Origins of the Privileges and Immunities of State Citizens under Article IV

Stewart Jay, University of Washington - Seattle Campus

Abstract

The Privileges and Immunities Clause of Article IV provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” According to Alexander Hamilton, the clause was “the basis of the union,” which may seem odd given its minor significance in modern constitutional law. Part of the reason for its relative unimportance today is the development of constitutional doctrines unforeseeable in the eighteenth century: the invention of the Dormant Commerce Clause and the enactment of the Fourteenth Amendment, which prohibit much of the interstate discrimination that the clause was intended to prevent. However, a major explanation for the unseemly fate of the clause lies with early judges who were not faithful to its original purpose.

The clause had one overriding purpose: to assure that Americans were not treated as aliens when in states away from their place of citizenship. It was intended to preserve the benefit that Americans had as British subjects, to be treated the same as local residents anywhere in the country. The advantages of citizenship (or being a subject) were many, ranging from the protection of life, limb, and property to commercial advantages and access to public resources. The multifarious meanings of “privileges” and “immunities” in eighteenth-century writings show that these terms encompassed every kind of advantage that came from citizenship. This is why Hamilton could say the clause was “the basis of the union .” States were to treat all Americans like their own citizens.

In early cases, courts correctly understood the clause to be a comity provision, assuring that Americans would receive the same basic rights as local citizens in states away from their homes. Courts veered from following the original meaning of the clause by deciding that it did not cover all the rights that citizens of a state enjoyed, but only those that were considered by judges to be fundamental or essential to the preservation of the union. This interpretation was ahistorical and inconsistent with the text of the clause, which covers “all” privileges and immunities of citizens.

Judicial misinterpretations of the clause were compounded in the nineteenth century when courts concluded that access to publicly-owned natural resources was not a privilege of citizenship but a property right reserved to a state’s citizens. The Supreme Court also excluded corporations from coverage by the clause, leaving it inapplicable to much of the nation’s economic activity. Treating the corporation as the holder of its shareholders’ personal privileges as citizens of American states would be truer to the Framers’ purpose as well as more consistent with the Court’s interpretation of corporate rights in other constitutional settings.

No court interpreting the clause has ever undertaken a thorough examination of the rights associated with citizenship in the eighteenth century. The Supreme Court’s modern approach to the clause has strayed even farther from the purpose of the clause by adopting an analytical framework that has no historical basis.