Constitution of the United States/Art. IV/Sec. 2/Clause 1 Privileges and Immunities
Article IV Relationships Between the States
Section 2 Interstate Comity
Clause 1 Privileges and Immunities
|The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.|
Overview of Privileges and Immunities Clause[edit | edit source]
The first section of Article IV, Section 2 provides that the citizens of each state shall be "entitled to all Privileges and Immunities" of the citizens of other states. The provision is often called the "Privileges and Immunities Clause" or the "Comity Clause." This Clause, which is textually tied to state citizenship, should not be confused with the distinct provision in the Fourteenth Amendment--the "Privileges or Immunities Clause"--which protects the privileges or immunities of citizens of the United States against state invasion.
The key purpose of the Privileges and Immunities Clause "was to help fuse into one Nation a collection of independent sovereign States." Under the prevailing view of the Clause, its central requirement is that "in any state every citizen of any other state is to have the same privileges and immunities which the citizens of that state enjoy." In other words, the Clause "prevents a state from discriminating against citizens of other states in favor of its own." The Clause's concerns implicate not only individual rights to nondiscriminatory treatment, but also "the structural balance essential to the concept of federalism."
Most cases under the Privilege and Immunities Clause concern discriminatory state residency requirements or other preferences for state residents versus nonresidents. (For purposes of the Privileges and Immunities Clause, "the terms 'citizen' and 'resident' are 'essentially interchangeable.'") The Clause's prohibitions reach not only facial classifications based on state residency or citizenship, but also state or municipal laws whose "practical effect" is discriminatory against out-of-state residents. Controversies between a state and its own citizens are not covered by the provision.
Not all distinctions between state residents and nonresidents violate the Privileges and Immunities Clause. States may, for example, limit voting rights to state residents or make state residency a qualification for elective office. Nor must a state "always apply all its laws or all its services equally to anyone, resident or nonresident." Rather, discrimination only implicates the Clause when it relates to a right or activity that is sufficiently "fundamental." (Whether a right or activity is fundamental under the Privileges and Immunities Clause is doctrinally distinct from whether a right is fundamental under the Fourteenth Amendment's Due Process or Equal Protection Clauses.) For example, the right of nonresidents to "ply their trade, practice their occupation, or pursue a common calling" on substantially equal terms as state citizens is protected as fundamental under the Privileges and Immunities Clause.
Even if a state law discriminates against nonresidents as to a fundamental right or activity, it may still be constitutional if the state can justify its action under a two-step test developed by the Supreme Court. First, the state must show there is "a substantial reason for the difference in treatment." Second, the discrimination must bear a "substantial relationship to the State's objective." Under this form of intermediate scrutiny, the Court has struck down, for example, state preferences for hiring in-state residents to work on oil and gas pipelines and residency requirements for admission to a state bar.
Beyond state discrimination against nonresidents and the right to travel, the Privileges and Immunities Clause's significance has waned with the incorporation of most of the Bill of Rights against state invasion via the Fourteenth Amendment's Due Process Clause. Challenges to a state's abridgement of enumerated constitutional rights are thus more often asserted under those constitutional amendments (as incorporated via the Fourteenth Amendment), instead of the Privileges and Immunities Clause.
Historical Background on Privileges and Immunities Clause[edit | edit source]
The notion of "privileges and immunities"--that is, particular legal benefits or exemptions--derives from concepts developed by English medieval law. The Articles of Confederation contained a lengthier provision that provided the direct precedent for the Privileges and Immunities Clause:
The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.Articles of Confederation of 1781 art. IV, § 1.
Charles Pinckney of South Carolina claimed to have introduced the Privileges and Immunities Clause at the Constitutional Convention. The Committee of Detail drafted and reported language identical to the final Clause, which passed the Convention without substantial debate. Perhaps because the Privileges and Immunities Clause was drawn from the Articles of Confederation, it also "drew virtually no attention" in the ratification debates. The Clause is discussed in the Federalist papers only as a means of support for other arguments.
Despite the textual differences between the Privileges and Immunities Clause and its predecessor in the Articles of Confederation, the Supreme Court has concluded that the Constitution's briefer phrasing was intended to have the same meaning. The privileges and immunities protected are thus the same under both the Articles and the Constitution. Accordingly, the specific examples listed in the Articles' version (for example, "free ingress and regress to and from any other State," "all the privileges of trade and commerce") may be used to "give some general idea of the class of civil rights meant by the phrase" in the Constitution.
Purpose of Privileges and Immunities Clause[edit | edit source]
At least four theories have been proffered as to the purpose of the Privileges and Immunities Clause. First, the Clause could be read as a guarantee to the citizens of the different states of equal treatment by Congress, as a kind of equal protection clause binding on the federal government. Though this view received some recognition in Justice John Catron's opinion in Dred Scott v. Sandford, it has long been viewed as obsolete.
Second, the Clause could be read to guarantee to the citizens of each state certain natural, fundamental rights inherent in the citizenship of people in a free society, which no state could deny to citizens of other states (and without regard to how it treats its own citizens). This theory found some expression in a few early state cases, and best accords Justice Bushrod Washington's famous dicta on the Clause in Corfield v. Coryell. This theory might have endowed the Supreme Court with authority to review state legislation similar to that which it later came to exercise under the Fourteenth Amendment's Due Process and Equal Protection Clauses, but it was firmly rejected by the Court.
Third, the Clause could be read to guarantee the citizen of any state the same rights that he enjoys at home, even when he is in another state. On this view, the Clause would enable a citizen to carry his rights of state citizenship with him throughout the United States, unaffected by state lines. The Court has also rejected this theory.
The fourth theory--and the one the Court ultimately accepted--is that the Clause forbids any state to discriminate against citizens of other states in favor of its own. It is this narrow interpretation that has become the settled one. As the Court explained in the 1869 case Paul v. Virginia:
It was undoubtedly the object of [the Privileges and Immunities Clause] to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. 75 U.S. (8 Wall.) 168, 180 (1869); see also Slaughter-House Cases, 83 U.S. (16 Wall.) at 77; Chambers v. Balt. & Ohio R.R., 207 U.S. 142 (1907); Whitfield v. Ohio, 297 U.S. 431 (1936).
Self-Executing Nature of Privileges and Immunities Clause[edit | edit source]
In the nineteenth century, the Supreme Court held that the Privileges and Immunities Clause is self-executing. That is, Congress generally lacks power to enact enforcement legislation under the Clause, which is instead left to the states and the judicial process. The Supreme Court has also held that, like the Fourteenth Amendment's protections, the Privileges and Immunities Clause protects only against state action, and not private conduct. Federal statutes prohibiting private conspiracies to deprive any person of equal privileges and immunities secured by state laws, or punishing the denial of the right of citizens to reside peacefully in the several states and to have free ingress into and egress from such states by non-state actors, have been held unconstitutional for these reasons.
Citizenship Under Privileges and Immunities Clause[edit | edit source]
Whether free Black Americans were protected as citizens under the Privileges and Immunities Clause (and other constitutional protections) was a contentious issue before the Civil War. The unamended Constitution grants Congress power to "establish a uniform rule of naturalization" as to foreigners, but did not otherwise speak directly to who is a "citizen" of a state or of the United States. A common view at the time was that national citizenship was derivative of state citizenship, and that the latter could be conferred by birth within a jurisdiction, as under the English common law.
Nonetheless, in the notorious Dred Scott case, the Supreme Court held that Black Americans, whether free or enslaved, could not be "citizens" under the Constitution. "Citizens of each State," Chief Justice Roger Taney concluded, meant citizens of the United States as understood when the Constitution was adopted; descendants of African slaves were not then regarded as capable of citizenship in Taney's view. Citing the Privileges and Immunities Clause, Chief Justice Taney argued that if free Black Americans could be made citizens of one state, the Constitution would grant them
the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, . . . and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.Id. at 417.
Such an outcome, Chief Justice Taney maintained, "the great men of the slaveholding States, who took so large a share in framing the Constitution" would not have permitted. Because Dred Scott was not a "citizen" under this reasoning, the Court held that federal courts lacked jurisdiction over his suit for freedom because there was no diversity of state citizenship under Article III, Section 2.
In dissent, Justice Benjamin Robbins Curtis denied the Chief Justice's historically dubious assertion that there were no free Black Americans who were state citizens when the Constitution was ratified. Justice Curtis further argued that the states retained the right to extend citizenship to classes of persons born within their borders, and that a person upon whom state citizenship was conferred became a citizen of that state and the United States under the Constitution.
Dred Scott's holding was superseded by the first section of the Fourteenth Amendment, which declares: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Thus, after 1868, the "citizens of each State" under the Privileges and Immunities Clause include at least all persons born in the United States, or naturalized U.S. citizens, who reside in that state.
Corporations and Privileges and Immunities Clause[edit | edit source]
A long line of Supreme Court cases has found the Privileges and Immunities Clause to be "inapplicable" to corporations (as opposed to natural persons). As early as 1839, the Court reasoned that a corporation, as a discretionary creation of state law, could not claim "the rights which belong to its members as citizens of a state." The Court reached a similar conclusion in 1869 in Paul v. Virginia. By 1898, the Court declared it "well settled" that "a corporation is not a citizen within the meaning of the [Privileges and Immunities Clause]." The Court has extended this rule to state law trusts because of their similarity to the corporate form.
The Court has continued to adhere to its settled view that the Privileges and Immunities Clause does not protect corporations, despite later holdings that other constitutional protections--such as the Equal Protection Clause, First Amendment, and Fourth Amendment--apply to corporations. As a result, challenges to state protectionism and discrimination against out-of-state corporations are typically brought under the "dormant" Commerce Clause, and not the Privileges and Immunities Clause.
Privileges and Immunities of Citizens Defined[edit | edit source]
The classical judicial exposition of the meaning of "privileges and immunities" is that of Justice Bushrod Washington in 1823 in Corfield v. Coryell. The question at issue was the validity of a New Jersey statute that prohibited "any person who is not, at the time, an actual inhabitant and resident in this State" from raking or gathering clams, oysters, or shells in any of the state's waters on board any vessel not owned by state residents. In Corfield, Justice Washington described the privileges and immunities under the Clause as "those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union." Although a full list would be "tedious," Justice Washington opined that they include:
Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state . . . .Id. at 551-52.
After so defining the private and personal rights that were protected, Justice Washington distinguished them from a right to share in a state's public property. In particular, Corfield held that the right of a state to the clams and oysters within its waters to be in the nature of a property right, held by the state "for the use of the citizens thereof." The statute at issue was thus upheld because New Jersey need not grant "cotenancy in the common property of the State, to the citizens of all the other States."
Following Corfield, the Court has held that for an activity to be protected by the Privileges and Immunities Clause as "fundamental," it must be so "basic and essential" that "interference with [it] would frustrate the purposes of the formation of the Union." Activities such as the pursuit of occupations or common callings within the state (including the right to practice law), the right to seek employment on public contracts, the ownership and disposition of property within the state, and access to state courts, have all been recognized as fundamental and protected under the Privileges and Immunities Clause. In contrast, recreational fishing and hunting (that is, not tied to one's commercial livelihood) has been held not a fundamental activity. Accessing public records through a state freedom of information act has also been held not to be a fundamental activity; a state may therefore limit such access to its own citizens.
Valid Residency Distinctions under Privileges and Immunities Clause[edit | edit source]
Universal practice has established a political exception to the Privilege and Immunities Clause. A state may thus "require residence within its limits for a given time before a citizen of another State who becomes a resident thereof shall exercise the right of suffrage or become eligible to office."
In addition, purely private and personal rights are not in all cases beyond the reach of state legislation that differentiates between citizens and noncitizens. Broadly speaking, these rights may be reasonably regulated by a state under its police power. The Court has recognized cases in which a state may reasonably resort to discrimination against nonresidents in aid of its own public health, safety, and welfare. For example, a state may reserve the right to sell insurance to persons who have resided within the state for a prescribed period. A state may also require a nonresident who does business within the state or who uses the state's highways to consent, expressly or by implication, to service of process on an agent within the state. A state may also limit a nonresident's dower rights or may treat the community property rights of nonresident married persons as governed by the laws of their domicile, rather than by the laws it promulgates for its own residents.
State Natural Resources and Privileges and Immunities Clause[edit | edit source]
In Corfield v. Coryell, Justice Bushrod Washington (while riding circuit) held that a state could discriminate against nonresidents who sought to harvest oysters and clams in state waters, despite the Privileges and Immunities Clause. The precise holding of Corfield was confirmed by the Supreme Court fifty years later in the 1877 case McCready v. Virginia, which upheld a Virginia law permitting only Virginians to catch or plant oysters in state rivers. In cases blending Commerce Clause and Privileges and Immunities challenges, Geer v. Connecticut extended the same rule to wild game, while Hudson Water Co. v. McCarter applied it to water rights.
The virtual demise of the state ownership theory of animals and natural resources in the Commerce Clause context compelled the Court to review its precedents on distinctions between residents and nonresidents related to natural resources. In Baldwin v. Fish & Game Commission of Montana, the Court addressed a challenge to Montana's laws for elk-hunting licenses, which charged nonresidents higher fees than residents. The Court was asked to overrule the Privileges and Immunities Clause holdings of Corfield, Geer, and McCready as having "no remaining vitality." Baldwin declined to do so, holding that while state control over wildlife is "not exclusive and absolute," recreational hunting was not a fundamental right under the Privileges and Immunities Clause. Because recreational activity--in contrast to "common callings"--was not "a means to the nonresident's livelihood," the state could distinguish between residents and nonresidents consistently with the Privileges and Immunities Clause.
Occupations and Privileges and Immunities Clause[edit | edit source]
The Supreme Court has long held that the right of nonresidents "to ply their trade, practice their occupation, or pursue a common calling" is a fundamental right protected by the Privileges and Immunities Clause. Indeed, "privileges of trade and commerce" were explicitly included among the privileges and immunities listed in the Articles of Confederation. The Clause therefore "guarantees to citizens of State A" the right of "doing business in State B on terms of substantial equality with the citizens of that State."
In Toomer v. Witsell, the Court held that "commercial shrimping . . . like other common callings, is within the purview of the privileges and immunities clause." Discriminatory fees exacted from nonresidents for a license to shrimp were thus unconstitutional. The Court has similarly struck down discrimination against nonresidents in licenses for commercial fishing and in hiring for work on oil and gas pipelines.
The Court held in Supreme Court of New Hampshire v. Piper that the right to practice law, like the right to pursue other occupations, is protected under the Privileges and Immunities Clause. As a result, although a state may generally regulate the practice of law in its jurisdiction, it may not exclude nonresidents from state bar admission without a substantial reason. Nor may a federal court, without substantial reason, require an attorney to have an office within the state as a condition of admission to practice.
Access to Courts and Privileges and Immunities Clause[edit | edit source]
The right to sue and defend in the courts is one of the highest and most essential privileges of citizenship and must be allowed by each state to the citizens of all other states to the same extent that it is allowed to its own citizens. The constitutional requirement is satisfied if nonresidents are given access to the state's courts upon terms that, in themselves, are reasonable and adequate for enforcing any rights they may have, even though they may not be precisely the same as those accorded to resident citizens.
On this basis, the Supreme Court upheld a state statute of limitations that prevented a nonresident from suing in the state's courts after expiration of the time for suit in the place where the cause of action arose. The Court also upheld a statute that suspended its operation as to resident plaintiffs, but not as to nonresidents, during the defendant's absence from the state. A state law making it discretionary for courts to entertain an action by a nonresident of the state against a foreign corporation doing business in the state was sustained because it applied equally to citizens and noncitizens residing out of the state. A statute permitting a suit in the state's courts for wrongful death occurring outside the state, only if the decedent was a resident of the state, was sustained because it operated equally upon representatives of the deceased whether citizens or noncitizens. Being nondiscriminatory, a Uniform Reciprocal State Law to secure the attendance of witnesses from within or without a state in criminal proceedings does not violate this Clause.
Taxation and Privileges and Immunities Clause[edit | edit source]
In the exercise of its taxing power, a state may not discriminate substantially between residents and nonresidents without violating the Privileges and Immunities Clause. In the 1871 case Ward v. Maryland, the Court invalidated a state law that imposed taxes only upon nonresidents who sold within the state goods that were produced in other states. The Court similarly held unconstitutional a Tennessee license tax that varied based on whether the person taxed had his chief office within the state or outside it. In Travis v. Yale & Towne Mfg. Co., the Court, while sustaining a state's right to tax income accruing within its borders to nonresidents, held the particular tax void because it denied to nonresidents exemptions that were allowed to residents. In contrast, because it did not discriminate between citizens and noncitizens, the Court sustained a state statute taxing businesses hiring persons within the state for labor outside the state.
In Lunding v. New York Tax Appeals Tribunal, the Court addressed a New York law denying nonresidents any deduction from taxable income for alimony payments, although it permitted residents to deduct such payments. Although the Court observed that "the Privileges and Immunities Clause affords no assurance of precise equality in taxation between residents and nonresidents," the state must show a "substantial reason" for the disparity, and the discrimination must bear a "substantial relationship" to that reason. Under this analysis, the Court read its precedents to prohibit a state from denying nonresidents a general tax exemption provided to residents, but permitting limits on "nonresidents' deductions of business expenses and nonbusiness deductions based on the relationship between those expenses and in-state property or income." In Lunding, as the state flatly denied the deduction to nonresidents, the Court found that New York had "not presented a substantial justification for the categorical denial of alimony deductions to nonresidents."
What at first glance may appear to be a discrimination may turn out not to be when a state's entire system of taxation is considered. On the basis of overall fairness, the Court has sustained a Connecticut statute that required nonresident stockholders to pay a state tax measured by the full market value of their stock while resident stockholders were subject to local taxation on the market value of that stock reduced by the value of the real estate owned by the corporation. Moreover, occasional or accidental inequality to a nonresident taxpayer is not sufficient to defeat a scheme of taxation whose operation is generally equitable. In an early case the Court dismissed the contention that a state violated the Privileges and Immunities Clause by subjecting its own citizens to a property tax on a debt due from a nonresident secured by real estate situated where the debtor resided.
Right to Travel and Privileges and Immunities Clause[edit | edit source]
The Supreme Court has long recognized the right to travel from one state to another under the Privileges and Immunities Clause, as well as other constitutional provisions. For example, the Court held that a state could not constitutionally limit access to medical care to its own residents, and deny access to nonresidents, without interfering with the right to travel.
In Saenz v. Roe, the Court characterized the constitutional "right to travel" as having "at least three different components":
It protects  the right of a citizen of one State to enter and to leave another State,  the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and,  for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State. 526 U.S. 489, 500 (1999) (numbering added).
While the Court did not expressly identify the constitutional basis of the first component, it noted that the Articles of Confederation's privileges and immunities clause explicitly protected the "free ingress and regress to and from any other State." As for the second component of the right to travel, the Court found it to be "expressly protected by the text of the Constitution" through the Privileges and Immunities Clause. Saenz connected the third component of the right to travel to the Fourteenth Amendment's Privileges or Immunities Clause.
- See Robert G. Natelson, The Original Meaning of the Privileges and Immunities Clause, 43 Ga. L. Rev. 1117, 1122 (2009).
- Fourteenth Amend., Section 1 Rights ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . . " (emphasis added)).
- Toomer v. Witsell, 334 U.S. 385, 395 (1948). While the Privileges and Immunities Clause was "intended to create a national economic union," the Court "has never held that [the Clause] protects only economic interests." Supreme Ct. of N.H. v. Piper, 470 U.S. 274, 280, 281 n.11 (1985) (citations omitted).
- Hague v. Comm. for Indus. Org., 307 U.S. 496, 511 (1939); see also Slaughter-House Cases, 83 U.S. 36, 77 (1872) (stating the "sole purpose" of the Privileges and Immunities Clause is "to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens . . . the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction").
- Hague, 307 U.S. at 511; accord United States v. Harris, 106 U.S. 629, 643 (1883) ("[The Privileges and Immunities Clause's] object is to place the citizens of each state upon the same footing with citizens of other states, and inhibit discriminative legislation against them by other states.").
- Austin v. New Hampshire, 420 U.S. 656, 662 (1975).
- Hicklin v. Orbeck, 437 U.S. 518, 524 n.8 (1978) (quoting Austin, 420 U.S. at 662 n.8).
- United Bldg. & Const. Trades Council of Camden Cnty. & Vicinity v. Mayor of Camden, 465 U.S. 208, 214 (1984) ("The fact that the ordinance in question is a municipal, rather than a state, law does not somehow place it outside the scope of the Privileges and Immunities Clause."). In applying the Privileges and Immunities Clause to municipal and local laws, United Building reasoned that the Clause should not permit states to exclude out-of-state residents from benefits through the simple expedient of delegating authority to political subdivisions. Id. at 217.
- Hillside Dairy Inc. v. Lyons, 539 U.S. 59, 67 (2003) (citing Chalker v. Birmingham & N.W. Ry., 249 U.S. 522, 527 (1919)).
- Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 138 (1873); Cove v. Cunningham, 133 U.S. 107 (1890). But see Zobel v. Williams, 457 U.S. 55, 75 (1982) (O'Connor, J., concurring).
- Baldwin v. Fish & Game Comm'n of Mont., 436 U.S. 371, 383 (1978).
- McBurney v. Young, 569 U.S. 221, 226 (2013) (quoting Baldwin, 436 U.S. at 383).
- United Bldg., 465 U.S. at 218 (citing Baldwin, 436 U.S. at 388); see also Corfield v. Coryell, 6 F. Cas. 546, 551-52 (Washington, Circuit Justice, C.C.E.D. Pa. 1823).
- See Fourteenth Amend., Sec. 1: Overview of Fundamental Rights.
- Hicklin v. Orbeck, 437 U.S. 518, 524 (1978); accord Supreme Ct. of N.H. v. Piper, 470 U.S. 274, 280 (1985); Toomer v. Witsell, 334 U.S. 385, 396 (1948).
- Piper, 470 U.S. at 284.
- Id.; accord Toomer, 334 U.S. at 396.
- See Julian N. Eule, Laying the Dormant Commerce Clause to Rest, 91 Yale L.J. 425, 454 (1982) (likening the Privileges and Immunities Clause test to "intermediate scrutiny under contemporary equal protection jurisprudence"); Kathleen M. Sullivan, Post-Liberal Judging: The Roles of Categorization and Balancing, 63 U. Colo. L. Rev. 293, 297 (1992) (same).
- Hicklin, 437 U.S. at 526-28.
- Barnard v. Thorstenn, 489 U.S. 546 (1989); Supreme Ct. of Va. v. Friedman, 487 U.S. 59 (1988); Piper, 470 U.S. at 288.
- State protectionism and discrimination against nonresidents may also implicate the Equal Protection Clause or the Dormant Commerce Clause. See, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 569 n.4 (1997) (challenge to discriminatory state tax exemption made under Dormant Commerce Clause, the Equal Protection Clause, and the Privileges and Immunities Clause).
- See, e.g., Saenz v. Roe, 526 U.S. 489, 501-02 (1999); Doe v. Bolton, 410 U.S. 179, 200 (1973), abrogated on other grounds by Dobbs v. Jackson Women's Health Org., No. 19-1393 (U.S. June 24, 2022; New York v. O'Neill, 359 U.S. 1, 569 (1959).
- See Baldwin v. Fish & Game Comm'n of Mont., 436 U.S. 371, 379 (1978) ("Historically, [the Privileges and Immunities Clause] has been overshadowed by the appearance in 1868 of similar language in § 1 of the Fourteenth Amendment, and by the continuing controversy and consequent litigation that attended that Amendment's enactment and its meaning and application.").
- For sources discussing the historical origins of privileges and immunities under English and colonial law, see, for example, Thomas H. Burrell, A Story of Privileges and Immunities: From Medieval Concept to the Colonies and United States Constitution, 34 Campbell L. Rev. 7 (2011); Robert G. Natelson, The Original Meaning of the Privileges and Immunities Clause, 43 Ga. L. Rev. 1117 (2009).
- James Madison also thought in the Articles' longer version was somewhat unclear. The Federalist No. 42 (James Madison) ("There is a confusion of language [in the Articles' Privileges and Immunities Clause], which is remarkable.").
- 2 The Records of the Federal Convention of 1787, at 173-74 (Max Farrand ed., 1911).
- Id. at 187, 443. Ironically, the only noted objection came from Pinckney himself, who thought "some provision should be included in favor of property in slaves." Id. at 443. (The South Carolinians--the only delegation to vote "no" on the Privileges and Immunities Clause--subsequently obtained a provision to that effect in the form of the Fugitive Slave Clause. Id. at 443, 446; Art. IV, Sec. 2, Clause 3 Slavery).
- David S. Bogen, The Privileges and Immunities Clause of Article IV, 37 Case W. Res. L. Rev. 794, 840 (1986).
- See The Federalist No. 42 (James Madison); The Federalist No. 80 (Alexander Hamilton).
- Austin v. New Hampshire, 420 U.S. 656, 661 (1975) ("[Protection for privileges and immunities] 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.").
- Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 75 (1873).
- 60 U.S. (19 How.) 393, 518, 527-29 (1857) (Catron, J., concurring), superseded by constitutional amendment, Fourteenth Amend., Section 1 Rights.
- Instead, the Court read the Fifth Amendment's Due Process Clause to impose equal protection standards on the federal government. See, e.g., Bolling v. Sharpe, 347 U.S. 497 (1954); Schneider v. Rusk, 377 U.S. 163, 168 (1964); Shapiro v. Thompson, 394 U.S. 618, 641-42 (1969).
- Campbell v. Morris, 3 H. & McH. 288 (Md. 1797); Murray v. McCarty, 2 Munf. 373 (Va. 1811); Livingston v. Van Ingen, 9 Johns. 507 (N.Y. 1812); Douglas v. Stephens, 1 Del. Ch. 465 (1821); Smith v. Moody, 26 Ind. 299 (1866).
- 6 F. Cas. 546, 550 (Washington, Circuit Justice, C.C.E.D. Pa. 1823); see also Hague v. Comm. of Indus. Org., 307 U.S. 496, 511 (1939) ("At one time it was thought that [the Privileges and Immunities Clause] recognized a group of [natural] rights . . . and that the purpose of the section was to create rights of citizens of the United States by guaranteeing the citizens of every State the recognition of this group of rights by every other State. Such was the view of Justice Washington.").Other notable proponents of the natural-rights view include Justices Stephen Johnson Field, Joseph Bradley, and Benjamin Robbins Curtis. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 97-98 (1973) (Field, J., dissenting); id. at 117-18 (Bradley, J., dissenting); Dred Scott, 60 U.S. at 580 (Curtis, J., dissenting). The natural rights concept of privileges and immunities was also strongly held by abolitionists and their congressional allies, who drafted the Privileges or Immunities Clause of the Fourteenth Amendment. Howard Jay Graham, Our 'Declaratory' Fourteenth Amendment, reprinted in Howard Jay Graham, Everyman's Constitution: Historical Essays on the Fourteenth Amendment, the Conspiracy Theory, and American Constitutionalism 295 (1968).
- See, e.g., McKane v. Durston, 153 U.S. 684, 687 (1894).
- See, e.g., City of Detroit v. Osborne, 135 U.S. 492, 498 (1890).
- United States v. Harris, 106 U.S. 629, 643-44 (1883); see also Slaughter-House Cases, 83 U.S. 36, 77 (1872) ("[T]he entire domain of the privileges and immunities of citizens of the States . . . lay within the constitutional and legislative power of the States, and without that of the Federal government."); accord The Federalist No. 80 (Alexander Hamilton).
- United States v. Wheeler, 254 U.S. 281, 298 (1920), disapproved of on other grounds, United States v. Guest, 383 U.S. 745, 759 n.16 (1966). See also Fourteenth Amendment Equal Protection and Other Rights.
- Harris, 106 U.S. at 643. See also Baldwin v. Franks, 120 U.S. 678, 689-90 (1887).
- Wheeler, 254 U.S. at 298.
- See Ryan C. Williams, Originalism and the Other Desegregation Decision, 99 Va. L. Rev. 493, 505-20 (2013) (summarizing the debates over the citizenship status of free Black Americans prior to the Dred Scott decision).
- Art. I, Sec. 8, Clause 3 Commerce; see also Art. I, Sec. 8, Cl. 4: Overview of Naturalization Clause.
- The Constitution uses the phrase "citizen of the United States" in several places, including the qualifications for Members of Congress, see Art. I, Sec. 2, Clause 2 Qualifications, and for the Presidency (which additionally requires the person to be a "natural born" citizen), see Art. II, Sec. 1, Clause 5 Qualifications. State citizenship is referenced in the Privileges and Immunities Clause and Article III's provisions for federal jurisdiction, see Art. III, Sec. 2, Clause 1 Cases or Controversies.
- Williams, supra note here, at 507 (citing James H. Kettner, The Development of American Citizenship, 1608-1870, at 287 (1978)).
- Scott v. Sandford, 60 U.S. (19 How.) 393, 403-27 (1857) (Taney, C.J.), superseded by constitutional amendment, Fourteenth Amend., Section 1 Rights.
- Id. at 402-05.
- Id. at 427.
- Id. at 573-76 (Curtis, J., dissenting). On the contrary, Justice Curtis asserted that there was "no doubt" that free native-born Black residents were citizens of states such as New Hampshire, Massachusetts, New York, North Carolina, and New Jersey, and had the right to vote in some of them. Id.
- Id. at 576-90.
- Fourteenth Amend., Section 1 Rights.
- W. & S. Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 656 (1981) (citing Hemphill v. Orloff, 277 U.S. 537, 548-50 (1928)).
- Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 586-87 (1839) (Taney, C.J.).
- 75 U.S. (8 Wall.) 168, 180-81 (1869) (Field, J.).
- Blake v. McClung, 172 U.S. 239, 259 (1898). See also, e.g., Anglo-Am. Provision Co. v. Davis Provision Co., 191 U.S. 373, 374 (1903) (Holmes, J.); Waters-Pierce Oil Co. v. Texas, 177 U.S. 28, 45 (1900).
- Hemphill, 277 U.S. at 548-50.
- See Tenn. Wine & Spirits Retailers Ass'n v. Thomas, No. 18-96, slip op. at 8 (U.S. June 26, 2019); Asbury Hosp. v. Cass Cnty., N.D., 326 U.S. 207, 211 (1945).
- Santa Clara Cnty. v. S. Pac. R. Co., 118 U.S. 394 (1886).
- See generally Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 342 (2010) (collecting cases).
- See Marshall v. Barlow's, Inc., 436 U.S. 307, 311 (1978).
- See, e.g., Tenn. Wine & Spirits, No. 18-96, slip op. at 10; see generally Art. I, Sec. 8, Cl. 3: Overview of Dormant Commerce Clause; Art. I, Sec. 8, Cl. 3: General Prohibition on Facial Discrimination.
- But see Tyler Pipe Indus., Inc. v. Wash. State Dep't of Revenue, 483 U.S. 232, 264-65 (1987) (Scalia, J., concurring in part and dissenting in part) (criticizing Dormant Commerce Clause doctrine as textually and historically unjustified and noting that "discrimination against citizens of other States" is more properly regulated by the Privileges and Immunities Clause).
- 6 F. Cas. 546 (Washington, Circuit Justice, C.C.E.D. Pa. 1823); Austin v. New Hampshire, 420 U.S. 656, 661 (1975) (characterizing Corfield as "the first, and long the leading, explication of the [Privileges and Immunities] Clause").
- Corfield, 6 F. Cas. at 550.
- Id. at 551.
- Id. at 552.
- Baldwin v. Fish & Game Comm'n of Mont., 436 U.S. 371, 387 (1978).
- See, e.g., Hicklin v. Orbeck, 437 U.S. 518, 524 (1978); Toomer v. Witsell, 334 U.S. 385, 403 (1948); Ward v. Maryland, 79 U.S. 418, 430 (1870).
- See, e.g., Supreme Ct. of N.H. v. Piper, 470 U.S. 274 (1985).
- See United Bldg. & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208 (1984).
- See, e.g., Blake v. McClung, 172 U.S. 239, 258 (1898); see also Williams v. Bruffy, 96 U.S. 176, 184 (1878).
- See, e.g., Can. N. Ry. v. Eggen, 252 U.S. 553, 560 (1920).
- See, e.g., Toomer, 334 U.S. at 403; Mullaney v. Anderson, 342 U.S. 415, 418 (1952).
- Baldwin v. Fish & Game Comm'n of Mont., 436 U.S. 371, 388 (1978); McCready v. Virginia, 94 U.S. 391, 395 (1876).
- McBurney v. Young, 569 U.S. 221, 228-29 (2013). The Court further found that any incidental burden on a nonresident's ability to earn a living, own property, or exercise another fundamental activity could largely be ameliorated by using other available authorities, emphasizing that the primary purpose of the state freedom of information act was to provide state citizens with a means to obtain an accounting of their public officials. Id.
- Blake v. McClung, 172 U.S. 239, 256 (1898). As to voting rights, see Dunn v. Blumstein, 405 U.S. 330 (1972), but not as to candidacy, this exception is qualified by the Fourteenth Amendment's Equal Protection Clause. Baldwin v. Fish & Game Comm'n of Mont., 436 U.S. 371, 383 (1978) (citing Kanapaux v. Ellisor, 419 U.S. 891 (1974); Chimento v. Stark, 353 F. Supp. 1211 (D.N.H. 1973), aff'd, 414 U.S. 802 (1973)).
- La Tourette v. McMaster, 248 U.S. 465 (1919).
- Doherty & Co. v. Goodman, 294 U.S. 623 (1935).
- Hess v. Pawloski, 274 U.S. 352, 356 (1927).
- Ferry v. Spokane, P. & S. Ry., 258 U.S. 314 (1922); accord Ferry v. Corbett, 258 U.S. 609 (1922).
- Conner v. Elliott, 59 U.S. (18 How.) 591, 593 (1856).
- See Art. IV, Sec. 2, Cl. 1: Privileges and Immunities of Citizens Defined.
- Corfield v. Coryell, 6 F. Cas. 546, 552 (Washington, Circuit Justice, C.C.E.D. Pa. 1823).
- 94 U.S. 391, 395-96 (1877).
- 161 U.S. 519 (1896), overruled by Hughes v. Oklahoma, 441 U.S. 322 (1979).
- 209 U.S. 349, 357 (1908), overruled by Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982).
- See Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 284 (1977) ("The 'ownership' language of cases such as [Geer and McCready] must be understood as no more than a 19th-century legal fiction expressing 'the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.'" (citing Toomer v. Witsell, 344 U.S. 385, 402 (1948)).
- 436 U.S. 371, 372-74 (1978).
- Id. at 386.
- Id. at 386-88.
- See Art. IV, Sec. 2, Cl. 1: Occupations and Privileges and Immunities Clause.
- Baldwin, 436 U.S. at 388; cf. Toomer v. Witsell, 334 U.S. 385, 403 (1948) (holding that commercial shrimping "like other common callings, is within the purview of the privileges and immunities clause").
- See, e.g., Hicklin v. Orbeck, 437 U.S. 518, 524 (1978).
- Articles of Confederation of 1781 art. IV, § 1. The Supreme Court has interpreted the constitutional provision to have "no change of substance or intent" from the Articles' version. Austin v. New Hampshire, 420 U.S. 656, 661 (1975).
- Toomer v. Witsell, 334 U.S. 385, 396 (1948).
- Id. at 403.
- Mullaney v. Anderson, 342 U.S. 415, 418 (1952).
- Hicklin v. Orbeck, 437 U.S. 518, 531 (1978).
- 470 U.S. 274, 283 (1985).
- Id. at 288; accord Supreme Ct. of Va. v. Friedman, 487 U.S. 59, 61 (1988); Barnard v. Thorstenn, 489 U.S. 546, 558-59 (1989).
- Frazier v. Heebe, 482 U.S. 641, 649 (1987). Although it drew upon Piper, Frazier was decided under the Court's inherent supervisory authority, rather than on constitutional grounds. Id. at 645.
- Chambers v. Balt. & Ohio R.R., 207 U.S. 142, 148 (1907); McKnett v. St. Louis & S.F. Ry., 292 U.S. 230, 233 (1934); see also Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002) (noting that the Supreme Court has at various times grounded "the right of access to courts" in the Privileges and Immunities Clause, the First Amendment, the Fifth Amendment, and the Fourteenth Amendment).
- Can. N. Ry. v. Eggen, 252 U.S. 553 (1920).
- Id. at 563.
- Chemung Canal Bank v. Lowery, 93 U.S. 72, 76 (1876).
- Douglas v. N.Y., New Haven & Hartford R.R., 279 U.S. 377 (1929).
- Chambers, 207 U.S. 142.
- New York v. O'Neill, 359 U.S. 1 (1959).
- A territorial government, if authorized by Congress, may impose a discriminatory license tax on nonresident fishermen operating within its waters consistent with the Privileges and Immunities Clause. See Haavik v. Alaska Packers Ass'n, 263 U.S. 510 (1924). The Court in Haavik reasoned that "citizens of every state are treated alike" under the tax because "[o]nly residents of the territory are preferred." Id.
- 79 U.S. (12 Wall.) 418, 424 (1871); see also Downham v. Alexandria Council, 77 U.S. (10 Wall.) 173, 175 (1870).
- Chalker v. Birmingham & N.W. Ry., 249 U.S. 522 (1919).
- 252 U.S. 60 (1920).
- Id. at 62-64; see also Shaffer v. Carter, 252 U.S. 37 (1920). In Austin v. New Hampshire, 420 U.S. 656 (1975), the Court held void a state commuter income tax because the State imposed no income tax on its own residents; thus, the tax fell exclusively on nonresidents' income and was not offset even approximately by other taxes imposed upon residents alone. Id. at 665-66.
- Williams v. Fears, 179 U.S. 270, 274 (1900).
- 522 U.S. 287 (1998).
- Id. at 297.
- Id. at 298.
- Id. at 302.
- Id. at 315.
- Travellers' Ins. Co. v. Connecticut, 185 U.S. 364, 371 (1902).
- Maxwell v. Bugbee, 250 U.S. 525 (1919).
- Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879).
- See, e.g., Ward v. Maryland, 79 U.S. 418, 430 (1870) ("[The Privileges and Immunities] clause plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union . . . ."); Paul v. Virginia, 75 U.S. 168, 180 (1868) (stating that the Privileges and Immunities Clause includes "the right of free ingress into other States, and egress from them"), overruled on other grounds by United States v. S.-E. Underwriters Ass'n, 322 U.S. 533 (1944); see generally United States v. Guest, 383 U.S. 745, 762-67 (1966) (Harlan, J., concurring in part and dissenting in part) (surveying cases).
- See Guest, 383 U.S. at 759 ("Although there have been recurring differences in emphasis within the Court as to the source of the constitutional right of interstate travel, there is no need here to canvass those differences further. All have agreed that the right exists.").
- Doe v. Bolton, 410 U.S. 179, 200 (1973), abrogated on other grounds by Dobbs v. Jackson Women's Health Org., No. 19-1393 (U.S. June 24, 2022).
- Id. at 501 (citing Articles of Confederation of 1781 art. IV, § 1).
- Id. at 501-502.
- Id. at 502-03 (citing Fourteenth Amend., Section 1 Rights). The Commerce Clause is another potential textual basis for the right to travel. See Guest, 383 U.S. at 758 (citing Edwards v. California, 314 U.S. 160, 173 (1941)).