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In Discover Bank v. Ryan, the defendant filed an emergency motion to enforce a post-trial settlement agreement, claiming that the parties had entered into an agreement to resolve the case for if the defendant withdrew her appeal.
Upon receipt of the settlement agreement, which had been prepared by the plaintiff, the defendant requested three modifications, which included changing her name designation, adding two account numbers and making certain paragraphs of the agreement apply to both plaintiff and defendant. The plaintiff agreed to one of the requested changes, but refused to comply with the other two requested modifications. Plaintiff informed defendant that if they did not receive the signed settlement agreement by a certain date, the plaintiff would withdraw the offer of settlement. Defendant argued in her emergency motion that the plaintiff did not have the right to withdraw the settlement offer that the defendant had previously accepted, because the requested modifications did not prejudice the plaintiff.
The court denied the motion, finding that the defendant never accepted the plaintiff’s initial offer. The court found that a reply to an offer which purports to accept the offer but instead changes the terms is not an acceptance, but rather, a counteroffer, which had the effect of terminating the original offer. Under Pennsylvania law, an acceptance must be unconditional and absolute. As the defendant never unconditionally accepted the plaintiff’s offer, it was terminated, and therefore the defendant’s emergency motion was denied.
Thanks to Alexandra Perry for her contribution to this post and please write to Mike Bono for more information.
In Brown v City of New York, the Appellate Division reserved a Supreme Court decision and corrected an often misapplied legal principle pertaining to summary judgment motion practice when discovery has not yet been completed.
In opposition, the City of New York and the plaintiff argued that the Holleys’ motion should be denied because it was premature due to outstanding discovery. The Supreme Court agreed and denied the motion.
On appeal, the Appellate Division found that the Holeys established their prima facie entitled to the protections of the NYC Administrative Code, and that they did not cause or create the condition. As to whether the motion was premature, the Appellate Division cited its long standing principle that “the mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion.” Applying this standard, the court found that the argument that the Holleys’ motion was premature because discovery had not taken place was without merit. Also, the decision noted that the plaintiff and the City failed to demonstrate that discovery might lead to relevant evidence as to the alleged liability of the Holleys or that facts essential to justify opposition to the subject motion were exclusively within the knowledge and control of the Holleys.
As such, the trial court decision was reversed and summary judgment was granted to the Holleys. Thanks to George Parpas for his contribution to this post, and please write to Mike Bono with any questions.
In Pennsylvania products liability law, a defendant may avoid liability by asserting that a plaintiff misused a product. However, the case of Zimmerman v. FallTech establishes just how difficult meeting that burden can be in the event a design defect is alleged.
In 2008, James Zimmerman came to help a friend cut down a dead tree and he used a FallTech safety harness. He skimmed the instructions and used the product relying on his common sense and intuition. However, he put it on backwards—the harness D-ring was facing his chest instead of his back—and suspended himself from the tree. A gust of wind caused Zimmerman to change his position, causing his full weight to bear on the harness. The harness failed; he plunged thirty-five feet resulting in a collapsed lung and a leg fracture which ultimately needed amputation.
FallTech argued it was entitled to summary judgment because Zimmerman misused the product. Specifically, he put the harness on backwards and tied it to a tree. This use was not foreseeable and therefore Zimmerman could establish the causation element of the claim. The trial court agreed and granted the motion.
On appeal, Zimmerman argued that under Pennsylvania law, Zimmerman offered sufficient evidence to survive the motion. The Superior Court agreed with Zimmerman. When a defendant asserts misuse as a defense, it must prove that the misuse “solely caused the accident.” Here, Zimmerman’s expert offered no less than sixteen design defects. Therefore, even if Zimmerman misused the product, FallTech was not entitled to summary judgement because there is sufficient evidence that the misuse was not solely the cause of the accident. As such, the the Superior Court reversed the trial court and remanded for a trial.
Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono for more information.
In Vinson v. LA Fitness, plaintiff Vinson signed a gym membership agreement with LA Fitness which contained an exculpatory clause releasing LA Fitness from LA’s “passive or active negligence” to the fullest extent permitted by law. During her deposition, Vinson claimed she had not read the entire agreement and did not notice the exculpatory clause. LA Fitness moved for summary judgment, relying on the exculpatory clause to bar any recovery for Vinson. The trial court granted summary judgment based upon the exculpatory clause.
On appeal, Vinson argued that the exculpatory clause in the contract violated public policy. Specifically, she contended that her cause of action involved maintenance of facilities, which impacts the health and safety of members of the public. LA Fitness countered by arguing that the exculpatory clause was a contract between two private parties, thus not implicating the public. Additionally, LA Fitness argued that a generalized consideration of public interest was insufficient to void a contract based upon public policy. Rather, public policy exceptions to exculpatory clauses include only a narrow subset of situations, predominately involving direct legal precedent and reference to existing laws. The appellate court agreed with LA Fitness, noting that “mere suppositions of public interest” are insufficient to invalidate contractual provisions, while specifically noting that the lack of supporting legal precedent or statute was also fatal to Vinson’s case.
Thanks to Matt Care for his contribution to this post and please write to Mike Bono for more information.
Under the Pennsylvania’s Comparative Negligence Act, a plaintiff’s contributory negligence can be considered when compared to a defendant’s negligent conduct— but not to reckless conduct. Recently, the Superior Court established an interesting work-around in the context of multi-plaintiff actions, where one plaintiff can be held liable to the defendant for contribution and indemnity for the harm that plaintiff’s actions contributed to the other plaintiffs’ injuries.
In Straw v. Fair, Plaintiff John Straw was driving with three family members on the highway when the car’s failed hood mechanism caused the hood to open and obstruct his view. Mr. Straw stopped the car in the travelling lane and turned on his hazard flashers. Kirk Fair was driving a truck for Golon Masonry behind the Straws. Mr. Fair was under the influence of drugs, did not notice the stopped car, and crashed into the Straws at approximately 60 miles per hour. The accident seriously injured Mr. Straw and two of the passengers; the Straws’ six year-old-son died. Mr. Fair was convicted of several crimes, including DUI and Recklessly Endangering Another Person (REAP).
Golon Masonry filed a cross-claim against Mr. Straw for indemnity and contribution. The basis of the claim was that Mr. Straw was responsible for the passenger’s injuries because he did not need to leave the car in the running lane. The Straws filed a motion for summary judgment of Golon Masonry’s cross-claim, and the trial court ruled that because Mr. Fair’s conduct was reckless—as evidenced by his guilty plea to REAP—Mr. Straw’s comparative negligence could not be considered because the Act only applies to a defendant’s negligent conduct. The case went to trial and the jury returned a verdict of $35 million.
The Superior Court reversed the trial court’s finding because it “mistakenly confused [Golon Masonry’s] cross-claim against Mr. Straw with [Golon Masonry’s] affirmative defense that Mr. Straw was comparatively negligent for his own injuries.” The Superior Court reasoned that the trial court was correct in interpreting the Act as not applying to reckless conduct. However, in asserting a cross-claim for indemnity or contribution, defendants were not alleging that Mr. Straw’s negligence should not reduce or diminish his recovery. Rather, the cross-claim alleges that Mr. Straw’s negligence renders him directly liable to the passengers or to defendants for contribution. Thus, Mr. Straw was essentially just another defendant as to this cross-claim. The Superior Court clearly held that Pennsylvania law permits contribution between reckless and negligent co-defendants—and in this context can be applied to a plaintiff.
As a result, the Superior Court reversed the trial court’s motion for summary judgment and vacated the $35 million verdict.
When determining an insurer’s obligations to provide insurance coverage to a purported additional insured, courts will scrutinize the precise language of an additional insured endorsement very closely. In insurance disputes involving construction contractors, the insurance policy and not an underlying agreement between the parties will ultimately control.
In the recent decision of Gilbane Building Co./TDX Constr. Corp. v. St. Paul Fire and Marine Ins. Co., which we discussed in Of Interest, the New York Court of Appeals held that where an additional insured endorsement requires a direct contract between the named insured and the party seeking coverage, additional insured coverage will not be afforded to any party not in direct contractual privity with the named insured. We are now seeing the first few cases interpreting Gilbane making their way through the lower courts.
In Turner Constr. Co. v Endurance Am. Specialty Ins. Co., the Appellate Division, First Department was faced with interpreting language very similar to the policy in Gilbane. DASNY, the owner of the project, retained Skidmore Owings & Merrill, LLP to provide architectural services. Skidmore contracted with Turner Construction Company for Turner to provide construction management services. DASNY also hired KJC Waterproofing, Inc. for the roofing and exterior waterproofing work. KJC subcontracted the installation of the garden roofing to Plant Fantasies, the underlying plaintiff’s employer. Pursuant to the DASNY-KJC contract, KJC obtained insurance coverage from Endurance along with an excess liability policy from Everest National Insurance Company. Turner and Skidmore commenced a declaratory judgment action against Endurance and Everest, seeking a declaration that Endurance was obligated to defend and indemnify them as additional insureds under the Endurance policy.
The First Department relied upon its decision in Gilbane, upheld by the Court of Appeals, in its interpretation of the Endurance additional insured endorsement. In order to obtain additional insured status, Turner and Skidmore were required to have a direct contract with Endurance’s named insured, KJC. Because neither Turner nor Skidmore had such an agreement with KJC, they could not qualify for coverage under the additional insured endorsement. Thus, Endurance was not obligated to defend or indemnify them in the underlying action.
Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono with any questions.
In Philius v. City of New York, plaintiff alleged he was injured while playing basketball on an outdoor basketball court owned by the defendants New York City Housing Authority and the City of New York. Plaintiff tripped on a crack in the surface of the court. NYCHA moved for summary judgment arguing, among other points, that the plaintiff’s action was barred by the doctrine of primary assumption of risk. The Supreme Court denied NYCHA’s motion, and NYCHA appealed.
The Appellate Division, Second Department found that pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity ‘consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.’ Although cracks on the court are not necessarily commonly appreciated risks, in support of its motion, NYCHA submitted, among other things, a transcript of the plaintiff’s testimony, as well as photographs of the subject court. The plaintiff, who was 19 years old at the time of the accident and an experienced basketball player, testified that he “grew [up] playing on [the subject] court,” and that he was aware of the presence of cracks in the surface of the court prior to his accident. The plaintiff also indicated that he was previously aware of the particular crack over which he tripped.
The Court held NYCHA demonstrated that it did not violate its duty to exercise ordinary reasonable care to protect the plaintiff from concealed, or unreasonably increased risks, and that the plaintiff assumed the risk of injury by voluntarily participating in a basketball game on the outdoor court despite his knowledge that doing so could bring him into contact with an open and obvious crack in the playing surface.
In opposition, the plaintiff argued that he did not assume the risk of having his foot stuck in a crack when playing basketball.” The plaintiff submitted the affidavit of a licensed professional engineer, who opined that the cracked pavement constituted a longstanding defective condition in a very advanced state of disrepair. In reply, NYCHA argued that the prominent and visible nature of the cracked surface of the basketball court only supports its contention that the plaintiff voluntarily assumed any risk of injury arising from the game. The Second Department found NYCHA’s argument persuasive and overturned the lower court’s decision and granted summary judgment for NYCHA.
Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions.

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Justia › US Law › Case Law › Delaware Case Law › Delaware Court of Chancery Decisions › 2016 › Chester County Employees' Retirement Fund v. New Residential Corp., et al.
Chester County Employees' Retirement Fund v. New Residential Corp., et al.
COURT OF CHANCERY OF THE STATE OF DELAWARE Leonard Williams Justice Center 500 N. King Street, Suite 11400 Wilmington, Delaware 19801-3734 TAMIKA R. MONTGOMERY-REEVES VICE CHANCELLOR Date Submitted: October 28, 2016 Date Decided: December 1, 2016 Michael Hanrahan, Esquire Paul A. Fioravanti, Jr., Esquire Corinne Elise Amato, Esquire Kevin H. Davenport, Esquire Prickett, Jones & Elliott, P.A. 1310 North King Street Wilmington, DE 19801 RE: Robert S. Saunders, Esquire Ronald N. Brown, III, Esquire Sarah R. Martin, Esquire Skadden, Arps, Slate, Meagher & Flom LLP One Rodney Square Wilmington, DE 19899 Chester County Employees’ Retirement Fund v. New Residential Corp. et al., Civil Action No. 11058-VCMR Dear Counsel: This letter opinion addresses Plaintiff’s motion for reargument of this Court’s October 7, 2016, memorandum opinion (the “Opinion”)1 granting Defendants’ motion to dismiss. For the reasons stated herein, the Plaintiff’s motion is denied. 1 Capitalized terms not defined in this letter opinion refer to the definitions in the Opinion. See Chester Cty. Empls.’ Ret. Fund v. New Residential Inv. Corp., 2016 WL 5865004 (Del. Ch. Oct. 7, 2016). Chester Cty. Empls.’ Ret. Fund v. New Residential Inv. Corp. et al. C.A. No. 11058-VCMR December 1, 2016 Page 2 of 10 I. BACKGROUND The complete facts of this case are outlined in the Court’s Opinion. Plaintiff’s Amended Complaint challenges a series of transactions that New Residential entered in connection with its acquisition of the assets of HLSS. Plaintiff alleges that the New Residential board was beholden to Fortress, which was interested in the HLSS acquisition and associated transactions because the transactions had the effect of increasing FIG’s management fees under a Management Agreement that was itself allegedly negotiated by beholden directors. I held in the Opinion that the Amended Complaint fails to adequately allege demand futility because it does not allege that any benefits Fortress received from the challenged transactions were material to Fortress. I granted Plaintiff leave to replead because it appeared that there may have been merit to Plaintiff’s claims if properly pled. On October 14, 2016, Plaintiff filed a motion for reargument as to the Court’s dismissal of counts I and II of Plaintiff’s Amended Complaint. Plaintiff makes three arguments in its motion. First, Plaintiff argues that the Court incorrectly decided that a materiality requirement applies to the side benefits Chester Cty. Empls.’ Ret. Fund v. New Residential Inv. Corp. et al. C.A. No. 11058-VCMR December 1, 2016 Page 3 of 10 Fortress allegedly received as a result of the challenged transactions.2 Second, Plaintiff contends that if a materiality requirement applies, the Amended Complaint properly alleges materiality.3 Third, Plaintiff asserts that repleading is not desirable.4 Defendants filed an opposition to the motion for reargument on October 28, 2016, asserting that Plaintiff does not identify any legal authority that the Court overlooked or any facts that the Court misapprehended and that Plaintiff’s contentions are not proper grounds to seek reargument.5 II. ANALYSIS Under Court of Chancery Rule 59(f), a party may move for reargument within five days after the filing of the Court’s opinion.6 Reargument will be granted only where the court “overlooked a decision or principle of law that would 2 Pl.’s Mot. for Reargument ¶¶ 2-4; see Khanna v. McMinn, 2006 WL 1388744, at *17 (Del. Ch. May 9, 2006) (“Ultimately, the inquiry into independence turns in this instance on whether Covad’s business relationship with BEA Systems was material to BEA or to [the director] himself as a director of BEA.”); Jacobs v. Yang, 2004 WL 1728521, at *6 (Del. Ch. Aug. 2, 2004) (“Merely stating that the agreements between Yahoo! and AMG are ‘crucial to AMG’s continued viability’ is not enough. . . . [T]he facts alleged do not give rise to the inference that the value of these contracts was material to Activision or Macromedia.”). 3 Pl.’s Mot. for Reargument ¶¶ 5-14. 4 Id. ¶¶ 15-16. 5 Defs.’ Opp. to Mot. for Reargument. 6 Ct. Ch. R. 59(f). Chester Cty. Empls.’ Ret. Fund v. New Residential Inv. Corp. et al. C.A. No. 11058-VCMR December 1, 2016 Page 4 of 10 have controlling effect or . . . misapprehended the facts or the law so the outcome of the decision would be different.”7 “Mere disagreement with the Court’s resolution of a matter is not sufficient, and the Court will deny a motion for reargument that does no more than restate a party’s prior arguments.”8 It is “not the role of Rule 59(f)” to allow a party to “seek another opportunity to address matters already considered” when the Court did not overlook or misapprehend a point of law or fact.9 Reargument also generally is “only available to re-examine the existing record.”10 A party may seek reargument based on newly discovered evidence only when the party can show that the evidence could not have been discovered before in the exercise of reasonable diligence.11 A. Self-Dealing Plaintiff argues that the New Residential public offerings were self-dealing transactions rather than side benefit transactions. As Plaintiff notes in its motion 7 Pontone v. Milso Indus. Corp., 2014 WL 4352341, at *1 (Del. Ch. Sept. 3, 2014). 8 Zutrau v. Jansing, 2014 WL 6901461, at *2 (Del. Ch. Dec. 8, 2014). 9 HB Korenvaes Invs., L.P. v. Marriott Corp., 1993 WL 1500678, at *1 (Del. Ch. July 19, 1993). 10 Zutrau, 2014 WL 6901461, at *2 (quoting Reserves Dev. LLC v. Severn Sav. Bank, FSB, 2007 WL 4644708, at *1 (Del. Ch. Dec. 31, 2007)) (internal quotation marks omitted). 11 Id. Chester Cty. Empls.’ Ret. Fund v. New Residential Inv. Corp. et al. C.A. No. 11058-VCMR December 1, 2016 Page 5 of 10 for reargument, however, Plaintiff did not address the distinction between selfdealing and side benefit transactions in its briefs or at oral argument.12 Even if I were to consider it now, Plaintiff does not point to any fact or law that I misapprehended or overlooked. Plaintiff also argues that the recharacterization of HLSS income and the renegotiation of the Management Agreement with FIG were self-dealing transactions. Plaintiff challenges the recharacterization of income and the renegotiation of the Management Agreement separately for the first time in its motion for reargument. I decline to reconsider my decision when Plaintiff fails to identify any fact or law that I misapprehended in the Opinion but rather seeks to make different arguments about an issue that I already considered.13 Plaintiff, instead, should allege facts to support these arguments in a second amended complaint. B. Materiality Plaintiff argues that if materiality is required, it has been properly pled. The theory of Plaintiff’s case is that Fortress caused New Residential to enter into a series of transactions, including overpaying for the assets of HLSS, in order to 12 Pl.’s Mot. for Reargument ¶ 2. 13 See HB Korenvaes Invs., 1993 WL 1500678, at *1. Chester Cty. Empls.’ Ret. Fund v. New Residential Inv. Corp. et al. C.A. No. 11058-VCMR December 1, 2016 Page 6 of 10 increase fees and other benefits to Fortress and its affiliates.14 Plaintiff alleges, and I held, that at least half of the New Residential directors were beholden to Fortress at the time of the transactions.15 In the Opinion, I thus inquired into whether the increase in fees and other benefits was material to Fortress.16 The Amended Complaint and Plaintiff’s motion for reargument include several large numbers, but Plaintiff does not explain how they are probative of whether the alleged benefits were material to Fortress.17 Regarding Plaintiff’s arguments about the fees and benefits themselves, some were raised before18 and some are new.19 Although Plaintiff again references large numbers, the Amended 14 The Amended Complaint assumes that all of these benefits flowed to Fortress from its affiliates. 15 Chester Cty. Empls.’ Ret. Fund v. New Residential Inv. Corp., 2016 WL 5865004, at *10 (Del. Ch. Oct. 7, 2016). 16 Id. at *11 & n.69; see Cambridge Ret. Sys. v. Bosnjak, 2014 WL 2930869, at *5 (Del. Ch. June 26, 2014); Khanna v. McMinn, 2006 WL 1388744, at *17 (Del. Ch. May 9, 2006); Jacobs v. Yang, 2004 WL 1728521, at *6 (Del. Ch. Aug. 2, 2004). 17 E.g., Compl. ¶ 133. Plaintiff’s motion for reargument focuses at some points on the size of New Residential’s public offerings, for example. 18 Plaintiff argues that the challenged transactions increased the present value of fees Fortress receives from New Residential by between $487 million and $552 million. See id. ¶¶ 9, 133. Plaintiff also points to the allegation that New Residential provides a quarter of the fees from Fortress’s private equity business to support its materiality argument. See id. ¶ 130. 19 Plaintiff argues that Fortress received a $100 million benefit from the challenged New Residential transactions over a six-month period, which was material because Chester Cty. Empls.’ Ret. Fund v. New Residential Inv. Corp. et al. C.A. No. 11058-VCMR December 1, 2016 Page 7 of 10 Complaint and briefing fail to explain how the increased benefits were material to Fortress. For example, while the Amended Complaint alleges the present value of fees from New Residential, the present value of Fortress’s other sources of future revenue is not alleged. The Amended Complaint also fails to explain the relative importance of fees from Fortress’s private equity business—or of the business practice of entering the type of transactions challenged in this case—to Fortress’s business as a whole. Plaintiff has not pointed to any Delaware authority holding that because numbers are large in Plaintiff’s view, they are material to a company regardless of its size. And Plaintiff has not articulated why such a rule should be adopted in Delaware.20 Plaintiff also argues that because Fortress touted the fees it earns from permanent capital vehicles in its public disclosures, they were material to Fortress received only $74 million in income from New Residential in all of 2014. Pl.’s Mot. for Reargument ¶¶ 8, 9. The $100 million figure does not appear in Plaintiff’s briefs or complaint, and Plaintiff has not explained why it added the numbers that it did to reach the $100 million. 20 Cf. Orman v. Cullman, 794 A.2d 5, 23 (Del. Ch. 2002) (“Materiality means that the alleged benefit was significant enough ‘in the context of the director’s economic circumstances, as to have made it improbable that the director could perform her fiduciary duties to the . . . shareholders without being influenced by her overriding personal interest.’” (quoting In re Gen. Motors Class H S’holders Litig., 734 A.2d 611, 617 (Del. Ch. 1999))). Chester Cty. Empls.’ Ret. Fund v. New Residential Inv. Corp. et al. C.A. No. 11058-VCMR December 1, 2016 Page 8 of 10 Fortress.21 But Plaintiff cites no cases holding that simply because a fact is publicly disclosed, it necessarily is material to a business.22 Plaintiff’s final approach is to point the Court to the public filings incorporated by reference into the Amended Complaint to support its materiality argument. Plaintiff references the 2014 Fortress form 10-K (cited once in Plaintiff’s Amended Complaint23), Fortress’s Second Quarter 2015 Earnings Supplement (cited twice in the Amended Complaint24), and Fortress’s July 30, 2015 Earnings Report (cited once in the Amended Complaint25) and suggests that the Court may find additional information in those public filings showing materiality.26 Plaintiff may viably argue materiality by referencing additional 21 Pl.’s Mot. for Reargument ¶ 7. 22 Cf. Khanna v. McMinn, 2006 WL 1388744, at *17 (Del. Ch. May 9, 2006) (holding that where a director’s dual directorship on the boards of two companies that do business with one another is publicly disclosed, the disclosure alone is not sufficient to hold that the business relationship is material to the company or the director). 23 Compl. ¶ 57. 24 Id. ¶¶ 57, 133. 25 Id. ¶ 133. 26 Plaintiff’s motion for reargument relies on numbers in the Fortress public filings that did not appear in the Amended Complaint or Plaintiff’s opposition brief. See, e.g., Pl.’s Mot. for Reargument ¶¶ 12-13 (citing Fortress’s $1.8 billion in total revenue for 2014 and the fact that FOE I and FIG reported 100% of their income on Fortress financial statements). Chester Cty. Empls.’ Ret. Fund v. New Residential Inv. Corp. et al. C.A. No. 11058-VCMR December 1, 2016 Page 9 of 10 publicly available information to explain the relative importance to Fortress of the figures in the Amended Complaint. But it is not the responsibility of this Court to parse through hundreds of pages of public filings that Plaintiff cites sparingly in search of relevant facts that Plaintiff should have pled in its Complaint (and could plead in a further amended complaint). Plaintiff is expected to identify the relevant provisions of documents incorporated by reference and make arguments supporting its position. Just as the Court is not required to sift through hundreds of pages of public filings for relevant facts not alleged in the complaint or to anticipate arguments not supported by the complaint, it is unfair to require that Defendants do the same.27 Moreover, Defendants raised the issue of materiality in their opening brief in support of their motion to dismiss and at oral argument.28 But Plaintiff did not respond to that argument. I have granted Plaintiff leave to replead.29 The proper place to assert new materiality allegations is in a second amended complaint. 27 Am. Legacy Found. v. Lorillard Tobacco Co., 2005 WL 5775807, at *2 (Del. Ch. Oct. 3, 2005) (“There is a value in the conservation of judicial resources that ordinarily precludes this sort of piecemeal litigation of issues.”). 28 Defs.’ Opening Br. 30, 47-48; Oral Arg. Tr. 19, 34. 29 Chester Cty. Empls.’ Ret. Fund v. New Residential Inv. Corp., 2016 WL 5865004, at *12 (Del. Ch. Oct. 7, 2016). Chester Cty. Empls.’ Ret. Fund v. New Residential Inv. Corp. et al. C.A. No. 11058-VCMR December 1, 2016 Page 10 of 10 C. Desirability of Repleading Plaintiff asserts that repleading is not desirable because the composition of the New Residential board has changed, and Plaintiff does not have much more information than the Amended Complaint already alleges. Whether filing a second amended complaint is desirable is not a relevant consideration on a motion for reargument.30 Regardless, the Opinion analyzed only three New Residential directors. Additionally, Plaintiff’s motion for reargument shows that there are more concrete facts publicly available than Plaintiff included in the Amended Complaint or its briefing. A new complaint—not a motion for reargument—is the proper place for Plaintiff to identify specific numbers and facts in the Fortress financial statements to establish materiality. III. CONCLUSION For the foregoing reasons, Plaintiff’s motion for reargument is DENIED. IT IS SO ORDERED. Sincerely, /s/Tamika Montgomery-Reeves Vice Chancellor TMR/jp 30 See Ct. Ch. R. 59(f); Pontone v. Milso Indus. Corp., 2014 WL 4352341, at *1 (Del. Ch. Sept. 3, 2014).

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California, which has the sixth highest welfare benefit levels in the country, sought to amend its Aid to Families with Dependent Children (AFDC) program in 1992 by limiting new residents, for the first year they live in the State, to the benefits they would have received in the State of their prior residence. Cal. Welf. & Inst. Code Ann. §11450.03. Although the Secretary of Health and Human Services approved the change--a requirement for it to go into effect--the Federal District Court enjoined its implementation, finding that, under Shapiro v. Thompson, 394 U. S. 618 , and Zobel v. Williams, 457 U. S. 55 , it penalized "the decision of new residents to migrate to [California] and be treated [equally] with existing residents," Green v. Anderson , 811 F. Supp. 516, 521. After the Ninth Circuit invalidated the Secretary's approval of §11450.03 in a separate proceeding, this Court ordered Green to be dismissed. The provision thus remained inoperative until after Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which replaced AFDC with Temporary Assistance to Needy Families (TANF). PRWORA expressly authorizes any State receiving a TANF grant to pay the benefit amount of another State's TANF program to residents who have lived in the State for less than 12 months. Since the Secretary no longer needed to approve §11450.03, California announced that enforcement would begin on April 1, 1997. On that date, respondents filed this class action, challenging the constitutionality of §11450.03's durational residency requirement and PRWORA's approval of that requirement. In issuing a preliminary injunction, the District Court found that PRWORA's existence did not affect its analysis in Green. Without reaching the merits, the Ninth Circuit affirmed the injunction.
(a) In assessing laws denying welfare benefits to newly arrived residents, this Court held in Shapiro that a State cannot enact durational residency requirements in order to inhibit the migration of needy persons into the State, and that a classification that has the effect of imposing a penalty on the right to travel violates the Equal Protection Clause absent a compelling governmental interest. Pp.
134 F. 3d 1400, affirmed.
Stevens, J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Thomas, J., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., joined.
ROE and ANNA DOE etc .
the amount payable by the State of the family's prior residence. The questions presented by this case are whether the 1992 statute was constitutional when it was enacted and, if not, whether an amendment to the Social Security Act enacted by Congress in 1996 affects that determination.
California is not only one of the largest, most populated, and most beautiful States in the Nation; it is also one of the most generous. Like all other States, California has participated in several welfare programs authorized by the Social Security Act and partially funded by the Federal Government. Its programs, however, provide a higher level of benefits and serve more needy citizens than those of most other States. In one year the most expensive of those programs, Aid to Families with Dependent Children (AFDC), which was replaced in 1996 with Temporary Assistance to Needy Families (TANF), provided benefits for an average of 2,645,814 persons per month at an annual cost to the State of $2.9 billion. In California the cash benefit for a family of two--a mother and one child--is $456 a month, but in the neighboring State of Arizona, for example, it is only $275.
In 1992, in order to make a relatively modest reduction in its vast welfare budget, the California Legislature enacted §11450.03 of the state Welfare and Institutions Code. That section sought to change the California AFDC program by limiting new residents, for the first year they live in California, to the benefits they would have received in the State of their prior residence. 1 Because in 1992 a state program either had to conform to federal specifications or receive a waiver from the Secretary of Health and Human Services in order to qualify for federal reimbursement, §11450.03 required approval by the Secretary to take effect. In October 1992, the Secretary issued a waiver purporting to grant such approval.
On December 21, 1992, three California residents who were eligible for AFDC benefits filed an action in the Eastern District of California challenging the constitutionality of the durational residency requirement in §11450.03. Each plaintiff alleged that she had recently moved to California to live with relatives in order to escape abusive family circumstances. One returned to California after living in Louisiana for seven years, the second had been living in Oklahoma for six weeks and the third came from Colorado. Each alleged that her monthly AFDC grant for the ensuing 12 months would be substantially lower under §11450.03 than if the statute were not in effect. Thus, the former residents of Louisiana and Oklahoma would receive $190 and $341 respectively for a family of three even though the full California grant was $641; the former resident of Colorado, who had just one child, was limited to $280 a month as opposed to the full California grant of $504 for a family of two.
The District Court issued a temporary restraining order and, after a hearing, preliminarily enjoined implementation of the statute. District Judge Levi found that the statute "produces substantial disparities in benefit levels and makes no accommodation for the different costs of living that exist in different states." 2 Relying primarily on our decisions in Shapiro v. Thompson, 394 U. S. 618 (1969), and Zobel v. Williams, 457 U. S. 55 (1982), he concluded that the statute placed "a penalty on the decision of new residents to migrate to the State and be treated on an equal basis with existing residents." Green v. Anderson , 811 F. Supp. 516, 521 (ED Cal. 1993). In his view, if the purpose of the measure was to deter migration by poor people into the State, it would be unconstitutional for that reason. And even if the purpose was only to conserve limited funds, the State had failed to explain why the entire burden of the saving should be imposed on new residents. The Court of Appeals summarily affirmed for the reasons stated by the District Judge. Green v. Anderson , 26 F. 3d 95 (CA9 1994).
We granted the State's petition for certiorari. 513 U. S. 922 (1994). We were, however, unable to reach the merits because the Secretary's approval of §11450.03 had been invalidated in a separate proceeding, 3 and the State had acknowledged that the Act would not be implemented without further action by the Secretary. We vacated the judgment and directed that the case be dismissed. Anderson v. Green , 513 U. S. 557 (1995) (per curiam) . 4 Accordingly, §11450.03 remained inoperative until after Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 PRWORA, 110 Stat. 2105.
PRWORA replaced the AFDC program with TANF. The new statute expressly authorizes any State that receives a block grant under TANF to "apply to a family the rules (including benefit amounts) of the [TANF] program ... of another State if the family has moved to the State from the other State and has resided in the State for less than 12 months." 42 U. S. C. §604(c) (1994 ed., Supp. II). With this federal statutory provision in effect, California no longer needed specific approval from the Secretary to implement §11450.03. The California Department of Social Services therefore issued an "All County Letter" announcing that the enforcement of §11450.03 would commence on April 1, 1997.
The All County Letter clarifies certain aspects of the statute. Even if members of an eligible family had lived in California all of their lives, but left the State "on January 29th, intending to reside in another state, and returned on April 15th," their benefits are determined by the law of their State of residence from January 29 to April 15, assuming that that level was lower than California's. 5 Moreover, the lower level of benefits applies regardless of whether the family was on welfare in the State of prior residence and regardless of the family's motive for moving to California. The instructions also explain that the residency requirement is inapplicable to families that recently arrived from another country.
On April 1, 1997, the two respondents filed this action in the Eastern District of California making essentially the same claims asserted by the plaintiffs in Anderson v. Green , 6 but also challenging the constitutionality of PRWORA's approval of the durational residency requirement . As in Green, the District Court issued a temporary restraining order and certified the case as a class action. 7 The Court also advised the Attorney General of the United States that the constitutionality of a federal statute had been drawn into question, but she did not seek to intervene or to file an amicus brief. Reasoning that PRWORA permitted, but did not require, States to impose durational residency requirements, Judge Levi concluded that the existence of the federal statute did not affect the legal analysis in his prior opinion in Green.
He did, however, make certain additional comments on the parties' factual contentions. He noted that the State did not challenge plaintiffs' evidence indicating that, although California benefit levels were the sixth highest in the Nation in absolute terms, 8 when housing costs are factored in, they rank 18th; that new residents coming from 43 States would face higher costs of living in California; and that welfare benefit levels actually have little, if any, impact on the residential choices made by poor people. On the other hand, he noted that the availability of other programs such as homeless assistance and an additional food stamp allowance of $1 in stamps for every $3 in reduced welfare benefits partially offset the disparity between the benefits for new and old residents. Notwithstanding those ameliorating facts, the State did not disagree with plaintiffs' contention that §11450.03 would create significant disparities between newcomers and welfare recipients who have resided in the State for over one year.
The State relied squarely on the undisputed fact that the statute would save some $10.9 million in annual welfare costs--an amount that is surely significant even though only a relatively small part of its annual expenditures of approximately $2.9 billion for the entire program. It contended that this cost saving was an appropriate exercise of budgetary authority as long as the residency requirement did not penalize the right to travel. The State reasoned that the payment of the same benefits that would have been received in the State of prior residency eliminated any potentially punitive aspects of the measure. Judge Levi concluded, however, that the relevant comparison was not between new residents of California and the residents of their former States, but rather between the new residents and longer term residents of California. He therefore again enjoined the implementation of the statute.
Without finally deciding the merits, the Court of Appeals affirmed his issuance of a preliminary injunction. Roe v. Anderson , 134 F. 3d 1400 (CA9 1998). It agreed with the District Court's view that the passage of PRWORA did not affect the constitutional analysis, that respondents had established a probability of success on the merits and that class members might suffer irreparable harm if §11450.03 became operative. Although the decision of the Court of Appeals is consistent with the views of other federal courts that have addressed the issue, 9 we granted certiorari because of the importance of the case. 524 U. S. ___ (1998). 10 We now affirm.
The word "travel" is not found in the text of the Constitution. Yet the "constitutional right to travel from one State to another" is firmly embedded in our jurisprudence. United States v. Guest , 383 U. S. 745, 757 (1966). Indeed, as Justice Stewart reminded us in Shapiro v. Thompson , 394 U. S. 618 (1969), the right is so important that it is "assertable against private interference as well as governmental action ... a virtually unconditional personal right, guaranteed by the Constitution to us all." Id., at 643 (concurring opinion).
In Shapiro , we reviewed the constitutionality of three statutory provisions that denied welfare assistance to residents of Connecticut, the District of Columbia, and Pennsylvania, who had resided within those respective jurisdictions less than one year immediately preceding their applications for assistance. Without pausing to identify the specific source of the right, we began by noting that the Court had long "recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement." Id. , at 629. We squarely held that it was "constitutionally impermissible" for a State to enact durational residency requirements for the purpose of inhibiting the migration by needy persons into the State. 11 We further held that a classification that had the effect of imposing a penalty on the exercise of the right to travel violated the Equal Protection Clause "unless shown to be necessary to promote a compelling governmental interest," id., at 634, and that no such showing had been made.
In this case California argues that §11450.03 was not enacted for the impermissible purpose of inhibiting migration by needy persons and that, unlike the legislation reviewed in Shapiro, it does not penalize the right to travel because new arrivals are not ineligible for benefits during their first year of residence. California submits that, instead of being subjected to the strictest scrutiny, the statute should be upheld if it is supported by a rational basis and that the State's legitimate interest in saving over $10 million a year satisfies that test. Although the United States did not elect to participate in the proceedings in the District Court or the Court of Appeals, it has participated as amicus curiae in this Court. It has advanced the novel argument that the enactment of PRWORA allows the States to adopt a "specialized choice-of-law-type provision" that "should be subject to an intermediate level of constitutional review," merely requiring that durational residency requirements be "substantially related to an important governmental objective." 12 The debate about the appropriate standard of review, together with the potential relevance of the federal statute, persuades us that it will be useful to focus on the source of the constitutional right on which respondents rely.
The "right to travel" discussed in our cases embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.
It was the right to go from one place to another, including the right to cross state borders while en route, that was vindicated in Edwards v. California, 314 U. S. 160 (1941), which invalidated a state law that impeded the free interstate passage of the indigent. We reaffirmed that right in United States v. Guest, 383 U. S. 745 (1966), which afforded protection to the " `right to travel freely to and from the State of Georgia and to use highway facilities and other instrumentalities of interstate commerce within the State of Georgia.' " Id., at 757. Given that §11450.03 imposed no obstacle to respondents' entry into California, we think the State is correct when it argues that the statute does not directly impair the exercise of the right to free interstate movement. For the purposes of this case, therefore, we need not identify the source of that particular right in the text of the Constitution. The right of "free ingress and regress to and from" neighboring States, which was expressly mentioned in the text of the Articles of Confederation, 13 may simply have been "conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created." Id. , at 758.
Thus, by virtue of a person's state citizenship, a citizen of one State who travels in other States, intending to return home at the end of his journey, is entitled to enjoy the "Privileges and Immunities of Citizens in the several States" that he visits. 14 This provision removes "from the citizens of each State the disabilities of alienage in the other States." Paul v. Virginia, 8 Wall. 168, 180 (1869) ("[W]ithout some provision . . . removing from 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"). It provides important protections for nonresidents who enter a State whether to obtain employment, Hicklin v. Orbeck, 437 U. S. 518 (1978), to procure medical services, Doe v. Bolton , 410 U. S. 179, 200 (1973), or even to engage in commercial shrimp fishing, Toomer v. Witsell , 334 U. S. 385 (1948). Those protections are not "absolute," but the Clause "does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States." Id., at 396. There may be a substantial reason for requiring the nonresident to pay more than the resident for a hunting license, see Baldwin v. Fish and Game Comm'n of Mont., 436 U. S. 371, 390-391 (1978), or to enroll in the state university, see Vlandis v. Kline, 412 U. S. 441, 445 (1973), but our cases have not identified any acceptable reason for qualifying the protection afforded by the Clause for "the `citizen of State A who ventures into State B' to settle there and establish a home." Zobel, 457 U. S., at 74 (O'C onnor , J., concurring in judgment). Permissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident's exercise of the right to move into another State and become a resident of that State.
"The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons. 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; and the whole power of the nation is pledged to sustain him in that right. He is not bound to cringe to any superior, or to pray for any act of grace, as a means of enjoying all the rights and privileges enjoyed by other citizens." Id., at 112-113.
That newly arrived citizens "have two political capacities, one state and one federal," adds special force to their claim that they have the same rights as others who share their citizenship. 17 Neither mere rationality nor some intermediate standard of review should be used to judge the constitutionality of a state rule that discriminates against some of its citizens because they have been domiciled in the State for less than a year. The appropriate standard may be more categorical than that articulated in Shapiro , see supra , at 8-9, but it is surely no less strict.
Because this case involves discrimination against citizens who have completed their interstate travel, the State's argument that its welfare scheme affects the right to travel only "incidentally" is beside the point. Were we concerned solely with actual deterrence to migration, we might be persuaded that a partial withholding of benefits constitutes a lesser incursion on the right to travel than an outright denial of all benefits. See Dunn v. Blumstein , 405 U. S. 330, 339 (1972). But since the right to travel embraces the citizen's right to be treated equally in her new State of residence, the discriminatory classification is itself a penalty.
It is undisputed that respondents and the members of the class that they represent are citizens of California and that their need for welfare benefits is unrelated to the length of time that they have resided in California. We thus have no occasion to consider what weight might be given to a citizen's length of residence if the bona fides of her claim to state citizenship were questioned. Moreover, because whatever benefits they receive will be consumed while they remain in California, there is no danger that recognition of their claim will encourage citizens of other States to establish residency for just long enough to acquire some readily portable benefit, such as a divorce or a college education, that will be enjoyed after they return to their original domicile. See, e.g., Sosna v. Iowa , 419 U. S. 393 (1975); Vlandis v. Kline , 412 U. S. 441 (1973).
The classifications challenged in this case--and there are many--are defined entirely by (a) the period of residency in California and (b) the location of the prior residences of the disfavored class members. The favored class of beneficiaries includes all eligible California citizens who have resided there for at least one year, plus those new arrivals who last resided in another country or in a State that provides benefits at least as generous as California's. Thus, within the broad category of citizens who resided in California for less than a year, there are many who are treated like lifetime residents. And within the broad sub-category of new arrivals who are treated less favorably, there are many smaller classes whose benefit levels are determined by the law of the States from whence they came. To justify §11450.03, California must therefore explain not only why it is sound fiscal policy to discriminate against those who have been citizens for less than a year, but also why it is permissible to apply such a variety of rules within that class.
These classifications may not be justified by a purpose to deter welfare applicants from migrating to California for three reasons. First, although it is reasonable to assume that some persons may be motivated to move for the purpose of obtaining higher benefits, the empirical evidence reviewed by the District Judge, which takes into account the high cost of living in California, indicates that the number of such persons is quite small--surely not large enough to justify a burden on those who had no such motive. 18 Second, California has represented to the Court that the legislation was not enacted for any such reason. 19 Third, even if it were, as we squarely held in Shapiro v. Thompson, 394 U. S. 618 (1969), such a purpose would be unequivocally impermissible.
"But we need not rest on the particular facts of these cases. Appellants' reasoning would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens." 394 U. S., at 632 -633.
See also Zobel , 457 U. S., at 64 . In short, the State's legitimate interest in saving money provides no justification for its decision to discriminate among equally eligible citizens.
The question that remains is whether congressional approval of durational residency requirements in the 1996 amendment to the Social Security Act somehow resuscitates the constitutionality of §11450.03. That question is readily answered, for we have consistently held that Congress may not authorize the States to violate the Fourteenth Amendment. 21 Moreover, the protection afforded to the citizen by the Citizenship Clause of that Amendment is a limitation on the powers of the National Government as well as the States.
Article I of the Constitution grants Congress broad power to legislate in certain areas. Those legislative powers are, however, limited not only by the scope of the Framers' affirmative delegation, but also by the principle "that they may not be exercised in a way that violates other specific provisions of the Constitution. For example, Congress is granted broad power to `lay and collect Taxes,' but the taxing power, broad as it is, may not be invoked in such a way as to violate the privilege against self-incrimination." Williams v. Rhodes , 393 U. S. 23, 29 (1968) (footnote omitted). Congress has no affirmative power to authorize the States to violate the Fourteenth Amendment and is implicitly prohibited from passing legislation that purports to validate any such violation.
"Section 5 of the Fourteenth Amendment gives Congress broad power indeed to enforce the command of the amendment and `to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion... .' Ex parte Virginia , 100 U. S. 339, 346 (1880). Congress' power under §5, however, `is limited to adopting measures to enforce the guarantees of the Amendment; §5 grants Congress no power to restrict, abrogate, or dilute these guarantees.' Katzenbach v. Morgan , 384 U. S. 641, 651 , n. 10 (1966). Although we give deference to congressional decisions and classifications, neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment. See, e.g., Califano v. Goldfarb , 430 U. S. 199, 210 (1977); Williams v. Rhodes , 393 U. S. 23, 29 (1968)." Mississippi Univ. for Women v. Hogan , 458 U. S. 718, 732-733 (1982).
He first points out that because the TANF program gives the States broader discretion than did AFDC, there will be significant differences among the States which may provide new incentives for welfare recipients to change their residences. He does not, however, persuade us that the disparities under the new program will necessarily be any greater than the differences under AFDC, which included such examples as the disparity between California's monthly benefit of $673 for a family of four with Mississippi's benefit of $144 for a comparable family. Moreover, we are not convinced that a policy of eliminating incentives to move to California provides a more permissible justification for classifying California citizens than a policy of imposing special burdens on new arrivals to deter them from moving into the State. Nor is the discriminatory impact of §11450.03 abated by repeatedly characterizing it as "a sort of specialized choice-of-law rule." 23 California law alone discriminates among its own citizens on the basis of their prior residence.
The Solicitor General also suggests that we should recognize the congressional concern addressed in the legislative history of PRWORA that the "States might engage in a `race to the bottom' in setting the benefit levels in their TANF programs." 24 Again, it is difficult to see why that concern should be any greater under TANF than under AFDC. The evidence reviewed by the District Court indicates that the savings resulting from the discriminatory policy, if spread equitably throughout the entire program, would have only a miniscule impact on benefit levels. Indeed, as one of the legislators apparently interpreted this concern, it would logically prompt the States to reduce benefit levels sufficiently "to encourage emigration of benefit recipients." 25 But speculation about such an unlikely eventuality provides no basis for upholding §11450.03.
Citizens of the United States, whether rich or poor, have the right to choose to be citizens "of the State wherein they reside." U. S. Const., Amdt. 14, §1. The States, however, do not have any right to select their citizens. 27 The Fourteenth Amendment, like the Constitution itself, was, as Justice Cardozo put it, "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." Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 523 (1935).
Chief J ustice Rehnquist , with whom Justice Thomas joins, dissenting.
Finally, I agree with the proposition that a "citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bon ; fide residence therein, with the same rights as other citizens of that State." Slaughter-House Cases , 16 Wall. 36, 80 (1873).
But I cannot see how the right to become a citizen of another State is a necessary "component" of the right to travel, or why the Court tries to marry these separate and distinct rights. A person is no longer "traveling" in any sense of the word when he finishes his journey to a State which he plans to make his home. Indeed, under the Court's logic, the protections of the Privileges or Immunities Clause recognized in this case come into play only when an individual stops traveling with the intent to remain and become a citizen of a new State. The right to travel and the right to become a citizen are distinct, their relationship is not reciprocal, and one is not a "component" of the other. Indeed, the same dicta from the Slaughter-House Cases quoted by the Court actually treats the right to become a citizen and the right to travel as separate and distinct rights under the Privileges or Immunities Clause of the Fourteenth Amendment. See id., at 79-80. 1 At most, restrictions on an individual's right to become a citizen indirectly affect his calculus in deciding whether to exercise his right to travel in the first place, but such an attenuated and uncertain relationship is no ground for folding one right into the other.
Instead, the Court in these cases held that restricting the provision of welfare benefits, votes, or certain medical benefits to new citizens for a limited time impermissibly "penalized" them under the Equal Protection Clause of the Fourteenth Amendment for having exercised their right to travel. See Maricopa County, supra , at 257. The Court thus settled for deciding what restrictions amounted to "deprivations of very important benefits and rights" that operated to indirectly "penalize" the right to travel. See Attorney General of N. Y. v. Soto-Lopez , 476 U. S. 898, 907 (1986) (plurality opinion). In other cases, the Court recognized that laws dividing new and old residents had little to do with the right to travel and merely triggered an inquiry into whether the resulting classification rationally furthered a legitimate government purpose. See Zobel v. Williams , 457 U. S. 55, 60 , n. 6 (1982); Hooper v. Bernalillo County Assessor, 472 U. S. 612, 618 (1985). 2 While Zobel and Hooper reached the wrong result in my view, they at least put the Court on the proper track in identifying exactly what interests it was protecting; namely, the right of individuals not to be subject to unjustifiable classifications as opposed to infringements on the right to travel.
The Court today tries to clear much of the underbrush created by these prior right-to-travel cases, abandoning its effort to define what residence requirements deprive individuals of "important rights and benefits" or "penalize" the right to travel. See ante , at 14-15. Under its new analytical framework, a State, outside certain ill-defined circumstances, cannot classify its citizens by the length of their residence in the State without offending the Privileges or Immunities Clause of the Fourteenth Amendment. The Court thus departs from Shapiro and its progeny, and, while paying lipservice to the right to travel, the Court does little to explain how the right to travel is involved at all. Instead, as the Court's analysis clearly demonstrates, see ante , at 15-17, this case is only about respondents' right to immediately enjoy all the privileges of being a California citizen in relation to that State's ability to test the good-faith assertion of this right. The Court has thus come full circle by effectively disavowing the analysis of Shapiro , segregating the right to travel and the rights secured by Article IV from the right to become a citizen under the Privileges or Immunities Clause, and then testing the residence requirement here against this latter right. For all its misplaced efforts to fold the right to become a citizen into the right to travel, the Court has essentially returned to its original understanding of the right to travel.
In unearthing from its tomb the right to become a state citizen and to be treated equally in the new State of residence, however, the Court ignores a State's need to assure that only persons who establish a bona fide residence receive the benefits provided to current residents of the State. The Slaughter-House dicta at the core of the Court's analysis specifically conditions a United States citizen's right to "become a citizen of any state of the Union" and to enjoy the "same rights as other citizens of that State" on the establishment of a " bona fide residence therein ." 16 Wall., at 80 (emphasis added). Even when redefining the right to travel in Shapiro and its progeny, the Court has "always carefully distinguished between bona fide residence requirements, which seek to differentiate between residents and nonresidents, and residence requirements, such as durational, fixed date, and fixed point residence requirements, which treat established residents differently based on the time they migrated into the State." Soto-Lopez, supra, at 903, n. 3 (citing cases).
the person does establish residence before demanding the services that are restricted to residents." The Martinez Court explained that "residence" requires "both physical presence and an intention to remain," see id., at 330, and approved a Texas law that restricted eligibility for tuition-free education to families who met this minimum definition of residence, id. , at 332-333.
While the physical presence element of a bona fide residence is easy to police, the subjective intent element is not. It is simply unworkable and futile to require States to inquire into each new resident's subjective intent to remain. Hence, States employ objective criteria such as durational residence requirements to test a new resident's resolve to remain before these new citizens can enjoy certain in-state benefits. Recognizing the practical appeal of such criteria, this Court has repeatedly sanctioned the State's use of durational residence requirements before new residents receive in-state tuition rates at state universities. Starns v. Malkerson , 401 U. S. 985 (1971), summarily aff'g 326 F. Supp. 234 (Minn. 1970) (upholding 1-year residence requirement for in-state tuition); Sturgis v. Washington , 414 U. S. 1057 , summarily aff'g 368 F. Supp. 38 (WD Wash. 1973) (same). The Court has declared: "The State can establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but have come there solely for educational purposes, cannot take advantage of the in-state rates." See Vlandis v. Kline , 412 U. S. 441, 453-454 (1973). The Court has done the same in upholding a 1-year residence requirement for eligibility to obtain a divorce in state courts, see Sosna v. Iowa , 419 U. S. 393, 406-409 (1975), and in upholding political party registration restrictions that amounted to a durational residency requirement for voting in primary elections, see Rosario v. Rockefeller , 410 U. S. 752, 760-762 (1973).
If States can require individuals to reside in-state for a year before exercising the right to educational benefits, the right to terminate a marriage, or the right to vote in primary elections that all other state citizens enjoy, then States may surely do the same for welfare benefits. Indeed, there is no material difference between a 1-year residence requirement applied to the level of welfare benefits given out by a State, and the same requirement applied to the level of tuition subsidies at a state university. The welfare payment here and in-state tuition rates are cash subsidies provided to a limited class of people, and California's standard of living and higher education system make both subsidies quite attractive. Durational residence requirements were upheld when used to regulate the provision of higher education subsidies, and the same deference should be given in the case of welfare payments. See Dandridge v. Williams , 397 U. S. 471, 487 (1970) ("[T]he Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients.").
The Court today recognizes that States retain the ability to determine the bona fides of an individual's claim to residence, see ante , at 15, but then tries to avoid the issue. It asserts that because respondents' need for welfare benefits is unrelated to the length of time they have resided in California, it has "no occasion to consider what weight might be given to a citizen's length of residence if the bona fides of her claim to state citizenship were questioned." See ibid. But I do not understand how the absence of a link between need and length of residency bears on the State's ability to objectively test respondents' resolve to stay in California. There is no link between the need for an education or for a divorce and the length of residence, and yet States may use length of residence as an objective yardstick to channel their benefits to those whose intent to stay is legitimate.
In one respect, the State has a greater need to require a durational residence for welfare benefits than for college eligibility. The impact of a large number of new residents who immediately seek welfare payments will have a far greater impact on a State's operating budget than the impact of new residents seeking to attend a state university. In the case of the welfare recipients, a modest durational residence requirement to allow for the completion of an annual legislative budget cycle gives the State time to decide how to finance the increased obligations.
The Court tries to distinguish education and divorce benefits by contending that the welfare payment here will be consumed in California, while a college education or a divorce produces benefits that are "portable" and can be enjoyed after individuals return to their original domicile. Ibid . But this "you can't take it with you" distinction is more apparent than real, and offers little guidance to lower courts who must apply this rationale in the future. Welfare payments are a form of insurance, giving impoverished individuals and their families the means to meet the demands of daily life while they receive the necessary training, education, and time to look for a job. The cash itself will no doubt be spent in California, but the benefits from receiving this income and having the opportunity to become employed or employable will stick with the welfare recipient if they stay in California or go back to their true domicile. Similarly, tuition subsidies are "consumed" in-state but the recipient takes the benefits of a college education with him wherever he goes. A welfare subsidy is thus as much an investment in human capital as is a tuition subsidy, and their attendant benefits are just as "portable." 3 More importantly, this foray into social economics demonstrates that the line drawn by the Court borders on the metaphysical, and requires lower courts to plumb the policies animating certain benefits like welfare to define their "essence" and hence their "portability." As this Court wisely recognized almost 30 years ago, "the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court." Dandridge, supra , at 487.
I therefore believe that the durational residence requirement challenged here is a permissible exercise of the State's power to "assur[e] that services provided for its residents are enjoyed only by residents." Martinez , 461 U. S., at 328 . The 1-year period established in §11450.03 is the same period this Court approved in Starns and Sosa. The requirement does not deprive welfare recipients of all benefits; indeed, the limitation has no effect whatsoever on a recipient's ability to enjoy the full 5-year period of welfare eligibility; to enjoy the full range of employment, training, and accompanying supportive services; or to take full advantage of health care benefits under Medicaid. See Brief for Petitioners 7-8, 27. This waiting period does not preclude new residents from all cash payments, but merely limits them to what they received in their prior State of residence. Moreover, as the Court recognizes, see ante , at 6, any pinch resulting from this limitation during the 1-year period is mitigated by other programs such as homeless assistance and an increase in food stamp allowance. The 1-year period thus permissibly balances the new resident's needs for subsistence with the State's need to ensure the bona fides of their claim to residence.
Finally, Congress' express approval in 42 U. S. C. §604(c) of durational residence requirements for welfare recipients like the one established by California only goes to show the reasonableness of a law like §11450.03. The National Legislature, where people from Mississippi as well as California are represented, has recognized the need to protect state resources in a time of experimentation and welfare reform. As States like California revamp their total welfare packages, see Brief for Petitioners 5-6, they should have the authority and flexibility to ensure that their new programs are not exploited. Congress has decided that it makes good welfare policy to give the States this power. California has reasonably exercised it through an objective, narrowly tailored residence requirement. I see nothing in the Constitution that should prevent the enforcement of that requirement.
Justice Thomas , with whom the Chief Justice joins, dissenting.
I join The Chief Justice 's dissent. I write separately to address the majority's conclusion that California has violated "the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State." Ante , at 12. In my view, the majority attributes a meaning to the Privileges or Immunities Clause that likely was unintended when the Fourteenth Amendment was enacted and ratified.
The Privileges or Immunities Clause of the Fourteenth Amendment provides that "[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." U. S. Const., Amdt. 14, §1. Unlike the Equal Protection and Due Process Clauses, which have assumed near-talismanic status in modern constitutional law, the Court all but read the Privileges or Immunities Clause out of the Constitution in the Slaughter-House Cases , 16 Wall. 36 (1873). There, the Court held that the State of Louisiana had not abridged the Privileges or Immunities Clause by granting a partial monopoly of the slaughtering business to one company. Id. , at 59-63, 66. The Court reasoned that the Privileges or Immunities Clause was not intended "as a protection to the citizen of a State against the legislative power of his own State." Id. , at 74. Rather the "privileges or immunities of citizens" guaranteed by the Fourteenth Amendment were limited to those "belonging to a citizen of the United States as such." Id. , at 75. The Court declined to specify the privileges or immunities that fell into this latter category, but it made clear that few did. See id. , at 76 (stating that "nearly every civil right for the establishment and protection of which organized government is instituted," including "those rights which are fundamental," are not protected by the Clause).
The colonists' repeated assertions that they maintained the rights, privileges and immunities of persons "born within the realm of England" and "natural born" persons suggests that, at the time of the founding, the terms "privileges" and "immunities" (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens, and more broadly, by all persons. Presumably members of the Second Continental Congress so understood these terms when they employed them in the Articles of Confederation, which guaranteed that "the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States." Art. IV. The Constitution, which superceded the Articles of Confederation, similarly guarantees that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Art. IV, §2, cl. 1.
We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; ... and an exemption from higher taxes or impositions than are paid by the other citizens of the state; ... the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities." Id. at 551-552.
Washington rejected the proposition that the Privileges and Immunities Clause guaranteed equal access to all public benefits (such as the right to harvest oysters in public waters) that a State chooses to make available. Instead, he endorsed the colonial-era conception of the terms "privileges" and "immunities," concluding that Article IV encompassed only fundamental rights that belong to all citizens of the United States. 4 Id., at 552.
That Members of the 39th Congress appear to have endorsed the wisdom of Justice Washington's opinion does not, standing alone, provide dispositive insight into their understanding of the Fourteenth Amendment's Privileges or Immunities Clause. Nevertheless, their repeated references to the Corfield decision, combined with what appears to be the historical understanding of the Clause's operative terms, supports the inference that, at the time the Fourteenth Amendment was adopted, people understood that "privileges or immunities of citizens" were fundamental rights, rather than every public benefit established by positive law. Accordingly, the majority's conclusion--that a State violates the Privileges or Immunities Clause when it "discriminates" against citizens who have been domiciled in the State for less than a year in the distribution of welfare benefit appears contrary to the original understanding and is dubious at best.
As The Chief Justice points out, ante at 1, it comes as quite a surprise that the majority relies on the Privileges or Immunities Clause at all in this case. That is because, as I have explained supra , at 1-2, The Slaughter-House Cases sapped the Clause of any meaning. Although the majority appears to breathe new life into the Clause today, it fails to address its historical underpinnings or its place in our constitutional jurisprudence. Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case. Before invoking the Clause, however, we should endeavor to understand what the framers of the Fourteenth Amendment thought that it meant. We should also consider whether the Clause should displace, rather than augment, portions of our equal protection and substantive due process jurisprudence. The majority's failure to consider these important questions raises the specter that the Privileges or Immunities Clause will become yet another convenient tool for inventing new rights, limited solely by the "predilections of those who happen at the time to be Members of this Court." Moore v. East Cleveland, 431 U. S. 494, 502 (1977).
"(a) Notwithstanding the maximum aid payments specified in paragraph (1) of subdivision (a) of Section 11450, families that have resided in this state for less than 12 months shall be paid an amount calculated in accordance with paragraph (1) of subdivision (a) of Section 11450, not to exceed the maximum aid payment that would have been received by that family from the state of prior residence.
"(1) Title IV of the federal Social Security Act (Subchapter 4 (commencing with Section 601) of Chapter 7 of Title 42 of the United States Code).
"(2) Title IX [sic] of the federal Social Security Act (Subchapter 19 (commencing with section 1396) of Chapter 7 of Title 42 of the United States Code)."
The District Court referred to an official table of Fair Market Rents indicating that California's housing costs are higher than any other State except Massachusetts. See Green v. Anderson , 811 F. Supp. 516, 521, n. 13 (ED Cal. 1993); see also Declaration of Robert Greenstein, App. 91-94.
Beno v. Shalala , 30 F. 3d 1057 (CA9 1994).
In February 1996, the Secretary granted waivers for certain changes in California's welfare program, but she declined to authorize any distinction between old and new residents. App. to Pet. for Cert. 46-52.
Record 30 (Plaintiffs' Exh. 3, Attachment 1).
One of the respondents is a former resident of Oklahoma and the other moved to California from the District of Columbia. In both of those jurisdictions the benefit levels are substantially lower than in California.
On the stipulation of the parties, the court certified a class of plaintiffs defined as " `all present and future AFDC and TANF applicants and recipients who have applied or will apply for AFDC or TANF on or after April 1, 1997, and who will be denied full California AFDC or TANF benefits because they have not resided in California for twelve consecutive months immediately preceding their application for aid.' " App. to Pet. for Cert. 20.
Forty-four States and the District of Columbia have lower benefit levels than California. App. to Pet. for Cert. 22, n. 10.
See Maldonado v. Houston , 157 F. 3d 179 (CA3 1998) (finding two-tier durational residency requirement an unconstitutional infringement on the right to travel); Anderson v. Green , 26 F. 3d 95 (CA9 1994), vacated as unripe, 513 U. S. 557 (1995) (per curiam); Hicks v. Peters , 10 F. Supp. 2d 1003 (ND Ill. 1998) (granting injunction against enforcement of durational residency requirement); Westenfelder v. Ferguson , 998 F. Supp. 146 (RI 1998) (holding durational residency requirement a penalty on right to travel incapable of surviving rational-basis review). Two state courts have reached the same conclusion. See Mitchell v. Steffen , 504 N. W. 2d 198 (Minn. 1993), cert. denied, 510 U. S. 1081 (1994) (striking down a similar provision in Minnesota law); Sanchez v. Department of Human Services , 314 N. J. Super. 11, 713 A. 2d 1056 (1998) (striking down two-tier welfare system); cf. Jones v. Milwaukee County, 168 Wis. 2d 892, 485 N. W. 2d 21 (1992) (holding that a 60-day waiting period for applicant for general relief is not a penalty and therefore not unconstitutional).
After this case was argued, petitioner Rita L. Saenz replaced Eloise Anderson as Director, California Department of Social Services.
"We do not doubt that the one-year waiting-period device is well suited to discourage the influx of poor families in need of assistance. ... But the purpose of inhibiting migration by needy persons into the State is constitutionally impermissible." 394 U. S., at 629 .
"Thus, the purpose of deterring the in-migration of indigents cannot serve as justification for the classification created by the one-year waiting period . . . . If a law has `no other purpose ... than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it [is] patently unconstitutional.' United States v. Jackson , 390 U. S. 570, 581 (1968)." Id., at 631.
Brief for United States as Amicus Curiae 8, 10.
"The 4th article, respecting the extending the rights of the Citizens of each State, throughout the United States . . . is formed exactly upon the principles of the 4th article of the present Confederation." 3 Records of the Federal Convention of 1787, p. 112 (M. Farrand ed. 1966). Article IV of the Articles of Confederation provided that "the people of each State shall have free ingress and regress to and from any other State."
Corfield v. Coryell , 6 F. Cas. 546 (CCED Pa. 1823) (Washington, J., on circuit) ("fundamental" rights protected by the privileges and immunities clause include "the right of a citizen of one state to pass through, or to reside in any other state").
The Framers of the Fourteenth Amendment modeled this Clause upon the "Privileges and Immunities" Clause found in Article IV. Cong. Globe, 39th Cong., 1st Sess., 1033-1034 (1866) (statement of Rep. Bingham). In Dred Scott v. Sandford , 19 How. 393 (1857), this Court had limited the protection of Article IV to rights under state law and concluded that free blacks could not claim citizenship. The Fourteenth Amendment overruled this decision. The Amendment's Privileges and Immunities Clause and Citizenship Clause guaranteed the rights of newly freed black citizens by ensuring that they could claim the state citizenship of any State in which they resided and by precluding that State from abridging their rights of national citizenship.
U. S. Const., Amdt. 14, §1. The remainder of the section provides: "nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The District Court and the Court of Appeals concluded, however, that the "apparent purpose of §11450.03 was to deter migration of poor people to California." Roe v. Anderson , 134 F. 3d 1400, 1404 (CA9 1998).
See Cohen, Discrimination Against New State Citizens: An Update, 11 Const. Comm. 73, 79 (1994) ("[J]ust as it would violate the Constitution to deny these new arrivals state citizenship, it would violate the Constitution to concede their citizenship in name only while treating them as if they were still citizens of other states").
" `Congress is without power to enlist state cooperation in a joint federal-state program by legislation which authorizes the States to violate the Equal Protection Clause.' Shapiro v. Thompson , 394 U. S. 618, 641 (1969)." Townsend v. Swank , 404 U. S. 282, 291 (1971).
Brief for United States as Amicus Curiae 29, n. 10.
Id. , at 9; see also id. , at 3, 8, 14, 15, 20, 22, 23, 24, 27, 28, 28-29.
Brief for United States as Amicus Curiae 16. See States' Perspective on Welfare Reform: Hearing before the Senate Committee on Finance, 104th Cong., 1st Sess., 9 (1995).
Brief for United States as Amicus Curiae 30, n. 11.
As Justice Jackson observed, "it is a privilege of citizenship of the United States, protected from state abridgment, to enter any State of the Union, either for temporary sojourn or for the establishment of permanent residence therein and for gaining resultant citizenship thereof. If national citizenship means less than this, it means nothing." Edwards v. California , 314 U. S. 160, 183 (1941) (concurring opinion).
"But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which own their existence to the Federal government, its National character, its Constitution, or its laws.
"One of these is well described in the case of Crandall v. Nevada [, 6 Wall. 35 (1868)]. It is said to be the right of the citizen of this great country, protected by implied guarantees of its Constitution, `to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States.' And quoting from the language of Chief Justice Taney in another case, it is said `that for all the great purposes for which the Federal government was established, we are one people, with one common country, we are all citizens of the United States;' and it is, as such citizens, that their rights are supported in this court in Crandall v. Nevada." 16 Wall., at 79 (footnote omitted).
As Chief Justice Burger aptly stated in Zobel: "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." 457 U. S., at 60 , n. 6.
The same analysis applies to divorce.
Legal scholars agree on little beyond the conclusion that the Clause does not mean what the Court said it meant in 1873. See, e.g. , Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L. J. 1385, 1418 (1992) (Clause is an antidiscrimination provision); D. Currie, The Constitution in the Supreme Court 341-351 (1985) (same); 2 W. Crosskey, Politics and the Constitution in the History of the United States 1089-1095 (1953) (Clause incorporates first eight Amendments of the Bill of Rights); M. Curtis, No State Shall Abridge 100 (1986) (Clause protects the rights included in the Bill of Rights as well as other fundamental rights); B. Siegan, Supreme Court's Constitution 46-71 (1987) (Clause guarantees Lockean conception of natural rights); Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L. J. 453, 521-536 (1989) (same); J. Ely, Democracy and Distrust 28 (1980) (Clause "was a delegation to future constitutional decision-makers to protect certain rights that the document neither lists ... or in any specific way gives directions for finding"); R. Berger, Government by Judiciary 30 (2d ed. 1997) (Clause forbids race discrimination with respect to rights listed in the Civil Rights Act of 1866); R. Bork, The Tempting of America 166 (1990) (Clause is inscrutable and should be treated as if it had been obliterated by an ink blot).
See 1620 Charter of New England, in 3 Thorpe, at 1839 (guaranteeing "[l]iberties, and ffranchizes, and Immunities of free Denizens and naturall Subjects"); 1622 Charter of Connecticut, reprinted in 1 id., at 553 (guaranteeing "[l]iberties and Immunities of free and natural Subjects"); 1629 Charter of the Massachusetts Bay Colony, in 3 id., at 1857 (guaranteeing the "liberties and Immunities of free and naturall subjects"); 1632 Charter of Maine, in 3 id., at 1635 (guaranteeing "[l]iberties[,] Francheses and Immunityes of or belonging to any of the naturall borne subjects"); 1632 Charter of Maryland, in 3 id., at 1682 (guaranteeing "Privileges, Franchises and Liberties"); 1663 Charter of Carolina, in 5 id., at 2747 (holding "liberties, franchises, and privileges" inviolate); 1663 Charter of the Rhode Island and Providence Plantations, in 6 id., at 3220 (guaranteeing "libertyes and immunityes of ffree and naturall subjects"); 1732 Charter of Georgia, in 2 id., at 773 (guaranteeing "liberties, franchises and immunities of free denizens and natural born subjects").
Resolved that no Man can justly take the Property of another without his Consent . . . this inherent Right, together with all other essential Rights, Liberties, Privileges and Immunities of the People of Great Britain have been fully confirmed to them by Magna Charta "); The Virginia Resolves, id., at 47-48 ("[T]he Colonists aforesaid are declared entitled to all Liberties, Privileges, and Immunities of Denizens and natural Subjects, to all Intents and Purposes, as if they had been abiding and born within the Realm of England "); 1774 Statement of Violation of Rights, 1 Journals of the Continental Congress 68 (1904) ("[O]ur ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England ... Resolved ... [t]hat by such emigration they by no means forfeited, surrendered or lost any of those rights").
During the first half of the 19th century, a number of legal scholars and state courts endorsed Washington's conclusion that the Clause protected only fundamental rights. See, e.g. , Campbell v. Morris, 3 Harr. & M. 535, 554 (Md. 1797) (Chase, J.) (Clause protects property and personal rights); Douglass v. Stephens , 1 Del. Ch. 465, 470 (1821) (Clause protects the "absolute rights" that "all men by nature have"); 2 J. Kent, Commentaries on American Law 71-72 (1836) (Clause "confined to those [rights] which were, in their nature, fundamental"). See generally Antieau, Paul's Perverted Privileges or the True Meaning of the Privileges and Immunities Clause of Article Four, 9 Wm. & Mary L. Rev. 1, 18-21 (1967) (collecting sources).
He also observed that, while, Supreme Court had not "undertaken to define either the nature or extent of the privileges and immunities," Washington's opinion gave "some intimation of what probably will be the opinion of the judiciary." Cong. Globe, 39th Cong., 1st Sess., 2765 (1866).
During debates on the Civil Rights Act of 1866, Members of Congress also repeatedly invoked Corfield to support the legislation. See generally, Siegan, Supreme Court's Constitution, at 46-56. The Act's sponsor, Senator Trumble, quoting from Corfield , explained that the legislation protected the "fundamental rights belonging to every man as a free man, and which under the Constitution as it now exists we have a right to protect every man in." Cong. Globe, supra, at 476. The Civil Rights Act is widely regarded as the precursor to the Fourteenth Amendment. See, e.g. , J. tenBroek, Equal Under Law 201 (rev. ed. 1965) ("The one point upon which historians of the Fourteenth Amendment agree, and, indeed, which the evidence places beyond cavil, is that the Fourteenth Amendment was designed to place the constitutionality of the Freedmen's Bureau and civil rights bills, particularly the latter, beyond doubt").