Privileges and Immunities Clause
Encyclopedia
The Privileges and Immunities Clause (U.S. Constitution
, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents a state
from treating citizens of other states in a discriminatory manner. The text of the clause reads:
. According to that provision, "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."
James Madison
discussed that provision of the Articles of Confederation in Federalist No. 42
. Madison wrote: "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...."
Likewise, Alexander Hamilton
wrote in Federalist No. 80
that the Privileges and Immunities Clause in the proposed federal Constitution involves controversies between a state and a citizen of another state. Thus, the idea that the Privileges and Immunities Clause generally dictates how a state must treat its own citizens has been rejected since the eighteenth century.
, 6 Fed. Cas. 546 (C.C.E.D.Pa. 1823)
Justice Bushrod Washington
determined that the protections provided by the clause are 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."
In his explanation of the scope of the rights protected by the clause, Justice Washington included the right to travel through states, the right of access to the courts, the right to purchase and hold property
, and an exemption from higher taxes than state residents pay. The Corfield case involved the rights of an out-of-state citizen, rather than the rights of an in-state citizen, and Justice Washington's opinion did not suggest that this provision of the Constitution addresses how a legislature must treat its own citizens.
Another pertinent federal circuit court case was decided by Justice Henry Baldwin
, who succeeded Justice Washington. In the case of Magill v. Brown, 16 Fed. Cas. 408 (C.C.E.D. Pa. 1833), Justice Baldwin addressed the Privileges and Immunities Clause: "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 statements by Justices Washington and Baldwin were not inconsistent with each other. They both became the settled doctrine of the U.S. Supreme Court after the Civil War
.
Joseph Story
also addressed this Clause of the Constitution, in 1833:
Thus, Story thought that this Clause of the Constitution was meant "only to provide temporary visitors with equality in certain rights with the citizens of the states they were visiting." This Clause of the Constitution was also mentioned by the Supreme Court in the infamous Dred Scott
case in 1856: Chief Justice Taney, speaking for the majority, said that this Clause gives state citizens, when in other states, the right to travel, the right to sojourn, the right to free speech, the right to assemble, and the right to keep and bear arms. Justice McLean
in his dissent speaks of the right to sue without expounding this Clause at length. Justice Curtis
asserts in his dissent that this Clause does not confer any rights other than rights that a visited state chooses to guarantee to its own citizens.
, Senator Jacob Howard
noted that the U.S. Supreme Court had never squarely addressed the meaning of the Privileges and Immunities Clause:
The Fourteenth Amendment was ratified two years later, in 1868, and still the Supreme Court had not spoken. The following year, on November 1 of 1869, the Court finally addressed this issue. In the case of Paul v. Virginia
, , the Court said the following:
The Court went on to explain that the laws of one state would not become effective in 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 sections of Paul v. Virginia are still good law, and were relied upon, for example, in Saenz v. Roe
, . Other portions of Paul v. Virginia were reversed in U.S. v. South-Eastern Underwriters Ass'n, . The Court has never deviated from the principle stated in Paul that the Privileges and Immunities Clause in Article IV of the Constitution has no bearing on how a state treats its own citizens. In-state residents "have no claim under the Privileges and Immunities Clause." United Building & Construction Trades Council v. Mayor and Council of Camden
, .
The Privileges and Immunities Clause prevents discrimination against people from out of state, but only with regard to basic rights. The Court uses a two-part test to determine if the Privileges and Immunities Clause has been violated. First, it looks to see if a law discriminates against people from out of state regarding fundamental rights (e.g. protection by the government
the enjoyment of life, and liberty, the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety). These rights often focus on the economic right to pursue a livelihood. The second part of the test focuses on whether the state is justified in the discrimination. It examines if there is a substantial reason for the difference in treatment, and if the discriminatory law has a substantial relationship to that reason. For example, the Court has asked: "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?" See Baldwin v. Fish and Game Commission of Montana
. The court held it did not, because hunting is a recreational sport, which is outside the fundamental rights protected by the Constitution. If the court had found that recreation and sports were fundamental rights, it would have still had to examine whether the state had a compelling interest (protecting elk herds from being over-hunted), and whether the law was designed to address that problem.
The Court's decision in the Slaughterhouse Cases
(1873) is consistent with the idea that the Privileges and Immunities Clause was only intended to guarantee that a citizen of one state could enjoy equality in another state, with regard to fundamental rights. Referring to the words of Justice Washington in Corfield
, the Slaughterhouse Court stated:
The Supreme Court has never interpreted the Privileges and Immunities Clause as requiring any state to protect general rights of citizenship beyond those that the state already protects for its own citizens, though even a state's own citizens must be allowed to leave the state in order to enjoy privileges and immunities in any other state.
, there is no market participant
exception to the Privileges and Immunities Clause. That means that even when a state is acting as a producer or supplier for a marketable good or service, the Privileges and Immunities Clause may prevent it from discriminating against non-residents.
Puerto Ricans had already been granted U.S. citizenship by the Jones-Shafroth Act
; however, , approved by the U.S. Congress and signed by President Truman in 1947, expressly extended this constitutional clause to the U.S. Citizens in the jurisdiction of Puerto Rico
.
§ 737. Privileges and immunities
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.
In the 1970's the Supreme Court began to recognize the application to Puerto Rico of several Constitutional protections contained in the Bill of Rights. In its opinions, the Court, without elaborating, relied on the insular cases of Downes and Balzac as precedent for the application of these constitutional rights. In addition the U.S. Congress extended the Privileges and Immunities Clause
of the U.S. Constitution to Puerto Rico in 1947. The act indicates that 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.
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents a state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
from treating citizens of other states in a discriminatory manner. The text of the clause reads:
History prior to ratification of the Constitution
The Privileges and Immunities Clause is similar to a provision that was contained in the Articles of ConfederationArticles of Confederation
The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...
. According to that provision, "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."
James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
discussed that provision of the Articles of Confederation in Federalist No. 42
Federalist No. 42
Federalist No. 42 is an essay by James Madison, and the forty-second of the Federalist Papers. It was published on January 22, 1788 under the pseudonym Publius, the name under which all the Federalist Papers were published. Federalist No. 42 continues a theme that was started in Federalist No...
. Madison wrote: "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...."
Likewise, Alexander Hamilton
Alexander Hamilton
Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...
wrote in Federalist No. 80
Federalist No. 80
Federalist No. 80 is an essay by Alexander Hamilton and the eightieth of the Federalist Papers. It was published on June 21, 1788 under the pseudonym Publius, the name under which all the Federalist Papers were published...
that the Privileges and Immunities Clause in the proposed federal Constitution involves controversies between a state and a citizen of another state. Thus, the idea that the Privileges and Immunities Clause generally dictates how a state must treat its own citizens has been rejected since the eighteenth century.
History between ratification and the Civil War
In the federal circuit court case of Corfield v. CoryellCorfield v. Coryell
Corfield v. Coryell was an 1823 federal circuit court case decided by Justice Bushrod Washington while riding circuit...
, 6 Fed. Cas. 546 (C.C.E.D.Pa. 1823)
Justice Bushrod Washington
Bushrod Washington
Bushrod Washington was a U.S. Supreme Court associate justice and the nephew of George Washington.Washington was born in Westmoreland County, Virginia, and was the son of John Augustine Washington, brother of the first president. Bushrod attended Delamere, an academy administered by the Rev....
determined that the protections provided by the clause are 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."
In his explanation of the scope of the rights protected by the clause, Justice Washington included the right to travel through states, the right of access to the courts, the right to purchase and hold property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
, and an exemption from higher taxes than state residents pay. The Corfield case involved the rights of an out-of-state citizen, rather than the rights of an in-state citizen, and Justice Washington's opinion did not suggest that this provision of the Constitution addresses how a legislature must treat its own citizens.
Another pertinent federal circuit court case was decided by Justice Henry Baldwin
Henry Baldwin (judge)
Henry Baldwin was an Associate Justice of the Supreme Court of the United States from January 18, 1830, to April 21, 1844.-Biography:...
, who succeeded Justice Washington. In the case of Magill v. Brown, 16 Fed. Cas. 408 (C.C.E.D. Pa. 1833), Justice Baldwin addressed the Privileges and Immunities Clause: "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 statements by Justices Washington and Baldwin were not inconsistent with each other. They both became the settled doctrine of the U.S. Supreme Court after the Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
.
Joseph Story
Joseph Story
Joseph Story was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered today for his opinions in Martin v. Hunter's Lessee and The Amistad, along with his magisterial Commentaries on the Constitution of the United States, first...
also addressed this Clause of the Constitution, in 1833:
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.
Thus, Story thought that this Clause of the Constitution was meant "only to provide temporary visitors with equality in certain rights with the citizens of the states they were visiting." This Clause of the Constitution was also mentioned by the Supreme Court in the infamous Dred Scott
Dred Scott
Dred Scott , was an African-American slave in the United States who unsuccessfully sued for his freedom and that of his wife and their two daughters in the Dred Scott v...
case in 1856: Chief Justice Taney, speaking for the majority, said that this Clause gives state citizens, when in other states, the right to travel, the right to sojourn, the right to free speech, the right to assemble, and the right to keep and bear arms. Justice McLean
John McLean
John McLean was an American jurist and politician who served in the United States Congress, as U.S. Postmaster General, and as a justice on the Ohio and U.S...
in his dissent speaks of the right to sue without expounding this Clause at length. Justice Curtis
Benjamin Robbins Curtis
Benjamin Robbins Curtis was an American attorney and United States Supreme Court Justice.Curtis was the first and only Whig justice of the Supreme Court. He was also the first Supreme Court justice to have a formal legal degree and is the only justice to have resigned from the court over a matter...
asserts in his dissent that this Clause does not confer any rights other than rights that a visited state chooses to guarantee to its own citizens.
History after the Civil War
In 1866, during the congressional debates about the draft Fourteenth Amendment to the United States ConstitutionFourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, Senator Jacob Howard
Jacob M. Howard
Jacob Merritt Howard was a U.S. Representative and U.S. Senator from the state of Michigan during and after the American Civil War.-Early life:...
noted that the U.S. Supreme Court had never squarely addressed the meaning of the Privileges and Immunities Clause:
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.
The Fourteenth Amendment was ratified two years later, in 1868, and still the Supreme Court had not spoken. The following year, on November 1 of 1869, the Court finally addressed this issue. In the case of Paul v. Virginia
Paul v. Virginia
Paul v. Virginia, 75 U.S. 168 , was a historic case in corporate law in which the United States Supreme Court held that a corporation is not a citizen within the meaning of the Privileges and Immunities Clause...
, , the Court said the following:
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.
The Court went on to explain that the laws of one state would not become effective in 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 sections of Paul v. Virginia are still good law, and were relied upon, for example, in Saenz v. Roe
Saenz v. Roe
Sáenz v. Roe, 526 U.S. 489 , was a case in which the Supreme Court of the United States discussed whether there is a constitutional right to travel from one state to another.-Background:...
, . Other portions of Paul v. Virginia were reversed in U.S. v. South-Eastern Underwriters Ass'n, . The Court has never deviated from the principle stated in Paul that the Privileges and Immunities Clause in Article IV of the Constitution has no bearing on how a state treats its own citizens. In-state residents "have no claim under the Privileges and Immunities Clause." United Building & Construction Trades Council v. Mayor and Council of Camden
United Building & Construction Trades Council v. Mayor and Council of Camden
United Building & Construction Trades Council v. Mayor and Council of Camden, 465 U.S. 208 , was a case in which the Supreme Court of the United States held that a city can pressure private employers to hire city residents, but the same exercise of power to bias private contractors against...
, .
The Privileges and Immunities Clause prevents discrimination against people from out of state, but only with regard to basic rights. The Court uses a two-part test to determine if the Privileges and Immunities Clause has been violated. First, it looks to see if a law discriminates against people from out of state regarding fundamental rights (e.g. protection by the government
the enjoyment of life, and liberty, the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety). These rights often focus on the economic right to pursue a livelihood. The second part of the test focuses on whether the state is justified in the discrimination. It examines if there is a substantial reason for the difference in treatment, and if the discriminatory law has a substantial relationship to that reason. For example, the Court has asked: "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?" See Baldwin v. Fish and Game Commission of Montana
Baldwin v. Fish and Game Commission of Montana
Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371 , is a United States Supreme Court case that affirmed the right of the state of Montana to charge higher fees for out of state elk hunters...
. The court held it did not, because hunting is a recreational sport, which is outside the fundamental rights protected by the Constitution. If the court had found that recreation and sports were fundamental rights, it would have still had to examine whether the state had a compelling interest (protecting elk herds from being over-hunted), and whether the law was designed to address that problem.
The Court's decision in the Slaughterhouse Cases
Slaughterhouse Cases
The Slaughter-House Cases, were the first United States Supreme Court interpretation of the relatively new Fourteenth Amendment to the Constitution...
(1873) is consistent with the idea that the Privileges and Immunities Clause was only intended to guarantee that a citizen of one state could enjoy equality in another state, with regard to fundamental rights. Referring to the words of Justice Washington in Corfield
Corfield v. Coryell
Corfield v. Coryell was an 1823 federal circuit court case decided by Justice Bushrod Washington while riding circuit...
, the Slaughterhouse Court stated:
[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)
The Supreme Court has never interpreted the Privileges and Immunities Clause as requiring any state to protect general rights of citizenship beyond those that the state already protects for its own citizens, though even a state's own citizens must be allowed to leave the state in order to enjoy privileges and immunities in any other state.
Miscellaneous
Unlike the Dormant Commerce ClauseDormant Commerce Clause
The "Dormant" Commerce Clause, also known as the "Negative" Commerce Clause, is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the United States Constitution...
, there is no market participant
Market participant
The term market participant is used in United States constitutional law to describe a U.S. State which is acting as a producer or supplier of a marketable good or service. When a state is acting in such a role, it may permissibly discriminate against non-residents. This principle was established by...
exception to the Privileges and Immunities Clause. That means that even when a state is acting as a producer or supplier for a marketable good or service, the Privileges and Immunities Clause may prevent it from discriminating against non-residents.
Puerto Ricans had already been granted U.S. citizenship by the Jones-Shafroth Act
Jones-Shafroth Act
The Jones–Shafroth Act was a 1917 Act of the United States Congress by which Puerto Ricans were collectively made U.S. citizens, the people of Puerto Rico were empowered to have a popularly-elected Senate, established a bill of rights, and authorized the election of a Resident Commissioner to a...
; however, , approved by the U.S. Congress and signed by President Truman in 1947, expressly extended this constitutional clause to the U.S. Citizens in the jurisdiction of Puerto Rico
Puerto Rico
Puerto Rico , officially the Commonwealth of Puerto Rico , is an unincorporated territory of the United States, located in the northeastern Caribbean, east of the Dominican Republic and west of both the United States Virgin Islands and the British Virgin Islands.Puerto Rico comprises an...
.
§ 737. Privileges and immunities
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.
In the 1970's the Supreme Court began to recognize the application to Puerto Rico of several Constitutional protections contained in the Bill of Rights. In its opinions, the Court, without elaborating, relied on the insular cases of Downes and Balzac as precedent for the application of these constitutional rights. In addition the U.S. Congress extended the Privileges and Immunities Clause
Privileges and Immunities Clause
The Privileges and Immunities Clause prevents a state from treating citizens of other states in a discriminatory manner...
of the U.S. Constitution to Puerto Rico in 1947. The act indicates that 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.
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.