CHAPTER 9

The Privileges and Immunities Clause of Article IV

§9.1 INTRODUCTION AND OVERVIEW

The Privileges and Immunities Clause of Article IV, §2 provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Despite its rather awkward phrasing, the clause prohibits states from engaging in certain types of discrimination against citizens of other states. The clause was modeled after the Fourth Article of the Articles of Confederation, ratified in 1781, which declared,

 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 the 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. …

The Privileges and Immunities Clause was vital to creating a federal system of government. Its purpose “was to help fuse into one Nation a collection of independent, sovereign States. It was designed to insure to a citizen of state A who ventures into state B the same privileges which the citizens of state B enjoy.” Toomer v. Witsell, 334 U.S. 385, 395 (1948). “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.” Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1869). The clause thus protects a citizen’s “right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in [another] State. …” Saenz v. Roe, 526 U.S. 489, 501 (1999).

The Privileges and Immunities Clause does not bar all forms of discrimination against citizens of other states. Rather, the clause is triggered only if the discrimination affects an interest or right that is deemed to be “fundamental.” Even then, the discrimination will be upheld if the state can demonstrate that there is a “substantial reason” for treating out-of-staters differently.

In analyzing a problem under the Privileges and Immunities Clause of Article IV you should proceed by asking three questions:

1. Does the challenged law affect a “fundamental” right, privilege, or immunity that falls within the purview of the clause?
2. Is the law’s discrimination of a type that is prohibited by the clause?
3. Does the state have a “substantial reason” that justifies its discrimination against citizens of other states?

We examine each of these three issues in turn.