The Privileges and Immunities Clause of Article IV

The Rejection of Corfield

Corfield‘s construction of the Privileges and Immunities Clause would have given absolute protection to certain natural law rights. However, this view was ultimately rejected by the Supreme Court. The Court in 1869 held that the clause is addressed only to the discriminatory denial of rights. Its purpose is merely “to place the citizens of each State upon the same footing with citizens of other States. … It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States. …” Paul v. Virginia, supra, 75 U.S. (8 Wall.) at 180. Four years later, in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), the Court stressed that the clause thus gives no rights to citizens against their own state:

[It] did not create those rights, which it called privileges and immunities of citizens of the States. … Nor did it profess to control the power of the State governments over the rights of its own citizens.

Its sole purpose 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.

Id. at 77.

Example 9-B

State X recently passed a law barring anyone from working as a licensed plumber unless he or she passes the state plumbing exam (SPE) and serves three years as an apprentice to a licensed state X plumber. Paul is a citizen of state Y. He has been a plumber for many years and has done a great deal of plumbing work in state X. However, Paul can no longer work as a plumber in state X because he has neither passed the SPE nor been apprenticed to a licensed state X plumber. May Paul challenge the new state X law on the ground that it violates his rights under the Privileges and Immunities Clause of Article IV?

Explanation

Since pursuing a trade is a fundamental right under Article IV, §2, the law affects an interest that falls within the purview of the clause. State X will argue that its law does not discriminate against citizens of other states; rather, it requires everyone, including its own citizens, to meet the statutory requirements before they may work as a licensed plumber. On this basis the state would urge that the Privileges and Immunities Clause is not triggered here.

Paul might respond that, while the law is facially neutral, the apprenticeship requirement should be subject to scrutiny under the clause because it has the practical effect of discriminating against out-of-staters like himself. Citizens of other states are far less likely than state X citizens to have been apprenticed to a plumber licensed by state X. It is unclear whether the Court would find such non-facial discrimination enough to trigger the Privileges and Immunities Clause. In Hillside Dairy Inc. v. Lyons, 539 U.S. 59, 67 (2003), the Court noted that while “the absence of an express statement … identifying out-of-state citizenship as a basis for disparate treatment is not a sufficient basis for rejecting” a claim made under the Privileges and Immunities Clause, it remains an open question whether the clause applies only to “classifications that are but proxies for differential treatment of out-of-state residents” or whether it should also be deemed to reach “classifications with the practical effect of discriminating against such residents. …” Thus, Paul might be required to prove that the discrimination was intentional—i.e., that state X adopted the apprenticeship rule because of its discriminatory effect on out-of-staters; otherwise, the law’s unintended discriminatory effect might not suffice to bring the clause into play. If Paul can persuade the Court that the apprenticeship rule is discriminatory within the meaning of the clause, the rule will be invalidated unless the state can show that there is a substantial reason for the discrimination. See §9.4.