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Privileges and Immunities

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Concepts contained in the U.S. Constitution that place the citizens of each state on an equal basis with citizens of other states in respect to advantages resulting from citizenship in those states and citizenship in the United States.

The Privileges and Immunities Clauses are found in Article IV of the U.S. Constitution and the Fourteenth Amendment. Both clauses apply only to citizens of the United States. Aliens and corporations are not citizens and, therefore, are not entitled to this protection. These clauses have proven to be of little import because other constitutional provisions have been used to settle controversies. In large part the insignificance of the clauses has been based on restrictive readings of the clauses by the U.S. Supreme Court.

Article IV provides that "The Citizens of each State shall be entitled to all Privileges and Immunities in the several states." The purpose of the clause was to facilitate the unification of the independent states into one nation so that citizens traveling throughout the country would receive the same treatment as the citizens of the states through which they passed.

The privileges and immunities that are protected under Article IV include the right to receive protection from state government; the right to acquire and possess all kinds of property; the right to travel through or reside in any state for purposes of trade, agriculture, or professional endeavors; the right to claim the benefit of the writ of habeas corpus; the right to sue and defend actions in court; and the right to receive the same tax treatment as that of the citizens of the taxing state.

This clause forbids a state from unjustly depriving citizens from other states of any rights derived from state citizenship solely on the basis of nonresidence. Yet the Supreme Court has never interpreted it to preclude all deferential treatment of in-state citizens. As a result, the Privileges and Immunities Clause does not bar differential state standards governing the practice of certain professions. Out-of-state doctors, lawyers, and other professionals may be required to prove their competency based on standards that are higher than those applied to their in-state counterparts. Tuition rates at public colleges and universities are typically lower for in-state students. Out-of-state residents are charged more for hunting and fishing licenses than are in-state residents. Such discrepancies are generally accepted as justifiable because they advance legitimate state interests.

The Supreme Court has struck down state laws that infringed rights guaranteed by the Privileges and Immunities Clause of Article IV. In Hicklin v. Orbeck, 437 U.S. 518, 98 S. Ct. 2482, 57 L. Ed. 2d 397 (1978), the Court ruled that the state of Alaska failed to show a reasonable purpose for a state law that required employers to give a hiring preference to in-state residents who applied to work on the construction of oil or gas pipelines.

However, the Supreme Court has rarely used the Privileges and Immunities Clause of Article IV to invalidate discriminatory laws. The due process and equal protection Clauses of the Fourteenth Amendment are commonly applied to determine the validity of state laws that unjustly discriminate between residents and nonresidents of a state.

The Fourteenth Amendment's Privileges and Immunities Clause has virtually no significance in civil rights law. The clause states, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This clause protects a person's rights as a citizen of the United States from unreasonable state action or interference.

The privileges and immunities of U.S. citizenship that cannot be unreasonably abridged by state laws include the right to travel from state to state; the right to vote for federal officeholders; the right to enter public lands; the right to petition Congress to redress grievances; the right to inform the national government of a violation of its laws; the right to receive protection from violence when in federal custody; the right to have free access to U.S. seaports; the right to transact business with and engage in administering the functions of the U.S. government; the right to have access to federal courts; and the privilege of the writ of habeas corpus.

The Supreme Court has narrowly construed the Privileges and Immunities Clause of the Fourteenth Amendment since the 1873 slaughter-house cases, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394 (1873). The case involved a Louisiana state law that gave one meat company the exclusive right to slaughter livestock in New Orleans. Other packing companies were required to pay a fee for using the slaughterhouses. These companies filed suit, claiming that the law violated the Privileges and Immunities Clause of the Fourteenth Amendment.

The Court upheld the Louisiana monopoly law, ruling that the Privileges and Immunities Clause had limited effect because it reached only privileges and immunities guaranteed by U.S. citizenship, not state citizenship. Because the law in question dealt with states' rights, the Fourteenth Amendment had no effect. The Court ruled that the Fourteenth Amendment was designed to grant former slaves legal equality, not to grant expanded rights to the general population. In addition, the Court was concerned that a broad interpretation of the Fourteenth Amendment would give too much power to the federal government and distort the concept of federalism, which grants the states a large measure of power and autonomy.

The Court has consistently followed the restrictive interpretation given the Privileges and Immunities Clause by this decision. The clause has little significance today in invalidating state statutes that present a constitutional question. When state laws infringe the fundamental rights of U.S. citizenship, the Court usually invokes the Equal Protection Clause to analyze the constitutionality of the state action.

However, the Supreme Court has used the Privileges and Immunities Clauses in two recent cases. In Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287, 118 S.Ct. 766, 139 L.Ed.2d 717 (1998), the Court ruled that a New York tax law that effectively denied only nonresident taxpayers an income tax deduction for alimony paid violated the Privileges and Immunities Clause. In Saenz v. Doe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999), the Court struck down a California law that limited new residents to the welfare benefits they would have received in the state of their prior residence. It based its decision in part on the Privileges and Immunities Clause. Justice John Paul Stevens stated that the right to travel is protected "not only by the new arrival's status as a state citizen, but also by her status as citizen of the United States." The Privileges and Immunities Clause guaranteed the right of a citizen to "become a citizen of any State of the Union." It did not permit the states to "select their citizens."

Further Readings

Flack, Horace Edgar. 2003. The Adoption of the Fourteenth Amendment. Birmingham, Ala.: Palladium Press.

Noonan, John T., Jr. 2002. Narrowing the Nation's Power: The Supreme Court Sides with the States. Berkeley: Univ. of California Press.

Wilkinson, J. Harvie. 1989. "The Fourteenth Amendment Privileges or Immunities Clause." Harvard Journal of Law & Public Policy 12 (winter).

See Also