Privileges and Immunities Clause

The Privileges and Immunities Clause of the U.S. Constitution seeks to ensure all people of the nation can travel freely throughout the states, without being treated in a discriminatory manner. Although each state in the newly formed nation maintained its autonomy, citizens needed to be able to expect to have the same rights as the people who lived in each state. Article IV, Section 1 of the U.S. Constitution makes this guarantee. To explore this concept, consider the following Privileges and Immunities Clause definition.

Definition of Privileges and Immunities Clause

Noun

1. A clause in the United States Constitution that prohibits states from discriminating against citizens from another state.

Origin

1791    Final ratification of the U.S. Constitution

What is the Privileges and Immunities Clause

There are actually two clauses in the Constitution referred to as the “Privileges and [/or] Immunities Clause.” The first is in Article IV, Section 2, Clause 1, which states:

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

This clause guarantees American citizens the same basic rights, regardless of where they travel within the country, or to which state they move. The framers of the Constitution believed this would be an important and necessary guarantee to encourage people to travel to different areas of the vast country they were only just colonizing.

In 1866, as Congress was contemplating Amendments to the U.S. Constitution, Ohio Senator John Bingham proposed a draft clause to the Fourteenth Amendment. This clause, known as the Privileges or Immunities Clause, read:

“The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states …”

Bingham’s purpose in making this clarification to the original Privileges and Immunities Clause was to give Congress the power to “secure to the citizens of each State all of privileges and immunities of citizens of the United States in the several States.” In simple terms, the updated clause in the Fourteenth Amendment allows Congress to enforce the Bill of Rights as it is laid out in the Constitution.

Example of Privileges and Immunities Clause Violation

The state of Florida sets a sales tax of 7% on non-food items purchased within the state. Because Florida is a major hub of tourism in the United States, the state decides to charge a higher sales tax rate of 8% for non-Florida residents. While the state has a right to set taxes within its boundaries, the Privileges and Immunities Clause prohibits treating people who do not reside in the state any differently. In this example of the Privileges and Immunities Clause, that includes taxation.

History of the Clause

The Privileges and Immunities Clause closely reflects wording used in the Articles of Confederation, which served as the first agreement between the original 13 colonies. One provision in those articles establishes that,

“[T]he free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.”

In the Federalist papers, both James Madison and Alexander Hamilton addressed the provision in the Articles. Madison declared that every citizen of a state is entitled to the same privileges of citizens of other states. Hamilton on the other hand believed that the idea of privileges and immunities dictated how a state must treat it citizens.

In 1823, the federal court case of Corfield vs. Coryell ended with Justice Bushrod Washington ruling that protections provided by the Privileges and Immunities Clause are fundamental rights of citizens in a country that is free, independent, and sovereign. Ten years later, in 1833, Justice Joseph Story also addressed the Clause, stating:

“It is obvious, that, if the citizens of each state were to be deemed aliens to each other, they could not take, or hold real estate, or other privileges, except as other aliens. The intention of this clause was to confer on them, if one may so say, a general citizenship; and to communicate all the privileges and immunities, which the citizens of the same state would be entitled to under the like circumstances.”

In 1866, during the drafting of the Fourteenth Amendment to the United States Constitution, Senator Jacob Howard declared that the Supreme Court never addressed the exact meaning of the Privileges and Immunities Clause. He stated:

“It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States … I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guarantied.”

Two years later, the Fourteenth Amendment was ratified, but it was not until 1869 that the Supreme Court addressed the subject. In the case of Paul vs. Virginia, the court determined that the object of the clause was to give each citizen the following rights:

• To be free from discrimination or disability as a person coming from one state to another
• To be free from discriminating laws against them in other states
• To be free to come and go from state to state without restraint
• To be granted the same freedoms had by citizens of any state
• To be free to buy property in other states
• To be free in the pursuit of happiness
• To enjoy the same protections of law granted to citizens of other states

Determining Whether the Privileges and Immunities Clause has been Violated

The clause included in Article IV of the Constitution prohibits discrimination by one state against people from other states, but only in their basic civil rights. The courts use a two-part test in determining whether the Privileges and Immunities Clause has been violated.

First, the courts determine whether a state’s law discriminates against out-of-state citizens in regard to their basic freedoms, their right to enjoy life and liberty, and their right to possess property. Next, the courts determine whether the state is justified in its discrimination. This requires the court to examine the different in treatment of out-of-state individuals, as well as the state’s reasoning.

The Historic Slaughterhouse Cases

In 1869, the Louisiana Legislature passed a law that created a monopoly, when it granted exclusive right to slaughter animals in the New Orleans area to the Crescent City Livestock Landing & Slaughterhouse Company. This action was taken in a desperate attempt to clean up the public drinking water supply, which had been severely polluted by independent butchers upstream dumping the offal, blood, dung, and other waste from the slaughter of more than 300,000 animals each year. In just a few short years prior to passing the legislation, New Orleans had suffered eleven outbreaks of cholera, which left many dead it their wakes.

In exchange for the lucrative award, the slaughterhouse agreed to studiously comply with state regulations regarding the quality of their products, as well as their facilities. The company would also be held to a specified volume of production, and regulation on the price of livestock.

The state of Louisiana claimed that it took this action, granting exclusive rights to one slaughterhouse, in order to protect the health and safety of workers, as well as the safety of meat products delivered to consumers. While the law prohibited any other slaughterhouses from operating within the city limits of New Orleans, the company was required to allow independent butchers certain hours to work on its facility grounds, at a set rate for use.

A group of local butchers file a civil lawsuit against the state, claiming the law violated their rights under the Privileges and Immunities Clause of the Fourteenth Amendment. These historic “Slaughterhouse Cases” made their way to the U.S. Supreme Court, which ruled on the matter in 1873, agreeing with the state. The Court ruled that the law did not violate the Privileges and Immunities Clause, which bans states from discriminating against out-of-state citizens, but does not require the state to give those citizens any special privileges.

Referring to the ruling in Corfield, the Court held:

“[P]rivileges and immunities … are, in the language of Judge Washington, those rights which are fundamental. Throughout his opinion, they are spoken of as rights belonging to the individual as a citizen of a State … The constitutional provision there alluded to did not create those rights … It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens. Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.”

The High Court’s decision allowed the Louisiana law to move forward.

Additional Case Relating to Privileges and Immunities Clause

In 19th Century America, insurance companies were regulated by each state. The restrictions against the companies made doing business between states difficult, so they set up a test case in an attempt to bring the matter of uniform regulation to the federal level.

After Virginia enacted a law forbidding insurance companies not incorporated in Virginia from doing business in the state without a proper license. Obtaining the proper licensure required the company to make a cash deposit with the state treasurer in an amount that ranged from $30,000 to $50,000 ($862,000 – $1.4 million today).

In May 1866, a New York insurance company set up a Virginia resident, Samuel Paul, as an insurance agent in his state. Paul applied for the required license, agreeing to comply with all state regulations, though he did not deposit the required bonds with the treasurer. His license was denied because of this. Paul went on to sell an insurance policy to a Virginia resident anyway, and was indicted and convicted of the crime.

Paul then challenged the state’s law as a violation under the Privileges and Immunities Clause, eventually taking his case to the U.S. Supreme Court. Paul argued that the Commerce Clause gives Congress the authority to “regulate commerce with foreign nations, and among the several states,” and so it could take over regulation of the interstate insurance.

The Supreme Court made this important ruling regarding the Privileges and Immunities clause, stating that corporations are not citizens, and the Privileges and Immunities Clause does not apply. The Court went further in declaring that the issuance of insurance policies is not a transaction of “commerce,” effectively setting the insurance business out of the reach of Congress’ reach.

Related Legal Terms and Issues

• Clause – A separate article, proviso, or stipulation in a contract, bill, or treaty.
• Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
• Monopoly – Control or advantage held by one entity over the commercial market in any specific geographical region.