dissenting.
It is ironic that notwithstanding the intent of the Privileges and Immunities Clause to “fuse into one Nation a collection of independent, sovereign States,” Toomer v. Witsell, 334 U.S. 385, 395, 68 S.Ct. 1156, 1162, 92 L.Ed. 1460 (1948), the motivation to retain privileges for one’s own citizens has remained strong. Thus, the history of the Privileges and Immunities Clause, albeit somewhat sparse, consists of a series of cases in which obstacles erected by parochialism but sought to be justified in the name of valid local interests generally have been found wanting.when measured against the goal of national unity.
The issue before us is apparently one of first impression for an appellate court: whether the Clause applies to statutes burdening purely public employment. Because I conclude, contrary to my colleagues, that it does apply, I respectfully dissent.
I.
The majority bases its holding that the Privileges and Immunities Clause is inapplicable in this case on its conclusion that “direct public employment is not a privilege or fundamental right protected by the Privileges and Immunities Clause of Article Four.” Maj. Op. at 270. It recognizes that the Supreme Court cases have dealt only with private employment in this context. The majority infers, however, based on language it quotes from the Court’s opinion in United, Building & Construction Trades Council v. Mayor & Council of Camden, 465 U.S. 208, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984) (hereinafter Camden), that the Supreme Court was establishing an unwavering distinction between private and public employment. However, Camden, rather than providing the basis for a restrictive ruling, is a case that significantly expanded the scope of the Privileges and Immunities Clause by applying it to restrictions placed on employment of nonresidents by private employers on publicly-funded work projects. Therefore, I believe that the majority’s conclusion does not follow from Camden.
There can be no question that among the privileges encompassed in the Privileges and Immunities Clause is that of employment. The centrality of commerce among the protections provided by that Clause is well-established, notwithstanding the focus of the Court in an early discussion on other attributes of citizenship. In Paul v. Virginia, the Court stated the purpose of the Clause is:
to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of *274alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this.
75 U.S. (8 Wall.) 168, 180, 19 L.Ed. 357 (1869).
Thus, although equality of commercial opportunities among citizens of different states was primarily seen as the function of the Commerce Clause, there were early eases that relied on the Privileges and Immunities Clause to strike state statutes that discriminated against efforts of nonresidents to ply their trade. See, e.g., Blake v. McClung, 172 U.S. 239, 19 S.Ct. 165, 43 L.Ed. 432 (1898) (invalidating state law which granted preference to resident creditors of insolvent foreign corporations); Ward v. Maryland, 79 U.S. (12 Wall.) 418, 20 L.Ed. 449 (1871) (striking Maryland statute which established discriminatory licensing fee scheme based on residency for the sale of out-of-state goods).
Justice Brennan has dated the analytical framework used in the modern cases applying the Clause to Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948), holding violative a South Carolina statute requiring nonresidents to pay a shrimp harvesting licensing fee one hundred times greater than that charged residents. See also Mullaney v. Anderson, 342 U.S. 415, 72 S.Ct. 428, 96 L.Ed. 458 (1952) (invalidating commercial fishing licensing fee which was ten times greater for nonresidents than for residents of Alaska).
Although the majority rationalizes its holding on the survival of a public/private distinction, in fact the Supreme Court has consistently rejected public ownership of assets as a sufficient justification in itself for discriminatory rules. In Hicklin v. Orbeck, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978), Alaska sought to justify its preference for employing Alaska residents in projects developing Alaskan oil or gas on the ground that “the oil and gas that are the subject of Alaska Hire are owned by the State.” Id. at 528, 98 S.Ct. at 2489. The Supreme Court rejected that contention, stating, “[w]e do not agree that the fact that a State owns a resource, of itself, completely removes a law concerning that resource from the prohibitions of the Clause.” Id.
Even in the one recent Supreme Court case to uphold a state preference, i.e., Montana’s rule charging its residents a lower fee than charged to nonresidents for a license to hunt elk for sport, the Court noted that despite the early cases giving states the right to preserve their wildlife bounty for their citizens alone, “[i]n more recent years ... the Court has recognized that the States’ interest in regulating and controlling those things they claim to ‘own,’ ... is by no means absolute.” Baldwin v. Fish & Game Comm’n of Montana, 436 U.S. 371, 385, 98 S.Ct. 1852, 1861, 56 L.Ed.2d 354 (1978). The Court cautioned that “a State’s interest in its wildlife and other resources must yield when, without reason, it interferes with a nonresident’s right to pursue a livelihood in a State other than his own, a right that is protected by the Privileges and Immunities Clause.” Id. at 386, 98 S.Ct. at 1861. Thus, the rationale that the Court used in sustaining Montana’s licensing scheme was that elk hunting was not a “basic and essential activity], interference with which would frustrate the purposes of the formation of the Union,” id. at 387, 98 S.Ct. at 1862, rather than one based on public ownership of the wilderness and its bounty.
It was in this stage of the analytic development of the Clause that the Court decided Camden, a decision noteworthy on several grounds. Before that decision, the Court had not applied the Privileges and Immunities Clause to municipal ordinances. In Camden, the Court ruled that because “a municipality is merely a political subdivision of the State from which its authority derives ... what would be unconstitutional if done directly by the State can no more readily be accomplished by a city deriving its authority *275from the State.” 465 U.S. at 215, 104 S.Ct. at 1026. Moreover, it rejected the New Jersey Supreme Court’s conclusion “that the Privileges and Immunities Clause does not apply to an ordinance that discriminates solely on the basis of municipal residency.” Id. The Court applied a common sense approach, recognizing that “[a] person who is not residing in a given State is ipso facto not residing in a city within that State.” Id. at 216-17, 104 S.Ct. at 1027. Therefore, “an out-of-state citizen who ventures into New Jersey will not enjoy the same privileges as the New Jersey citizen residing in Camden.” Id. at 217, 104 S.Ct. at 1027. Thus, the Camden ordinance was subject to constitutional review under the Clause at the behest of out-of-state residents.
The other landmark ruling to emerge from the Camden opinion was, of course, the holding that the City of Camden’s hiring preference ordinance, requiring that at least forty percent of the employees of contractors and subcontractors working on city construction projects be Camden residents, was subject to the strictures of the Privileges and Immunities Clause. The ruling was particularly noteworthy because the preceding year the Court sustained an analogous executive order of the mayor of Boston against a challenge under the Commerce Clause. See White v. Massachusetts Council of Constr. Employers, Inc., 460 U.S. 204, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983). The Court explained, however, that “the fact that Camden is merely setting conditions on its expenditures for goods and services in the marketplace [which defeated the Commerce Clause challenge in White] does not preclude the possibility that those conditions violate the Privileges and Immunities Clause.” Camden, 465 U.S. at 220, 104 S.Ct. at 1028-29.
Accordingly, the Court turned to the “threshold matter” of “whether an out-of-state resident’s interest in employment on public works contracts in another State is sufficiently ‘fundamental’ to the promotion of interstate harmony so as to ‘fall within the purview of the Privileges and Immunities Clause.’ ” Id. at 218, 104 S.Ct. at 1027-28 (citation omitted). The majority and I differ in our interpretation of the Court’s analysis in response to this query.
The Court first stated that “[cjertainly, the pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause.” Id. at 219, 104 S.Ct. at 1028. It continued, in the sentence the majority finds dispositive, “[pjublic employment, however, is qualitatively different from employment in the private sector; it is a subspecies of the broader opportunity to pursue a common calling.” Id. The Court then noted that it had held there is no fundamental right to government employment for purposes of the Equal Protection Clause, citing Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976) (per curiam), and referred to its decision in White holding that the Commerce Clause did not preclude such municipal favoritism of residents in employment.
Notwithstanding all of the above, the Court proceeded to hold that the Privileges and Immunities Clause was applicable. The Court distinguished the Commerce Clause analysis from that applicable to the Privileges and Immunities Clause, stating that “[i]t is discrimination against out-of-state residents on matters of fundamental concern which triggers the Clause, not regulation affecting interstate commerce.” Id. 465 U.S. at 220, 104 S.Ct. at 1028. I read the Court’s opinion in Camden as holding that notwithstanding the inapplicability of other clauses of the Constitution to a municipal residency requirement, such a requirement trenches on the raison-d’etre of the Privileges and Immunities Clause.
Consistent with its decision in Hicklin, the Camden Court rejected the argument that the public ownership of the assets used for the municipal projects immunized the residency requirement from Privileges and Immunities scrutiny, noting that in its earlier eases it had concluded “that the State’s interest in controlling those things it claims to own is not absolute.” Id. at 221, 104 S.Ct. at 1029. It continued,
Much the same analysis, we think, is appropriate to a city’s efforts to bias private employment decisions in favor of its resi*276dents on construction projects funded with public moneys. The fact that Camden is expending its own funds or funds it administers in accordance with the terms of a grant is certainly a factor — perhaps the crucial factor — to be considered in evaluating whether the statute’s discrimination violates the Privileges and Immunities Clause. But it does not remove the Camden ordinance completely from the purview of the Clause.
Id. (emphasis added).
The Camden opinion suggests, even if it does not actually hold, that even a direct municipal residency requirement or preference for municipal employment will be subject to scrutiny under the Privileges and Immunities Clause. Although the Court did indeed comment that “[t]he opportunity to seek employment with [private contractors and subcontractors engaged in public works] is ‘sufficiently basic to the livelihood of the Nation’ ... as to fall within the purview of the Privileges and Immunities Clause even though the contractors and subcontractors are themselves engaged in projects funded in whole or part by the city,” id. at 221-22, 104 S.Ct. at 1029 (citation omitted), this does not signify that when faced with a direct employment issue, the Court would accept the distinction made by the majority.
The expansive reading the Court gave to the Clause suggests to the contrary, particularly in light of the undisputed fact that in recent times, as public employment continues to expand, nearly one-sixth of all jobs in New Jersey, as well as one-fifth of those throughout the country, are held by public employees. App. at 138-44 (citing data from Bureau of Labor Statistics, U.S. Dept, of Labor, Employment, Hours, and Earnings, States and Areas, Data for 1987-1992 384 (1992) (documenting that of a total of 3,493,100 non-farm employees in New Jersey, 566,700 or 16.2% were government employees and that nationally, of a total of 89,930,000 nonfarm employees, 18,379,000 or 20.4% were government employees)). In terms of its economic importance, it can hardly be doubted that government employment surpasses shrimp fishing, Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948), commercial fishing, Mullaney v. Anderson, 342 U.S. 415, 72 S.Ct. 428, 96 L.Ed. 458 (1952), trade of foreign goods, Ward v. Maryland, 79 U.S. (12 Wall.) 418, 20 L.Ed. 449 (1871), and the practice of law, Supreme Court of Virginia v. Friedman, 487 U.S. 59, 108 S.Ct. 2260, 101 L.Ed.2d 56 (1988); Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985), all trades sufficiently fundamental to warrant the Clause’s protection.
I do not suggest that a residence requirement for municipal employees necessarily violates the Privileges and Immunities Clause. This is, as the Court noted in Camden, only the first step. Once it is determined that the Privileges and Immunities Clause is applicable, the court must then apply the Toomer analysis, under which it must be determined whether there is a “substantial reason” for the difference in treatment and “whether the degree of discrimination bears a close relation” to those reasons. See Toomer, 334 U.S. at 396, 68 S.Ct. at 1162. The majority’s analysis pretermits that inquiry. The result is that a substantial number of jobs will be permanently foreclosed from out-of-state residents for what may be insubstantial reasons. This is a result that I believe is incompatible with the Privileges and Immunities Clause.
II.
The appellants do not challenge the legal principle enunciated by the majority that municipal residency requirements for public employment do not on their face violate the Equal Protection Clause. Their objection is a different one, in that they pose a challenge to the ordinance as it has been applied. Essentially their claim is that the cumulative effect of the various exemptions from the residency requirement, both statutory and in practice, makes any distinction between residents and nonresidents arbitrary or irrational.
Thus, the appellants argue that “a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational” cannot be deemed rational. Appellants’ Brief at 37 (citing City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 446, 105 S.Ct. 3249, 3258, 87 *277L.Ed.2d 313 (1985)). I do not understand the majority to challenge the contention that in the main it is the clerical and blue collar workers of the city who are required to be Salem residents, while employees who are better connected politically, such as police, supervisors, and other white collar workers, work for the city but reside outside of its borders. The majority explains that each of the exemptions has a justifiable explanation, such as an exemption pursuant to state statute or a legitimate grandfather clause. The majority’s analysis, however, fails to take into consideration the cumulative effect of the exemptions. Even if each exemption is itself explicable, together they produce a patchwork of exemptions that throw into question the rationality of the scheme.
I am, above all, troubled by the allegation that the residency requirement lay dormant until applied against appellant Scull when he questioned the conduct of a volunteer firefighter at the scene of a fire. See App. at 173. I find the majority’s response, that the residency requirement was also enforced against another employee, unpersuasive. Nonetheless, because I believe that this is an appropriate case for decision of the still undecided question of the applicability of the Privileges and Immunities Clause to public employment, I rest on that ground alone for my position that the order of the district court should be reversed.
PRESENT: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE, and SEITZ*, Circuit Judges.SUR PETITION FOR REHEARING
Sept. 28, 1994
The petition for rehearing filed by appellants in the above captioned matter having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
Judge Mansmann would grant rehearing.