Privileges and Immunities of Citizens
PRIVILEGES AND IMMUNITIES OF CITIZENS
PRIVILEGES AND IMMUNITIES OF CITIZENS. The U.S. Constitution contains two clauses that address the privileges and immunities of citizens. The first, in Article IV, Section 2, guarantees that citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. The Articles of Confederation included a similar provision, but neither the Articles nor the drafters of the Constitution provided a clear meaning for this new section. They provided no definition of privileges and immunities, no test of state citizenship, and no indication whether the citizen was entitled to these privileges in his own state, when he was temporarily in other states, or both. Justice Bushrod Washington gave the first authoritative definition in Corfield v. Coryell (1823). The protected privileges and immunities, he said, were those "which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments." As examples he suggested government protection and the right to acquire and possess property, to bring court actions, and to travel from one state to another.
Fifty years later, in the Slaughterhouse Cases (1873), the Supreme Court ruled that whatever these rights were, the Constitution required that, as the states granted or established privileges and immunities to their own citizens, "the same, neither more nor less, shall be the measure of the rights of citizens of other States within [their] jurisdiction." However, states could treat out-of-state citizens differently from their own citizens when there were reasonable grounds for doing so. Thus, the right to vote was limited to citizens of the state. Out-of-state students could be charged higher tuition fees at state universities. Fees for hunting and fishing licenses could be higher for nonresidents, who did not contribute by local taxes to the upkeep of the public domain, but the fees could not be prohibitive. Practitioners of certain professions vital to the public interest, such as medicine and law, could not practice outside the state in which they were licensed without new certification, and corporations could not claim protection under the provision.
The second privileges and immunities clause appears in the Fourteenth Amendment (1868) and forbids states to make or enforce any law abridging the privileges and immunities of citizens of the United States. It was one of three standards written into the post–Civil War amendment for the purpose of, but not limited to, protecting the rights of the newly freed blacks. The other two provisions were the equal protection clause and the due process clause. Debates on the Fourteenth Amendment in Congress made it clear that the privileges and immunities clause was regarded as the most important of these three, and it was expected to be a major restraint on state denial of civil rights. However, in the Slaughterhouse Cases the Supreme Court interpreted the language narrowly to protect only those rights peculiar to national citizenship (such as access to the seat of government and the writ of habeas corpus) and made it inapplicable to property rights and to trials in state courts. Litigants later turned attention to the due process clause and the equal protection clause, with much greater success. The Court's wide interpretation of those two provisions made the privileges and immunities clause almost a dead letter.
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Irons, Peter. A People's History of the Supreme Court. New York: Viking, 1999.
Lien, Arnold Johnson. Concurring Opinion: The Privileges or Immunities Clause of the Fourteenth Amendment. Reprint of 2d rev. ed. (1958). Westport, Conn: Greenwood Press, 1975. The original edition was published in 1957.
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