In McBurney v. Young, Justice Alito had occasion to talk about, and dismiss, claims that a Virginia law violates a right to pursue a common calling. The Court, under its Article IV Privileges and Immunities jurisprudence has not recognized a broad right to earn an honest living–a right the Slaughter-House Court improperly rejected under the 14th Amendment’s Privileges or Immunities Clause. There was a lengthy discussion of that right by the Court:
Hurlbert argues that Virginia’s citizens-only FOIA provision abridges his ability to earn a living in his chosen profession, namely, obtaining property records from state and local governments on behalf of clients. He is correct that the Privileges and Immunities Clause protects the right of citizens to “ply their trade, practice their occupation, or pursue a common calling.” Hicklin v. Orbeck, 437 U. S. 518, 524 (1978); Supreme Court of N. H. v. Piper, 470 U. S. 274, 280 (1985) (“‘[O]ne of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State’”).
But the Virginia FOIA does not abridge Hulbert’s ability to engage in a common calling in the sense prohibited by the Privileges and Immunities Clause. Rather, the Court has struck laws down as violating the privilege of pursuing a common calling only when those laws were enacted for the protectionist purpose of burdening out-of-state citizens. See, e.g., Hicklin, supra, (striking down as a violation of noncitizens’ privileges and immunities an “Alaska Hire” statute containing a resident hiring preference for all employment related to the development of the State’s oil and gas resources); Toomer v. Witsell, 334 U. S. 385, 395, 397 (1948) (striking down a South Carolina statute imposing a $2,500 license fee on out-of-state shrimping boats and only a $25 fee on in-state shrimping boats where petitioners alleged that the “purpose and effect of this statute . . . [was] not to conserve shrimp, but to exclude non-residents and thereby create a commercial monopoly for South Carolina residents,” and the “record cas[t] some doubt on” the State’s counterassertion that the statute’s “obvious purpose was to conserve its shrimp supply”); United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden, 465 U. S. 208 (1984) (New Jersey municipal ordinance requiring that at least 40% of employees of contractors and subcontractors working on city construction projects be city residents facially burdened out-ofstate citizens’ ability to pursue a common calling). In each case, the clear aim of the statute at issue was to advantage in-state workers and commercial interests at the expense of their out-of-state counterparts.
The challenged provision of the state FOIA does not violate the Privileges and Immunities Clause simply because it has the incidental effect of preventing citizens of other States from making a profit by trading on in- formation contained in state records. While the Clause forbids a State from intentionally giving its own citizens a competitive advantage in business or employment, the Clause does not require that a State tailor its every action to avoid any incidental effect on out-of-state tradesmen.
Speaking of Privileges and Immunities, there is a citation to Corfield v. Coryell. Hollah!
Hurlbert next alleges that the challenged provision of the Virginia FOIA abridges the right to own and transfer property in the Commonwealth. Like the right to pursue a common calling, the right to “take, hold and dispose of property, either real or personal,” has long been seen as one of the privileges of citizenship. See Corfield v. Coryell, 6 F. Cas. 546, 552 (No. 3, 230) (CCED Pa. 1825);
At his tomb in Mt. Vernon, Bushrod Washington’s ears are burning.
And another cite to Corfield for the proposition that accessing FOIAd information is not a fundamental right:
Hurlbert next alleges that the challenged provision of the Virginia FOIA abridges the right to own and transfer property in the Commonwealth. Like the right to pursue a common calling, the right to “take, hold and dispose of property, either real or personal,” has long been seen as one of the privileges of citizenship. See Corfield v. Coryell, 6 F. Cas. 546, 552 (No. 3, 230) (CCED Pa. 1825); see also