ArtIV.S2.C1.4 Self-Executing Nature 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.

In the nineteenth century, the Supreme Court held that the Privileges and Immunities Clause is self-executing. That is, Congress generally lacks power to enact enforcement legislation under the Clause, which is instead left to the states and the judicial process.1 The Supreme Court has also held that, like the Fourteenth Amendment’s protections, the Privileges and Immunities Clause protects only against state action, and not private conduct.2 Federal statutes prohibiting private conspiracies to deprive any person of equal privileges and immunities secured by state laws,3 or punishing the denial of the right of citizens to reside peacefully in the several states and to have free ingress into and egress from such states by non-state actors,4 have been held unconstitutional for these reasons.

United States v. Harris, 106 U.S. 629, 643–44 (1883); see also Slaughter-House Cases, 83 U.S. 36, 77 (1872) ( “[T]he entire domain of the privileges and immunities of citizens of the States . . . lay within the constitutional and legislative power of the States, and without that of the Federal government.” ); accord The Federalist No. 80 (Alexander Hamilton). back
United States v. Wheeler, 254 U.S. 281, 298 (1920), disapproved of on other grounds, United States v. Guest, 383 U.S. 745, 759 n.16 (1966). See also Amdt14.2 State Action Doctrine. back
Harris, 106 U.S. at 643. See also Baldwin v. Franks, 120 U.S. 678, 689–90 (1887). back
Wheeler, 254 U.S. at 298. back