Privileges and Immunities Clauses

Question 1

What are the TWO privileges and Immunities clauses?

Answer 1

1. Privileges of State Citizenship (Art IV)

2. Privileges of National Citizenship (14th Amendment)

Question 2

What does the “privileges and immunities” clause of Art IV prohibit?

Who is not protected?

Answer 2

TEXT –> “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

EFFECT: Prohibits discrimination by a STATE against NON-RESIDENTS

NOTE: only “Fundamental rights” are protected (commercial/civil rights)

NOTE: clause only applies if discrimination is “intentionally protectionist” in nature

NOTE: Corporations and aliens are NOT protected by this clause (although they are protected under equal protection and due process clauses of 14th amendment, as well as dormant commerce clause)

Question 3

What is the rule re: “privileges and immunities” clause of Art IV and “fundamental rights”?

Answer 3

• this clause only protects FUNDAMENTAL RIGHTs.

- this includes important COMMERCIAL ACTIVITIES (ie..right to livelihood) or CIVIL LIBERTIES

Question 4

What is the rule re: “privileges and immunities” clause of Art IV and “intentionally protectionist”?

Answer 4

clause only applies if discrimination is “intentionally protectionist” in nature

Question 5

What is the rule re: “privileges and immunities” clause of Art IV and “substantial justification exception”?

Answer 5

• law MAY be valid if state can show SUBSTANTIAL JUSTIFICATION for different treatment

State must show:

1. non-residents either cause or are part of the problem state is trying to solve; AND
2. there are no less restrictive means

Question 6

What is relationship btwn “privileges and immunities” clause of Art IV and dormant commerce clause?

Answer 6

• they may apply different standards and product different results, but tend to mutually reinforce each other
• on exam, they should both be considered

Question 7

What are examples of invalid and valid regs under “privileges and immunities” clause of Art IV?

Answer 7

Invalid

1. state requiring $2,500 license fee from non-resident COMMERCIAL fisherman, while residents pay $25
2. statute giving resident creditors priority over nonresident creditors
3. statute imposing residency requirement for abortion
4. rule limiting bar admission to state residents
5. statute requiring private sector employers to give hiring preference to residents

Valid
1. statute req nonresidents to pay $225 license fee, as opposed to $30 residents fee, for RECREATIONAL hunting

Question 8

What is the “privilege and immunities clause” of the 14th amendment?

Answer 8

TEXT –> “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

EFFECT –> States may not deny their citizens the privileges or immunities of NATIONAL citizenship:

1. right to petition congress;
2. right to vote for federal officers;
3. right to interstate travel

NOTE: corporations are not protected under this clause