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The Privileges and Immunities Clause of Article IV

Mack might reply that even if bike racing, like elk hunting, is purely recreational, the state still violated his fundamental right to “exemption from higher taxes or impositions than are paid by the other citizens of the state,” Corfield, supra, 6 F. Cas. at 552, an argument that the Baldwin Court did not address. Mack might also be able to show that he depends for all or part of his livelihood on bike racing, in which case the Privileges and Immunities Clause would be triggered, for “one of the privileges which the clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.” Toomer v. Witsell, 334 U.S. 385, 396 (1948).

Many of the cases that have arisen under the Privileges and Immunities Clause have involved the interest of out-of-staters in “doing business … on terms of substantial equality with the citizens of that State.” Id. at 396. Indeed, the Court has observed that “the pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause.” United Building & Construction Trades Council v. Mayor & Council of Camden, 465 U.S. 208, 219 (1984). Yet the Court has suggested that this Article IV privilege is limited to private sector employment and that discrimination against out-of-staters with respect to public employment does not fall within the purview of the clause. Id. at 219. At least one lower federal court has taken the hint and held that government employment is not a privilege or immunity protected by Article IV, §2. Salem Blue Collar Workers Assn. v. City of Salem, 33 F.3d 265, 268-270 (3d Cir. 1994), cert. denied, 513 U.S. 1152 (1995).

It is important to note that the list of “fundamental rights” under the Privileges and Immunities Clause of Article IV is not the same as the definition of “fundamental rights” for purposes of the Due Process and Equal Protection Clauses. As a consequence, interests like pursuing a livelihood that are fundamental for purposes of Article IV, §2 are not deemed to be fundamental under the due process or equal protection provisions of the Fifth and Fourteenth Amendments.


§9.3.1 The Requirement of Discrimination

Corfield v. Coryell and Natural Law

Early on it was suggested that the Privileges and Immunities Clause of Article IV embodies certain natural law rights that a state may not deny to anyone, including its own citizens. This interpretation was adopted in 1823 by the U.S. circuit court in Corfield v. Coryell, supra. There, Justice Bushrod Washington, George Washington’s nephew, declared that the rights protected by the clause consist of “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. …” 6 F. Cas. at 551. Under this reading, a state could not deny these rights to anyone. Whether or not there was discrimination against out-of-staters was irrelevant; any denial of one of these “fundamental” privileges and immunities would be invalid, either as a matter of natural law or as a violation of Article IV.

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