Privileges And Immunities Clause

Contents

1. Overview
2. Etymology
3. Cultural Impact

Ah, the Privileges and Immunities Clause . Because even in the grand experiment of states, someone had to remind them not to act like petty landlords. This particular provision, nestled within Article IV , Section 2, Clause 1 of the U.S. Constitution – sometimes referred to, with a certain lack of imagination, as the Comity Clause – essentially acts as a constitutional bouncer, preventing a state of the United States from treating citizens who happen to hail from other states in a discriminatorily unfavorable manner. It’s meant to foster a sense of national unity, ensuring that merely crossing a state line doesn’t strip you of fundamental rights. Beyond its primary function, a rather crucial aspect of interstate travel has also become inextricably associated with the clause, suggesting a fundamental liberty to move freely within the nascent American republic.

It’s important, for those who struggle with nuance, not to confuse this with the distinct, albeit related, Privileges or Immunities Clause found in the Fourteenth Amendment . While their names whisper of similar intent, their historical interpretations and practical applications diverged significantly, often to the detriment of broader rights protection. One could almost say they’re like two siblings who started with the same aspirations but ended up on vastly different career paths.

Text

The clause itself, a masterpiece of brevity (or perhaps, a testament to the Framers’ disinterest in over-explaining), declares:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A hand-written copy of this very Privileges and Immunities Clause from 1787 serves as a stark reminder of the foundational ink that dried on these principles. It’s a simple sentence, yet its implications have echoed through centuries of legal battles, proving that sometimes, the shortest declarations spawn the longest arguments.

Prior to Ratification of Constitution

Before the gleaming edifice of the U.S. Constitution stood complete, a precursor to this clause existed within the more ramshackle framework of the Articles of Confederation . That earlier provision, perhaps a bit more descriptive in its exclusions, stated: “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.” One might note the rather pointed exclusions, a charming touch of early American social stratification.

James Madison , ever the meticulous architect of the new republic, shed some light on this provision of the Articles of Confederation in his reflections within Federalist No. 42 . Madison, with his characteristic precision, observed, “Those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State.” This rather intriguing statement suggests that, under the Articles, a “free inhabitant” of one state might actually gain more rights by traveling to another, a peculiar quirk of the early confederation. Crucially, Madison apparently did not believe that this clause in the Articles of Confederation was intended to dictate how a state must treat its own citizens, but rather how it must treat those arriving from elsewhere.

Alexander Hamilton , with his usual flair for the dramatic and an eye firmly fixed on national cohesion, articulated in Federalist No. 80 that the corresponding Privileges and Immunities Clause in the proposed federal Constitution was nothing less than “the basis of the union.” A strong claim, perhaps, but one that underscores the Framers’ understanding that a truly unified nation could not tolerate a patchwork of discriminatory state laws against its own people simply for crossing a border. They understood, with a foresight that frankly impresses, that such internal divisions would unravel the very fabric they sought to weave.

Between Ratification and the Civil War

The early interpretations of this clause, prior to the seismic upheaval of the Civil War , largely set the stage for its enduring, if sometimes limited, scope. In the federal circuit court case of Corfield v. Coryell [1] in 1823, Justice Bushrod Washington (a name that carries a certain weight, wouldn’t you agree?) offered an early, influential definition. He wrote that the protections afforded by the clause were strictly “confined to privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.” This articulation served as a foundational, albeit somewhat vague, benchmark for what constituted a “privilege” or “immunity” under the clause. It suggested a core set of rights inherent to free citizenship, not merely those granted by the whim of a particular state.

Justice Washington, in his further elucidation of these “fundamental” rights, enumerated a scope that included the crucial right to travel through and reside in states, the entitlement to the writ of habeas corpus (a rather essential safeguard against arbitrary detention, one might argue), the right of access to the courts, the fundamental liberty to purchase and hold property , and a protection against being subjected to higher taxes than those paid by the state’s own residents. It’s a rather practical list, focusing on the basic operational elements of citizenship and commerce. However, it is vital to note that the Corfield v. Coryell case specifically concerned the rights of an out-of-state citizen. Justice Washington’s opinion, and indeed his own handwritten notes discovered later [2], consistently indicated his belief that this constitutional provision was not intended to dictate how a state legislature was obliged to treat its own citizens. The clause was a shield for the transient, not a sword for the resident against their own state government.

Following Justice Washington, his successor, Justice Henry Baldwin , also weighed in on the clause from a federal circuit court. In the case of Magill v. Brown [3], Justice Baldwin echoed a similar sentiment, articulating that “We must take it therefore as a grant by the people of the state in convention, to the citizens of all the other states of the Union, of the privileges and immunities of the citizens of this state.” These federal circuit court pronouncements by Justices Washington and Baldwin were, in essence, two sides of the same coin. They presented a consistent, albeit limited, understanding of the clause’s reach, and their views subsequently became the settled doctrine of the U.S. Supreme Court in the aftermath of the Civil War .

In 1833, the eminent Justice Joseph Story contributed his thoughts on the clause in his seminal Commentaries on the Constitution [4]. He observed, with a clarity that sometimes eludes modern legal texts:

It is obvious, that, if the citizens of each state were to be deemed aliens to each other, they could not take, or hold real estate, or other privileges, except as other aliens. The intention of this clause was to confer on them, if one may so say, a general citizenship; and to communicate all the privileges and immunities, which the citizens of the same state would be entitled to under the like circumstances.

Story’s interpretation here emphasizes the practical necessity of the clause: without it, the states would function more like distinct, often hostile, nations. It aimed to prevent the absurd scenario of internal “aliens.” Thus, Story surmised that the clause was primarily conceived “only to provide temporary visitors with equality in certain rights with the citizens of the states they were visiting” [5]. A pragmatic view, perhaps, but one that certainly curbed any more expansive interpretations.

The clause even made an appearance in the truly infamous Dred Scott v. Sandford decision of 1857 – a legal debacle that perhaps best illustrates the dangers of judicial overreach and moral cowardice. In that regrettable ruling, Chief Justice Taney , speaking for the majority, ironically declared that the clause granted state citizens, when traveling in other states, the right to travel , the right to sojourn (to reside temporarily), the right to free speech , the right to assemble , and even the right to keep and bear arms [6]. The irony, of course, being that this enumeration of rights was made in the same breath as denying the very citizenship and fundamental humanity of African Americans, free or enslaved. In a rare flicker of judicial integrity, Justice Curtis , in his powerful dissent, countered that the clause did not confer any rights beyond those that a visited state chose to guarantee to its own citizens [7]. His argument, though ultimately overshadowed by the majority’s tragic error, highlighted the critical distinction that would continue to define the clause’s application.

After the Civil War

The aftermath of the Civil War and the subsequent push for Reconstruction amendments brought the Privileges and Immunities Clause back into sharper focus, albeit briefly. In 1866, during the heated congressional debates surrounding the draft Fourteenth Amendment to the United States Constitution , Senator Jacob Howard pointedly observed that the U.S. Supreme Court had, with remarkable consistency, avoided squarely defining the clause’s meaning. He remarked, with a touch of exasperation, “It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States….I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guarantied.” [8] It’s almost as if the Court preferred to leave such matters to the realm of philosophical speculation rather than concrete legal definition.

Two years later, in 1868, the Fourteenth Amendment was ratified, introducing its own “Privileges or Immunities” clause, a development that would ultimately eclipse the Article IV clause in judicial significance. Yet, the Supreme Court remained silent on the original clause. It wasn’t until November 1, 1869, that the Court finally addressed the issue with some degree of specificity in the case of Paul v. Virginia , found at 75 U.S. 168 (1868). In this pivotal decision, the Court articulated its understanding:

It was undoubtedly the object of the clause in question 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.

This passage from Paul v. Virginia is a rather comprehensive statement, outlining the core tenets of the clause: preventing states from treating out-of-state citizens as foreigners, prohibiting discriminatory laws, guaranteeing freedom of movement (ingress and egress), ensuring equal property rights and the pursuit of “happiness” (a rather broad term, that), and securing equal protection under the laws. However, the Court swiftly added a crucial limitation, explaining that the laws of one state could not simply impose themselves upon another: “It was not intended by the provision to give to the laws of one State any operation in other States. They can have no such operation, except by the permission, express or implied, of those States.” These specific sections of Paul v. Virginia have remarkably stood the test of time, remaining good law and notably relied upon in later cases such as Saenz v. Roe , 526 U.S. 489 (1999). It’s worth noting, for clarity’s sake, that other portions of Paul v. Virginia were, in fact, later reversed in U.S. v. South-Eastern Underwriters Ass’n , 322 U.S. 533 (1944), demonstrating the dynamic, often contradictory, nature of legal precedent. Nevertheless, the Court has remained steadfast in its core principle from Paul v. Virginia : the Privileges and Immunities Clause in Article IV of the Constitution holds no sway over how a state chooses to treat its own citizens. In-state residents, as the Court explicitly stated in United Building & Construction Trades Council v. Mayor and Council of Camden , 465 U.S. 208 (1984), “have no claim under the Privileges and Immunities Clause.” It’s a clause designed for the traveler, not the local.

The Privileges and Immunities Clause thus acts as a bulwark against discrimination targeting out-of-state individuals, but only when it concerns what the Court deems “basic rights.” To determine if a violation has occurred, the Court employs a two-part test, a rather clinical approach to fundamental liberties. The first part involves assessing whether a particular law discriminates against non-residents with respect to rights considered fundamental. These “fundamental rights” are broadly understood to encompass protections like the government’s duty to safeguard life and liberty, the right to acquire and possess all forms of property , and the rather aspirational right to pursue and obtain happiness and safety. In practice, these rights frequently coalesce around the economic freedom to pursue a livelihood, a rather pragmatic focus for a nation built on commerce.

The second part of this judicial inquiry shifts to examining whether the state can offer a compelling justification for its discriminatory treatment. This involves a two-pronged analysis: first, determining if there is a substantial reason for the differential treatment, and second, evaluating whether the discriminatory law bears a substantial relationship to that asserted reason. For example, in the case of Baldwin v. Fish and Game Commission of Montana , 436 U.S. 371 (1978), the Court posed the question: “Does the distinction made by Montana between residents and nonresidents in establishing access to elk hunting threaten a basic right in a way that offends the Privileges and Immunities Clause?” The Court ultimately concluded that it did not, because hunting, in its estimation, was a recreational sport, placing it outside the ambit of the fundamental rights protected by the Constitution. Had the Court, in a moment of existential contemplation, decided that recreation and sports were fundamental rights, it would then have been compelled to proceed to the second part of the test, scrutinizing whether the state had a compelling interest (such as protecting elk herds from being over-hunted) and whether the challenged law was appropriately tailored to address that specific problem. Apparently, the pursuit of happiness has its limits when it comes to elk.

The Court’s decision in the infamous Slaughterhouse Cases (1873) further solidified this restrictive interpretation. This ruling, often seen as a significant narrowing of post-Civil War constitutional protections, remained consistent with the idea that the Privileges and Immunities Clause was primarily intended to guarantee that a citizen of one state would enjoy equality with regard to fundamental rights when present in another state. Referring explicitly to Justice Washington’s eloquent words in Corfield , the Slaughterhouse Cases Court stated [9]:

[P]rivileges and immunities….are, in the language of Judge Washington, those rights which are fundamental. Throughout his opinion, they are spoken of as rights belonging to the individual as a citizen of a State….The constitutional provision there alluded to did not create those rights….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. Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. (emphasis added)

This passage, with its added emphasis, starkly clarifies the clause’s limited scope. It did not create new rights, nor did it dictate how a state must treat its own citizens. Its sole, rather modest, purpose was to ensure that whatever rights a state chose to bestow upon its residents, it must extend the same courtesy—no more, no less—to citizens visiting from other states. The Supreme Court has, with remarkable consistency, never interpreted the Privileges and Immunities Clause as compelling any state to protect general rights of citizenship beyond those it already extends to its own citizens. The only caveat, a rather obvious one, is that even a state’s own citizens must be permitted to leave the state to enjoy those privileges and immunities elsewhere. [ citation needed ] One might infer that forced residency would indeed present certain constitutional difficulties.

Right to travel

The very essence of the Privileges and Immunities Clause , stating that a citizen of one state is entitled to the privileges afforded in another, inherently implies a fundamental right to travel between these states [10]. This inference is not merely academic; it carries significant practical weight. Under this clause, the implementation of something akin to an internal passport , a bureaucratic nuisance still found in a small, less-than-enlightened minority of countries, would be unequivocally unconstitutional in the United States [11]. Imagine the sheer inconvenience, the indignity, of needing official permission to simply cross from Ohio to Pennsylvania. Such a system would utterly undermine the “basis of the union” that Hamilton so presciently identified.

Indeed, the Supreme Court itself, in the 1982 case of Zobel v Williams , saw the undeniable connection. A majority of the Justices agreed that the Privileges and Immunities Clause plausibly encompasses a fundamental right of interstate travel [12]. Justice Sandra Day O’Connor , in her insightful explanation [13], meticulously traced this right back through history:

Article 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.” 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….Similarly, in Paul v. Virginia, the Court found that one of the “undoubt[ed]” effects of the Clause was to give “the citizens of each State . . . the right of free ingress into other States, and egress from them….

Justice O’Connor’s historical deep dive illustrates that the omission of “free ingress and regress” from the final constitutional text was not an oversight or an intentional removal of the right, but rather a presumption that the broader “privileges and immunities” already encompassed it. The Framers, in their infinite wisdom, decided redundancy was a sin, even if clarity occasionally suffered. Despite the weight of scholarly and judicial opinions acknowledging this inherent right, the precise contours of the Privileges and Immunities Clause ’s relationship to the right to travel is not entirely without controversy, though one might wonder who exactly finds such a fundamental concept controversial, or why they bother [ which? [ who?](/Wikipedia:Manual_of_Style/Words_to_watch) [ clarification needed](/Wikipedia:Please_clarify) [14]. Some debates, it seems, are simply destined to persist in legal circles, perhaps for the sheer intellectual exercise.

Miscellaneous

A notable distinction of the Privileges and Immunities Clause is its lack of a “market participant” exception, a feature that sets it apart from its more frequently invoked cousin, the Dormant Commerce Clause . This means that even when a state chooses to act as a direct producer or supplier of a marketable good or service—essentially stepping into the shoes of a private business—the Privileges and Immunities Clause may still prevent it from discriminating against non-residents [15]. Unlike its more lenient counterpart, which might permit a state to favor its own residents when acting as a market participant, this clause doesn’t care if a state is playing shopkeeper; discrimination against out-of-staters regarding fundamental rights is still frowned upon. It’s a subtle but critical difference that underscores the clause’s protective reach against certain forms of state protectionism.

The clause’s reach extends beyond the continental U.S. state s. Following the grant of U.S. citizenship to Puerto Ricans through the Jones–Shafroth Act in 1917, the U.S. Congress took a further step. In 1947, a law signed by President Truman [16] explicitly extended the constitutional clause to U.S. citizens residing within the jurisdiction of Puerto Rico [17]. This legislative action declared:

The rights, privileges, and immunities of citizens of the United States shall be respected in Puerto Rico to the same extent as though Puerto Rico were a State of the Union and subject to the provisions of paragraph 1 of section 2 of article IV of the Constitution of the United States.

This was a significant development, ensuring that citizens in Puerto Rico , despite its unique territorial status, were afforded the same protections against discrimination from other states (and by extension, the local government as if it were a state for this purpose) as their counterparts in the mainland states. In the 1970s, the Supreme Court further elaborated on the application of constitutional protections to Puerto Rico . Without extensive elaboration, the Court began to recognize the application of several specific Constitutional protections found within the Bill of Rights to the island. In its opinions, the Court consistently referenced the historical insular cases of Downes and Balzac as precedent for extending these fundamental constitutional rights to the territory [18]. This judicial evolution, though incremental, underscored the ongoing effort to define the constitutional relationship between the United States and its territories, an endeavor that, like many legal journeys, is rarely straightforward.

Footnotes

[1] Corfield v. Coryell , 6 Fed. Cas. 546 (C.C.E.D.Pa. 1823) Archived 2015-06-22 at the Wayback Machine .
[2] Magliocca, Gerard . “Not King Tut’s Tomb, But…” Archived 2017-10-21 at the Wayback Machine , Concurring Opinions (October 8, 2017), discussing Justice Bushrod Washington’s notes on Corfield v. Coryell at the Chicago History Museum .
[3] Magill v. Brown, 16 Fed. Cas. 408 (C.C.E.D. Pa. 1833)
[4] Story, Joseph. Commentaries on the Constitution (1833), § 1800.
[5] Curtis, Michael Kent. No State Shall Abridge, page 67 (1986), via Google Books.
[6] Dred Scott v. Sandford Archived 2013-08-15 at the Wayback Machine , 60 U.S. 393 at 417 (1857).
[7] Dred Scott, 60 U.S. 393 at 584: “It rests with the States themselves so to frame their Constitutions and laws as not to attach a particular privilege or immunity to mere naked citizenship” (Curtis dissenting).
[8] Sen. Jacob Howard (May 23, 1866), quoted in Adamson v. California Archived 2011-08-09 at the Wayback Machine , 332 U.S. 46.
[9] Slaughterhouse Cases , 83 U.S. 36 (1873). Via Cornell Law School .
[10] Bogen, David. “The Privileges and Immunities Clause of Article IV”, Case Western Reserve Law Review, Vol. 37, p. 794, 847 (1987).
[11] Bogen, David. “The Privileges and Immunities Clause of Article IV”, Case Western Reserve Law Review, Vol. 37, p. 794, 847 (1987).
[12] Zobel v. Williams , 457 U.S. 55 (1982). Justice William Brennan , speaking for Justices Thurgood Marshall , Harry Blackmun , and Lewis Powell said: “Justice O’Connor plausibly argues that the right [to travel] predates the Constitution, and was carried forward in the Privileges and Immunities Clause of Art. IV” (citation omitted). Id. at 66.
[13] Zobel at 79 (citations omitted).
[14] Natelson, Robert. “The Original Meaning of the Privileges and Immunities Clause”, Georgia Law Review, Vol. 43 1117-1193, at 1183 (2009).
[15] United Building & Construction Trades Council v. Camden (1984).
[16] This federal law is currently codified in the U.S. Code as 48 U.S.C. § 737.
[17] “Puerto Rico Status Hearing before the Committee on Resources House of Representative One Hundred Fifth Congress” (PDF). U.S. Government Printing Office. Archived (PDF) from the original on 2 February 2009. Retrieved 7 June 2009.
[18] See, e.g., Examining Board of Engineers, Architects and Surveyors v. Flores de Otero , 426 U.S. 572, 600 (1976) (Equal Protection); Torres v. Puerto Rico , 442 U.S. 465, 469 (1979) (Fourth Amendment); Posadas de Puerto Rico v. Tourism Co. , 478 U.S. 328, 331 n.1 (1986) (First Amendment).

Bibliography

Farber, Daniel A.; Eskridge, William N., Jr.; Frickey, Philip P. Constitutional Law: Themes for the Constitution’s Third Century. Thomson-West Publishing, 2003.
- ISBN 0-314-14353-X
Hall, Kermit L. ed. The Oxford Companion to the Supreme Court of the United States, Second Edition. Oxford University Press, 2005.
- ISBN 0-19-511883-9
Rich, William J. “Why ‘Privileges or Immunities’? An Explanation of the Framers’ Intent,” Akron Law Review, 42 (no. 4, 2009), 1111–27.

External links

The Founders’ Constitution provides source materials regarding the original meaning of the Privileges and Immunities Clause .
Findlaw describes case law relevant to the Privileges and Immunities Clause .