Understanding Constitutional Privileges And Immunities

The Privileges and Immunities Clause, found in Article IV, Section 2 of the US Constitution, is designed to protect the rights of American citizens and ensure equal treatment under the laws in every US state or territory. The clause prevents states from discriminating against citizens of other states and requires states to treat out-of-state citizens as native citizens or residents. While the Supreme Court has interpreted the clause to protect a variety of rights, including substantive rights like religious liberty and procedural rights like the right to a jury trial, there is still debate surrounding the particular rights protected due to its ambiguity. The Privileges and Immunities Clause also appears in the Fourteenth Amendment, ratified after the Civil War, which addresses the rights of citizens of the United States and of individual states.

Explore related products

The Constitutional Rights, Privileges, and Immunities of the American People: The Selective Incorporation of the Bill of Rights, the Refined ... the Second Amendment Right, and Much More

$32.01

The Fourteenth Amendment and the Privileges and Immunities of American Citizenship

$36.06 $45

The Constitution of the United States of America: The Declaration of Independence, The Bill of Rights

$9.99 $9.99

Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (Routledge Research in Constitutional Law)

$55.16 $72.99

A Companion to the United States Constitution and Its Amendments

$34.65 $45

Privileges and Immunities: A Reference Guide to the United States Constitution (Reference Guides to the United States Constitution)

$95

The Fourteenth Amendment

> No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Privileges or Immunities Clause, also known as the Comity Clause, is derived from Article IV of the Constitution, which states that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States". The Clause prevents a state from treating citizens of other states in a discriminatory manner and guarantees them the same privileges as citizens of the state in question.

The Clause was deemed necessary to enforce the privileges and immunities of citizens as an express limitation upon the powers of the states. The primary author of the Privileges or Immunities Clause was Congressman John Bingham of Ohio, who believed that Congress lacked the power to enforce the Clause under the original, unamended Constitution. Bingham's proposal was voted in favour of by the Joint Committee on Reconstruction in 1866, and the Fourteenth Amendment was ratified two years later.

The Privileges or Immunities Clause has been interpreted by many judges and scholars, with the Slaughter-House Cases decided in 1873 being the most influential. The Clause has also been the subject of debate, with lawyers, judges, and commentators arguing that it means more than its interpretation. One debate concerns whether the privileges and immunities of citizenship include the protections of the Bill of Rights, such as rights of speech, press, and religion. Another debate is about the Clause's application to basic private rights, like contract and property.

Fundamental rights

The Privileges and Immunities Clause of the US Constitution protects the fundamental rights of individual citizens. It is found in Article IV, Section 2, Clause 1, also known as the Comity Clause, and states:

> "The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

The clause prevents states from discriminating against citizens of other states and requires them to treat non-citizens as native citizens or residents. This includes the right to interstate travel, which is associated with the clause. The clause does not extend to commercial activity or corporations, only citizens.

The Fourteenth Amendment, ratified in 1868, further defines the privileges and immunities of citizens:

> "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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The Fourteenth Amendment ensures equal treatment under the laws in every US state and territory and helps identify the fundamental rights of citizenship. It protects substantive rights, such as religious liberty, and procedural rights, such as the right to a jury trial. It also protects rights that are explicitly written in the Constitution, such as those in the Bill of Rights, and those that are not, such as the right to privacy.

The Supreme Court has interpreted the Privileges and Immunities Clause to protect a variety of rights, including those listed in the Bill of Rights and other fundamental rights, such as the right to own property. However, there is still debate and ambiguity surrounding the particular rights protected by the clause.

State discrimination

The Privileges and Immunities Clause of the US Constitution prevents states from discriminating against citizens of other states. It ensures that citizens of each state are entitled to the same privileges and immunities as citizens of other states. This clause is found in Article IV, Section 2, also known as the Comity Clause, and was intended to unify the separate states, treating citizens of other states as native citizens or residents.

The clause protects the fundamental rights of individual citizens, including the right to travel interstate, the right to acquire and possess property, and the right to pursue happiness and safety. It also includes economic rights, such as the right to pursue a livelihood. The Supreme Court has interpreted the clause to protect a range of rights, including religious liberty, the right to a jury trial, and the right to privacy.

A two-prong test is used to determine whether a state action violates the Privileges and Immunities Clause. The first prong examines whether a law discriminates against out-of-state citizens regarding fundamental rights. The second prong assesses whether the state's discrimination is justified, by evaluating if there is a substantial reason for the differential treatment and if it is related to that reason.

The Privileges and Immunities Clause also appears in the Fourteenth Amendment, which was ratified after the Civil War to address discriminatory laws passed by Southern states that restricted the rights of newly freed African Americans. The Fourteenth Amendment ensures equal treatment under the law in every state and territory and identifies fundamental rights of citizenship, such as the right to travel.

Explore related products

The Slaughterhouse Cases: Regulation, Reconstruction, and the Fourteenth Amendment (Landmark Law Cases & American Society)

$59.99 $29.99

Privileges and Immunities of Citizens of the United States

$25.95

Beyond the Fourteenth Amendment: Protecting the Right to Earn a Living

$14.95

Debate In The Constitutional Convention Of The State Of New York On The Proposal To Deny To The Legislature The Power To Grant Privilege Or Immunity, 1915

$25.95

Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions

$55.44 $60

On Constitutional Ground

$19.25 $35

Supreme Court interpretation

The Privileges and Immunities Clause, also known as the Comity Clause, is a provision in Article IV, Section 2, Clause 1 of the U.S. Constitution. It prevents states from treating citizens of other states in a discriminatory manner and guarantees that citizens of each state are entitled to the privileges and immunities of citizens in the several states. The exact scope of these privileges and immunities has been the subject of debate and interpretation by the Supreme Court.

One of the earliest interpretations of the Privileges and Immunities Clause came from Justice Bushrod Washington in 1823, who described the protections provided by the clause as confined to privileges and immunities that are "fundamental" and have "at all times, been enjoyed by the citizens of the several states." Washington's interpretation included rights such as the right to travel through and reside in states, the right to claim the benefit of the writ of habeas corpus, the right of access to the courts, the right to purchase and hold property, and an exemption from higher taxes than state residents pay.

In the 1866 congressional debates surrounding the draft Fourteenth Amendment, Senator Jacob Howard noted that the Supreme Court had never squarely addressed the meaning of the Privileges and Immunities Clause. The Fourteenth Amendment was ratified in 1868, and the Supreme Court finally addressed the issue in the case of Paul v. Virginia in 1869. The Court interpreted the clause as placing 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."

In subsequent cases, the Supreme Court has interpreted the Privileges and Immunities Clause as protecting a variety of rights against state abuses, including substantive and procedural rights, explicit and implicit constitutional rights, and rights that apply in the political realm as well as those unrelated to voting. For example, in Toomer v. Witsell (1948), the Court interpreted the clause as ensuring that citizens of one state venturing into another state are afforded the same privileges as the citizens of that state.

Despite the strong textual, structural, and historical evidence supporting a robust reading of the Privileges and Immunities Clause, the Supreme Court narrowed its interpretation in the 1873 Slaughter-House Cases. In these cases, the Court gutted the key provision of the clause, limiting the number of legal protections it affords.

In more recent cases, the Supreme Court has continued to interpret and apply the Privileges and Immunities Clause. For example, in McBurney v. Young (2013), the Court held that Virginia's Freedom of Information Act, which granted Virginia citizens access to public records but did not extend the same right to non-Virginians, did not violate the clause.

Citizenship rights

The Privileges and Immunities Clause protects the fundamental rights of individual citizens by preventing states from discriminating against out-of-state citizens. It requires states to treat non-residents as native citizens or residents, guaranteeing them the same fundamental rights. These rights include the right to travel, the right to own property, the right to a jury trial, religious liberty, and the right to privacy, among others. The Supreme Court has interpreted the clause to protect both substantive and procedural rights, as well as rights explicitly written in the Constitution and those that are not.

The Fourteenth Amendment, ratified after the Civil War, is a significant amendment that continues to have an impact on the lives of Americans. It was enacted to address the discriminatory laws passed by Southern states that aimed to restrict the rights of newly freed African Americans. The Privileges and Immunities Clause within this amendment ensures that all citizens of the United States are entitled to the same privileges and immunities, regardless of the state they reside in.

While the Privileges and Immunities Clause primarily focuses on preventing discrimination against citizens of other states, it is important to note that it does not extend to all commercial activity and does not apply to corporations. The interpretation of the exact rights protected under this clause has been debated and remains a subject of discussion among legal scholars.

Frequently asked questions