7. Privileges & Immunities Clause

Question 1

What is the application of the Privileges or Immunities Clause under the Fourteenth Amendment?

Answer 1

Very limited application

The clause primarily protects rights associated with national citizenship.

Question 2

List some protected privileges and immunities of national citizenship under the Fourteenth Amendment.

Answer 2

• To travel from state to state
• To petition Congress for redress of grievances
• To vote for national offices
• To enter public lands
• To be protected while in custody of U.S. Marshals
• To assemble peaceably

These rights are essential for the exercise of national citizenship.

Question 3

Are corporations and aliens protected under the Fourteenth Amendment Privileges or Immunities Clause?

Answer 3

No

Only national citizens are protected under this clause.

Question 4

When is the Fourteenth Amendment Privileges or Immunities Clause most frequently used?

Answer 4

When an in-state citizen is discriminated against on the basis of the citizen having only resided in the state for a limited time (i.e., a durational residency requirement.

This involves the right to travel and elect to become a permanent resident.

Question 5

What does the Privileges and Immunities Clause under Article IV, Section 2 state about residency or citizenship requirements?

Answer 5

A state may NOT impose them on non-residents without demonstrating substantial interest

This clause protects non-residents from unjust discrimination.

Question 6

Are corporations and aliens considered ‘citizens’ under Article IV Privileges and Immunities Clause?

Answer 6

No

This clause applies only to natural citizens.

Question 7

What are examples of invalid forms of nonresident discrimination?

Answer 7

1. a state statute requiring a nonresident commercial fisherman to pay a $2,500 license fee to fish offshore,while a resident fisherman paid only a $25 license fee;
2. a commuter tax applied to nonresidents who entered New Hampshire to work, while New Hampshire residents were exempt from the tax;
3. a state statute imposing residency requirements on women seeking an abortion, which was held invalid because an individual has a fundamental right to seek medical care;
4. a state law requiring employers to give hiring preference to state residents.
5. State imposed a nonresident income tax of 3% on all state employees residing outside the state.

Question 8

What types of nonresident discrimination have been upheld under the Privileges and Immunities Clause?

Answer 8

1. a state statute requiring a nonresident to pay $225 for a recreational hunting license, a resident hunter paid only a $9 license fee, because it is within a state’s police power to regulate recreational, and noncommercial activities; and
2. discrimination against nonresidents will be given special consideration if its purpose is the preservation of natural, state-owned resources.

Question 9

What triggers the Article IV Privileges and Immunities Clause regarding discrimination against nonresident citizens?

Answer 9

Discrimination in regard to an essential economic right or liberty

General economic discrimination is usually analyzed under the Commerce Clause.

Question 10

What factors will courts consider to determine if a state action violates the Privileges and Immunities Clause of Article IV, Section 2?

Answer 10

• Whether the state discriminated against nonresidents
• Whether there is justification for the discrimination

Courts analyze both the action and the rationale behind it.

Question 11

What happens if a challenged restriction violates the Privileges and Immunities Clause of Article IV, Section 2?

Answer 11

The court will hold it invalid unless:
* There is a substantial reason for the difference in treatment
* The discrimination bears a substantial relationship to state objectives

This ensures that valid state interests can justify certain regulations.