Origin and Purpose
“The primary purpose of this clause, like the clauses between which it is located . . . was to help fuse into one Nation a collection of independent sovereign States.”152 Precedent for this clause was a much wordier and a somewhat unclear153 clause of the Articles of Confederation. “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 . . . .”154 In the Convention, the present clause was presented, reported by the Committee on Detail, and adopted all in the language ultimately approved.155 Little commentary was addressed to it,156 and we may assume with Justice Miller that “[t]here can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each. In the Articles of Confederation we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase.”157 At least four theories have been proffered regarding the purpose of this clause. First, the clause is a guaranty to the citizens of the different states of equal treatment by Congress; in other words, it is a species of equal protection clause binding on the National Government. Though it received some recognition in the Dred Scott case,158 particularly in the opinion of Justice Catron,159 this theory is today obsolete.160 Second, the clause is a guaranty to the citizens of each state of the natural and fundamental rights inherent in the citizenship of persons in a free society, the privileges and immunities of free citizens, which no state could deny to citizens of other states, without regard to the manner in which it treated its own citizens. This theory found some expression in a few state cases161 and best accords with the natural law-natural rights language of Justice Washington in Corfield v. Coryell.162
If it had been accepted by the Court, this theory might well have endowed the Supreme Court with a reviewing power over restrictive state legislation as broad as that which it later came to exercise under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, but it was firmly rejected by the Court.163 Third, the clause guarantees to the citizen of any state the rights which he enjoys as such even when he is sojourning in another state; that is, it enables him to carry with him his rights of state citizenship throughout the Union, unembarrassed by state lines. This theory, too, the Court rejected.164 Fourth, the clause merely forbids any state to discriminate against citizens of other states in favor of its own. It is this narrow interpretation that has become the settled one. “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 alien-age 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.”165
The recent cases emphasize that interpretation of the clause is tied to maintenance of the Union. “Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States. Only with respect to those ‘privileges’ and ‘immunities’ bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally.”166 Although the clause “was intended to create a national economic union,” it also protects noneconomic interests relating to the Union.167
Hostile discrimination against all nonresidents infringes the clause,168 but controversies between a state and its own citizens are not covered by the provision.169 However, a state discrimination in favor of residents of one of its municipalities implicates the clause, even though the disfavored class consists of in-state as well as out-of-state inhabitants.170 The clause should not be read so literally, the Court held, as to permit states to exclude out-of-state residents from benefits through the simple expediency of delegating authority to political subdivisions.171 A violation can occur whether or not a statute explicitly discriminates against out-of-state interests.172
- Toomer v. Witsell, 334 U.S. 385, 395 (1948).
- THE FEDERALIST, No. 42 (J. Cooke ed. 1961), 285–286 (Madison).
- 1 F. Thorpe ed., The Federal and State Constitutions, H. DOC. NO. 357, 59th Cong., 2d Sess. (1909), 10.
- 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 173, 187, 443 (rev. ed. 1937).
- “It may be esteemed the basis of the Union, that ‘the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.’ And if it be a just principle that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which its is founded.” THE FEDERALIST, No. 80 (J. Cooke ed. 1961), 537–538 (Hamilton).
- Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 75 (1873).
- Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
- 60 U.S. at 518, 527–29.
- Today, the Due Process Clause of the Fifth Amendment imposes equal protection standards on the Federal Government. Bolling v. Sharpe, 347 U.S. 497 (1954); Schneider v. Rusk, 377 U.S. 163, 168 (1964); Shapiro v. Thompson, 394 U.S. 618, 641–42 (1969).
- Campbell v. Morris, 3 H. & McH. 288 (Md. 1797); Murray v. McCarty, 2 Munf. 373 (Va. 1811); Livingston v. Van Ingen, 9 Johns. Case. 507 (N.Y. 1812); Douglas v. Stephens, 1 Del. Ch. 465 (1821); Smith v. Moody, 26 Ind. 299 (1866).
- 6 Fed. Cas. 546, 550 (No. 3230) (C.C.E.D. Pa. 1823). (Justice Washington on circuit), quoted infra, “All Privileges and Immunities of Citizens in the Several States.” “At one time it was thought that this section recognized a group of rights which, according to the jurisprudence of the day, were classed as ‘natural rights’; and that the purpose of the section was to create rights of citizens of the United States by guaranteeing the citizens of every State the recognition of this group of rights by every other State. Such was the view of Justice Washington.” Hague v. CIO, 307 U.S. 496, 511 (1939) (Justice Roberts for the Court). This view of the clause was asserted by Justices Field and Bradley, Slaughter House Cases, 83 U.S. (16 Wall.) 97, 117–18 (1873) (dissenting opinions); Butchers’ Union Slaughter-House and Live-Stock Landing Co. v. Crescent City Live-Stock Landing and Slaughter-House Co., 111 U.S. 746, 760 (1884) (Justice Field concurring), but see infra, and was possibly understood so by Chief Justice Taney. Scott v. Sandford, 60 U.S. (19 How.) 393, 423 (1857). See also id. at 580 (Justice Curtis dissenting). The natural rights concept of privileges and immunities was strongly held by abolitionists and their congressional allies who drafted the similar clause into 1 of the Fourteenth Amendment. Graham, Our ‘Declaratory’ Fourteenth Amendment, reprinted in H. GRAHAM, EVERYMAN ’ S CONSTITUTION: HISTORICAL ESSAYS ON THE FOURTEENTH AMENDMENT, THE CONSPIRACY THEORY, AND AMERICAN CONSTITUTIONALISM 295 (1968).
- McKane v. Durston, 153 U.S. 684, 687 (1894); see also cases cited infra.
- City of Detroit v. Osborne, 135 U.S. 492 (1890).
- Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1869) (Justice Field for the Court; but see supra); see also Slaughter House Cases, 83 U.S. (16 Wall.) 36, 77 (1873); Chambers v. Baltimore & O.R.R., 207 U.S. 142 (1907); Whitfield v. Ohio, 297 U.S. 431 (1936).
- Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371, 383 (1978). See also Austin v. New Hampshire, 420 U.S. 656, 660–65 (1975) (clause “implicates not only the individual’s right to nondiscriminatory treatment but also, perhaps more so, the structural balance essential to the concept of federalism.” Id. at 662); Hicklin v. Orbeck, 437 U.S. 518, 523–24 (1978).
- Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 281–82 (1985). See also Doe v. Bolton, 410 U.S. 179, 200 (1973) (discrimination against out-of-state residents seeking medical care violates clause).
- Blake v. McClung, 172 U.S. 239, 246 (1898); Travis v. Yale & Towne Mfg. Co., 252 U.S. 60 (1920).
- Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 138 (1873); Cove v. Cunningham, 133 U.S. 107 (1890). But see Zobel v. Williams, 457 U.S. 55, 71 (1982) (Justice O’Connor concurring).
- United Building & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208 (1984).
- 465 U.S. at 217. The holding illustrates what the Court has referred to as the “mutually reinforcing relationship” between the Commerce Clause and the Privileges and Immunities Clause. Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 280 n.8 (1985) (quoting Hicklin v. Orbeck, 437 U.S. 518, 531 (1978)). See, e.g., Dean Milk Co. v. City of Madison, 424 U.S. 366 (1976) (city protectionist ordinance that disadvantages both out-of-state producers and some in-state producers violates the Commerce Clause).
- “[A]bsence of an express statement . . . identifying out-of-state citizenship as a basis for disparate treatment is not a sufficient basis for rejecting [a] claim.” Hillside Dairy, Inc. v. Lyons, 539 U.S. 59, 67 (2003).