PRIVILEGES AND IMMUNITIES

The Constitution's two privileges and immunities clauses were born of different historical circumstances and inspired by different purposes. Yet they are bound together by more than their textual similarity. Both clauses look to the formation of "a more perfect Union," both sound the theme of equality, and both have raised questions about the role of the federal judiciary in protecting natural rights.

The original Constitution's Article IV set out several principles to govern relations among the states. The full faith and credit clause established one such principle, and so did the clauses providing for interstate rendition of fugitive felons and fugitive slaves. (See slavery and the constitution; fugitive slavery; fugitive from justice.) Along with these "interstate comity" provisions was included this guarantee: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Called "the basis of the Union" by alexander hamilton in the federalist #80, the first privileges and immunities clause aimed at preventing a state from subjecting another state's citizens to discriminatory treatment of the kind customarily given to aliens. The framers saw the clause as embodying the principles of a much longer provision in the articles of confederation, which had begun with this statement of objective: "The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union.…"

From the beginning everyone understood that Article IV's privileges and immunities clause could not mean exactly what it said. A Virginian who came to Boston surely had a right to engage in trade, but just as surely could not expect to be a candidate for governor of Massachusetts. What principle distinguished these two activities? Early in the nineteenth century, Justice bushrod washington, sitting on circuit in corfield v. coryell (1823), read the clause to guarantee equality for out-of-state citizens only as to "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 comprise this Union.…" Washington went on to list "some" of those "fundamental" privileges, in language broadly inclusive of nearly every sort of right imaginable. Not only did a citizen of one state have a right "to pass through, or to reside in any other state for purposes of trade, agriculture, professional pursuits, or otherwise"; he also had the right, said Washington, to "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." Other rights were listed, such as a right of access to a state's courts and a right to nondiscriminatory taxation. Portentously, the passage ended by mentioning "the elective franchise" as a fundamental right.

No one, not even Washington, thought a state had a constitutional duty to let out-of-staters vote in state elections. The inference arises that in offering his list of "fundamental" privileges and immunities Washington had in mind something beyond a catalogue of rights of interstate equality. That broader objective may have been to make Article IV's privileges and immunities clause into a generalized federal constitutional guarantee of liberty, available to local citizens and out-of-staters alike—with identification and enforcement of "fundamental" liberties in the hands of the federal judiciary.

This "natural rights" vision of the privileges and immunities clause of Article IV has never found favor in the Supreme Court. The Court has not interpreted the clause as a source of substantive rights, apart from the right to some measure of equality in a state's treatment of citizens of other states. The term "citizens" has been consistently limited, in this context, to natural persons who are citizens of the United States, thus excluding both corporations and aliens from the clause's protection. The substantive reach of the clause, too, was narrow in the Court's early interpretations: the right to pursue a common calling, the right to own and deal with property, the right of access to state courts.

Even in this restrictive interpretation, the interstate equality demanded by the clause overlaps with the anti-discrimination principle that restricts state regulations of commerce. The same law, in other words, might violate both the implied limitations of the commerce clause and the privileges and immunities clause of Article IV. Yet the commerce clause has been a more significant guarantee against interstate discrimination. The commerce clause presumptively forbids a state to discriminate against interstate (or foreign) commerce, even when the persons engaging in that commerce are the state's own citizens. And the commerce clause, unlike the privileges and immunities clause, protects both corporations and aliens from discrimination against their activities in commerce.

A major shift in judicial attitude toward the privileges and immunities clause was signaled by toomer v. witsell (1948). South Carolina licensed shrimp boats in coastal waters, demanding license fees of $25 per boat from residents and $2,500 from nonresidents. (Since the adoption of the fourteenth amendment, state residence and state citizenship have been treated as virtually equivalent.) The Supreme Court held this discrimination a violation of both the commerce clause and the privileges and immunities clause, and in its opinion reformulated the latter clause's governing doctrine. Henceforth any state discrimination against citizens of other states would be held invalid unless the state demonstrated a "substantial reason for the discrimination" apart from their out-of-state citizenship. In Doe v. Bolton (1973), a companion case to roe v. wade (1973), the Court applied the Toomer formula to strike down a Georgia law allowing only state residents to obtain abortions in Georgia.

Toomer seemed to have dispatched the "fundamental" privileges limitation in favor of a straightforward requirement of substantial justification for discrimination against out-of-staters. But here as elsewhere in constitutional law the idea of fundamental interests has had remarkable recuperative power. baldwin v. fish & game commission (1978) revived the doctrine to uphold a Montana law that charged a state resident $9 for an elk hunting license and a nonresident $225. (The nonresident might also use the license to kill one bear and one deer, to shoot game birds, and to fish. The same package of sanguinary privileges would cost a resident $30.) Elk hunting, said the Court, was a sport, not a means to livelihood; equal access for out-of-staters to Montana elk was "not basic to the maintenance of well-being of the Union," and thus not a "fundamental" privilege protected by Article IV against interstate discrimination. Only four weeks later, in hicklin v. orbeck (1978), the Court returned to the Toomer approach to invalidate an Alaska law giving preference to state residents in employment in jobs related to construction of the Alaska pipeline. The state had not offered substantial justification for the discrimination, the Court said, and therefore it was invalid. Baldwin was not cited.

The cleanest way to resolve the tension between these two decisions would have been to abandon Baldwin as a doctrinal sport. Instead, the Supreme Court combined both lines of decision in a new formula. In United Building & Construction Trades Council v. Mayor and Council of Camden (1984) and supreme court of new hampshire v. piper (1985) the Court established a two-part test for determining the validity of a state law challenged under Article IV's privileges and immunities clause. The first inquiry follows Baldwin: the law is limited by the clause only when its discrimination against out-of-staters touches a privilege that is "fundamental" to interstate harmony. The Court made clear in Piper that access to a means of livelihood is such a privilege. The second inquiry follows Toomer and Hicklin: if the privilege in question is "fundamental," the discrimination is invalid unless there is a "substantial" reason for treating out-of-staters differently, and the law's discrimination bears a "substantial relationship" to that objective. The second requirement states an intermediate standard of review for judicial scrutiny of both the state's purposes and its discriminatory means.

Special problems have plagued the Supreme Court's efforts to apply the privileges and immunities clause of Article IV to cases in which the discriminating states have acted as purchasers of goods and services, or owners of property, or proprietors of enterprises. In the Camden case, the Court refused to recognize a general exemption of such activities from the strictures of the clause; if the activities affected a "fundamental" interest, the clause would be implicated. In the same breath, however, the Court suggested that the state's interests as a market participant might be relevant to the second part of the new two-part inquiry: the question of justification for discriminating against out-of-staters. Justification for some state preferences for local citizens may be found in the citizens' obligations to support local government. Toomer 's teaching is that the justification must be substantial.

Thus far the privileges and immunities clause of Article IV has been applied only to state laws discriminating against out-of-staters. Concurring in Zobel v. Williams (1982), Justice sandra day o'connor argued for a broader application of the clause that would place constitutional limits on any state law—even a law discriminating between different groups of the state's own citizens—when the law disadvantages persons who have only recently arrived in the state. Justice O'Connor would have found a violation of the clause in Alaska's law distributing the state's oil revenues to Alaska citizens in proportion to the length of their residence; she argued that the law imposed "disabilities of alienage"—a result the clause was designed to forbid. The majority, holding the law invalid on equal protection grounds, rejected this novel interpretation in favor of the conventional view: the privileges and immunities clause of Article IV is inapplicable to such a case, for the clause speaks only to discrimination against citizens of other states.

A second privileges and immunities clause was added to the Constitution in 1868 as part of the Fourteenth Amendment: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Justice robert h. jackson, concurring in edwards v. california (1941), said expansively that "[t]his clause was adopted to make United States citizenship the dominant and paramount allegiance among us." The fact is that the amendment's framers did not sharply differentiate the functions of the various clauses of the amendment's first section and did not speak with one voice concerning the purposes of the privileges and immunities clause. Undoubtedly, however, the clause was meant to have some effect as a limitation on the states. The amendment's opening sentence "overruled" dred scott v. sandford (1857) by conferring United States citizenship and state citizenship on "all persons born or naturalized in the United States and subject to the jurisdiction thereof." The privileges and immunities clause, following immediately in the amendment's text, surely was intended to give some substantive content to the rights of citizenship, and particularly to the equal citizenship of blacks. (See equal protection of the laws.) Yet the Supreme Court, in its first encounter with the clause, read it, as Justice stephen j. field aptly said in dissent, to be "a vain and idle enactment, which accomplished nothing." In the slaughter-house cases (1873) a 5–4 majority, distinguishing the privileges and immunities of national citizenship from those of state citizenship, confined the former to rights established elsewhere in the Constitution and federal laws and to rights that were already fairly inferable from the relation of a citizen to the national government. (Examples of the latter would be the right to United States protection in other countries, the right to enter public lands, or the right to inform federal authorities of violations of federal law.) The majority described Corfield 's list of "fundamental" rights as privileges of state citizenship, subject to Article IV's guarantee of interstate equality but untouched by the new privileges and immunities clause of the Fourteenth Amendment.

The Court feared that a contrary reading of the privileges and immunities clause, coupled with the power of Congress to enforce the Fourteenth Amendment, would not only "constitute this court a perpetual censor upon all legislation of the states" but also "bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the states." Such a result, the Court accurately said, would radically restructure the federal union, centralizing power in the national government. No doubt some congressional proponents of the Fourteenth Amendment had hoped for precisely that result. The Slaughterhouse Cases dissenters viewed the prospect with equanimity and even sought to revive the natural rights philosophy of Corfield in the name of the Fourteenth Amendment. In doctrinal terms, however, they lost the battle decisively. The Court has never given the Fourteenth Amendment's privileges and immunities clause any significant content that is distinctively its own.

Occasional flurries of activity have suggested impending revitalization of the clause. Justice hugo l. black made the clause a centerpiece in his effort to persuade the Court to recognize the total incorporation of the Bill of Rights into the Fourteenth Amendment. (See incorporation doctrine.) And for a season the clause came to life as a limitation on state taxing power, until madden v. kentucky (1940) overruled colgate v. harvey (1935). Individual Justices have promoted the clause in concurring opinions, such as that of Justice Jackson in Edwards v. California (1941) (right to move freely from state to state) and that of Justice owen roberts in hague v. committee for industrial organization (1939) (right to assemble to discuss national legislation), but these ventures have been largely superseded by the development of other constitutional limitations on the states.

In the modern era, Justice Jackson's Edwards argument has borne fruit in the development of a constitutional right to travel. The right is now well established as a limitation on state power, but the right's source in the Constitution remains unspecified. The commerce clause is one obvious candidate, and not just one but both privileges and immunities clauses have also been nominated. (Congressional interferences with the freedom of foreign travel have been tested against the Fifth Amendment's due process clause.) Plainly, the Supreme Court has no need to rely on either privileges and immunities clause as an independent source for the right to travel.

Although the natural rights approach to constitutional adjudication failed to make headway in the name of either of the privileges and immunities clauses, in the field of economic regulation the views of the Slaughterhouse Cases dissenters came to prevail for almost half a century under the banner of substantive due process. (See freedom of contract.)That experiment in judicial activism was closed in the 1930s, but a similar philosophy has informed the revival of substantive due process as a protection of personal freedoms. Some commentators have suggested that the Fourteenth Amendment's privileges and immunities clause may be an apt vessel for these newer constitutional liberties, or even for yet-to-be-discovered affirmative constitutional obligations of government. After a century and more on the constitutional shelf, all the vessel needs is a little polishing.

Kenneth L. Karst
(1986)

Bibliography

Ely, John Hart 1980 Democracy and Distrust: A Theory of Judicial Review. Pages 22–30. Cambridge, Mass.: Harvard University Press.

Fairman, Charles 1971 Reconstruction and Reunion, 1864–88,Part One. Chap. 20. (Volume VI, History of the Supreme Court of the United States.) New York: Macmillan.

Kurland, Philip B. 1972 The Privileges and Immunities Clause: "Its Hour Come Round at Last?" Washington University Law Quarterly 1972:405–420.

Simson, Gary J. 1979 Discrimination against Nonresidents and the Privileges and Immunities Clause of Article IV. University of Pennsylvania Law Review 128:379–401.

Varat, Jonathan D. 1981 State "Citizenship" and Interstate Equality. University of Chicago Law Review 48:487–572.