Privileges And Immunities

Question 1

What is the privileges and immunities clauses?

Answer 1

Article 4, section 2, known as the comity clause, provides the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states”

Question 2

What does the comity clause do in essence?q

Answer 2

The comity clause prohibits one state from discriminating against the citizens of another state. In this context the term citizen does not include corporations or aliens

Question 3

What are the rights protected under the comity clause?

Answer 3

No resident citizens are protected against discrimination with respect to fundamental rights or essential activities. Examples include: pursuit of employment, transfer of property, and access to state courts.

EX: It’s a violation to set fees for out-of-state people higher for commercial activities, but not for recreational activities, as long as there is a rational basis for the fee differential.

Note that discrimination against an out-of-state resident with regard to access to a states natural resources may violate the dormant commerce clause (prohibition on sale of hydroelectric power outside the state is unconstitutional)

Question 4

What is the exception to the comity clause?

Answer 4

Discrimination against out of state citizens may be valid if the state can show a substantial reason for the difference in treatment. A substantial reason exists if:

1. The nonresidents either cause or are part of the problem the state is trying to solve, AND
2. There are no less-restrictive means to solve the problem.

An example is discrimination against non-residents with respect to the use of scarce water resources when the purpose was to preserve natural state-owned resources

EXAM NOTE: Although the privileges and immunities clause of art 4 and the commerce clause are not coextensive, they tend to mutually support each other; thus, consider both when analyzing an exam question

Question 5

How does the Fourteenth Amendment apply to national citizenship?

Answer 5

The 14th provides that ‘no state shall make or enforce any law which shall abridge the privileges or immunities of the united state.” This cause protects citizens, not corporations or aliens from infringement by the sate upon the privileges and immunities of national citizenship.

Technically the right to travel, to petition congress, to vote, to enter public lands, etc are all privileges and immunities, but the slaughterhouse cases limited the privileges and immunities clause so drastically that really only to the right to travel. Everything else needs to be protected through the DP clause and the EP clause