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

Rob Allen

Active Member
by
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.

I agree judges should be politically unbiased. They do what the constitution says. That's their only job.
 

Porter

Well-Known Member
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...

Well it’s hard these days to ask an authoritative figure such as the current POTUS.

so sorry couldn’t help myself. :p:D
 

tippet

hardcore flyfishing addict

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.
KerryS,
Thank you for your insight on this issue. I believe that you have stated very precisely how this clause appears to be interpreted/enforced in our day.
Clearly, individuals can only be legal residents or hold office in the state of their legal residence, although every U.S. citizen has the right to move and become a resident of another state, and as a resident of that state, eventually become an office-holder once they meet the requirements. However, "certain fundamental rights" seems to me to be quite different than the meaning of "all", particularly since "liberty, and the pursuit of happiness" are (at least in my opinion) fundamental rights.
I believe that when the Beaverhead river is "closed to float fishing by non-residents" and outfitters on certain sections on weekends, but Montana residents can float those areas in their own drift boats on those days, it makes a lot of sense from a fisheries management point-of-view, but is nevertheless unconstitutional.
I have no legal training and suspect that this type of "drift" from original intent is likely common in a number of areas.
 

tippet

hardcore flyfishing addict
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...










Rock Creek Fan,

Thank you for your comment. I'm not asking for advice. I'm just pointing out policies that appear to be inconsistent with constitutionally guaranteed rights, and see if any with more legal knowledge and insight can explain how/why this is the case. I'm not looking for "free" leagal advice, just some clarity if it is available from someone who cares about both fishing and the law/constitution.
Thanks again for your input.
 

jamma

Active Member
KerryS,
Thank you for your insight on this issue. I believe that you have stated very precisely how this clause appears to be interpreted/enforced in our day.
Clearly, individuals can only be legal residents or hold office in the state of their legal residence, although every U.S. citizen has the right to move and become a resident of another state, and as a resident of that state, eventually become an office-holder once they meet the requirements. However, "certain fundamental rights" seems to me to be quite different than the meaning of "all", particularly since "liberty, and the pursuit of happiness" are (at least in my opinion) fundamental rights.
I believe that when the Beaverhead river is "closed to float fishing by non-residents" and outfitters on certain sections on weekends, but Montana residents can float those areas in their own drift boats on those days, it makes a lot of sense from a fisheries management point-of-view, but is nevertheless unconstitutional.
I have no legal training and suspect that this type of "drift" from original intent is likely common in a number of areas.
But fisheries management is a state funded organization conducted on state lands. In my neck of the woods there is a National Forest and a state fishing license is not required to fish there.
 

quilbilly

Big Time Hater
The Privileges and Immunities Clause is limited to areas that affect the vitality of the United States as a single entity. Equal treatment of residents and non-residents is not required in other areas, such as recreational hunting. The well-being of the nation does not require granting equal access to elk, and the livelihood of the non-residents is not undermined.
Fundamental rights cannot be considered to extend to recreational activities that have no impact on the political, social, or economic well-being of non-residents. Courts long have had a narrow understanding of the Privileges and Immunities Clause and the rights that it protects.
Controlling SCOTUS case is Baldwin vs Fish and Game Commission of Montana

 

tippet

hardcore flyfishing addict
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.
Jamma,
Thank you for your comment. I don't think that this has anything to do with federal laws since it is in Article IV of the Constitution, which is devoted to the rights and limitations of states. It is basically saying that states have to treat non-resident U.S. citizens in the same way that they do to residents of their states. At least that is my understanding. Thanks again for your input.
 

tippet

hardcore flyfishing addict
The Privileges and Immunities Clause is limited to areas that affect the vitality of the United States as a single entity. Equal treatment of residents and non-residents is not required in other areas, such as recreational hunting. The well-being of the nation does not require granting equal access to elk, and the livelihood of the non-residents is not undermined.
Fundamental rights cannot be considered to extend to recreational activities that have no impact on the political, social, or economic well-being of non-residents. Courts long have had a narrow understanding of the Privileges and Immunities Clause and the rights that it protects.
Controlling SCOTUS case is Baldwin vs Fish and Game Commission of Montana

Quilbilly,
I think that you and KerryS have nailed it. I now understand how legally we are where we are. I am fine with it and thank you very much for the insight!
 

Salmo_g

WFF Supporter
In my neck of the woods there is a National Forest and a state fishing license is not required to fish there.

I think you are wrong. A state fishing license is required to fish in all national forest areas that I am familiar with. Perhaps you are thinking of National Parks, where a fishing license is not required, except if a specific park, like Yellowstone, requires a park fishing license.
 

KerryS

Ignored Member
KerryS,
Thank you for your insight on this issue. I believe that you have stated very precisely how this clause appears to be interpreted/enforced in our day.
Clearly, individuals can only be legal residents or hold office in the state of their legal residence, although every U.S. citizen has the right to move and become a resident of another state, and as a resident of that state, eventually become an office-holder once they meet the requirements. However, "certain fundamental rights" seems to me to be quite different than the meaning of "all", particularly since "liberty, and the pursuit of happiness" are (at least in my opinion) fundamental rights.
I believe that when the Beaverhead river is "closed to float fishing by non-residents" and outfitters on certain sections on weekends, but Montana residents can float those areas in their own drift boats on those days, it makes a lot of sense from a fisheries management point-of-view, but is nevertheless unconstitutional.
I have no legal training and suspect that this type of "drift" from original intent is likely common in a number of areas.
All I did is post the interpretation of the clause by the most comprehensive and complete website on the constitution and the link to that website. None of it is my work.
 

Porter

Well-Known Member
They shouldn't.. that's being politically non bias

Huh? Yes that is their job. To interpret the constitution to all the cases and unique cases. There is no box formula that fits all issues. The constitution...it was meant to be fluid and change as we and society change. Thus the interpretation or changing:updating whatever you want to call it for our laws of the land. Why it is such a prestigious position. Perhaps more powerful than the POTUS. They interpret the constitution as it fits a certain dynamic and make the law.
 

jamma

Active Member
Jamma,
Thank you for your comment. I don't think that this has anything to do with federal laws since it is in Article IV of the Constitution, which is devoted to the rights and limitations of states. It is basically saying that states have to treat non-resident U.S. citizens in the same way that they do to residents of their states. At least that is my understanding. Thanks again for your input.
Check out the 10th Amendment of the Constitution to explore the right of states to generate local law.
 

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