Privileges and Immunities Clause

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This page is about the Privileges and Immunities Clause of Article Four of the United States Constitution. For the related clause in the Fourteenth Amendment, see Privileges or Immunities Clause.

The Privileges and Immunities Clause (U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents states from treating citizens of other states in a discriminatory manner, with regard to basic civil rights. The clause also embraces a right to travel, so that a citizen can enjoy privileges and immunities in any states he or she wishes. The text of the clause reads:

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

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1 History prior to ratification of the Constitution
2 History between ratification and the Civil War
3 History after the Civil War
4 Miscellaneous
5 Sources
6 External links

The Privileges and Immunities Clause is similar to a provision that was contained in the Articles of Confederation. According to that provision, "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."

James Madison discussed that provision of the Articles of Confederation in Federalist 42. Madison wrote: "those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State...."

Likewise, Alexander Hamilton wrote in Federalist 80 that the Privileges and Immunities Clause in the proposed federal Constitution involves controversies between a state and a citizen of another state. Thus, the idea that the Privileges and Immunities Clause generally dictates how a state must treat its own citizens has been rejected since the eighteenth century.

It should also be noted that, throughout Federalist 42, Madison repeatedly used the word "privileges" interchangeably with the word "rights."

In the federal circuit court case of Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D.Pa. 1823) Justice Bushrod Washington determined that the protections provided by the clause are confined to privileges and immunities which are, "in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign."

In his explanation of the scope of the rights protected by the clause, Justice Washington included the right to travel through states, the right of access to the courts, the right to purchase and hold property, and an exemption from higher taxes than state residents pay. The Corfield case involved the rights of an out-of-state citizen, rather than the rights of an in-state citizen, and Justice Washington's opinion did not suggest that this provision of the Constitution addresses how a legislature must treat its own citizens.

Another pertinent federal circuit court case was decided by Justice Henry Baldwin, who succeeded Justice Washington. In the case of Magill v. Brown, 16 Fed. Cas. 408 (C.C.E.D. Pa. 1833), Justice Baldwin addressed the Privileges and Immunities Clause: "We must take it therefore as a grant by the people of the state in convention, to the citizens of all the other states of the Union, of the privileges and immunities of the citizens of this state."

These federal circuit court statements by Justices Washington and Baldwin were not inconsistent with each other. They both became the settled doctrine of the U.S. Supreme Court after the Civil War.

In the case of Paul v. Virginia, 75 U.S. 168 (1868), the Court said the following:

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 alienage 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. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this. Indeed, without some provision of the kind removing from the citizens of each State the disabilities of alienage in the other States, and giving them equality of privilege with citizens of those States, the Republic would have constituted little more than a league of States; it would not have constituted the Union which now exists. But the privileges and immunities secured to citizens of each State in the several States, by the provision in question, are those privileges and immunities which are common to the citizens in the latter States under their constitution and laws by virtue of their being citizens. Special privileges enjoyed by citizens in their own States are not secured in other States by this provision. It was not intended by the provision to give to the laws of one State any operation in other States. They can have no such operation, except by the permission, express or implied, of those States.

This section of Paul v. Virginia is still good law, and was relied upon, for example, in Saenz v. Roe, 526 U.S. 489 (1999). However, other portions of Paul v. Virginia were reversed in U.S. v. South-Eastern Underwriters Ass'n, 322 U.S. 533 (1944).

The Privileges and Immunities Clause prevents interstate discrimination, but only with regard to basic rights. For example, the Court has asked: "Does the distinction made by Montana between residents and nonresidents in establishing access to elk hunting threaten a basic right in a way that offends the Privileges and Immunities Clause?" See Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371 (1978) (the Court answered "no").

The Court has always adhered to the principle that the Privileges and Immunities Clause has no bearing on how a state must treat its own citizens. In-state residents "have no claim under the Privileges and Immunities Clause." United Building & Construction Trades Council v. Mayor and Council of Camden, 465 U.S. 208 (1984).

Unlike the Dormant Commerce Clause, there is no market participant exception to the Privileges and Immunities Clause. That means that even when a state is acting as a producer or supplier for a marketable good or service, the Privileges and Immunities Clause may prevent it from discriminating against non-residents.[1]

Farber, Daniel A.; Eskridge, William N., Jr.; Frickey, Philip P. Constitutional Law: Themes for the Constitution's Third Century. Thomson-West Publishing, 2003. ISBN 0-314-14353-X
Hall, Kermit L. ed. The Oxford Companion to the Supreme Court of the United States, Second Edition. Oxford University Press, 2005. ISBN 0195118839

The Founders’ Constitution provides source materials regarding the original meaning of the Privileges and Immunities Clause.
Findlaw describes case law relevant to the Privileges and Immunities Clause.