Privileges and immunities Summary

  • Last updated on November 11, 2022

Special rights and exemptions provided by law, which are protected from state government abridgment by Article IV of the U.S. Constitution and the Fourteenth Amendment.

The Supreme Court has given the privileges and immunities clauses varying interpretations according to what it considered the nation’s exigent political and economic needs. Opinions addressing these provisions illustrate the political nature of the Court’s decision making. Both clauses arise from intergovernmental concerns within the federal system and require that state governments treat citizens with basic equality; litigation about them has also examined the federal courts’ role in guaranteeing “fundamental rights.”

Bushrod Washington–a nephew of President George Washington–was the first justice to articulate the principle of the fundamental rights of citizens traveling or doing business in other states.

(Collection of the Supreme Court of the United States)

Article IV, section 2, of the U.S. Constitution provides that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens of the other states.” In The Federalist (1788) No. 80, Alexander Hamilton maintained that this clause was “the basis of the Union.” Along with the full faith and credit clause and fugitive felons and fugitive slaves provisions, this clause was designed to ensure interstate comity. Its obvious purpose was to protect citizens of one state from being treated as aliens while in another state. Evidently, the clause did not literally mean what it said. A Georgian has the right to conduct trade in Maryland but not to vote in Maryland’s elections. The earliest standard to distinguish between these activities was propounded by Justice Bushrod Washington. Sitting on circuit court, he held that this clause protected out-of-state citizens’ fundamental rights, those that “belong, of right, to citizens of all free governments” in Corfield v. Coryell[case]Corfield v. Coryell[Corfield v. Coryell] (1823).

Substantial Reason Test

The Court never fully embraced Washington’s interpretation. It rarely used the clause to protect fundamental rights, except to ensure some measure of equal treatment by state governments for citizens of other states. Its concern was primarily with the political fallout of interstate relations rather than the rights of individual citizens. The nineteenth century Court limited its use of the clause to protecting the professional, property, and business rights of out-of-state citizens and to providing them access to state courts. The Court’s major twentieth century development of the Article IV clause held that lawful state discrimination against citizens of other states must exhibit a “substantial reason for discrimination” beyond their out-of-state citizenship in Toomer v. Witsell[case]Toomer v. Witsell[Toomer v. Witsell] (1948). The most notable use of the Toomer standard was Doe v. Bolton[case]Doe v. Bolton[Doe v. Bolton] (1973), in which the court struck down a statute that allowed only state residents to obtain abortions in Georgia.

After it adopted the Toomer “substantial reason” test, the Court returned to the fundamental rights standard in one significant case. It upheld a Montana law that required a higher fee for the hunting licenses of nonresidents than for those for residents. It ruled that equal access to hunting licenses for nonresidents was “not basic to the maintenance of well-being of the Union” in Baldwin v. Fish and Game Commission[case]Baldwin v. Fish and Game Commission[Baldwin v. Fish and Game Commission] (1978). In all cases, the Court applied the Article IV clause only to unequal treatment of out-of-state citizens, and in most of them, it also based its holdings on the commerce clause.

The Fourteenth Amendment

The Fourteenth AmendmentFourteenth Amendment includes the injunction that “No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States.” This clause’s primary author, John Bingham, contended that the privileges and immunities referred to “are chiefly defined in the first eight amendments to the Constitution,” which he maintained, “were never limitations upon the power of the States, until made so by the Fourteenth Amendment.”

The Slaughterhouse Cases[case]Slaughterhouse Cases[Slaughterhouse Cases] (1873) presented the first significant litigation concerning the meaning of the Fourteenth Amendment. In that decision, the Court rendered the privileges or immunities clause ineffective as the basis for federal protection of individual rights. The appellants claimed that their right to labor was violated by a Louisiana law that required New Orleans butchers to use a central slaughterhouse. Writing for a 5-4 majority, Justice Samuel F. Miller ruled that the privileges or immunities clause did not protect a right to labor. He maintained that the clause protected only the privileges or immunities granted by the United States and that regulation of the right to labor fell within the authority of the states.

The next day, the Court applied Slaughterhouse’s narrow interpretation to hold that the clause did not prevent Illinois from denying women licenses to practice law in Bradwell v. Illinois[case]Bradwell v. Illinois[Bradwell v. Illinois] (1873), thus confirming the view of the clause held by the Court ever since. The political and cultural basis of the decision was indicated by Justice Joseph P. Bradley’s concurrence, “Women are to fulfill the noble and benign offices of wife and mother.” This, he maintained, “is the law of the Creator.” A century later, when the Court turned to the Fourteenth Amendment to protect women from discriminatory state laws, it relied on the equal protection clause.

In both Slaughterhouse and Bradwell, the Court responded to political considerations. It recognized that all citizens’ fundamental rights should be secured against infringement. It was also committed to the federal system and determined that the states should retain primary responsibility for governing and protecting the rights of the people. To rule otherwise, the Slaughterhouse majority argued, would make “this court a perpetual censor upon all legislation of the states.”

Justice Stephen J. Field decried Slaughterhouse for reducing the privileges and immunities clause to “a vain and idle enactment, which accomplished nothing.” His dissent contained the seeds of the doctrines of freedom of contract and substantive due process that dominated the Court’s economic rulings for half a century. Because Slaughterhouse emasculated the privileges or immunities clause, when the Court espoused these doctrines, it based them on the Fourteenth Amendment’s due process clause. To this day, when the Court chooses to protect individual rights, it turns to the due process, equal protection, or commerce clauses rather than the weakened privileges or immunities clause.

Further Reading
  • Olsen, Trisha. “The Natural Law Foundation of the Privileges or Immunities Clause of the Fourteenth Amendment.” Arkansas Law Review 48 (1995): 347-438.
  • Perry, Michael J. We the People: The Fourteenth Amendment and the Supreme Court. New York: Oxford University Press, 2001.
  • Rosen, Jeffery. “Translating the Privileges or Immunities Clause.” George Washington Law Review 66 (1998): 1241-1268.
  • Scarborough, Jane L. “What If the Butcher in the Slaughterhouse Cases Had Won? An Exercise in ‘Counterfactual’ Doctrine.” Maine Law Review 50 (1998): 211-224.
  • Scaturro, Frank J. The Supreme Court’s Retreat from Reconstruction: A Distortion of Constitutional Jurisprudence. Westport, Conn.: Greenwood Press, 2000.
  • Simson, Gary J. “Discrimination Against Nonresidents and the Privileges and Immunities Clause of Article IV.” University of Pennsylvania Law Review 128 (1979): 379-401.

Bradwell v. Illinois

Clinton, Bill

Commerce, regulation of

Decision making

Federalist, The

Fourteenth Amendment

Fundamental rights

Slaughterhouse Cases

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