Privileges and Immunities Clause

Original public meaning

The Articles of Confederation had a parallel but muddled provision, extending to "free inhabitants of each of these states" (except paupers, vagabonds, and fugitives) "all privileges and immunities of free citizens in the several states," plus separately-stated privileges of trade and commerce. Story's Commentaries singles out the drafting itself as defective: the shifting terms "free inhabitants," "free citizens," and "people" created a real possibility that a state could confer sister-state citizenship rights on anyone it allowed to become an inhabitant, not just its own citizens.

"The provision in the constitution avoids all this ambiguity. It is plain and simple in its language; and its object is not easily to be mistaken. ... The intention of this clause was to confer on them, if one may so say, a general citizenship." — Joseph Story, Commentaries on the Constitution 3:§§ 1799--1800 (1833)

The Committee of Detail draft read "The free Citizens of each State shall be intitled to all Privileges and Immunities of free Citizens in the sevl States," and Madison's 6 August report tightened it to its final wording, adopted 9-1 on 28 August 1787 (South Carolina alone opposed; Georgia divided) after General Pinckney unsuccessfully sought language favoring "property in slaves." James Wilson's 1791 Lectures on Law frame the clause as a bond of union comparable to the "mutual naturalization" Bacon credited for holding federations together, paired with Congress's new, exclusive power to "establish a uniform rule of naturalization."

Riding circuit in Corfield v. Coryell (1823) — decided while framers of the Constitution were still alive and on the bench — Justice Bushrod Washington gave the clause its operative construction: it protects only rights "fundamental" to citizens of any free government (habeas corpus, court access, property rights, equal taxation, and, with qualification, the franchise), not a general right to share in whatever advantages a state confers on its own citizens over its own common property. State courts of the period read the clause the same way: in Campbell v. Morris (Md. 1797), the court held a Maryland attachment statute burdening non-resident debtors more than resident ones did not violate the clause, because it regulated procedure rather than denying a fundamental right, and did not "melt down the states into one common mass."

Hamilton's Plan bundles privileges and immunities with full faith and credit, 18 June 1787

Alexander Hamilton's own unadopted plan of government, read to the Convention on 18 June 1787 and preserved only in Madison's copy, states this Clause's core guarantee jointly with what became the separate Full Faith and Credit Clause — a single sentence the Committee of Detail later split into two provisions:

"The citizens of each state shall be entitled to the rights, privileges, and immunities of citizens in every other state; and full faith and credit shall be given, in each state, to the public acts, records, and judicial proceedings of another." — Hamilton's Plan, Art. IX sec. 5

See Hamilton's Plan of Government. Hamilton's phrasing — "the rights, privileges, and immunities" — is broader on its face than the Committee of Detail's and the ratified text's narrower "Privileges and Immunities," though the extract does not show whether that wording difference was noticed or debated on the floor.

Virginia Convention, 24 June 1788: Mason's unelaborated property-security objection

George Mason raised a brief floor objection distinct from — and not elaborated beyond — his earlier concerns about Article III: that the clause secured no actual "security of property" for Virginians, without specifying what additional textual guarantee he thought necessary. Elliot's record gives the objection in a single sentence, restated rather than developed: "It was then said, and I now say, that there is no security; nor have gentlemen convinced me of this." No Federalist speaker in this wiki's Virginia-convention record answers Mason's objection directly on this clause; the convention moved on to the New States Clause without further debate. See George Mason, Elliot's Debates (Vol. III).

Doctrinal evolution

The clause's antebellum limits were tested along racial lines almost immediately. In Crandall v. State (Conn. 1834), Chief Justice Daggett charged a jury that free Black Americans were not "citizens" within Article IV's meaning at all, reasoning from their near-universal exclusion from the franchise across state constitutions — while a separate opinion by Justice Williams declined to reach that constitutional question and reversed on an unrelated pleading defect. Dred Scott v. Sandford (1857) later reached the same negative conclusion nationally at the Supreme Court, a holding the Fourteenth Amendment's Citizenship Clause overturned by constitutional text rather than by reinterpreting Article IV.

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Founding-era sources in this ingest are silent on whether the clause's original public meaning of "citizen" excluded free Black Americans, or whether antebellum courts and legislatures departed from that meaning under the pressure of slavery politics. Corfield assumes rather than decides the question; only the post-Crandall record engages it directly.

Modern doctrine

The settled interpretation: nondiscrimination, not natural rights

The Court eventually chose among (at least) four competing readings of the clause. One view, expressed only in Justice John Catron's Dred Scott concurrence, treated the clause as binding Congress to equal treatment of citizens of different states — a theory the Court abandoned in favor of reading the Fifth Amendment's Due Process Clause to impose equal-protection standards on the federal government instead. A second view — the natural-fundamental-rights reading some early state courts took and that best matches Justice Bushrod Washington's Corfield dicta — would have given the Court authority to review state legislation resembling its later Fourteenth Amendment role; the Court rejected it. A third view, that the clause lets a citizen carry home-state rights wherever they travel, the Court rejected as well.

The theory the Court settled on is the fourth: the clause simply "prevents a state from discriminating against citizens of other states in favor of its own." As the Court put it in Paul v. Virginia (1869), the clause's object was "to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws." The Slaughter-House Cases (1873) confirm that this narrow, nondiscrimination reading carries over from the Articles of Confederation's version without change of substance.

The two-part test

Not every distinction between residents and nonresidents violates the clause: states may confine voting and elective office to residents, and need not extend every law or service equally to nonresidents. The clause is implicated only when the discrimination touches a right or activity "fundamental" enough to fall within its scope — for example, the right of nonresidents to "ply their trade, practice their occupation, or pursue a common calling" on substantially equal terms with residents, the Corfield concept the modern Court has carried forward. Even discrimination against a fundamental interest can survive if the state shows (1) "a substantial reason for the difference in treatment" and (2) that the discrimination bears "a substantial relationship to the State's objective." Applying that test, the Court has struck down state preferences for hiring state residents on oil-and-gas pipeline work and residency requirements for state bar admission. The clause reaches municipal ordinances as well as state statutes, so a state cannot evade it by delegating discriminatory authority to a political subdivision.

Self-executing nature and state action

The Court held, in the nineteenth century, that the clause is self-executing: Congress generally lacks power to legislate enforcement of it, leaving enforcement to the states and the courts. Like the Fourteenth Amendment, the clause reaches only state action, not private conduct — federal statutes that punished private conspiracies to deny equal privileges and immunities, or private interference with a citizen's right to reside in or travel between states, have been held unconstitutional on that ground.

Citizenship under the clause

Whether free Black Americans were "citizens" protected by the clause was a contentious antebellum question. In Dred Scott v. Sandford (1857), the Court held that Black Americans — free or enslaved — could not be "citizens" under the Constitution at all, denying federal jurisdiction over Dred Scott's freedom suit for want of diversity of state citizenship. Justice Curtis's dissent disputed the historical premise directly. The holding was superseded by the Fourteenth Amendment's Citizenship Clause (1868): "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." After 1868, "citizens of each State" under the Privileges and Immunities Clause include at least all persons born in the United States, or naturalized U.S. citizens, who reside in that state.

Corporations excluded

A long line of cases has found the clause "inapplicable" to corporations, as distinct from natural persons — reasoning as early as 1839 that a corporation, as a discretionary creation of state law, cannot claim "the rights which belong to its members as citizens of a state." By 1898 the Court declared it "well settled" that "a corporation is not a citizen within the meaning of the [Privileges and Immunities Clause]," a rule later extended to state-law trusts because of their similarity to the corporate form. The Court has continued to adhere to this exclusion even as it has extended other constitutional protections — the Equal Protection Clause, First Amendment, Fourth Amendment — to corporations; challenges to state discrimination against out-of-state corporations are instead typically brought under the dormant Commerce Clause.

Privileges and immunities enumerated

Justice Bushrod Washington's Corfield opinion remains the clause's classical exposition. Riding circuit, he described the protected privileges as those "fundamental," belonging "of right" to citizens of all free governments, and enumerated some of them:

"Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state . . . ." — Justice Bushrod Washington, Corfield v. Coryell, 6 F. Cas. 546, 551–52 (C.C.E.D. Pa. 1823)

Following Corfield, an activity qualifies as "fundamental" only if it is so "basic and essential" that "interference with [it] would frustrate the purposes of the formation of the Union." Courts have found the pursuit of occupations and common callings (including the practice of law), the right to seek employment on public contracts, the ownership and disposition of property, and access to state courts to be fundamental and protected. By contrast, recreational fishing and hunting not tied to a commercial livelihood, and access to public records through a state freedom-of-information act, have been held not fundamental — a state may reserve them to its own citizens.

Valid residency distinctions

A long-recognized political exception permits a state to "require residence within its limits for a given time before a citizen of another State who becomes a resident thereof shall exercise the right of suffrage or become eligible to office." Purely private and personal rights also remain subject to reasonable state police-power regulation distinguishing residents from nonresidents — for example, reserving insurance sales to persons who have resided in the state for a prescribed period, requiring nonresidents who do business in the state or use its highways to consent to service of process on an in-state agent, or limiting a nonresident's dower rights or applying the law of a nonresident's domicile to community property.

Right to travel

The Court has long recognized a right to travel from state to state under the clause. In Saenz v. Roe (1999), the Court identified three distinct components:

"It protects [1] the right of a citizen of one State to enter and to leave another State, [2] the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, [3] for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State." — Saenz v. Roe, 526 U.S. 489, 500 (1999) (numbering added)

Saenz grounded the second component expressly in the Privileges and Immunities Clause, and connected the third to the Fourteenth Amendment's Privileges or Immunities Clause.

Diminished modern significance

Beyond nonresident discrimination and the distinct but related right to travel, the clause's practical importance has waned as most of the Bill of Rights has come to bind the states directly through the Fourteenth Amendment's Due Process Clause; challenges to state abridgment of an enumerated right are now more often litigated under those incorporated amendments than under Article IV's Privileges and Immunities Clause. The clause should also not be confused with the textually distinct Privileges or Immunities Clause of the Fourteenth Amendment, which protects the privileges or immunities of United States citizenship against state invasion rather than guaranteeing sister-state citizens nondiscriminatory treatment.

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This wiki's founding-era sources address the clause's drafting and Justice Washington's Corfield construction but do not speak to the two-part substantial-relationship test, the self-executing/state-action limits, or the clause's relationship to the later Fourteenth Amendment Privileges or Immunities Clause — all purely modern doctrinal developments.