Privileges and Immunities

• Author: Kenneth L. Karst
• Pages: 2019-2022

Page 2019

The Constitution's two privileges and immunities clauses were born of different historical circumstances and inspired by different purposes. Yet they are bound together by more than their textual similarity. Both clauses look to the formation of "a more perfect Union," both sound the theme of equality, and both have raised questions about the role of the federal judiciary in protecting NATURAL RIGHTS.

The original Constitution's Article IV set out several principles to govern relations among the states. The FULL FAITH AND CREDIT CLAUSE established one such principle, and so did the clauses providing for interstate rendition of fugitive felons and fugitive slaves. (See SLAVERY AND THE CONSTITUTION; FUGITIVE SLAVERY; FUGITIVE FROM JUSTICE.) Along with these "interstate comity" provisions was included this guarantee: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Called "the basis of the Union" by ALEXANDER HAMILTON in THE FEDERALIST #80, the first privileges and immunities clause aimed at preventing a state from subjecting another state's citizens to discriminatory treatment of the kind customarily given to ALIENS. The framers saw the clause as embodying the principles of a much longer provision in the ARTICLES OF CONFEDERATION, which had begun with this statement of objective: "The better to secure and perpetuate mutual friendship and intercourse among the people of the different states in this union.?"

From the beginning everyone understood that Article IV's privileges and immunities clause could not mean exactly what it said. A Virginian who came to Boston surely had a right to engage in trade, but just as surely could not expect to be a candidate for governor of Massachusetts. What principle distinguished these two activities? Early in the nineteenth century, Justice BUSHROD WASHINGTON, sitting on circuit in CORFIELD V. CORYELL (1823), read the clause to guarantee equality for out-of-state citizens only as to "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 which comprise this Union.?" Washington went on to list "some" of those "fundamental" privileges, in language broadly inclusive of nearly every sort of right imaginable. Not only did a citizen of one state have a right "to pass through, or to reside in any other state for purposes of trade, agriculture, professional pursuits, or otherwise"; he also had the right, said Washington, to "enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole." Other rights were listed, such as a right of access to a state's courts and a right to nondiscriminatory taxation. Portentously, the passage ended by mentioning "the elective franchise" as a fundamental right.

No one, not even Washington, thought a state had a constitutional duty to let out-of-staters vote in state elections. The inference arises that in offering his list of "fundamental" privileges and immunities Washington had in mind something beyond a catalogue of rights of interstate equality. That broader objective may have been to make Article IV's privileges and immunities clause into a generalized federal constitutional guarantee of liberty, available to local citizens and out-of-staters alike?with identification and enforcement of "fundamental" liberties in the hands of the federal judiciary.

This "natural rights" vision of the privileges and immunities clause of Article IV has never found favor in the Supreme Court. The Court has not interpreted the clause as a source of substantive rights, apart from the right to some measure of equality in a state's treatment of citizens of other states. The term "citizens" has been consistently limited, in this context, to natural persons who are citizens of the United States, thus excluding both corporations and aliens from the clause's protection. The substantive reach of the clause, too, was narrow in the Court's...