Having to pay high out-of-state fishing license fees (while I understand the rationale) also is discriminatory. If the intent of this clause of the Constitution truly is that the legal citizens of one state are not to be considered aliens in another state, it follows that states should charge one fishing license fee for U.S. Citizens and not discriminate against residents of other states, based on the Constitution.

Have there been Supreme Court decisions that have allowed states to water down and, in effect, abuse the intent of this clause in the constitution? Or are these just examples of what is likely a plethora of laws that have yet to be struck down, despite their violation of the constitution. (An example of a non-fishing example of this type of law: I own a second home in another state, while maintaining Washington as my state of residence. Because I am not a resident of the state in which my second home is located, my property tax is almost double what it would be if I declared that state to be my state of residence.)

Is this just another example of the breakdown of the rule of law in this country, where we now see so many conflicting laws, selective enforcement of existing laws, etc? Any insights from those of you with a greater understanding of the Constitution, Supreme Court decisions, and the law than I have?


i won't speak to that specific case but in general politicians and judges, even supreme court judges ignore the Constitution on a routine basis. when it comes to constitutional law precedent should be completely ignored and only the constitution should be the judge over laws passed by congress,
judges shouldn't interpret the constitution they should translate it, big difference between those two words.. The constitution is not open to personal interpretation but it routinely is.
 

Old Man

A very Old Man
WFF Supporter
On your first law. I think your miss reading that law. I think it states that one day a week out of state guides can't guide on certain rivers. They get to rest one day a week.

When I first moved here I paid around 80 bucks to fish for my first year here. I was never told that I couldn't fish certain waters. And I did manage to fish a lot if different skinny water my first year here.
 

KillerDave

Have camera, will travel...
I'm an insurance agent, not a lawyer, but clients call me all the time for various legal interpretations because I don't have an hourly fee/consultation minimum. That said, I will attempt to answer your question.

Like a fish taking a fly, people reading laws (or insurance policies) almost always see what they want to see, often to the exclusion of everything else. In reality, the language of a law is important but what decides what the language really means are court decisions. If there are no court decisions on a given subject, then generally speaking the law means whatever the local police/game wardens think it means.

Also, anyone here that has had to work with the state is well antiquated with the state practice of routinely ignoring their own laws when it suits their purpose.
 

Krusty

Outta Here
On your first law. I think your miss reading that law. I think it states that one day a week out of state guides can't guide on certain rivers. They get to rest one day a week.

When I first moved here I paid around 80 bucks to fish for my first year here. I was never told that I couldn't fish certain waters. And I did manage to fish a lot if different skinny water my first year here.
Stated in that way OMJ, I think you nailed it. I defer to my senior and highly esteemed member of the Montana State Sand Bar Association.
 

Old Man

A very Old Man
WFF Supporter
Stated in that way OMJ, I think you nailed it. I defer to my senior and highly esteemed member of the Montana State Sand Bar Association.
It is written in the fishing regs that on the Beaverhead river and the Big Hole river that out of state outfitters can't float on certain days of the week. Saturday on the Beaverhead and Sunday on the Big Hole. Since I only fish the Western and Central districts that is all I checked. But be sure to read Montana regs before you fish anyplace.
 

jasmillo

WFF Supporter
I think you should sue the state of Montana and get back to us.

All kidding aside; I think OMJ is on the money. I do not think it is discriminatory to charge different price for the privilege to fish. You are still afforded that privilege and the price is justified. We don’t pay taxes in that state so we pay a little extra to use the resource. My guess is there is some legal justification for the guide river days as well.

Another option is to pay income tax in Montana as well as Washington. Then you would qualify for in-state licenses in both states :).

Edit; if you have not figures it out based on what I wrote, that is my personal, don’t know sh*t from shinola when it comes to the law...view. AKA...a meaningless opinion.
 
Last edited:

jamma

Active Member
i won't speak to that specific case but in general politicians and judges, even supreme court judges ignore the Constitution on a routine basis. when it comes to constitutional law precedent should be completely ignored and only the constitution should be the judge over laws passed by congress,
judges shouldn't interpret the constitution they should translate it, big difference between those two words.. The constitution is not open to personal interpretation but it routinely is.
The Supreme Court was created to interpret Constitutional law, we can thank Thomas Jefferson for that, but I agree that it should be 100% unbiased. It really jerks my chain when they are selected for a specific bias.
 

Support WFF | Remove the Ads

Support WFF by upgrading your account. Site supporters benefits include no ads and access to some additional features, few now, more in the works. Info

Latest posts

Top