Privileges and Immunities Clause
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.Article IV, Section 2, Clause 1
"Privileges and immunities" constituted a summary of ancient rights of Englishmen that the colonists fought to maintain during the struggle against the mother country. Founding documents, such as the Declarations and Resolves of the First Continental Congress and the Articles of Confederation, championed these rights. In Philadelphia, when the Committee of Detail proposed the Privileges and Immunities Clause, the Framers approved it with no debate.
In many of the charters of the original colonies, the Crown guaranteed some variation of franchises, privileges, immunities, or liberties to "free and natural subjects...as if they and every of them were born within the realm of England." Ultimately deriving from the emancipation of the serfs in the Middle Ages, the privileges, immunities, franchises, and liberties summed up the legal rights of freemen, which were inestimably greater than those afforded to the serf, the indentured servant, or the foreigner. The Crown granted them to the colonists in the New World to the same extent as to freemen in England itself, thereby creating a common subject status among free-born Englishmen.
The package of rights granted to the colonists had distinct components. "Liberties" were not rights of individuals, but the right of a corporation, or manor, or abbot, to make and enforce laws within their respective jurisdictions. A formal grant of liberty from the king was a "franchise." Thus, when the king allowed a colony the right "from Time to Time to Make, Ordain, and Establish all manner of wholesome and reasonable Laws, Statutes, Ordinances, Directions, and Instructions, not Contrary to the Laws of this Realm of England," the king was legally granting a franchise to the colonists to exercise the liberty of self-governance. The phrase "to exercise the franchise," meaning to vote, ultimate derives from this older notion of the "liberty" to make laws.
"Liberties" and "franchises" constituted the power of a governing unit to make rules. In contrast, "immunities" were exceptions that the king granted from the force of the law. Immunities gave individuals, towns, or other entities freedom from having to abide by a legal obligation. The king frequently gave villages immunity from having to pay tolls on merchandise produced within their precincts. He also granted certain individuals immunity from compulsory public service.
The courts enforced privileges, which included: trial by jury; the initiation of suits against freemen by summons, not arrest; freedom from civil process while a witness or an attorney was at court, or while a clergyman was performing divine service; the exclusion of essential personal property, like ploughs or the tools of one's trade, from distraint; the benefit of clergy in capital cases; the rights of possession and inheritance of land; the right to use deadly force to defend one's abode; the privilege of members of Parliament to be free from arrest while on duty; and the right of merchants in certain towns to trade freely.
In America, there were specific practical effects to the guarantees of privileges and immunities. First, despite the significant differences among the colonies, the granting of common privileges and immunities made all colonists common subjects under a single Crown. Second, any freeman had the right to travel and take up residence within any of the English colonies. No colonist could be held to be a foreigner in any other colony. Benjamin Franklin, born in Boston, became a Pennsylvanian simply by moving to Philadelphia. Third, as has been described, privileges and immunities referred to a specific set of legal entitlements, individual as well as communitarian.
Finally, the grants of privileges and immunities operated as a kind of equal-protection guarantee, particularly for merchants. It meant that temporary travelers in a colony, not just those who moved in to take up residence, could buy and sell and have the protection of the law without the need for a special grant or charter from the host colony. Even under the umbrella of mercantilism, then, common privileges and immunities allowed for a robust exchange of goods and commercial paper.
The privilege to be free from economic discrimination was based on the underlying right to carry on a lawful trade. The government could pass generally applicable laws and commercial regulations, but it could not discriminate against visitors in their lawful mercantile activities. Corporations, as creations of the state, were a special case; but if a governmental agent prevented a freeman from participating in mercantile endeavors on equal legal grounds with others, the freeman could justly claim a violation of his rights as a free-born English subject. As a corollary, many regarded monopolies as "odious" and violative of the right to a lawful calling. The prohibition of monopolies, however, never quite gelled into a fundamental privilege.
In sum, the colonial experience of privileges and immunities meant: (1) membership in a common political community, (2) a right to travel, (3) a series of particularly defined rights centering around access to the courts, and (4) equal protection of the laws for commercial activities based upon the right of every freeman to a lawful calling.
Along the path to independence, "Privileges and Immunities" began to be set alongside ideas of natural rights as mutual supports for the patriot cause. Yet the notion of privileges and immunities still referred to a set of historically obtained rights and not to general natural rights, though the two categories were seen to be in utter harmony. The First Continental Congress made that distinction in its Declaration and Resolves of 1774. The delegates asserted some rights as natural, that is, that the colonists "are entitled to life, liberty, and property, and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent." But when the delegates came to describing the privileges and immunities of the colonists, they pointed to specific English grants: "That these, His Majesty's Colonies, are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws."
After independence, a clause protecting privileges and immunities went through a number of drafts before its final formulation in the Articles of Confederation. What is clear from the various formulations, however, is that the drafters based the guarantee of privileges and immunities on the same principles as were in the colonial charters. As finally approved, Article IV of the Articles (including a full faith and credit clause) sought to create a common citizenship, a right to travel, and equal protection for commercial activities.
James Madison believed that the privileges and immunities clause in the Articles of Confederation was repetitive and confusing, and stood in the way of Congress's power to regulate naturalization. As a result, the Constitution's Article IV became simpler and direct. It created a common citizenship, but Congress would determine who could become citizens. It prohibited states from discriminating against residents of other states in judicial process and in economic activities. The clause was self-executing. Congress possesses no independent power to enforce the clause. United States v. Harris (1883). As Alexander Hamilton noted in The Federalist No. 80, the federal courts would be the agency of enforcement.
The clause did not refer to a set of independent natural rights; many of the new state constitutions distinguished between natural rights and privileges and immunities. Privileges and immunities remained positive, not natural, rights and subject to the tradition of liberty as self-government. Consequently, after the Revolution, the states stood in the place that Parliament had occupied in the 1760s: privileges and immunities existed, and some certainly were fundamental, but the "people" through their legislature could alter them. Despite the expected common corpus of privileges and immunities, Article IV of the Constitution does not compel a state to provide for the privileges and immunities of its own citizens, but only to treat out-of-state residents equally in the enjoyment of whatever privileges and immunities obtained within the state.
Thus, a state could revise or repeal a traditional privilege or immunity, and the nonresident had no right to claim it for himself. In 1821, William Cranch, Chief Judge of the Circuit Court of the District of Columbia, was called upon to decide the constitutionality of a federal law prohibiting free blacks from residing in the District without first obtaining a surety from a white person guaranteeing their good behavior. The purpose of the act was to prevent poor blacks from immigrating into the District and burdening the distribution of services under the poor laws. Gaining a white surety was expected to be impossible.
William Cranch found no obstacle to the law in the Privileges and Immunities Clause of Article IV (which treats the District of Columbia as a state). "A citizen of one state," he wrote, "coming into another state, can claim only those privileges and immunities which belong to citizens of the latter state, in like circumstances." Costin v. Corp. of Washington (1821). Free blacks lost the effective right to travel to the District of Columbia, and Article IV afforded them no protection.
Two years later, however, a judge equated privileges and immunities with natural rights. In Corfield v. Coryell (1823), Justice Bushrod Washington, on circuit, declared,
The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those 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 their time of becoming free, independent, and sovereign.
Bushrod Washington's statement was dictum. In the actual holding, he decided that New Jersey could discriminate against out-of-state citizens in the harvesting of oysters because the citizens of New Jersey "owned" oysters as a natural resource. A number of courts cited Corfield v. Coryell before the Civil War, but only for its holding and never for its dictum.
The Supreme Court rejected a natural-rights content to Article IV's Privileges and Immunities Clause in Paul v. Virginia (1869). Thus, although Justice Samuel F. Miller confusingly quoted Justice Washington's dictum in the famous Slaughter-House Cases (1873), his summary of the meaning of the clause was correct as a matter of law: the "sole purpose" of Article IV's Privileges and Immunities Clause, he declared,
was to declare to the several States that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.
Bushrod Washington's dictum, however, had taken on a life of its own. It figured in abolitionist ideology and had much to do with the debate over the Privileges or Immunities Clause of the Fourteenth Amendment. But the Supreme Court continued to reject it as defining the Privileges and Immunities Clause of Article IV. See McKane v. Durston (1894).
The application of most of the procedural protections of the Bill of Rights to the states by way of the Fourteenth Amendment limited the traditional scope of the Privileges and Immunities Clause of Article IV to access to courts, travel, and equal treatment for nonresidents. The courts have affirmed a right of the nonresident to have "reasonable and adequate" access to the courts of a host state. Canadian Northern Ry. Co. v. Eggen (1920). The Supreme Court has recognized a right to travel, but it has had difficulty in finding a secure constitutional locus for the right. Most recently in Saenz v. Roe (1999), the Court asserted that the right to travel emanates from the Privileges or Immunities Clause of the Fourteenth Amendment.
In terms of equal treatment for visitors, however, the modern Court's application of the Privileges and Immunities Clause of Article IV has been generally consistent with legal tradition and the views of the Framers. The clause protects nonresident citizens, not corporations. Bank of Augusta v. Earle (1839); Paul v. Virginia. The clause protects visitors only in regard to their enjoyment of a "fundamental right," which is almost invariably defined as a right to a lawful or common calling, which, in turn, can be regulated by generally applicable legislation by the host state.
Lawful callings include the practice of law, Supreme Court of New Hampshire v. Piper (1985); fishing (the Court has abandoned the fiction that a state's citizens own its natural resources), Toomer v. Witsell (1948); construction work, United Building & Construction Trades Council v. Mayor and Council of Camden (1984); and merchant activities, Ward v. Maryland (1870); but not recreational hunting, Baldwin v. Fish and Game Commission (1978).
Once the Court determines that there is a lawful calling, it applies a form of intermediate scrutiny: (1) whether "noncitizens constitute a peculiar source of the evil at which the [discriminatory] statute is aimed"; and (2) whether there is a "reasonable relationship between the danger represented by noncitizens, as a class, and the...discrimination practice upon them." Hicklin v. Orbeck (1978).
The Court has also applied the clause to discriminatory taxation, Lunding v. New York Tax Appeals Tribunal (1998), but found that the clause was not violated when a state requires a higher tuition at a state university for nonresident students. Vlandis v. Kline (1973). Justice Antonin Scalia would substitute the nondiscriminatory imperative of the Privileges and Immunities Clause for the Court's traditional use of the dormant commerce power, even though the Privileges and Immunities Clause does not apply to corporations. Tyler Pipe Industries v. Department of Revenue (1987). Finally, the suspicion against monopolies is treated as it was historically: not as a fundamental immunity, but as an activity regulated by legislation.
- David F. Forte
- Professor of Law
- Cleveland-Marshall College of Law
- Ronald Rotunda
- Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence
- Commissioner, California Fair Political Practices Commission
- Chapman University School of Law