Privileges and Immunities

Chapter 7

Privileges and Immunities

The privileges and immunities clause of Article IV, Section 2, has a common history with the commerce clause. Both of these provisions reflect the framers’ concern with state protectionism that undermines the viability of a national economic union. Cases under the privileges and immunities clause typically concern state efforts to manage public resources or opportunities (such as public employment). The Court’s decision, in Baldwin v. Fish and Game Commission of Montana (1978), exemplifies the use of the privileges and immunities clause as a barrier to protectionist resource management.

Baldwin v. Fish and Game Commission of Montana

Citation: 436 U.S. 371.

Issue: Whether higher license fees for out-of-state hunters violated the privileges and immunities clause.

Year of Decision: 1978.

Outcome: The fee differential did not abridge the privileges and immunities clause.

Author of Opinion: Justice Harry Blackmun.

Vote: 6-3.

As noted, both the privileges and immunities clause and commerce clause originated from concern with states using their police power to secure parochial advantage at the expense of a national economic union. Dormant commerce clause analysis requires the Supreme Court to measure a state law against the federal interest in efficient interstate commerce. The privileges and immunities clause also guards against state policies that would secure economic advantage at the cost of interstate functionality. In these cases, the Court must determine whether a state law imposes economic burdens or disadvantages upon citizens of other states.

Inclusion of the commerce power in the Constitution established a mechanism to ensure that states did not pursue self-interested economic policies that undermined the interests of a viable economic union. Dormant commerce clause analysis, however, does not account for state actions that do not necessarily undermine federal interests but do negatively impact other states’ interests. This need is accounted for by Article IV, Section II, of the Constitution, which provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Put somewhat more simply, the privileges and immunities clause establishes a rule that states generally must not discriminate against citizens of other states merely because of their citizenship. Like other constitutional guarantees, the clause is not an absolute. Consequently, states can treat nonresidents differently under certain circumstances. Interpretation of the privileges and immunities clause thus has presented two primary challenges. The first is identifying interests that are protected under the clause. The second is determining the extent to which states may discriminate among persons on the basis of state citizenship.

There are two privileges and immunities clauses in the Constitution—one that is set forth in the Fourteenth Amendment and another that is enshrined by Article IV, Section II. The Fourteenth Amendment privileges and immunities clause secures the privileges and immunities of federal citizenship against state abridgment. As interpreted in the Slaughter-House Cases (1873), these privileges and immunities include:

the right of the citizen . . . to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions, . . . [to] free access to [the nation’s] seaports, . . . to the subtreasuries, land offices, and courts of justices of the several States, . . . to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government, . . . [t]he right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, . . . [t]he right to use the navigable waters of the United States, . . . all rights secured to our citizens by treaties with foreign nations, . . .

The Article IV, Section II, privileges and immunities clause concerns itself with relationships and interactions among the states, particularly policies that favor local citizens over citizens of other states. In Corfield v. Coryell (1823), Justice Bushrod Washington characterized the privileges and immunities of state citizenship as including: