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ArtIV.S2.C1.1 Overview of 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 first section of Article IV, Section 2 provides that the citizens of each state shall be “entitled to all Privileges and Immunities” of the citizens of other states. The provision is often called the “Privileges and Immunities Clause” or the “Comity Clause.” 1 This Clause, which is textually tied to state citizenship, should not be confused with the distinct provision in the Fourteenth Amendment—the “Privileges or Immunities Clause” —which protects the privileges or immunities of citizens of the United States against state invasion.2

The key purpose of the Privileges and Immunities Clause “was to help fuse into one Nation a collection of independent sovereign States.” 3 Under the prevailing view of the Clause, its central requirement is that “in any state every citizen of any other state is to have the same privileges and immunities which the citizens of that state enjoy.” 4 In other words, the Clause “prevents a state from discriminating against citizens of other states in favor of its own.” 5 The Clause’s concerns implicate not only individual rights to nondiscriminatory treatment, but also “the structural balance essential to the concept of federalism.” 6

Most cases under the Privilege and Immunities Clause concern discriminatory state residency requirements or other preferences for state residents versus nonresidents. (For purposes of the Privileges and Immunities Clause, “the terms ‘citizen’ and ‘resident’ are ‘essentially interchangeable.’” 7 ) The Clause’s prohibitions reach not only facial classifications based on state residency or citizenship, but also state or municipal laws8 whose “practical effect” is discriminatory against out-of-state residents.9 Controversies between a state and its own citizens are not covered by the provision.10

Not all distinctions between state residents and nonresidents violate the Privileges and Immunities Clause.11 States may, for example, limit voting rights to state residents or make state residency a qualification for elective office.12 Nor must a state “always apply all its laws or all its services equally to anyone, resident or nonresident.” 13 Rather, discrimination only implicates the Clause when it relates to a right or activity that is sufficiently “fundamental.” 14 (Whether a right or activity is fundamental under the Privileges and Immunities Clause is doctrinally distinct from whether a right is fundamental under the Fourteenth Amendment’s Due Process or Equal Protection Clauses.15 ) For example, the right of nonresidents to “ply their trade, practice their occupation, or pursue a common calling” on substantially equal terms as state citizens is protected as fundamental under the Privileges and Immunities Clause.16

Even if a state law discriminates against nonresidents as to a fundamental right or activity, it may still be constitutional if the state can justify its action under a two-step test developed by the Supreme Court. First, the state must show there is “a substantial reason for the difference in treatment.” 17 Second, the discrimination must bear a “substantial relationship to the State’s objective.” 18 Under this form of intermediate scrutiny,19 the Court has struck down, for example, state preferences for hiring in-state residents to work on oil and gas pipelines20 and residency requirements for admission to a state bar.21

Beyond state discrimination against nonresidents22 and the right to travel,23 the Privileges and Immunities Clause’s significance has waned with the incorporation of most of the Bill of Rights against state invasion via the Fourteenth Amendment’s Due Process Clause.24 Challenges to a state’s abridgement of enumerated constitutional rights are thus more often asserted under those constitutional amendments (as incorporated via the Fourteenth Amendment), instead of the Privileges and Immunities Clause.

See Robert G. Natelson, The Original Meaning of the Privileges and Immunities Clause, 43 Ga. L. Rev. 1117, 1122 (2009). back
U.S. Const. amend. XIV, § 1 ( “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . . ” (emphasis added)). back
Toomer v. Witsell, 334 U.S. 385, 395 (1948). While the Privileges and Immunities Clause was “intended to create a national economic union,” the Court “has never held that [the Clause] protects only economic interests.” Supreme Ct. of N.H. v. Piper, 470 U.S. 274, 280, 281 n.11 (1985) (citations omitted). back
Hague v. Comm. for Indus. Org., 307 U.S. 496, 511 (1939); see also Slaughter-House Cases, 83 U.S. 36, 77 (1872) (stating the “sole purpose” of the Privileges and Immunities Clause is “to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens . . . the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction” ). back
Hague, 307 U.S. at 511; accord United States v. Harris, 106 U.S. 629, 643 (1883) ( “[The Privileges and Immunities Clause’s] object is to place the citizens of each state upon the same footing with citizens of other states, and inhibit discriminative legislation against them by other states.” ). back
Austin v. New Hampshire, 420 U.S. 656, 662 (1975). back
Hicklin v. Orbeck, 437 U.S. 518, 524 n.8 (1978) (quoting Austin, 420 U.S. at 662 n.8). back
United Bldg. & Const. Trades Council of Camden Cnty. & Vicinity v. Mayor of Camden, 465 U.S. 208, 214 (1984) ( “The fact that the ordinance in question is a municipal, rather than a state, law does not somehow place it outside the scope of the Privileges and Immunities Clause.” ). In applying the Privileges and Immunities Clause to municipal and local laws, United Building reasoned that the Clause should not permit states to exclude out-of-state residents from benefits through the simple expedient of delegating authority to political subdivisions. Id. at 217. back
Hillside Dairy Inc. v. Lyons, 539 U.S. 59, 67 (2003) (citing Chalker v. Birmingham & N.W. Ry., 249 U.S. 522, 527 (1919)). back
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, 75 (1982) (O’Connor, J., concurring). back
Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 383 (1978). back
Id. back
McBurney v. Young, 569 U.S. 221, 226 (2013) (quoting Baldwin, 436 U.S. at 383). back
United Bldg., 465 U.S. at 218 (citing Baldwin, 436 U.S. at 388); see also Corfield v. Coryell, 6 F. Cas. 546, 551–52 (Washington, Circuit Justice, C.C.E.D. Pa. 1823). back
See Amdt14.S1.8.13.1 Overview of Fundamental Rights. back
Hicklin v. Orbeck, 437 U.S. 518, 524 (1978); accord Supreme Ct. of N.H. v. Piper, 470 U.S. 274, 280 (1985); Toomer v. Witsell, 334 U.S. 385, 396 (1948). back
Piper, 470 U.S. at 284. back
Id.; accord Toomer, 334 U.S. at 396. back
See Julian N. Eule, Laying the Dormant Commerce Clause to Rest, 91 Yale L.J. 425, 454 (1982) (likening the Privileges and Immunities Clause test to “intermediate scrutiny under contemporary equal protection jurisprudence” ); Kathleen M. Sullivan, Post-Liberal Judging: The Roles of Categorization and Balancing, 63 U. Colo. L. Rev. 293, 297 (1992) (same). back
Hicklin, 437 U.S. at 526–28. back
Barnard v. Thorstenn, 489 U.S. 546 (1989); Supreme Ct. of Va. v. Friedman, 487 U.S. 59 (1988); Piper, 470 U.S. at 288. back
State protectionism and discrimination against nonresidents may also implicate the Equal Protection Clause or the Dormant Commerce Clause. See, e.g., Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 569 n.4 (1997) (challenge to discriminatory state tax exemption made under Dormant Commerce Clause, the Equal Protection Clause, and the Privileges and Immunities Clause). back
See, e.g., Saenz v. Roe, 526 U.S. 489, 501–02 (1999); Doe v. Bolton, 410 U.S. 179, 200 (1973), abrogated on other grounds by Dobbs v. Jackson Women’s Health Org., No. 19-1393 (U.S. June 24, 2022); New York v. O’Neill, 359 U.S. 1, 569 (1959). back
See Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 379 (1978) ( “Historically, [the Privileges and Immunities Clause] has been overshadowed by the appearance in 1868 of similar language in § 1 of the Fourteenth Amendment, and by the continuing controversy and consequent litigation that attended that Amendment’s enactment and its meaning and application.” ). back