ArtIV.S2.C1.2 Historical Background on Privileges and Immunities Clause

Article IV, Section 2, Clause 1:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

The notion of “privileges and immunities” —that is, particular legal benefits or exemptions—derives from concepts developed by English medieval law.1 The Articles of Confederation contained a lengthier provision2 that provided the direct precedent for the Privileges and Immunities Clause:

The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, 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; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.3

Charles Pinckney of South Carolina claimed to have introduced the Privileges and Immunities Clause at the Constitutional Convention.4 The Committee of Detail drafted and reported language identical to the final Clause, which passed the Convention without substantial debate.5 Perhaps because the Privileges and Immunities Clause was drawn from the Articles of Confederation, it also “drew virtually no attention” in the ratification debates.6 The Clause is discussed in the Federalist papers only as a means of support for other arguments.7

Despite the textual differences between the Privileges and Immunities Clause and its predecessor in the Articles of Confederation, the Supreme Court has concluded that the Constitution’s briefer phrasing was intended to have the same meaning.8 The privileges and immunities protected are thus the same under both the Articles and the Constitution.9 Accordingly, the specific examples listed in the Articles’ version (for example, “free ingress and regress to and from any other State,” “all the privileges of trade and commerce” ) may be used to “give some general idea of the class of civil rights meant by the phrase” in the Constitution.10

For sources discussing the historical origins of privileges and immunities under English and colonial law, see, for example, Thomas H. Burrell, A Story of Privileges and Immunities: From Medieval Concept to the Colonies and United States Constitution, 34 Campbell L. Rev. 7 (2011); Robert G. Natelson, The Original Meaning of the Privileges and Immunities Clause, 43 Ga. L. Rev. 1117 (2009). back
James Madison also thought in the Articles’ longer version was somewhat unclear. The Federalist No. 42 (James Madison) ( “There is a confusion of language [in the Articles’ Privileges and Immunities Clause], which is remarkable.” ). back
Articles of Confederation of 1781 art. IV, § 1. back
2 The Records of the Federal Convention of 1787, at 173–74 (Max Farrand ed., 1911). back
Id. at 187, 443. Ironically, the only noted objection came from Pinckney himself, who thought “some provision should be included in favor of property in slaves.” Id. at 443. (The South Carolinians—the only delegation to vote “no” on the Privileges and Immunities Clause—subsequently obtained a provision to that effect in the form of the Fugitive Slave Clause. Id. at 443, 446; U.S. Const. art. IV, § 2, cl. 3.). back
David S. Bogen, The Privileges and Immunities Clause of Article IV, 37 Case W. Res. L. Rev. 794, 840 (1986). back
See The Federalist No. 42 (James Madison); The Federalist No. 80 (Alexander Hamilton). back
Austin v. New Hampshire, 420 U.S. 656, 661 (1975) ( “[Protection for privileges and immunities] was carried over into the comity article of the Constitution in briefer form but with no change of substance or intent, unless it was to strengthen the force of the clause in fashioning a single nation.” ). back
Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 75 (1873). back
Id. back