Privileges and Immunities

Privileges and Immunities Two provisions in the Constitution protect the “privileges and immunities” of American citizens. The first is Article IV, section 2, which provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states.” The second appears in section 1 of the Fourteenth Amendment, and reads: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” While “privileges and immunities” are not defined, the idea that states could not discriminate against citizens of other states was regarded by Alexander Hamilton as “the basis of the Union” (The Federalist, no. 78).

The Article IV Privileges and Immunities Clause

The earliest interpretation of this provision was given by Justice Bushrod Washington on circuit in Corfield v. Coryell (1823). A New Jersey statute prohibited any person not a resident of the state from gathering oysters in the state's waters. Washington asserted that the statute did not violate the Privileges and Immunities Clause because that clause protected only those privileges and immunities “which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments”—for example, “Protection by the government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind,” and the right of access to the state's courts. The gathering of oysters owned in common by the citizens of another state was not such a right (see Fundamental Rights).

Justice Owen Roberts noted in Hague v. Congress of Industrial Organizations (1939) that the Article IV Privileges and Immunities Clause “recognized a group of rights which, according to the jurisprudence of the day, were classed as ‘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” (p. 511) (see Natural Law). Because the clause was not viewed as interposing the federal government between a state and its own citizens as a guarantor of fundamental rights, though, the clause amounted to a ban on discrimination by a state between the state's own citizens and citizens of other states. Thus, in Ward v. Maryland (1871), the Court invalidated a state law prohibiting nonresident merchants from selling agricultural products grown or articles manufactured outside the state without first obtaining a license for a fee higher than that charged to in‐state residents. In Blake v. McClung (1898), the Court struck down a state statute that gave priority to in‐state creditors over out‐of‐state creditors. In Toomer v. Witsell (1948), the Court voided discriminatory license fees for out‐of‐state shrimp fishermen in South Carolina waters. A Georgia law that allowed only residents of the state to obtain abortions in Georgia was struck down in Doe v. Bolton (1973). In Hicklin v. Orbeck (1978), the Court invalidated an Alaska law giving preference to Alaska residents for jobs on construction of the Alaska pipeline. And in Supreme Court of New Hampshire v. Piper (1985), the Court ruled that states may not exclude nonresidents from admission to the practice of law. On the other hand, in Vlandis v. Piper (1973) the Court held that states may offer lower tuition for in‐state residents than for out‐of‐state residents; subsidized education, like the oyster harvesting at issue in Corfield, was held not to be a fundamental privilege of citizenship. Similarly, in Baldwin v. Fish and Game Commission of Montana (1978), the Court rejected a Privileges and Immunities Clause challenge to Montana's assessment of higher hunting license fees to out‐of‐state residents; game hunting for recreational (as opposed to livelihood) purposes was not a privilege of citizenship protected by the clause.

Much of the antidiscrimination purpose of the clause is now handled under the Court's dormant Commerce Clause jurisprudence, but as the Court recognized in Hicklin, the two clauses are not entirely coextensive. Corporations may challenge discriminatory state law under the dormant Commerce Clause but not the Privileges and Immunities Clause (e.g., Paul v. Virginia, 1869), while the Privileges and Immunities Clause prohibits discrimination against out‐of‐state citizens whether or not a burden on interstate commerce is involved (Hague).

The Fourteenth Amendment's Privileges or Immunities Clause

The second privileges and immunities provision appears in section 1 of the Fourteenth Amendment. During debates surrounding adoption of the Fourteenth Amendment, Justice Washington's interpretation of the parallel Privileges and Immunities Clause in Article IV was frequently referenced. While the Article IV clause was designed to ensure that states not discriminate against other states'citizens in the protection of fundamental rights, the Fourteenth Amendment's Privileges or Immunities Clause was designed to ensure that states afforded basic fundamental rights to their own citizens, bridging the gap left by Article IV (Colgate v. Harvey, 1935). As Senator Jacob M. Howard, a major figure in the drafting of the Fourteenth Amendment, noted during debate in the Senate over the proposed amendment, “The great object of the amendment is … to restrain the power of the States and compel them at all times to respect [the] great fundamental guarantees” of the Article IV Privileges and Immunities Clause and the Bill of Rights.

This “great object” of the Fourteenth Amendment's Privileges or Immunities Clause was short‐lived, however. In the first major litigation implicating the new clause, the claim that legislation granting a slaughtering monopoly to certain butchers in New Orleans violated the privileges or immunities of competitors was rejected. Justice Samuel F. Miller, writing for a bare 5‐to‐4 majority in the Slaughterhouse Cases (1873), held that the privileges or immunities of state citizens were not properly a national concern but rather “are left to the State governments for security and protection” (p. 78). Justice Stephen J. Field, dissenting, charged that this interpretation made the Privileges or Immunities Clause “a vain and idle enactment” (p. 96).

In Slaughterhouse the Court also rejected enforcement of the Fourteenth Amendment's Due Process Clause against the monopoly, but the Due Process and Equal Protection Clauses have subsequently both been held to protect substantive rights arguably of a kind that the Privileges or Immunities Clause was originally designed to protect (see Due Process, Substantive; Equal Protection). The Privileges or Immunities Clause itself was from 1873 to 1999 largely limited to protecting the few rights of “national citizenship” (as opposed to state citizenship) that Justice Miller noted in Slaughterhouse were covered by the clause, such as the right to petition Congress and to use the ports of the United States. In Colgate v. Harvey, the Court briefly suggested that the clause was a limitation on state taxing power, but that holding was quickly reversed in Madden v. Kentucky (1940) (see State Taxation). In Edwards v. California (1941), three justices ruled that the right to travel from state to state was guaranteed by the Privileges or Immunities Clause, but the majority invoked the Commerce Clause to achieve the same result.

Justice John Paul Stevens, writing for the Court in Saenz v. Roe (1999), revived the clause, holding that California's statute restricting welfare benefits for new residents to the level they would have received in the state of their prior residence violated the right to travel inherent in the Fourteenth Amendment's Privileges or Immunities clause. Justice Clarence Thomas, the current Court's sole natural rights jurist, dissented, finding the majority's reliance on the clause to be “dubious at best” because the historical understanding of the clause was that it protected only fundamental rights, not “every public benefit established by positive law” (p. 527). Nevertheless, he was open to “reevaluating” the clause in an appropriate case because of his belief that the demise of the clause in the Slaughterhouse Cases “contributed in no small part to the current disarray of [the Court's] Fourteenth Amendment jurisprudence” (pp. 527–528). Before invoking the clause, however, Justice Thomas thought the Court “should endeavor to understand what the Framers of the Fourteenth Amendment thought that it meant” and “should also consider whether the Clause should displace, rather than augment, portions of [the Court's] equal protection and substantive due process jurisprudence” (p. 528). The scholarly inquiry invited by Justice Thomas in the wake of Justice Steven's revival of the clause is currently under way.

See also Citizenship; Fourteenth Amendment.

Bibliography

Akhil Reed Amar , Did the Fourteenth Amendment Incorporate the Bill of Rights Against States? Harvard Journal of Law & Public Policy 19 (1996): 443–449 (1996).
Michael Kent Curtis , No State Shall Abridge (1986).
John C. Eastman , The Declaration of Independence as Viewed from the States, in The Declaration of Independence: Origins and Impact, edited by Scott Douglas Gerber (2002), pp. 96–117.
Charles Fairman , Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, Stanford Law Review 2 (1949): 5–139.
John Harrison , Reconstructing the Privileges or Immunities Clause, Yale Law Journal (1992): 1385–1474.
Douglas W. Kmiec , Natural‐Law Originalism—Or Why Justice Scalia (Almost) Gets It Right, Harvard Journal of Law & Public Policy 20 (1997): 627–653.
Philip B. Kurland , The Privileges or Immunities Clause: ‘Its Hour Come Round at Last’? Washington University Law Quarterly (1972): 405–420.
Clarence Thomas , The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment, Harvard Journal of Law & Public Policy 12 (1989): 63–70.
Laurence H. Tribe , Comment, Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future—Or Reveal the Structure of the Present?, Harvard Law Review 113 (1999): 110–198.

C. Hermann Pritchett, revised by and John C. Eastman