PRIVILEGES AND IMMUNITIES CLAUSES

PRIVILEGES AND IMMUNITIES CLAUSES

“Privileges and immunities” is addressed in Article IV as well as the Fourteenth Amendment. Under both constitutional provisions, the term “citizen” does not include corporations or noncitizens.

ARTICLE IV

The Article IV Privileges and Immunities Clause (i.e., Comity Clause) prohibits a state from discriminating against citizens of another state with respect to fundamental rights or essential activities (e.g., pursuit of employment, transfer of property, access to state courts).

However, discrimination against out-of-state citizens may be valid if the state can show:

• A substantial reason for the difference in treatment and

• A substantial relationship between the discrimination and the state’s objective.

The market-participant exception that applies to the Dormant Commerce Clause does not apply to the Comity Clause.

Note: The Privileges and Immunities Clause of Article IV and the Commerce Clause tend to mutually support each other, so consider both when analyzing a bar exam question.

FOURTEENTH AMENDMENT—NATIONAL CITIZENSHIP

The Fourteenth Amendment Privileges or Immunities Clause protects citizens from infringement by the states upon the privileges or immunities of national citizenship (e.g., interstate travel, voting for national offices, entering public lands, peaceable assembly).

• The Fourteenth Amendment Privileges or Immunities Clause is seldom successfully invoked because the rights are redundant to rights provided elsewhere in the Constitution. In practice, this clause applies only to the right to travel.