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The Privileges and Immunities Clause of Article IV

§9.2 FUNDAMENTAL RIGHTS

The Privileges and Immunities Clause is triggered only if a state discriminates against citizens of other states with respect to interests that are sufficiently “fundamental” to come within the purview of the clause. In Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823) (No. 3230), the first case to construe Article IV’s Privileges and Immunities Clause, the U.S. circuit court stated that the privileges and immunities protected by the clause include (1) the right to “pass through” or travel in a state; (2) the right to “reside in” a state for business or other purposes; (3) the right to do business there, whether it involves “trade, agriculture, professional pursuits, or otherwise”; (4) the right “to take, hold and dispose of property, either real or personal”; and (5) “an exemption from higher taxes or impositions than are paid by the other citizens of the state.” In addition, the Court has emphasized that, to fall within the purview of the clause,

the activity in question must be “sufficiently basic to the livelihood of the Nation.” … For it is “[o]nly with respect to those ‘privileges’ and ‘immunities’ bearing on the vitality of the Nation as a single entity” that a State must accord residents and nonresidents equal treatment.

Supreme Court of Virginia v. Friedman, 487 U.S. 59, 64-65 (1988).

While the Supreme Court has endorsed the list of fundamental rights articulated in Corfield, it has only occasionally added to that list. In Doe v. Bolton, 410 U.S. 179, 200 (1973), the Court expanded on Corfield by holding that one of the privileges and immunities protected by Article IV is the right to enter a state “seeking the medical services that are available there.” A state therefore may not “limit to its own residents the general medical care available within its borders.” Id. The law struck down in Bolton prohibited out-of-staters from obtaining abortions in Georgia. As we will see in §9.4.2, while a state may be allowed to discriminate against citizens of other states where access to public resources is concerned, because the Georgia law discriminated against out-of-staters with respect to all medical facilities, both public and private, it ran afoul of the Privileges and Immunities Clause.

Example 9-A

State B requires anyone who enters a bicycle race in the state to have a bike racing license. The license fee is $25 per year for citizens of state B and $50 per year for all others. Mack is a citizen of state A who wishes to enter a bike race in state B. He objects to paying a fee that is double that paid by state B residents. Can Mack invoke the Article IV Privileges and Immunities Clause to challenge the discriminatory fee schedule?

Explanation

The Privileges and Immunities Clause will come into play only if the state is discriminating against citizens of other states with respect to a fundamental right. The state will argue that the interest in bike racing does not involve an interest that is protected by the clause because it is purely recreational in nature. In Baldwin v. Montana Fish & Game Commn., 436 U.S. 371 (1978), the Court held that Montana’s discriminatory license fees for elk-hunting licenses did not implicate the Privileges and Immunities Clause since elk hunting was a recreational rather than a commercial pursuit and thus did not involve a fundamental right under Article IV, §2.

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