Constitutional Law: Privileges and Immunities Clauses Flashcards
How many privileged and immunities clauses are in the constitution?`
Two. The 14th Amendment Privileges or
Immunities Clause and the Interstate Privileges and Immunities Clause of Article IV.
The
14th Amendment clause protects attributes of United States citizenship and is rarely applicable.
The Article IV provision prevents some discrimination by states against nonresidents, and
is usually more relevant on the bar exam.
Article IV - Privileges of State Citizenship
Article IV, Section 2, the Interstate Privileges and Immunities Clause, provides that “[t]he
Citizens of each state shall be entitled to all Privileges and Immunities of citizens in the several
states.” Thus, it prohibits discrimination by a state against nonresidents.
Article IV - Privileges of State Citizenship: (1) Corporations and Aliens Not Protected
Corporations and aliens are not citizens of a state for purposes of the Privileges and Immunities Clause.
Article IV - Privileges of State Citizenship: (2) Only “Fundamental Rights” Protected
The Interstate Privileges and Immunities Clause prohibits discrimination by a state against
nonresidents of the state when the discrimination concerns “fundamental rights”—i.e., rights
relating to important commercial activities (such as pursuit of a livelihood) or civil liberties. However, the Clause applies only if the discrimination is intentionally protectionist
in nature. [See McBurney v. Young, 569 U.S. 221 (2013)—state law limiting Freedom of
Information Act requests to state citizens did not violate the Privileges and Immunities
Clause when it interfered with a nonresident’s vocation of obtaining property records for
clients, because there was no evidence that the discrimination was protectionist in nature]
The following protectionist measures have been struck down:
a. Statute charging nonresident commercial fishermen substantially more for commercial fishing license than resident commercial fishermen ($2,500 vs. $25) [Toomer
v. Witsell, 334 U.S. 385 (1948); cf. Baldwin v. Montana Fish & Game Commission,
436 U.S. 371 (1978)—vast difference between resident and nonresident recreational
hunting license constitutional since no essential commercial activity involved];
b. Statute giving resident creditors priority over nonresident creditors as to assets of
foreign corporations in receivership proceedings [Blake v. McClung, 172 U.S. 239
(1898)];
c. Statute or court rule requiring state residency to be licensed to practice law within
the state [Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988)];
d. State income tax only on nonresidents who earn money within the state [Austin v.
New Hampshire, 420 U.S. 656 (1975)]; and
e. State law requiring private sector employers to give hiring preference to residents
absent a closely related substantial justification (see below) [Hicklin v. Orbeck, 437
U.S. 518 (1978)], but states may require a person to be a resident to hold government employment [McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645 (1976)
(per curiam)].
Article IV - Privileges of State Citizenship: (3) Substantial Justification Exception
A state law discriminating against nonresidents may be valid if the state has a substantial
justification for the different treatment. In effect, it must show that nonresidents either cause
or are part of the problem it is attempting to solve, and that there are no less restrictive
means to solve the problem. Stated another way, the law must be necessary to achieve an
important government purpose.
Article IV - Privileges of State Citizenship: (4) Note - Relationship to Commerce Clause
Although the Article IV Privileges and Immunities Clause and the Commerce Clause may apply different standards and produce different results, they tend to mutually reinforce each other. Consequently, they both have to be considered in analyzing bar exam questions.
14th Amendment - privileges of National Citizenship
The Fourteenth Amendment Privileges or Immunities Clause prohibits states from denying
their citizens the privileges and immunities of national citizenship, such as the right to petition
Congress for redress of grievances, the right to vote for federal officers, the right to enter public
lands, the right to interstate travel, and any other right flowing from the distinct relation of a
citizen to the United States Government.
14th Amendment - privileges of National Citizenship: (1) Corporations Not Protected
Corporations are not citizens of the US and are not protected.
14th Amendment - privileges of National Citizenship: (2) Bill of Rights Not Included
The Slaughterhouse Cases, 83 U.S. 36 (1873), held that the fundamental rights protected
against federal abuse (first 10 Amendments) are not privileges or immunities of national
citizenship within the meaning of the Fourteenth Amendment; nor are such other basic
rights as the right to live, work, and eat. Thus, the guarantees of the Bill of Rights are
protected from state action only by the Due Process and Equal Protection Clauses of the
Fourteenth Amendment.
14th Amendment - privileges of National Citizenship: (3) Right to Travel and the Privileges or Immunities Clause
The right to travel, which is protected by the Fourteenth Amendment, includes the right of
newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other
citizens of the state.
