author: Chief Justice Burger Justice Brennan, Justice O’Connor, Justice Rehnquist,

text:
    ZOBEL et ux. v. WILLIAMS, COMMISSIONER OF REVENUE OF ALASKA, et al.
    No. 80-1146.
    Argued October 7, 1981
    Decided June 14, 1982

      Burger, C. J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Powell, and Stevens, JJ., joined. Brennan, J., filed a concurring opinion, in which Marshall, Blackmun, and Powell, JJ., joined, post, p. 65. O’Connor, J., filed an opinion concurring in the judgment, post, p. 71. Rehnquist, J., filed a dissenting opinion, post, p. 81.

      Mark A. Sandberg argued the cause for appellants. With him on the briefs was Jonathon B. Chase.

      Avrum M. Gross argued the cause for appellees. With him on the brief were Wilson L. Condon, Attorney General of Alaska, and Susan A. Burke, Assistant Attorney General.
   Chief Justice Burger

delivered the opinion of the Court.

The question presented on this appeal is whether a statutory scheme by which a State distributes income derived from its natural resources to the adult citizens of the State in varying amounts, based on the length of each citizen’s residence, violates the equal protection rights of newer state citizens. The Alaska Supreme Court sustained the constitutionality of the statute. 619 P. 2d 448 (1980). We stayed the distribution of dividend funds, 449 U. S. 989 (1980), and noted probable jurisdiction, 450 U. S. 908 (1981). We reverse.

I

The 1967 discovery of large oil reserves on state-owned land in the Prudhoe Bay area of Alaska resulted in a windfall to the State. The State, which had a total budget of $124 million in 1969, before the oil revenues began to flow into the state coffers, received $3.7 billion in petroleum revenues during the 1981 fiscal year. This income will continue, and most likely grow for some years in the future. Recognizing that its mineral reserves, although large, are finite and that the resulting income will not continue in perpetuity, the State took steps to assure that its current good fortune will bring long-range benefits. To accomplish this, Alaska in 1976 adopted a constitutional amendment establishing the Permanent Fund into which the State must deposit at least 25% of its mineral income each year. Alaska Const., Art. IX, § 15. The amendment prohibits the legislature from appropriating any of the principal of the Fund but permits use of the Fund’s earnings for general governmental purposes.

In 1980, the legislature enacted a dividend program to distribute annually a portion of the Fund’s earnings directly to the State’s adult residents. Under the plan, each citizen 18 years of age or older receives one dividend unit for each year of residency subsequent to 1959, the first year of statehood. The statute fixed the value of each dividend unit at $50 for the 1979 fiscal year; a one-year resident thus would receive one unit, or $50, while a resident of Alaska since it became a State in 1959 would receive 21 units, or $1,050. The value of a dividend unit will vary each year depending on the income of the Permanent Fund and the amount of that income the State allocates for other purposes. The State now estimates that the 1985 fiscal year dividend will be nearly four times as large as that for 1979.

Appellants, residents of Alaska since 1978, brought this suit in 1980 challenging the dividend distribution plan as vio-lative of their right to equal protection guarantees and their constitutional right to migrate to Alaska, to establish residency there and thereafter to enjoy the full rights of Alaska citizenship on the same terms as all other citizens of the State. The Superior Court for Alaska’s Third Judicial District granted summary judgment in appellants’ favor, holding that the plan violated the rights of interstate travel and equal protection. A divided Alaska Supreme Court reversed and upheld the statute.

II

The Alaska dividend distribution law is quite unlike the durational residency requirements we examined in Sosna v. Iowa, 419 U. S. 393 (1975); Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974); Dunn v. Blumstein, 405 U. S. 330 (1972); and Shapiro v. Thompson, 394 U. S. 618 (1969). Those cases involved laws which required new residents to reside in the State a fixed minimum period to be eligible for certain benefits available on an equal basis to all other residents. The asserted purpose of the durational residency requirements was to assure that only persons who had established bona fide residence received rights and benefits provided for residents.

The Alaska statute does not impose any threshold waiting period on those seeking' dividend benefits; persons with less than a full year of residency are entitled to share in the distribution. Alaska Stat. Ann. §43.23.010 (Supp. 1981). Nor does the statute purport to establish a test of the bona fides of state residence. Instead, the dividend statute creates fixed, permanent distinctions between an ever-increasing number of perpetual classes of concededly bona fide residents, based on how long they have been in the State.

Appellants established residence in Alaska two years before the dividend law was passed. The distinction they complain of is not one which the State makes between those who arrived in Alaska after the enactment of the dividend distribution law and those who were residents prior to its enactment. Appellants instead challenge the distinctions made within the class of persons who were residents when the dividend scheme was enacted in 1980. The distinctions appellants attack include the preference given to persons who were residents when Alaska became a State in 1959 over all those who have arrived since then, as well as the distinctions made between all bona fide residents who settled in Alaska at different times during the 1959 to 1980 period.

When a state distributes benefits unequally, the distinctions it makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Generally, a law will survive that scrutiny if the distinction it makes rationally furthers a legitimate state purpose. Some particularly invidious distinctions are subject to more rigorous scrutiny. Appellants claim that the distinctions made by the Alaska law should be subjected to the higher level of scrutiny applied to the durational residency requirements in Shapiro v. Thompson, supra, and Memorial Hospital v. Maricopa County, supra. The State, on the other hand, asserts that the law need only meet the minimum rationality test. In any event, if the statutory scheme cannot pass even the minimal test proposed by the State, we need not decide whether any enhanced scrutiny is called for.

A

The State advanced and the Alaska Supreme Court accepted three purposes justifying the distinctions made by the dividend program: (a) creation of a financial incentive for individuals to establish and maintain residence in Alaska; (b) encouragement of prudent management of the Permanent Fund; and (c) apportionment of benefits in recognition of undefined “contributions of various kinds, both tangible and intangible, which residents have made during their years of residency,” 619 P. 2d, at 458.

As the Alaska Supreme Court apparently realized, the first two state objectives — creating a financial incentive for individuals to establish and maintain Alaska residence, and assuring prudent management of the Permanent Fund and the State’s natural and mineral resources — are not rationally related to the distinctions Alaska seeks to make between newer residents and those who have been in the State since 1959. Assuming, arguendo, that granting increased dividend benefits for each year of continued Alaska residence might give some residents an incentive to stay in the State in order to reap increased dividend benefits in the future, the State’s interest is not in any way served by granting greater dividends to persons for their residency during the 21 years prior to the enactment.

Nor does the State’s purpose of furthering the prudent management of the Permanent Fund and the State’s resources support retrospective application of its plan to the date of statehood. On this score the State’s contention is straightforward:

“[A]s population increases, each individual share in the income stream is diluted. .The income must be divided equally among increasingly large numbers of people. If residents believed that twenty years from now they would be required to share permanent fund income on a per capita basis with the large population that Alaska will no doubt have by then, the temptation would be great to urge the legislature to provide immediately for the highest possible percentage return on the investments of the permanent fund principal, which would require investments in riskier ventures.” Id., at 462.

The State similarly argues that equal per capita distribution would encourage rapacious development of natural resources. Ibid. Even if we assume that the state interest is served by increasing the dividend for each year of residency beginning with the date of enactment, is it rationally served by granting greater dividends in varying amounts to those who resided in Alaska during the 21 years prior to enactment? We think not.

The last of the State’s objectives — to reward citizens for past contributions — alone was relied upon by the Alaska Supreme Court to support the retrospective application of the law to 1959. However, that objective is not a legitimate state purpose. A similar “past contributions” argument was made and rejected in Shapiro v. Thompson, 394 U. S., at 632-633:

“Appellants argue further that the challenged classification may be sustained as an attempt to distinguish between new and old residents on the basis of the contributions they have made to the community through the payment of taxes. . . . Appellants’ reasoning would . . . permit the State to apportion all benefits and services according to the past tax [or intangible] contributions of its citizens. The Equal Protection Clause prohibits such an apportionment of state services.” (Emphasis added.)

Similarly, in Vlandis v. Kline, 412 U. S. 441 (1973), we noted that “apportionment of] tuition rates on the basis of old and new residency . . . would give rise to grave problems under the Equal Protection Clause of the Fourteenth Amendment.” Id., at 449-450, and n. 6.

If the states can make the amount of a cash dividend depend on length of residence, what would preclude varying university tuition on a sliding scale based on years of residence — or even limiting access to finite public facilities, eligibility for student loans, for civil service jobs, or for government contracts by length of domicile? Could states impose different taxes based on length of residence? Alaska’s reasoning could open the door to state apportionment of other rights, benefits, and services according to length of residency. It would permit the states to divide citizens into expanding numbers of permanent classes. Such a result would be clearly impermissible.

B

We need not consider whether the State could enact the dividend program prospectively only. Invalidation of a portion of a statute does not necessarily render the whole invalid unless it is evident that the legislature would not have enacted the legislation without the invalid portion. Buckley v. Valeo, 424 U. S. 1, 108 (1976); United States v. Jackson, 390 U. S. 570, 585 (1968); Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U. S. 210, 234 (1932). Here, we need not speculate as to the intent of the Alaska Legislature; the legislation expressly provides that invalidation of any portion of the statute renders the whole invalid:

“Sec. 4. If any provision enacted in sec. 2 of this Act [which included the dividend distribution plan in its entirety] is held to be invalid by the final judgment, decision or order of a court of competent jurisdiction, then that provision is nonseverable, and all provisions enacted in sec. 2 of this Act are invalid and of no force or effect.” 1980 Alaska Sess. Laws, ch. 21, §4.

However, it is of course for the Alaska courts to pass on the severability clause of the statute.

h-4 4 t — 4

The only apparent justification for the retrospective aspect of the program, “favoring established residents over new residents,” is constitutionally unacceptable. Vlandis v. Kline, supra, at 450. In our view Alaska has shown no valid state interests which are rationally served by the distinction it makes between citizens who established residence before 1959 and those who have become residents since then.

We hold that the Alaska dividend distribution plan violates the guarantees of the Equal Protection Clause of the Fourteenth Amendment. Accordingly, the judgment of the Alaska Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Justice Brennan,

with whom Justice Marshall, Justice Blackmun, and Justice Powell join, concurring.

I join the opinion of the Court, and agree with its conclusion that the retrospective aspects of Alaska’s dividend-distribution law are not rationally related to a legitimate state purpose. I write separately only to emphasize that the pervasive discrimination embodied in the Alaska distribution scheme gives rise to constitutional concerns of somewhat larger proportions than may be evident on a cursory reading of the Court’s opinion. In my view, these concerns might well preclude even the prospective operation of Alaska’s scheme.

I

I agree with Justice O’Connor that these more fundamental defects in the Alaska dividend-distribution law are, in part, reflected in what has come to be called the “right to travel.” That right — or, more precisely, the federal interest in free interstate migration — is clearly, though indirectly, affected by the Alaska dividend-distribution law, and this threat to free interstate migration provides an independent rationale for holding that law unconstitutional. At the outset, however, I note that the frequent attempts to assign the right to travel some textual source in the Constitution seem to me to have proved both inconclusive and unnecessary. Justice O’Connor plausibly argues, post, at 78-81, that the right predates the Constitution and was carried forward in the Privileges and Immunities Clause of Art. IV. But equally plausible, I think, is the argument that the right resides in the Commerce Clause, see Edwards v. California, 314 U. S. 160, 173 (1941), or in the Privileges and Immunities Clause of the Fourteenth Amendment, see id., at 177-178 (Douglas, J., concurring). In any event, in light of the unquestioned historic recognition of the principle of free interstate migration, and of its role in the development of the Nation, we need not feel impelled to “ascribe the source of this right to travel interstate to a particular constitutional provision.” Shapiro v. Thompson, 394 U. S. 618, 630 (1969). It suffices that:

“‘The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized.
“ ‘. . . [T]he right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”’ Id., at 630-631, quoting United States v. Guest, 383 U. S. 745, 757-758 (1966).

As is clear from our cases, the right to travel achieves its most forceful expression in the context of equal protection analysis. But if, finding no citable passage in the Constitution to assign as its source, some might be led to question the independent vitality of the principle of free interstate migration, I find its unmistakable essence in that document that transformed a loose confederation of States into one Nation. A scheme of the sort adopted by Alaska is inconsistent with the federal structure even in its prospective operation.

A State clearly may undertake to enhance the advantages of industry, economy, and resources that make it a desirable place in which to live. In addition, a State may make residence within its boundaries more attractive by offering direct benefits to its citizens in the form of public services, lower taxes than other States offer, or direct distributions of its munificence. Through these means, one State may attract citizens of other States to join the numbers of its citizenry. That is a healthy form of rivalry: It inheres in the very idea of maintaining the States as independent sovereigns within a larger framework, and it is fully — indeed, necessarily — consistent with the Framers’ further idea of joining these independent sovereigns into a single Nation. But a State cannot compound its offer of direct benefits in the inventive manner exemplified by the Alaska distribution scheme: For if each State were free to reward its citizens incrementally for their years of residence, so that a citizen leaving one State would thereby forfeit his accrued seniority, only to have to begin building such seniority again in his new State of residence, then the mobility so essential to the economic progress of our Nation, and so commonly accepted as a fundamental aspect of our social order, would not long survive.

HH 1 — 4

The Court today reaffirms the important principle that, at least with respect to a durational-residency discrimination, a State’s desire “to reward citizens for past contributions” is clearly “not a legitimate state purpose.” Ante, at 63. I do not think it “odd,” post, at 72, that the Court disclaims reliance on the “right to travel” as the source of this limitation on state power. In my view, the acknowledged illegitimacy of that state purpose has a different heritage — it reflects not the structure of the Federal Union but the idea of constitutionally protected equality. See Shapiro v. Thompson, supra, at 632-633 (“The Equal Protection Clause prohibits such an apportionment of state services”); Vlandis v. Kline, 412 U. S. 441, 450, n. 6 (1973). The Constitution places the recently naturalized immigrant from a foreign land on an equal footing with those citizens of a State who are able to trace their lineage back for many generations within the State’s borders. The 18-year-old native resident of a State is as much a citizen as the 55-year-old native resident. But the Alaska plan discriminates against the recently naturalized citizen, in favor of the Alaska citizen of longer duration; it discriminates against the 18-year-old native resident, in favor of all residents of longer duration. If the Alaska plan were limited to discriminations such as these, and did not purport to apply to migrants from sister States, interstate travel would not be noticeably burdened — yet those discrimi-nations would surely be constitutionally suspect.

The Fourteenth Amendment guarantees the equal protection of the law to anyone who may be within the territorial jurisdiction of a State. That Amendment does not suggest by its terms that equal treatment might be denied a person depending upon how long that person has been within the jurisdiction of the State. The Fourteenth Amendment does, however, expressly recognize one elementary basis for distinguishing between persons who may be within a State’s jurisdiction at any particular time — by setting forth the requirements for state citizenship. But it is significant that the Citizenship Clause of the Fourteenth Amendment expressly equates citizenship only with simple residence. That Clause does not provide for, and does not allow for, degrees of citizenship based on length of residence. And the Equal Protection Clause would not tolerate such distinctions. In short, as much as the right to travel, equality of citizenship is of the essence in our Republic. As the Court notes, States may not “divide citizens into expanding numbers of permanent classes.” Ante, at 64.

It is, of course, elementary that the Constitution does not bar the States from making reasoned distinctions between citizens: Insofar as those distinctions are rationally related to the legitimate ends of the State they present no constitutional difficulty, as our equal protection jurisprudence attests. But we have never suggested that duration of residence vel non provides a valid justification for discrimination. To the contrary, discrimination on the basis of residence must be supported by a valid state interest independent of the discrimination itself. To be sure, , allegiance and attachment may be rationally measured by length of residence— length of residence may, for example, be used to test the bona tides of citizenship — and allegiance and attachment may bear some rational relationship to a very limited number of legitimate state purposes. Cf. Chimento v. Stark, 353 F. Supp. 1211 (NH), summarily aff’d, 414 U. S. 802 (1973) (7-year citizenship requirement to run for Governor); U. S. Const., Art. I, §2, cl. 2, §3, cl. 3; Art. II, §1, cl. 5. But those instances in which length of residence could provide a legitimate basis for distinguishing one citizen from another are rare.

Permissible discriminations between persons must bear a rational relationship to their relevant characteristics. While some imprecision is unavoidable in the process of legislative classification, the ideal of equal protection requires attention to individual merit, to individual need. In almost all instances, the business of the State is not with the past, but with the present: to remedy continuing injustices, to fill current needs, to build on the present in order to better the future. The past actions of individuals may be relevant in assessing their present needs; past actions may also be relevant in predicting current ability and future performance. In addition, to a limited extent, recognition and reward of past public service have independent utility for the State, for such recognition may encourage other people to engage in . comparably meritorious service. But even the idea of rewarding past public service offers scarce support for the “past contribution” justification for durational-residence classifications since length of residence has only the most tenuous relation to the actual service of individuals to the State.

Thus, the past-contribution rationale proves much too little to provide a rational predicate for discrimination on the basis of length of residence. But it also proves far too much, for “it would permit the State to apportion all benefits and services according to the past . . . contributions of its citizens.” Shapiro v. Thompson, 394 U. S., at 632-633. In effect, then, the past-contribution rationale is so far-reaching in its potential application, and the relationship between residence and contribution to the State so vague and insupportable, that it amounts to little more than a restatement of the criterion for discrimination that it purports to justify. But while duration of residence has minimal utility as a measure of things that are, in fact, constitutionally relevant, resort to duration of residence as the basis for a distribution of state largesse does closely track the constitutionally untenable position that the longer one’s residence, the worthier one is of the State’s favor. In my view, it is difficult to escape from the recognition that underlying any scheme of classification on the basis of duration of residence, we shall almost invariably find the unstated premise that “some citizens are more equal than others.” We rejected that premise and, I believe, implicitly rejected most forms of discrimination based upon length of residence, when we adopted the Equal Protection Clause.

Justice O’Connor,

The Court strikes Alaska’s distribution scheme, purporting to rely solely upon the Equal Protection Clause of the Fourteenth Amendment. The phrase “right to travel” appears only fleetingly in the Court’s analysis, dismissed with an observation that “right to travel analysis refers to little more than a particular application of equal protection analysis.” Ante, at 60, n. 6. The Court’s reluctance to rely explicitly on a right to travel is odd, because its holding depends on the assumption that Alaska’s desire “to reward citizens for past contributions ... is not a legitimate state purpose.” Ante, at 63. Nothing in the Equal Protection Clause itself, however, declares this objective illegitimate. Instead, as a full reading of Shapiro v. Thompson, 394 U. S. 618 (1969), and Vlandis v. Kline, 412 U. S. 441 (1973), reveals, the Court has rejected this objective only when its implementation would abridge an interest in interstate travel or migration.

I respectfully suggest, therefore, that the Court misdirects its criticism when it labels Alaska’s objective illegitimate. A desire to compensate citizens for their prior contributions is neither inherently invidious nor irrational. Under some circumstances, the objective may be wholly reasonable. Even a generalized desire to reward citizens for past endurance, particularly in a State where years of hardship only recently have produced prosperity, is not innately improper. The difficulty is that plans enacted to further this objective necessarily treat new residents of a State less favorably than the longer term residents who have past contributions to “reward.” This inequality, as the Court repeatedly has recognized, conflicts with the constitutional purpose of maintaining a Union rather than a mere “league of States.” See Paul v. Virginia, 8 Wall. 168, 180 (1869). The Court’s task, therefore, should be (1) to articulate this constitutional principle, explaining its textual sources, and (2) to test the strength of Alaska’s objective against the constitutional imperative. By choosing instead to declare Alaska’s purpose wholly illegitimate, the Court establishes an uncertain jurisprudence. What makes Alaska’s purpose illegitimate? Is the purpose illegitimate under all circumstances? What other state interests are wholly illegitimate? Will an “illegitimate” purpose survive review if it becomes “important” or “compelling”? These ambiguities in the Court’s analysis prompt me to develop my own approach to Alaska’s scheme.

Alaska’s distribution plan distinguishes between long-term residents and recent arrivals. Stripped to its essentials, the plan denies non-Alaskans settling in the State the same privileges afforded longer term residents. The Privileges and Immunities Clause of Art. IV, which guarantees “[t]he Citizens of each State ... all Privileges and Immunities of Citizens in the several States,” addresses just this type of discrimination. Accordingly, I would measure Alaska’s scheme against the principles implementing the Privileges and Immunities Clause. In addition to resolving the particular problems raised by Alaska’s scheme, this analysis supplies a needed foundation for many of the “right to travel” claims discussed in the Court’s prior opinions.

I

Our opinions teach that Art. IV’s Privileges and Immunities Clause “was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy.” Toomer v. Witsell, 334 U. S. 385, 395 (1948). The Clause protects a nonresident who enters a State to work, Hicklin v. Orbeck, 437 U. S. 518 (1978), to hunt commercial game, Toomer, supra, or to procure medical services, Doe v. Bolton, 410 U. S. 179 (1973). A fortiori, the Privileges and Immunities Clause should protect the “citizen of State A who ventures into State B” to settle there and establish a home.

In this case, Alaska forces nonresidents settling in the State to accept a status inferior to that of oldtimers. In its first year of operation, the distribution scheme would have given $1,050 to an Alaskan who had lived in the State since statehood. A resident of 10 years would have received $500, while a one-year resident would have received only $50. In effect, therefore, the State told its citizens: “Your status depends upon the date on which you established residence here. Those of you who migrated to the State cannot share its bounty on the same basis as those who were here before you.” Surely this scheme imposes one of the “disabilities of alienage” prohibited by Art. IV’s Privileges and Immunities Clause. See Paul v. Virginia, supra, at 180.

It could be argued that Alaska’s scheme does not trigger the Privileges and Immunities Clause because it discriminates among classes of residents, rather than between residents and nonresidents. This argument, however, misinterprets the force of Alaska’s distribution system. Alaska’s scheme classifies citizens on the basis of their former residential status, imposing a relative burden on those who migrated to the State after 1959. Residents who arrived in Alaska after that date have a less valuable citizenship right than do the oldtimers who preceded them. Citizens who arrive in the State tomorrow will receive an even smaller claim on Alaska’s resources. The fact that this discrimination unfolds after the nonresident establishes residency does not insulate Alaska’s scheme from scrutiny under the Privileges and Immunities Clause. Each group of citizens who migrated to Alaska in the past, or chooses to move there in the future, lives in the State on less favorable terms than those who arrived earlier. The circumstance that some of the disfavored citizens already live in Alaska does not negate the fact that “the citizen of State A who ventures into [Alaska]” to establish a home labors under a continuous disability.

If the Privileges and Immunities Clause applies to Alaska’s distribution system, then our prior opinions describe the proper standard of review. In Baldwin v. Montana Fish and Game Comm’n, 436 U. S. 371 (1978), we held that States must treat residents and nonresidents “without unnecessary distinctions” when the nonresident seeks to “engage in an essential activity or exercise a basic right.” Id., at 387. On the other hand, if the nonresident engages in conduct that is not “fundamental” because it does not “bea[r] upon the vitality of the Nation as a single entity,” the Privileges and Immunities Clause affords no protection. Id., at 387, 383.

Once the Court ascertains that discrimination burdens an “essential activity,” it will test the constitutionality of the discrimination under a two-part test. First, there must be “‘something to indicate that non-citizens constitute a peculiar source of the evil at which the statute is aimed.’ ” Hicklin v. Orbeck, supra, at 525-526 (quoting Toomer v. Witsell, supra, at 398). Second, the Court must find a “substantial relationship” between the evil and the discrimination practiced against the noncitizens. 437 U. S., at 527.

Certainly the right infringed in this case is “fundamental.” Alaska’s statute burdens those nonresidents who choose to settle in the State. It is difficult to imagine a right more essential to the Nation as a whole than the right to establish residence in a new State. Just as our federal system permits the States to experiment with different social and economic programs, New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting), it allows the individual to settle in the State offering those programs best tailored to his or her tastes. Alaska’s encumbrance on the right of nonresidents to settle in that State, therefore, must satisfy the dual standard identified in Hicklin.

Alaska has not shown that its new residents are the “peculiar source” of any evil addressed by its disbursement scheme. The State does not argue that recent arrivals constitute a particular source of its population turnover problem. Indeed, the State urges that it has a special interest in persuading young adults, who have grown to maturity in the State, to remain there. Brief for Appellees 35, n. 24. Nor is there any evidence that new residents, rather than old, will foolishly deplete the State’s mineral and financial resources. Finally, although Alaska argues that its scheme compensates residents for their prior tangible and intangible contributions to the State, nonresidents are hardly a peculiar source of the “evil” of partaking in current largesse without having made prior contributions. A multitude of native Alaskans — including children and paupers — may have failed to contribute to the State in the past. Yet the State does not dock paupers for their prior failures to contribute, and it awards every person over the age of 18 dividends equal to the number of years that person has lived in the State.

Even if new residents were the peculiar source of these evils, Alaska has not chosen a cure that bears a “substantial relationship” to the malady. As the dissenting judges below observed, Alaska’s scheme gives the largest dividends to residents who have lived longest in the State. The dividends awarded to new residents may be too small to encourage them to stay in Alaska. The size of these dividends appears to give new residents only a weak interest in prudent management of the State’s resources. As a reward for prior contributions, finally, Alaska’s scheme is quite ill-suited. While the phrase “substantial relationship” does not require mathematical precision, it demands at least some recognition of the fact that persons who have migrated to Alaska may have contributed significantly more to the State, both before and after their arrival, than have some natives.

For these reasons, I conclude that Alaska’s disbursement scheme violates Art. IV’s Privileges and Immunities Clause. I thus reach the same destination as the Court, but along a course that more precisely identifies the evils of the challenged statute.

II

The analysis outlined above might apply to many cases in which a litigant asserts a right to travel or migrate interstate. To historians, this would come as no surprise. Arti-ele IV’s Privileges and Immunities Clause has enjoyed a long association with the rights to travel and migrate interstate.

The Clause derives from Art. IV of the Articles of Confederation. The latter expressly recognized a right of “free ingress and regress to and from any other State,” in addition to guaranteeing “the free inhabitants of each of these states . . . [the] privileges and immunities of free citizens in the several States.” While the Framers of our Constitution omitted the reference to “free ingress and regress,” they retained the general guaranty of “privileges and immunities.” Charles Pinckney, who drafted the current version of Art. IV, told the Convention that this Article was “formed exactly upon the principles of the 4th article of the present Confederation.” 3 M. Farrand, Records of the Federal Convention of 1787, p. 112 (1934). Commentators, therefore, have assumed that the Framers omitted the express guaranty merely because it was redundant, not because they wished to excise the right from the Constitution.

Early opinions by the Justices of this Court also traced a right to travel or migrate interstate to Art. IV’s Privileges and Immunities Clause. In Corfield v. Coryell, 6 F. Cas. 546, 552 (No. 3,230) (CC ED Pa. 1823), for example, Justice Washington explained that the Clause protects the “right of a citizen of one state to pass through, or to reside in any other state.” Similarly, in Paul v. Virginia, 8 Wall., at 180, the Court found that one of the “undoubted]” effects of the Clause was to give “the citizens of each State . . . the right of free ingress into other States, and egress from them . . . .” See also Ward v. Maryland, 12 Wall. 418, 430 (1871). Finally, in United States v. Wheeler, 254 U. S. 281, 297-298 (1920), the Court found that the Clause fused two distinct concepts: (1) “the right of citizens of the States to reside peacefully in, and to have free ingress into and egress from” their own States, and (2) the right to exercise the same privileges in other States.

History, therefore, supports assessment of Alaska’s scheme, as well as other infringements of the right to travel, under the Privileges and Immunities Clause. This Clause may not address every conceivable type of discrimination that the Court previously has denominated a burden on interstate travel. I believe, however, that application of the Privileges and Immunities Clause to controversies involving the “right to travel” would at least begin the task of reuniting this elusive right with the constitutional principles it embodies. Because I believe that Alaska’s distribution scheme violates the Privileges and Immunities Clause of Art. IV, I concur in the Court’s judgment insofar as it reverses the judgment of the Alaska Supreme Court.

Justice Rehnquist,

dissenting.

Alaska’s dividend distribution scheme respresents one State’s effort to apportion unique economic benefits among its citizens. Although the wealth received from the oil deposits of Prudhoe Bay may be quite unlike the economic resources enjoyed by most States, Alaska's distribution of that wealth is in substance no different from any other State’s allocation of economic benefits. The distribution scheme being in the nature of economic regulation, I am at a loss to see the rationality behind the Court’s invalidation of it as a denial of equal protection. This Court has long held that state economic regulations are presumptively valid, and violate the Fourteenth Amendment only in the rarest of circumstances:

“When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. See, e. g., Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356 (1973). Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regu-Iation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude.” New Orleans v. Dukes, 427 U. S. 297, 303 (1976).

See also Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456 (1981); United States Railroad Retirement Board v. Fritz, 449 U. S. 166 (1980); Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976).

Despite the highly deferential approach which we invariably have taken toward state economic regulations, the Court today finds the retroactive aspect of the Alaska distribution scheme violative of the Fourteenth Amendment. The Court concludes that the State’s first two justifications are not rationally related to the retroactive portion of the distribution scheme, and that the third justification — the reward of citizens for their past contributions — is not a legitimate state objective. But the illegitimacy of a State’s recognizing the past contributions of its citizens has been established by the Court only in certain cases considering an infringement of the right to travel, and the majority itself rightly declines to apply the strict scrutiny analysis of those right-to-travel cases. See ante, at 60-61. The distribution scheme at issue in this case impedes no person’s right to travel to and settle in Alaska; if anything, the prospect of receiving annual cash dividends would encourage immigration to Alaska. The State’s third justification cannot, therefore, be dismissed simply by quoting language about its legitimacy from right-to-travel cases which have no relevance to the question before us.

So understood, this case clearly passes equal protection muster. There can be no doubt that the state legislature acted rationally when it concluded that dividends retroactive to the year of statehood would “recognize the ‘contributions of various kinds, both tangible and intangible,’ which residents have made during their years of state residency.” 619 P. 2d 448, 458 (Alaska 1980). Nor can there be any doubt that Alaska, perhaps more than any other State in the Union, has good reason for recognizing such contributions. Because the distribution scheme is thus rationally based, I dissent from its invalidation under the guise of equal protection analysis. In striking down the Alaskan scheme, the Court seems momentarily to have forgotten “the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.” Dandridge v. Williams, 397 U. S. 471, 486 (1970).

       Alaska Dept, of Revenue, Revenue Sources FY 1981-1983 (Sept. 1981). (Includes General Fund unrestricted petroleum revenues of $3.3 billion and petroleum revenues directly deposited in the Permanent Fund in the amount of $400 million. An additional $900 million was transferred from the General Fund to the Permanent Fund in the 1981 fiscal year.) The 1980 census reports that Alaska’s adult population is 270,265; per capita 1981 oil revenues amount to $13,632 for each adult resident. Petroleum revenues now amount to 89% of the State’s total government revenue. Ibid.

       The infusion of Permanent Fund earnings into state general revenues also led the Alaska Legislature to enact a statute giving residents a one-third exemption from state income taxes for each year of residence; this operated to exempt entirely anyone with three or more years of residency. The Alaska Supreme Court, again by a 3-2 vote, held that this statute violated the State Constitution’s equal protection clause. Williams v. Zobel, 619 P. 2d 422 (1980). Chief Justice Rabinowitz, the only justice in the majority in both cases, found that the tax exemption statute, but not the dividend distribution plan, could “be perceived as a penalty imposed on a person who chooses to exercise his or her right to move into Alaska.” 619 P. 2d, at 458.

       In the durational residency cases, we examined state laws which imposed waiting periods on access to divorce courts, Sosna v. Iowa; eligibility for free nonemergency medical care, Memorial Hospital v. Maricopa County; voting rights, Dunn v. Blumstein; and welfare assistance, Shapiro v. Thompson.

         Section 43.23.010(b) provides:
      “For each year, an individual is eligible to receive payment of the permanent fund dividends for which he is entitled under this section if he
      “(1) is at least 18 years of age; and
      “(2) is a state resident during all or part of the year for which the permanent fund dividend is paid.”
      The remainder of §43.23.010 establishes the number of dividend units residents are entitled to receive and the method of payment. Section 43.23.010(f) provides that a resident entitled to benefits under subsection (b) who was a resident for less than a full year is entitled to a dividend prorated on the basis of the number of months of state residence.

       The Alaska statute does not simply make distinctions between native-born Alaskans and those who migrate to Alaska from other states; it does not discriminate only against those who have recently exercised the right to travel, as did the statute involved in Shapiro v. Thompson, 394 U. S. 618 (1969). The Alaska statute also discriminates among long-time residents and even native-born residents. For example, a person bom in Alaska in 1962 would have received $100 less than someone who was bom in the State in 1960. Of course the native Alaskan bom in 1962 would also receive $100 less than the person who moved to the State in 1960.
      The statute does not involve the kind of discrimination which the Privileges and Immunities Clause of Art. IV was designed to prevent. That Clause “was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy." Toomer v. Witsell, 334 U. S. 385, 395 (1948). The Clause is thus not applicable to this case.

       The Alaska courts considered whether the dividend distribution law violated appellants’ constitutional right to travel. The right to travel and to move from one state to another has long been accepted, yet both the nature and the source of that right have remained obscure. See Jones v. Helms, 452 U. S. 412, 417-419, and nn. 12 and 13 (1981); Shapiro v. Thompson, supra, at 629-631; United States v. Guest, 383 U. S. 745, 757-759 (1966). See also Z. Chafee, Three Human Rights in the Constitution of 1787, pp. 188-193 (1956). In addition to protecting persons against the erection of actual barriers to interstate movement, the right to travel, when applied to residency requirements, protects new residents of a state from being disadvantaged because of their recent migration or from otherwise being treated differently from longer term residents. 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. See Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974); Dunn v. Blumstein, 405 U. S. 330 (1972); Shapiro v. Thompson, supra. This case also involves distinctions between residents based on when they arrived in the State and is therefore also subject to equal protection analysis.

       These purposes were enumerated in the first section of the Act creating the dividend distribution plan, 1980 Alaska Sess. Laws, ch. 21, § 1(b):
      “(b) The purposes of this Act are
      “(1) to provide a mechanism for equitable distribution to the people of Alaska of at least a portion of the state’s energy wealth derived from the development and production of the natural resources belonging to them as Alaskans;
      “(2) to encourage persons to maintain their residence in Alaska and to reduce population turnover in the state; and
      “(3) to encourage increased awareness and involvement by the residents of the state in the management and expenditure of the Alaska permanent fund (art. IX, sec. 15, state constitution)."
      Thus we need not speculate as to the objectives of the legislature.

       In response to the argument that the objectives of stabilizing population and encouraging prudent management of the Permanent Fund and of the State’s natural resources did not justify the application of the dividend program to the years 1959 to 1980, the Alaska Supreme Court maintained that the retrospective aspect of the program was justified by the objective of rewarding state citizens for past contributions. 619 P. 2d, at 461-462, n. 37. See also dissenting opinion of Justice Dimond, id., at 469-471.

       In fact, newcomers seem more likely to become dissatisfied and to leave the State than well-established residents; it would thus seem that the State would give a larger, rather than a smaller, dividend to new residents if it wanted to discourage emigration. The separation of residents into classes hardly seems a likely way to persuade new Alaskans that the State welcomes them and wants them to stay.
      Of course, the State’s objective of reducing population turnover cannot be interpreted as an attempt to inhibit migration into the State without encountering insurmountable constitutional difficulties. See Shapiro v. Thompson, 394 U. S., at 629.

       Even if the objective of rewarding past contributions were valid, it would be ironic to apply that rationale here. As Representative Randolph noted during debate in the state legislature on the dividend statute:
      “The pipeline is the entity that has allowed us all this latitude to do all the things we’re considering doing, not only today but throughout the session. And without. . . newcomers, we couldn’t have built that pipeline. Without their skill, without their ability, without their money, the pipeline wouldn’t be there. So I get a little bit tired of — and I’ve got a hunch an awful lot of people who have been here five or six or seven or ten years, whatever we knock off as newcomers, get a little bit tired of being chastized and penalized and discriminated against for having not been born here or not have been here 30 or 40 or 50 years."

       Apportionment would thus be prohibited only when it involves “fundamental rights” and services deemed to involve “basic necessities of life.” See Memorial Hospital v. Maricopa County, 415 U. S., at 259.

       “Such a power in the States could produce nothing but discord and mutual irritation, and they very clearly do not possess it.” Passenger Cases, 7 How. 283, 492 (1849) (Taney, C. J., dissenting).

        Starns v. Malkerson, 326 F. Supp. 234 (Minn. 1970), summarily aff’d, 401 U. S. 985 (1971), cannot be read as a contrary decision of this Court. First, summary affirmance by this Court is not to be read as an adoption of the reasoning supporting the judgment under review. Fusari v. Steinberg, 419 U. S. 379, 391 (1975) (concurring opinion). See also Colorado Springs Amusements, Ltd. v. Rizzo, 428 U. S. 913, 920-921 (1976) (BRENNAN, J., dissenting); Edelman v. Jordan, 415 U. S. 651, 671 (1974). Moreover, as we pointed out in Vlandis v. Kline, 412 U. S. 441, 452-453, n. 9 (1973), we considered the Minnesota one-year residency requirement examined in Stams a test of bona fide residence, not a return on prior contributions to the commonweal.

       What is notábly at stake in this case, and what clearly must be taken into account in determining the constitutionality of this legislative scheme, is the national interest in a fluid system of interstate movement. It may be that national interests are not always easily translated into individual rights, but where the “right to travel” is involved, our cases leave no doubt that it will trigger intensified equal protection scrutiny. See, e. g., Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974); Dunn v. Blumstein, 405 U. S. 330 (1972); Shapiro v. Thompson, 394 U. S. 618 (1969). As the Court notes, the “right to travel” is implicated not only by “actual barriers to interstate movement,” but also by “state distinctions between newcomers and longer term residents.” Ante, at 60, n. 6.

       “[A] citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.” Slaughter-House Cases, 16 Wall. 36, 80 (1873). See id., at 112-113 (Bradley, J., dissenting) (“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”).

       The American aversion to aristocracy developed long before the Fourteenth Amendment and is, of course, reflected elsewhere in the Constitution. See Art. I, § 9, cl. 8 (“No Title of Nobility shall be granted by the United States”). See also Virginia Declaration of Rights (1776), in R. Rutland, The Birth of the Bill of Rights, App. A (1955) (“no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of publick services”).

       A State, for example, might choose to divide its largesse among all persons who previously have contributed their time to volunteer community organizations. If the State graded its dividends according to the number of years devoted to prior community service, it could be said that the State intended “to reward citizens for past contributions.” Alternatively, a State might enact a tax credit for citizens who contribute to the State’s ecology by building alternative fuel sources or establishing recycling plants. If the State made this credit retroactive, to benefit those citizens who launched these improvements before they became fashionable, the State once again would be rewarding past contributions. The Court’s opinion would dismiss these objectives as wholly illegitimate. I would recognize them as valid goals and inquire only whether their implementation infringed any constitutionally protected interest.

       The Court’s conclusion that Alaska’s scheme lacks a rational basis masks a puzzling aspect of its analysis. By refusing to extend any legitimacy to Alaska’s objective, the Court implies that a program designed to reward prior contributions will never survive equal protection scrutiny. For example, the programs described in n. 1, supra, could not survive the Court’s analysis even if the State demonstrated a compelling interest in rewarding volunteer activity or promoting conservation measures. The Court’s opinion, although purporting to apply a deferential standard of review, actually insures that any governmental program depending upon a “past contributions” rationale will violate the Equal Protection Clause.

       While the Clause refers to “Citizens,”' this Court has found that “the terms ‘citizen’ and ‘resident’ are ‘essentially interchangeable’... for purposes of analysis of most cases under the Privileges and Immunities Clause.” Hicklin v. Orbeck, 437 U. S. 518, 524, n. 8 (1978) (quoting Austin v. New Hampshire, 420 U. S. 656, 662, n. 8 (1975)). This opinion, therefore, will refer to “nonresidents” of Alaska, as well as to “noncitizens” of that State.
      It is settled that the Privileges and Immunities Clause does not protect corporations. See Paul v. Virginia, 8 Wall. 168 (1869). The word “Citizens” suggests that the Clause also excludes aliens. See, e. g., id., at 177 (dictum); L. Tribe, American Constitutional Law §6-33, p. 411, n. 18 (1978). Any prohibition of discrimination aimed at aliens or corporations must derive from other constitutional provisions.

         See generally Ward v. Maryland, 12 Wall. 418, 430 (1871) (The Clause “plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union for the purpose of engaging in lawful commerce, trade, or business, without molestation; to acquire personal property; [and] to take and hold real estate . . .”).

       See Note, A Constitutional Analysis of State Bar Residency Requirements under the Interstate Privileges and Immunities Clause of Article IV, 92 Harv. L. Rev. 1461,1464-1465, n. 17 (1979) (labeling contrary argument “technical”).
      As the Court points out, ante, at 59-60, n. 5, Alaska’s plan differentiates even among native Alaskans, by tying their benefits to date of birth. If the scheme merely distributed benefits on the basis of age, without reference to the date beneficiaries established residence in Alaska, I doubt it would violate the Privileges and Immunities Clause. Under those circumstances, a 25-year-old Texan establishing residence in Alaska would acquire the same privileges of citizenship held by a 25-year-old native Alaskan. The scheme would not treat the citizen who moves to the State differently from citizens who already reside there. The Court does not explain whether it would find such an age-based scheme objectionable.

       The “burden” imposed on nonresidents is relative to the benefits enjoyed by residents. It is immaterial, for purposes of the Privileges and Immunities Clause, that the nonresident may enjoy a benefit in the new State that he lacked completely in his former State. The Clause addresses only differences in treatment; it does not judge the quality of treatment a State affords citizens and noncitizens.

       See also Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 523 (1935) (the Constitution “was 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”); Paul v. Virginia, 8 Wall., at 180 (“Indeed, without some provision of the kind removing from the 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”); Edwards v. California, 314 U. S. 160, 173 (1941) (Constitution prohibits “attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders”).

       Any durational residency requirement, for example, treats nonresidents who have exercised their right to settle in a State differently from longer term residents. This is not to say, however, that all such requirements would fail scrutiny under the Privileges and Immunities Clause. The durational residency requirement upheld in Sosna v. Iowa, 419 U. S. 393 (1975) (one year to obtain divorce), for example, would have survived under the analysis outlined above. In Sosna the State showed that nonresidents were a peculiar source of the evil addressed by its durational residency requirement. Those persons could misrepresent their attachment to Iowa and obtain divorces that would be susceptible to collateral attack in other States. Iowa adopted a reasonable response to this problem by requiring nonresidents to demonstrate their bona fide residency for one year before obtaining a divorce. I am confident that the analysis developed in Hicklin v. Orbeck, 437 U. S. 518 (1978), will adequately identify other legitimate durational residency requirements.

       Even before adoption of the Articles, a few of the Colonies explicitly protected freedom of movement. The Rhode Island Charter gave members of that Colony the right “to passe and repasse with freedome, into and through the rest of the English Collonies, upon their lawful and civill occasions.” Z. Chafee, Three Human Rights in the Constitution of 1787, p. 177 (1956). The Massachusetts Body of Liberties provided: “Every man of or within this Jurisdiction shall have free libertie, not with standing any Civill power, to remove both himselfe and his familie at their pleasure out of the same, provided there be no legall impediment to the contrarié.” Id,., at 178. Massachusetts showed some of the same liberality to foreigners entering the Colony:
      “If any people of other Nations professing the true Christian Religion shall flee to us from the Tiranny or oppression of their persecutors, or from famyne, warres, or the like necessary and compulsarie cause, They shall be entertayned and succoured among us, according to that power and prudence god shall give us.” Ibid.

      These attitudes contrasted with the more restrictive views prevailing in 17th-century Europe. See generally id., at 163-171.

       See, e. g., id., at 185; Note, The Right to Travel and Exclusionary Zoning, 26 Hastings L. J. 849, 858-859 (1975); Comment, The Right to Travel: In Search of a Constitutional Source, 55 Neb. L. Rev. 117, 119-120, n. 14 (1975); Comment, A Strict Scrutiny of the Right to Travel, 22 UCLA L. Rev. 1129, 1130, n. 7 (1975).
      See also Austin v. New Hampshire, 420 U. S., at 661 (footnotes omitted) (Article IV of the Articles of Confederation was “carried over into the comity article of the Constitution in briefer form but with no change of substance or intent, unless it was to strengthen the force of the Clause in fashioning a single nation”); United States v. Wheeler, 254 U. S. 281, 294 (1920) ("the text of Article IV, § 2, of the Constitution, makes manifest that it was drawn with reference to the corresponding clause of the Articles of Confederation and was intended to perpetuate its limitations; and . . . that view has been so conclusively settled as to leave no room for controversy”).

       The Court relies upon Shapiro v. Thompson, 394 U. S. 618 (1969), and Vlandis v. Kline, 412 U. S. 441 (1973), in holding that Alaska may not justify its dividend distribution scheme by a desire to reward its citizens for their past contributions. In Shapiro, however, the Court found that the classification at issue “touche[d] on the fundamental right of interstate movement” and therefore could be justified only if it promoted a “compelling state interest.” 394 U. S., at 638 (emphasis in original). Similarly, Vlandis concerned the right to move to and establish residency in Connecticut, and noted only in dicta that rewarding citizens for their past contributions was an impermissible state objective. See 412 U. S., at 449-450, and n. 6.
      Although I have expressed my disagreement with this holding even in the right-to-travel cases, see Memorial Hospital v. Maricopa County, 415 U. S. 250, 286-287 (1974) (Rehnquist, J., dissenting); Vlandis v. Kline, supra, at 468-469 (same), there is no need to rely upon that dissenting position here. The majority does not analyze this as a right-to-travel case. Compare ante, at 60-61, with Memorial Hospital v. Maricopa County, supra, at 261-262, and Shapiro v. Thompson, supra, at 634, 638.

       As the Alaska Supreme Court noted, those who have lived in Alaska from the year of its statehood have borne unusual expenses and hardships: “ ‘A government such as the one embodied in the Alaska constitution, . . . with its complete range of governmental services, was expensive for a State with limited sources of taxation. Alaska could only boast a couple of pulp mills. . . . The State’s business enterprises were small and catered mostly to local needs. In addition, Alaska’s population was modest and hardly amounted to more than that of a medium-sized city in the continental United States.
      “ ‘Accordingly, revenues were small. Yet, the demands were great. The State government had to provide all the governmental services and social overhead required by modem American society. For instance, it would have been relatively simple to build a few roads, furnish normal police protection, and establish the customary school facilities. But nothing was normal in Alaska; it was and remains a land of superlatives. Subarctic engineering is relatively new, but the State would have to face the problem of permafrost conditions that frequently cause the roadtop to buckle and heave. Police protection would have to be provided for an area one-fifth the size of the forty-eight United States but with very few roads available. Flying would become a way of life for law enforcement officials as well as other Alaskans — an expensive way of life. “Bush schools” scattered along the Aleutian chain, through the Yukon Valley, and on the Seaward Peninsula and the islands of southeastern Alaska were expensive to maintain. It was not until the discovery of oil on a large scale that the picture changed.’ ” 619 P. 2d, at 462, n. 37 (quoting C. Naske, An Interpretive History of Alaskan Statehood 169-170 (1973)).

       I also disagree with the suggestion of Justice O’Connoe that the Alaska distribution scheme contravenes the Privileges and Immunities Clause of Art. IV of the Constitution. That Clause assures that nonresidents of a State shall enjoy the same privileges and immunities as residents enjoy: “It was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy.” Toomer v. Witsell, 334 U. S. 385, 395 (1948). We long ago held that the Clause has no application to a citizen of the State whose laws are complained of. “The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens of the States. It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens.” Slaughter-House Cases, 16 Wall. 36, 77 (1873).


source: Caselaw Access Project

author: Justice White Justice Brennan, Justice Powell,

license: Public Domain

text:
    CORY, CONTROLLER OF CALIFORNIA, et al. v. WHITE, ATTORNEY GENERAL OF TEXAS, et al.
    No. 80-1556.
    Argued January 18, 1982
    Decided June 14, 1982
    White, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Rehnquist, and O’Connor, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, post, p. 91. Powell, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 92.

      Jerome B. Falk, Jr., argued the cause for petitioners. With him on the briefs were Martin R. Glick, Steven L. Mayer, Paul J. Van Osselaer, and Myron Siedorf.

      0. Clayton Lilienstem argued the cause for respondents Lummis et al. With him on the brief were Patricia A. Stevenson, R. James George, Jr., John M. Harmon, and James William Moore. Rick Harrison argued the cause for respondents White et al. With him on the brief were Mark White, Attorney General of Texas, pro se, Gilbert J. Bernal, Jr., Assistant Attorney General, and David Deaderick.

   Justice White

delivered the opinion of the Court.

In this case, both Texas and California assert the right to levy state death taxes on the estate of Howard Hughes. The laws of each State impose an inheritance tax on the real and tangible personal property located within its borders, and upon the intangible personalty, wherever situated, of a person domiciled in the State at the time of death. Under the laws of Texas and California, an individual has but one domicile at any time. Taxing officials in each State assert that Howard Hughes was domiciled in their State at the time of his death. The issue before us is whether the Federal Inter-pleader Act, 28 U. S. C. §1335, provides a jurisdictional basis for resolution of inconsistent death tax claims by the officials of two States.

I

This case is the sequel to California v. Texas, 437 U. S. 601 (1978). There, California petitioned for leave to file a complaint against Texas under this Court’s original jurisdiction. At that time, we denied the motion. In concurring opinions, however, four Justices suggested that a determination of Hughes’ domicile might be obtained in federal district court pursuant to the Federal Interpleader Act, 28 U. S. C. §^.

Three weeks after the decision in California v. Texas, the administrator of the estate filed a statutory interpleader action in the United States District Court for the Western District of Texas. Asserting that the officials of the two States were seeking to tax the estate on the basis of inconsistent claims that each of their respective States was Howard Hughes’ domicile at death, it requested the District Court to adjudicate the issue of domicile. The District Court entered a temporary restraining order prohibiting the California and Texas taxing officials from pursuing domicile-based inheritance tax claims in any other forum, including their own state courts.

The District Court then dismissed for lack of subject-matter jurisdiction for failure to satisfy the requirement of § 1335 that there be diversity of citizenship between at least two adverse claimants. It found that the administrator was not a claimant. Among the claimants, it held that the County Treasurer for Los Angeles County was a citizen of California for diversity purposes, citing Moor v. County of Alameda, 411 U. S. 693 (1973). The court ruled, however, that the State of Texas, rather than its taxing officials, was the opposing claimant and that because a State is not a citizen of itself for diversity purposes, Postal Telegraph Cable Co. v. Alabama, 155 U. S. 482 (1894), the action did not involve two or more adverse claimants of diverse citizenship as required by the statute.

The Court of Appeals for the Fifth Circuit reversed the order of dismissal. Lummis v. White, 629 F. 2d 397 (1980). In addition to the County Treasurer, it found the administrator of the estate, a citizen of Nevada, to be a claimant for the purposes of statutory interpleader. It recognized that Treinies v. Sunshine Mining Co., 308 U. S. 66 (1939), held that a citizenship of a disinterested stakeholder could not be considered in determining interpleader jurisdiction. Reasoning, however, that here the administrator’s legal duty of preserving the estate's assets from the double death tax liability and his assertion that Hughes was domiciled in Nevada, which has no state death tax, made the administrator an interested stakeholder, the court further held that the citizenship of an interested stakeholder may be considered for purposes of establishing diversity under § 1335. The requisite diversity — between the administrator and the County Treasurer of Los Angeles County — was therefore present.

The Court of Appeals went on to reject the States’ claim that although the suit was nominally against state officials, it was in effect a suit against two sovereign States barred by the Eleventh Amendment. Recognizing that Worcester County Trust Co. v. Riley, 302 U. S. 292 (1937), had squarely held that an interpleader action in all critical respects similar to this one was barred by the Eleventh Amendment, the Court of Appeals, relying on the concurring views of four Justices in California v. Texas, held that Edelman v. Jordan, 415 U. S. 651 (1974), had silently, but effectively, overruled Worcester, and that the Eleventh Amendment as interpreted in Edelman did not bar the interpleader action.

The California officials petitioned for certiorari and, at the same time, filed a new motion seeking leave to file a complaint against Texas under this Court’s original jurisdiction. Because of the troubling issues involving federal-court jurisdiction in such disputes, we granted certiorari. 452 U. S. 904.

II

In Worcester County Trust Co. v. Riley, supra, the States of California and Massachusetts each claimed to be the domicile of a decedent and to have the right to assess death taxes on his entire intangible estate. A federal interpleader action followed, the estate naming as defendant the revenue officers of California and Massachusetts. This Court unanimously held that the case was in reality a suit against the States and that it was barred by the Eleventh Amendment. In arriving at this conclusion, the Court applied the accepted rules (1) that “a suit nominally against individuals, but restraining or otherwise affecting their action as state officers, may be in substance a suit against the state, which the Constitution forbids,” 302 U. S., at 296, and (2) that “generally, suits to restrain action of state officials can, consistently with the constitutional prohibition, be prosecuted only when the action sought to be restrained is without the authority of state law or contravenes the statutes or Constitution of the United States.” Id., at 297. The Court held that there could be no credible claim of a violation of federal law since it was clear from prior cases that inconsistent determinations by the courts of two States as to the domicile of a taxpayer did not raise a substantial federal constitutional question. The Court also concluded that the claim that the officials were acting without authority under state law was insufficient. Hence, “[sjince the proposed action is the performance of a duty imposed by the statute of the state upon state officials through whom alone a state can act, restraint of their action, which the bill of complaint prays, is restraint of state action, and the suit is in substance one against the State which the Eleventh Amendment forbids.” Id., at 299-300.

The Court of Appeals’ opinion that Edelman v. Jordan had overruled Worcester rested on a passage in the Edelman opinion that it interpreted as limiting the bar of the Eleventh Amendment to suits “by private parties seeking to impose a liability which must be paid from public funds in the state treasury.” 415 U. S., at 663. Because the interpleader plaintiff, the administrator of the estate, had sought only prospective relief, the appellate court held that the Eleventh Amendment did not bar his suit.

We are unpersuaded by this view of Edelman. That case involved a suit against state officials claiming that their administration of a particular federal-state program was contrary to federal regulations and the Constitution. Among other things, the plaintiffs sought a judgment for benefits that had not been paid them. The case was against individual officers who allegedly were violating federal law, and it therefore arguably fell outside the reach of the Eleventh Amendment under Ex parte Young, 209 U. S. 123 (1908). Edelman held, however, that the case was in effect a suit against the State itself because a judgment payable from state funds was demanded. It was correctly noted that Ford Motor Co. v. Department of Treasury of Indiana, 323 U. S. 459 (1945), was authority for this result.

Edelman did not hold, however, that the Eleventh Amendment never applies unless a judgment for money payable from the state treasury is sought. It would be a novel proposition indeed that the Eleventh Amendment does not bar a suit to enjoin the State itself simply because no money judgment is sought. The Eleventh Amendment reads: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State . . . Thus, the Eleventh Amendment by its terms clearly applies to a suit seeking an injunction, a remedy available only from equity. To adopt the suggested rule, limiting the strictures of the Eleventh Amendment to a suit for a money judgment, would ignore the explicit language and contradict the very words of the Amendment itself. Edelman did not embrace, much less imply, any such proposition.

Neither did Edelman deal with a suit naming a state officer as defendant, but not alleging a violation of either federal or state law. Thus, there was no occasion in the opinion to cite or discuss the unanimous opinion in Worcester that the Eleventh Amendment bars suits against state officers unless they are alleged to be acting contrary to federal law or against the authority of state law. Edelman did not hold that suits against state officers who are not alleged to be acting against federal or state law are permissible under the Eleventh Amendment if only prospective relief is sought. Whether or not that would be the preferable rule, Edelman v. Jordan did not adopt it.

Furthermore, if that were to be the law, Worcester must in major part be overruled. We are unwilling, however, to overrule that decision and narrow the scope of the Eleventh Amendment to the extent that action would entail. We hold that the Eleventh Amendment bars the statutory inter-pleader sought in this case. The judgment of the Court of Appeals is

Reversed.

Justice Brennan,

concurring in the judgment.

In California v. Texas, 437 U. S. 601 (1978), I joined in the judgment of the Court denying California’s motion for leave to file an original complaint. I was of the view that California’s motion should be denied, “at least until such time as it is shown that... a statutory interpleader action cannot or will not be brought.” Id., at 602. I also stated that I was “not so sure as” Justice Stewart and Justice Powell that Texas v. Florida, 306 U. S. 398 (1939), had been wrongly decided. 437 U. S., at 601. See id., at 606 (Stewart, J., concurring); id., at 615 (Powell, J., concurring).

Substantially for the reasons set forth in the opinion of the Court, it is now clear to me that so long as Worcester County Trust Co. v. Riley, 302 U. S. 292 (1937), remains good law, an interpleader suit in the district court is not a practical solution to the problem of potential double taxation presented in cases such as these. As Justice Powell persuasively argues in Part III of his dissenting opinion, later cases, construing the Due Process Clause, have undermined Worcester County's holding that the unfairness of double taxation on the basis of conflicting determinations of domicile does not rise to constitutional dimensions. And Justice Powell is surely correct in observing that “[t]he threat of multiple taxation based solely on domicile simply is incompatible with the structural principles of a federal system recognizing as ‘fundamental’ a constitutional right to travel.” Post, at 101.

But if Worcester County is not to be overruled, and inter-pleader is not available to provide relief from the possibility of duplicative taxation of this estate, I think it appropriate under Texas v. Florida, supra, to exercise our original jurisdiction to decide the present controversy. I agree with Professor Chafee, quoted post, at 101, that “[s]omewhere within [the] federal system we should be able to find remedies for the frictions which that system creates.” Where such a remedy exists — even if only in the narrow class of cases falling within the holding of Texas v. Florida — it should be employed. The exercise of the Court’s original jurisdiction in circumstances such as this is both just and prudent, and very likely in accordance with the Framer’s original intent.

Justice Powell,

with whom Justice Marshall and Justice Stevens join, dissenting.

The Court today decides two cases arising from the same set of facts, the instant case and California v. Texas, post, p. 164. Both cases involve the efforts of officials of California and Texas to tax the intangible property of the late Howard Hughes. Each State asserts its right to tax the Hughes estate on the basis of Hughes’ domicile. Yet both recognize that Hughes could have had only one domicile at the time of his death.

In order to avoid multiple taxation that all agree would be unfair, the administrator of the Hughes estate invoked the Federal Interpleader Act as a means of litigating Hughes’ domicile in one federal proceeding. The administrator alleged in his complaint, however, that Hughes was not a domiciliary of either California or Texas, but rather of the State of Nevada. App. 10.

In the instant case, the Court holds today that this inter-pleader action is barred by the Eleventh Amendment. The Court does not dispute that multiple taxation based on domicile is unfair. Nor does it deny that the burden of multiple taxation ordinarily would fall, not on one of the claiming States, but solely on the heirs to an estate. But the Court opinion does not address these issues directly. Rigidly applying an aged and indefensible precedent, the Court denies the administrator and heirs of an estate any federal forum in which to resolve incompatible claims of domicile.

Having held in this case that there is no legal bar to both California and Texas taxing the Hughes estate on the basis of domicile, the Court surprisingly concludes in today’s decision in California v. Texas, post, p. 164, that there presently exists a justiciable controversy “between” those two States as to which actually was Hughes’ domicile. But these two cases — both decided today and both arising from the same set of facts — cannot be reconciled. Under the holding in the instant case that there is no federal prohibition against two States taxing the Hughes estate on the basis of domicile, the mere assertion of claims by the two States cannot suffice to establish a controversy “between” them. In finding that there is a case ripe for decision, the Court must rely on a double contingency: first, that both States might win judgments in their own courts that Hughes was a domiciliary subject to estate taxation; and second, that in such a case the Hughes estate might not be large enough to satisfy both claims. This is too speculative a foundation to support the conclusion that there is a case or controversy appropriately within our. original jurisdiction.

In my view the Court’s decisions in these cases rest on a misconception of the rights and obligations created by our federal system, both in its constitutional and in its statutory aspects. Accordingly I dissent.

I

The issues before the Court today are substantially identical to those presented in California v. Texas, 437 U. S. 601 (1978). In that case the Court unanimously denied California’s motion for leave to file an original complaint. The Court’s one-sentence order did not explain our decision to decline to exercise our exclusive original jurisdiction over controversies “between” States. Justice Stewart, however, in an opinion that Justice Stevens and I joined, stated fully his reasons for agreeing that there existed no case or controversy between States. He argued cogently that California’s complaint “contain[ed] the seeds of two distinct lawsuits”:

“One is a dispute between two States as to the proper division of a finite sum of money. The other is a suit in the nature of interpleader to settle the question of a decedent’s domicile for purposes of the taxes to be imposed upon his estate. But the suit in the nature of inter-pleader is not within the original and exclusive jurisdiction of this Court because it is not a dispute between States. And the dispute between the States, if indeed it is justiciable at all, is certainly not yet a case or controversy within the constitutional meaning of that term.” Id., at 610-611.

No material fact has changed since 1978. On the premises of the Court’s opinion, there still is no justiciable controversy between Texas and California. See California v. Texas, post, at 170 (Powell, J., dissenting). There is, however, a ripe dispute about the estate’s tax liability to the two States — a dispute of the kind for which federal interpleader jurisdiction ought to be available.

II

In our 1978 decision in California v. Texas, supra, four Justices of this Court suggested that the administrator of the Hughes estate might invoke the Federal Interpleader Act to protect the estate from taxation based on inconsistent claims of domicile. Contradicting the clear message conveyed by our decision in that case, the Court today finds interpleader unavailable on the ground that a suit against the state taxing officials is barred by the Eleventh Amendment.

The concurring opinions in California v. Texas, supra, all proposed that the administrator of the Hughes estate might invoke the “fiction” of Ex parte Young, 209 U. S. 123 (1908), as interpreted in Edelman v. Jordan, 415 U. S. 651 (1974), to bring an interpleader action naming as defendants the taxing officials of Texas and California. The Court today holds otherwise. According to the Court, it is the lawful function of the state officials to litigate Hughes’ domicile. There is accordingly no colorable claim that they are acting in excess of their authority under state law; no constitutional violation is alleged; and Edelman v. Jordan is read narrowly to retain the Eleventh Amendment bar to injunctive suits against state officials not acting unlawfully, even in this case in which no money damages are sought from the state treasury.

There can be no doubt that Edelman will admit of a broader construction. The plain language of that decision asserts that the Eleventh Amendment bars only suits “by private parties seeking to impose a liability which must be paid from public funds in the state treasury,” id., at 663, and not actions that may have “fiscal consequences to state treasuries . . . [that are] the necessary result of compliance with decrees which by their terms [are] prospective in nature,” id., at 667-668. Thus, at least in a case such as this, in which the very controversy is the result of our federal system, I continue to believe that resort to federal interpleader is not proscribed by the Eleventh Amendment as construed by Edelman v. Jordan.

In rejecting this interpretation of Edelman, the Court relies at the last on Worcester County Trust Co. v. Riley, 302 U. S. 292 (1937). If this broader view of Edelman “were to be the law,” the Court reasons, “Worcester must in major part be overruled.” Ante, at 91. In light of Edelman, however, it must be recognized that the law has changed since 1937, and that the legal assumptions on which Worcester County rested no longer are uniformly valid. See California v. Texas, 437 U. S., at 601 (Brennan, J., concurring). If Worcester County cannot be defended on the basis of its in-temal logic and adherence to constitutional principles, this Court should not be bound by it.

H — 1 hH I — i

The Court today contmues to reason from the premise, accepted by Worcester County, that multiple taxation on the basis of domicile does not offend the Constitution — even in a case in which both of the taxing States concede that a person may have but one domicile. In my view this premise is wrong. As an alternative to the approach that I embraced in California v. Texas, I now would be prepared to overrule Worcester County on this point and to hold that multiple taxation on the basis of domicile — at least insofar as “domicile” is treated as indivisible, so that a person can be the domiciliary of but one State — is incompatible with the structure of our federal system.

A

As Justice Stewart demonstrated in California v. Texas, the Court’s conclusion in Texas v. Florida, 306 U. S. 398 (1939) — that there was a controversy between States, identifiable by analogy to a suit in the nature of interpleader — can be explained only by its concern for “the plight of the estate, which was indeed confronted with a ‘substantial likelihood’ of multiple and inconsistent tax claims.” 437 U. S., at 606. Yet this focus of concern found no justification in the principles actually stated in Texas v. Florida, and it finds no justification in the principles on which the Court rests today. If the Constitution and laws provide no direct remedy to a decedent’s estate faced with multiple taxation on the basis of domicile, there is no principled reason to protect the estate, before the fact, against the bare possibility that multiple taxation may exhaust the estate completely. See 437 U. S., at 611. In my view, however, such taxation is not only unfair but offensive to the Due Process Clause of the Fourteenth Amendent.

B

Our decisions consistently have recognized that state taxation must be rationally related to “‘values connected with the taxing state.’” Moorman Mfg. Co. v. Bair, 437 U. S. 267, 273 (1978), quoting Norfolk & Western R. Co. v. Missouri State Tax Comm’n, 390 U. S. 317, 325 (1968). As framed by Justice Frankfurter in Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444 (1940):

“Th[e] test is whether property was taken without due process of law, or, if paraphrase we must, whether the taxing power exerted by the state bears fiscal relation to protection, opportunities and benefits given by the state. The simple but controlling question is whether the state has given anything for which it can ask return.”

Under these principles tangible property generally may be taxed only by the State where it is located. Curry v. McCanless, 307 U. S. 357, 364 (1939). Physical presence also is required to justify a state succession tax on the transfer of real property occasioned by the death of the owner. Treichler v. Wisconsin, 338 U. S. 251 (1949); Frick v. Pennsylvania, 268 U. S. 473, 492 (1925).

In contrast with real property, intangible personal property is not physically located in any particular place, at least in any simple sense. Moreover, there may be more than one State that has a significant connection with intangible property — for example, the State in which a trust’s assets are administered and the State in which the trustee is domiciled. See Curry v. McCanless, supra. Recognizing these differences, this Court has upheld the multiple taxation of intangible property. The decisions in which the Court has done so have not, however, undermined the fundamental principle that a State’s levy of a tax must be connected rationally with the values on which the tax is imposed or with protections that the State has afforded.

In this case both California and Texas — as most States— recognize that a person can have but one domicile. And it would appear settled that domicile provides the only adequate basis for taxation of intangible property in a decedent’s estate, not located in the State or otherwise dependent on the protection of its laws. See Curry v. McCanless, supra, at 365-366; cf. Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 286-288 (1977) (defining Commerce Clause limits on state taxation in terms of connections to and benefits conferred by the taxing State). Here neither State alleges an entitlement to tax the Hughes estate on any other basis. From these premises it follows that multiple taxation based solely on conflicting determinations of domicile not only is unfair, but that taxation on this basis by at least one of the States must lack the only predicate asserted to justify its levy under the Due Process Clause.

It is, of course, true that in 1937 Worcester County Trust Co. v. Riley, 302 U. S. 292, held that this admitted unfairness did not offend the Constitution. But Worcester County's holding on this point already has been undermined, not only by intervening decisions reiterating due process limits on state taxation of intangible property, see Norfolk & Western R. Co. v. Missouri State Tax Comm’n, supra, at 323-326, and of income, see, e. g., Mobil Oil Corp. v. Commissioner of Taxes, 445 U. S. 425, 436-442 (1980), but also by cases in which this Court has recognized a fundamental right to travel. See, e. g., Dunn v. Blumstein, 405 U. S. 330 (1972); Shapiro v. Thompson, 394 U. S. 618 (1969). It is only by moving from State to State that a taxpayer risks incurring multiple taxation based on conflicting determinations of domicile. While no single State can be charged with creating this risk, the fact of its existence cannot be defended. The threat of multiple taxation based solely on domicile simply is incompatible with the structural principles of a federal system recognizing as “fundamental” a constitutional right to travel.

C

By holding that multiple taxation based on domicile is prohibited by the Due Process Clause, the Court could lay the basis for resolution of disputes such as this one under the interpleader jurisdiction of the federal district courts. By alleging that state taxing officials threatened the estate with multiple liability, an administrator would state a colorable claim that the relevant state officers were acting outside of constitutional limits and thus that they were acting in their individual capacities under Ex parte Young, 209 U. S. 123 (1908). The Eleventh Amendment thus would not bar the suit under Ex parte Young and Edelman v. Jordan, and the interpleader requirement of competing claimants would be satisfied.

Professor Zechariah Chafee, the father of the federal inter-pleader statute, argued: “It is our federal system which creates the possibility of double taxation. Somewhere within that federal system we should be able to find remedies for the frictions which that system creates.” Federal Interpleader Since the Act of 1936, 49 Yale L. J. 377, 388 (1940).

In my view the Due Process Clause provides the right to be free of multiple taxation of intangibles based on domicile. The Federal Interpleader Act provides the remedy.

As the Court holds otherwise, I respectfully dissent.

       The Federal Interpleader Act, 28 U. S. C. § 1335, provides:
      “(a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more, or providing for the delivery or payment or the loan of money or property of such amount or value, or being under any obligation written or unwritten to the amount of $500 or more, if

        “(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any note, bond, certificate, policy or other instrument or arising by virtue of any such obligation; and if (2) the plaintiff has deposited such money or property or has paid the amount of or the loan or other value of such instrument or the amount due under such obligation into the registry of the court, there to abide the judgment of the court, or has given bond payable to the clerk of the court in such amount and with such surety as the court or judge may deem proper, conditioned upon the compliance by the plaintiff with the future order or judgment of the court with respect to the subject matter of the controversy.
      “(b) Such an action may be entertained although the titles or claims of the conflicting claimants do not have a common origin, or are not identical, but are adverse to and independent of one another.”

       The dissent miseharacterizes Edelman as asserting that the Eleventh Amendment bars “only” suits seeking money damages. Post, at 96. Edelman recognized the rule “that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment,” 415 U. S., at 663, but never asserted that such suits were the only ones so barred.

       28 U. S. C. §1335.

       Nevada imposes no estate tax and therefore has not appeared as a party.

       As a result of this decision, the Hughes heirs apparently will not suffer unfair double taxation. Other heirs of other estates presumably will not be so fortunate.

       Justice Brennan also filed a concurring opinion tentatively accepting Justice Stewart’s conclusion and stating that he would “deny California’s motion, at least until such time as it is shown that... a statutory inter-pleader action cannot or will not be brought.” 437 U. S., at 601, 602. I too filed a concurring opinion. Id., at 615.

       The Court’s main ground for distinguishing the situation in 1978 from the situation today seems to be that “it seemed to several Members of the Court [in 1978] that statutory interpleader might obviate the need to exercise our original jurisdiction.” California v. Texas, post, at 168. Yet this argument simply is unresponsive to the question whether there is an actual case or controversy for which our original jurisdiction properly can be invoked. The Court notes that “several other uncertainties” have disappeared. Post, at 169. But its arguments are makeweights. Until the States have obtained conflicting judgments in their own courts, there is no ripe “dispute between two States as to the proper division of [the] finite sum of money” comprising the Hughes estate. California v. Texas, 437 U. S. 601, 610 (1978) (Stewart, J., concurring). See post, at 170 (Powell, J., dissenting).

        Worcester County must be viewed in the context of a constitutional history that is hardly one of settled consistency. Only seven years before the Court decided Worcester County, in Farmers Loan & Trust Co. v. Minnesota, 280 U. S. 204 (1930), this Court had overruled Blackstone v. Miller, 188 U. S. 189 (1903), and held that the Due Process Clause forbids the multiple taxation of intangibles. For a time Farmers Loan & Trust Co. appeared to have established that only the single State of a person’s domicile could tax intangible property in a decedent’s estate. See First National Bank v. Maine, 284 U. S. 312 (1932). But the Court then reached the contrary conclusion in Worcester County, finding that inconsistent state-court adjudications of domicile and consequent assessment of estate taxes did not violate the Due Process Clause. First National Bank v. Maine, supra, then squarely was overruled by State Tax Comm’n v. Aldrich, 316 U. S. 174, 181 (1942), which held that multiple taxation of intangibles did not per se offend the Constitution.

       “If it is unfair to subject an estate to two domicile-based taxes when all agree that it is possible to have only one domicile, that unfairness is just as great, if not greater, when a decedent’s estate is able to pay the taxes to both States.” 437 U. S., at 611.

       “When we speak of the jurisdiction to tax land or chattels as being exclusively in the state where they are physically located, we mean no more than that the benefit and protection of laws enabling the owner to enjoy the fruits of his ownership... are so narrowly restricted to the state in whose territory the property is physically located as to set practical limits to taxation by others. Other states have been said to be without jurisdiction and so without constitutional power to tax tangibles if, because of their location elsewhere, those states can afford no substantial protection to the rights taxed . . . .” 307 U. S., at 364.

       See Curry v. McCanless, 307 U. S. 357, 365-366 (1939):
      “Very different considerations, both theoretical and practical, apply to the taxation of intangibles, that is, rights which are not related to physical things. Such rights are but relationships between persons, natural or corporate, which the law recognizes by attaching'to them certain sanctions enforceable in courts. The power of government over them and the protection which it gives them cannot be exerted through control of a physical thing. They can be made effective only through control over and protection afforded to those persons whose relationships are the origin of the rights.”

       See Chafee, Federal Interpleader Since the Act of 1936, 49 Yale L. J. 377, 383-384 (1940) (footnotes omitted):
      “¡TJhere are two types of double taxation. In one kind, the same property or person is taxed in two states on two different theories. ... In the other kind of double taxation, a single theory is applied in both states to tax the same person or property, but the two state governments disagree on a vital issue of fact. The Worcester County Trust Co. case falls into this class. Both states had the same law, that a death tax is levied only at the decedent’s domicile and that a man has only one domicile. The only dispute was, where was that domicile?
      “It is rather surprising that almost all the attacks on double taxation. . . have been directed at the first kind, because the second kind seems more unjust. . . . [I]t is highly unfair for both state governments to tell the taxpayer, ‘You have to pay only one tax,’ and then make him pay twice. The injustice of the situation is clearly brought out by the fact that the courts of each state regard the other state as acting unlawfully, and yet neither state gives the taxpayer any remedy.”