The Privileges and Immunities Clause

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

—David R. Upham

Introduction

On July 4, 1776, the representatives of the “one People” of British America declared that “these United Colonies are . . . Free and Independent States.”¹ From the beginning, this one people subsisted across multiple states, and their representatives sought to safeguard both this unity and this multiplicity. Even before declaring independence, Congress began to draft a charter that promoted both of these ends. The Articles of Confederation guaranteed to the citizens of each state “all privileges and immunities of free citizens in the several states.”² This interstate guarantee would be readopted, with some modification, in the Constitution’s Privileges and Immunities Clause. This provision, also known as the Comity Clause, would pose challenges and then controversies that remained unsettled until the 1870s and beyond.

History Before 1787

In 1774, the First Continental Congress declared that the American colonists were “entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.”³ They were also entitled to “all the rights, liberties, and immunities of free and natural-born subjects, within the realm of England.”⁴ These rights and immunities included certain civil rights, such as the right “peaceably to assemble . . . and petition the king” and “the great and inestimable privilege of being tried by their peers of the vicinage.”⁵ (Both of these rights would be recognized in the First and Sixth Amendments.) Above all, the declaration included the political “right of representation” whereby “the people” might “participate in their legislative council.”⁶ This right would include the right to vote.

On June 24, 1776, shortly before independence, the Continental Congress announced a broad definition of this people:

[A]ll persons residing in any of the United Colonies, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of such colony; and that all persons passing through, visiting, or mak[ing] a temporary stay in any of the said colonies, being entitled to the protection of the laws during the time of such passage, visitation or temporary stay, owe, during the same, allegiance thereto.⁰

With Independence, Congress began to draft what would become the Articles of Confederation, adopted in 1781. The Fourth Article, expressly designed “to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union,”⁷ included the following guarantees:

“the 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”; “the people of each State shall have free ingress and regress to and from any other State”; this people “shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively”; but nonetheless, those “restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant.”

This Article seemed conservative and thus uncontroversial. Its purpose was to “secure and perpetuate” the preexisting unity of the one people. Congress relied on the traditional language of entitlement to “privileges and immunities.” This term or some variant thereof had appeared frequently in colonial documents to describe Americans’ rights as colonial British subjects. And Congress then specified some of the undeniable civil rights of American membership, which were enumerated perhaps only out of an abundance of caution: the right to travel to every state, the right to enjoy “privileges and immunities” in another state equally with the citizens of that state, and the rights of commerce.

Conversely, the language in Article IV reflected some anomalies or innovations. First, Congress extended these rights of interstate citizenship not simply to “citizens,” but to all “free inhabitants” (with “paupers, vagabonds, and fugitives from justice” excluded). Second, Congress added a peculiar exemption: Sojourning citizens could export their property back to their home states even if local laws prohibited such exports. This provision was probably added to exempt traveling slaveholders from local antislavery laws.⁸

Article IV left open at least two questions. First, the term “free inhabitants” undoubtedly included free black persons, but the states were divided on black citizenship. Several southern states regarded freed slaves and their descendants as permanent noncitizens; but northern states generally allowed free blacks the political privileges of citizenship.⁹

Second, the text left a seemingly absurd implication as to voting rights. The traditional “privileges and immunities” of Anglo-American subjecthood had included suffrage. The 1774 resolution had recognized the subjects’ “right of representation.”¹⁰ Under Article IV, a sojourning citizen, with an entitlement to “all” such privileges, would immediately have the right, in any other state, not only to travel, commerce, and petition, but also to vote despite any local qualification as to durational residence or age, sex, or property. Such fluidity would destroy the political integrity of the distinct states.

To address these concerns, in June 1778, the delegation from South Carolina offered two revisions to the proposed but not yet ratified Article IV. As amended, (1) the provision would embrace only “free white inhabitants” and (2) traveling whites would enjoy in other states the rights of citizenship only “according to the law of such states respectively, for the government of their own free white inhabitants.” In other words, free blacks would have no interstate rights under Article IV, and white Americans’ rights would be defined by local state laws, including suffrage regulations. The Continental Congress rejected these and all other amendments to the proposed Articles.¹¹

The Constitutional Convention

The Founders had another chance to revise this provision during the Constitutional Convention. The earliest proposal was in a Committee of Detail draft prepared by James Wilson of Pennsylvania. It stated that “The free (inhabs) Citizens of each state shall be entitled to all Privileges & Immunities of free citizens in the sevl States.”¹² According to Farrand’s Records, this provision was added by John Rutledge of South Carolina, and the word “inhabitants” was struck out.¹³ In 1820, then-Representative Charles Pinckney of South Carolina claimed “to have introduced this clause into the Constitution.”¹⁴ On August 6, Rutledge delivered the Committee of Detail’s report, which included this revised, streamlined text: “The Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.”¹⁵

The proposal was debated briefly on August 28. Pinckney “was not satisfied with it” and “seemed to wish some provision should be included in favor of property in slaves.”¹⁶ It seems he preferred to retain the special “property” exemption found in the Articles of Confederation. There was no further recorded debate. The Convention rejected Pinckney’s motion and approved the Committee’s proposal by a vote of 9 to 1 to 1. South Carolina voted no, and the Georgia delegation was divided. Slaveholders would receive a more limited right to control the travel of their slaves with the Fugitive Slave Clause. (See Essay No. 142.) A draft by the Committee of Style indicated a slight revision, changing “citizens in the several States” to “citizens of the several States,”¹⁷ but the Committee’s report, delivered on September 12, kept the language as “citizens in the several States.”¹⁸

This new streamlined version of the Privileges and Immunities Clause thus (1) replaced “free inhabitants” and “free citizens” with the same word, “citizens,” (2) omitted the enumeration of the rights of travel and commerce, and (3) discarded, over some southerners’ objection, the special exemption for exportation of “property.”

The Ratification Debates

During ratification, there was little recorded discussion about the Privileges and Immunities Clause. In Federalist No. 80, Alexander Hamilton wrote simply that this provision “may be esteemed the basis of the Union.” In Federalist No. 42, James Madison praised the revised clause’s coherence and simplicity, observing that under the Articles of Confederation, there was “confusion” in the language: “Why the terms free inhabitants, are used in one part of the article; free citizens in another, and people in another, or what was meant by superadding ‘to all privileges and immunities of free citizens,’—‘all the privileges of trade and commerce,’ cannot easily be determined.” However, Madison said nothing about the deletion of the special exception for exportation of property.

Despite these apparent improvements, the revised and ratified Privileges and Immunities Clause arguably left at least three questions unanswered. First, history would suggest that voting was a privilege and immunity of citizenship. Thus, this apparent absurdity as to sojourners’ political rights remained.

Second, there was some uncertainty concerning the civil rights of travel, trade, petition, etc. Were these constitutional entitlements absolute rights that the state must respect, state laws to the contrary notwithstanding? Or was a state required only to treat out-of-state citizens equally to the state’s own citizens? Nevertheless, as Professor Earl Maltz has observed, “the idea of a state government failing to provide its own citizens” with such rights “was almost unthinkable.”¹⁹ Thus, the only evil to be feared was state discrimination against citizens from other states.

Third, the new Constitution did not fully define the term “citizen.” The text indicated at least two kinds of citizens. Congress had the power “To establish an uniform Rule of Naturalization” of citizenship,²⁰ and the President must be a “natural born Citizen.”²¹ Congress, then, could provide the “uniform rule” for such naturalization, but what provided the “rule” defining native citizenship? Under the common-law rule, the native subject or citizen included any human being born within and under the jurisdiction of a state or nation.²² Yet, given the facts of American slavery and American racial prejudice, there was doubt as to whether native-born black persons, even if free, enjoyed birthright citizenship.

Early Judicial Precedent

In the first half century after ratification, the courts did little to settle the meaning of the Privileges and Immunities Clause. The only matter that was settled was the citizenship status of corporations. Bank of United States v. Deveaux (1809) held that corporations were “citizens” for purposes of Article III of the Constitution.²³ Under so-called diversity jurisdiction, a citizen of one state can sue a citizen of another state in federal court. However, Bank of Augusta v. Earle (1839) found that such artificial entities were not citizens for the purposes of the Article IV Privileges and Immunities Clause.²⁴

The state courts offered widely different interpretations of the clause. The high courts in Maryland and Virginia affirmed that a “limited operation is to be given to these words, and not a full and comprehensive one,” because these guarantees could not include the right to vote and to hold office.²⁵ This approach seemed inconsistent with the text, which secured “all Privileges and Immunities.”

The Tennessee and Delaware courts found that the clause probably bound only the federal government but not the states.²⁶ And the Massachusetts Supreme Judicial Court declared that a traveling citizen must become a resident of a new state before enjoying any privileges of citizenship therein.²⁷ These decisions conflicted with the Framers’ original intent: to bind the states to respect the citizens’ immediate entitlement to such civil rights as travel, trade, and property in all the states.

Corfield v. Coryell (1823) provided the most widely respected interpretation of the Privileges and Immunities Clause. Justice Bushrod Washington wrote the decision while riding circuit in Pennsylvania. Washington recognized that the clause protected “fundamental” civil rights that were recognized in all free governments, such as the rights to travel, residence, and commerce.²⁸ The clause also protected an immunity against “higher taxes or impositions than are paid by the other citizens of the state.” Washington then added that the clause may also protect the political rights of citizenship, but only “as regulated and established by the laws or constitution of the state in which it is to be exercised.” However, Justice Washington left open the question of whether a traveling citizen was exempted from any local law that might abridge a local citizen’s rights or was instead entitled only to a freedom from interstate discrimination.

Rights of Traveling Free Blacks

In the four decades before the Civil War, slavery and race occasioned the most prominent controversies as to the meaning of the clause. First, there was deep division as to whether free blacks were “citizens,” and if so, whether they were entitled to the privileges of travel, residence, and commerce throughout the Union, local racist laws notwithstanding.²⁹ In 1820, after Congress had approved the admission of Missouri as a slave state, the state’s convention adopted a constitution that required the legislature to “prevent free negroes [a]nd mulattoes from coming to and settling in this State, under any pretext whatsoever.”³⁰ In Congress, most northerners charged that this exclusion would violate the Privileges and Immunities Clause. Congress settled on a “compromise.” Missouri had to agree that its constitution “shall never be construed” so as to exclude “any citizen, of either of the states in this Union” from “the enjoyment of any of the privileges and immunities to which such citizen is entitled under the constitution of the United States.”³¹ This proviso, however, did not resolve who was a citizen and what those rights were.

Afterwards, many courts flatly denied that free blacks were citizens under the Privileges and Immunities Clause.³² Further, courts held that even if traveling free blacks were citizens, the clause prohibited only interstate discrimination. Thus, incoming black citizens could not complain if they were subjected to the same codes imposed on free blacks native to that state.³³ In the first reported federal case interpreting the clause, Judge William Cranch explained that even if they were citizens, traveling free blacks “can claim only those privileges and immunities which belong to citizens of the latter state, in like circumstances.”³⁴

Leading jurists endorsed this interstate-equality reading. Justice Joseph Story wrote that the clause “communicate[s] all the privileges and immunities, which the citizens of the same state would be entitled to under the like circumstances.”³⁵ Chancellor James Kent said much the same.³⁶

Opponents of these laws, however, insisted that free blacks were citizens. Thus, when these citizens came into a new state, they were entitled to these rights without discrimination on the basis of race. For example, an 1843 report to Congress contended that “the citizens of each State are entitled to” these privileges and immunities “equally, without discrimination of color or condition.”³⁷ The following year, a federal court in Massachusetts observed that a Louisiana law excluding free blacks from the state “wholly ignored” the Privileges and Immunities Clause.³⁸ In 1864, a federal court in Virginia found that the Clause exempted migrating black citizens from state laws that abridged, on the basis of race, the fundamental rights defined by Justice Washington.³⁹

Rights of Traveling Slaveholders

Leading up to the Civil War, the courts also had to determine the rights of traveling slaveholders to bring their slaves into free states. Just as slave states became intolerant of traveling free blacks, free states were intolerant of traveling slaveholders. Some southern and western courts affirmed that sojourning citizens were exempt from local antislavery laws.

This issue was addressed in the infamous Dred Scott v. Sandford (1857) decision.⁴⁰ The central legal question in that case was whether Scott was a “citizen” of a state for purposes of Article III diversity jurisdiction. In his majority opinion, Chief Justice Roger B. Taney held that free blacks could never be citizens under Article III. Taney reasoned that if free blacks were citizens under Article III, they would also be citizens under Article IV and therefore entitled to privileges such as the rights to travel, speech, assembly, and arms, as well as an exemption from local racist laws that might infringe these rights.⁴¹ For Taney, that result was intolerable. His opinion thus at once both rejected black citizenship and suggested that the Constitution might entitle a traveling slaveholder to an exemption from local antislavery laws. Justice Samuel Nelson’s concurrence explained that this case did not resolve this issue. This question, he explained, “turns upon the rights and privileges secured to a common citizen of the republic under the Constitution of the United States,” and “[w]hen that question arises, we shall be prepared to decide it.”⁴²

In Lemmon v. People (1860), the New York Court of Appeals would decide this issue.⁴³ In this case, a Virginia slaveholder and her husband traveled to New York with her slaves. However, while in New York, she lost custody of her slaves under the local antislavery law. Lemmon claimed that as a sojourning citizen, she was exempt from this law. The divided court held that the Privileges and Immunities Clause entitled the sojourners only to freedom from interstate discrimination. Lemmon would be subject, equally with New York citizens, to local emancipation law. In the lead opinion, Judge Hiram Denio offered a narrow reading of Article IV. He wrote that “in a given State, every citizen of every other State shall have the same privileges and immunities—that is, the same rights—which the citizens of that State possess.” However, “where the laws of the several States differ, a citizen of one State asserting rights in another, must claim them according to the laws of the” other state, “not according to those which obtain in his own.”⁴⁴ In other words, a Virginian could not assert the rights protected by Virginia law in New York.

Southerners were outraged. The South Carolina Declaration of Secession cited this decision as violative of the asserted right of slave transit.⁴⁵ This right of slave transit was expressly enumerated in the Confederate Constitution’s version of Article IV.⁴⁶

Postbellum Settlement

In the decade after the Civil War, these antebellum controversies were largely resolved. Minor v. Happersett (1875) held that Article IV did not protect political rights, including voting rights. The U.S. Supreme Court held that “the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted.”⁴⁷ As a result, nothing in the Privileges and Immunities Clause would affect the states’ authority to restrict the suffrage on any ground, whether sex, age, property, or residence. Suffrage was not “the absolute right of all citizens.”⁴⁸

The questions of slave transit and black citizenship were settled by constitutional amendments. The Thirteenth Amendment, ratified in 1865, nullified any alleged right of citizens to hold slaves (see Essay No. 191). The Fourteenth Amendment, ratified in 1868, provided a robust definition of citizenship. The Citizenship Clause (see Essay No. 192) affirmed that every person, without regard to race, would enjoy native birthright citizenship if “born” in the United States and “subject to the jurisdiction thereof.”

The Privileges or Immunities Clause of the Fourteenth Amendment also addressed whether the “privileges and immunities” might override state law (see Essay No. 194). This somewhat enigmatic provision specifies that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The authors of the clause, including Senator Jacob Howard of Michigan, evidently thought that the Article IV Privileges and Immunities Clause and the Fourteenth Amendment’s Privileges or Immunities Clause had some close relation to one another.⁴⁹ However, the original meaning of the Privileges or Immunities Clause and its relation to the Privileges and Immunities Clause are questions about which originalist scholars sharply disagree. The Privileges or Immunities Clause of the Fourteenth Amendment should not be confused with the Privileges and Immunities Clause in Article IV. The different conjunctions (and/or) likely turned on the fact that the Fourteenth Amendment was framed in the negative (“No state shall . . .”).

As late as 1868, the Supreme Court had still not interpreted the Article IV Privileges and Immunities Clause. Senator Howard, who served on the Joint Committee for Reconstruction, observed that the Court had not “undertaken to define either the nature or extent of the privileges and immunities thus guarantied.”⁵⁰ However, a year after the amendment’s ratification, Paul v. Virginia (1869) would provide an answer. Writing for a unanimous Court, Justice Stephen Field observed that Article IV “insures to” a citizen of one state when traveling to “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.”⁵¹ Field relied on Judge Denio’s separate opinion in Lemmon, which adopted a federalism-based, interstate-equality reading of Article IV.

Modern Doctrine

Consistent with the postbellum settlement, under modern doctrine, there are three steps in considering a claim under the Privileges and Immunities Clause. First, is the claimant an out-of-state citizen? In-state residents “have no claim under the Privileges and Immunities Clause.”⁵² Second, per Paul v. Virginia, has a traveling citizen been discriminated against on the basis of his or her state of citizenship or residency?⁵³ In assessing discrimination, the Court focuses on the reason why the state discriminated against traveling citizens. Third, does this discrimination adversely affect “fundamental” privileges or immunities? Pursuant to Minor, the Court has found that political rights are not fundamental under this clause. By sharp contrast, political rights are considered “fundamental” under the Equal Protection Clause (See Essay No. 196). The Court has held that these “privileges” include certain state-created rights, such as recreational hunting.⁵⁴ It has also read the Privileges and Immunities Clause of Article IV, as well as the Privileges or Immunities Clause of the Fourteenth Amendment, to protect a right to travel.⁵⁵

Open Questions

• Under modern doctrine, the Supreme Court limits the Privileges and Immunities Clause to a freedom from interstate discrimination and wholly excludes political rights. Is this doctrine consistent with the original meaning and original intent of the clause?
• Has the acceptance of the interstate-equality reading impaired efforts to recover the original meaning and intent of the Fourteenth Amendment’s Privileges or Immunities Clause? This latter provision was arguably adopted to correct the interstate-equality reading.
• Is there a difference between the right to travel protected by the Article IV Privileges and Immunities Clause and the Fourteenth Amendment’s Privileges or Immunities Clause?⁵⁶
• Is the so-called Dormant Commerce Clause “more appropriately housed” in the Privileges and Immunities Clause?⁵⁷

1. Declaration of Independence, ¶ 32. ↩︎
2. Articles of Confederation, art. IV, § 1. ↩︎
3. 1 J. Am. Cong. 21 (Oct. 14, 1774). ↩︎
4. Id. at 20. ↩︎
5. Id. ↩︎
6. Id. ↩︎
7. Articles of Confederation, art. IV, § 1. ↩︎
8. Henry Sherman, Slavery in the United States of America 15 (1858). ↩︎
9. Hanes Walton, Jr. et al., The African American Electorate: A Statistical History 80, 118–20 (2012). ↩︎
10. 1 J. Am. Cong. 20 (Oct. 14, 1774). ↩︎
11. 2 J. Am. Cong. 606 (June 25, 1778). ↩︎
12. 2 Farrand’s 173–74. ↩︎
13. Id. at 163. ↩︎
14. Id.; 3 Farrand’s 445. ↩︎
15. 2 Farrand’s 187. ↩︎
16. Id. at 443. ↩︎
17. Id. at 577. ↩︎
18. Id. at 601. ↩︎
19. Earl M. Maltz, The Fourteenth Amendment and the Law of the Constitution 34 (2003). ↩︎
20. Art. II, § 8, cl. 4. ↩︎
21. Art. II, § 1, cl. 3. ↩︎
22. Lynch v. Clarke, 1 Sand. 583, 639 (N.Y. Ch. 1844). ↩︎
23. 9 US 61 (1809). ↩︎
24. Bank of Augusta v. Earle, 38 U.S. 519 (1839). ↩︎
25. Campbell v. Morris, 3 H. & McH. 288 (Md. 1797); Murray v. McCarty, 2 Munf. 373, 398 (Va. 1811). ↩︎
26. Kincaid v. Francis, 3 Cooke 49, 53 (Tenn., 1812); Douglas’s Admin. v. Stevens, 1 Del. Ch. 465, 477 (1821). ↩︎
27. Abbott v. Bailey, 23 Mass. 89, 91–92 (1827). ↩︎
28. 6 Fed. Cas. 546, 551–52 (C.C.E.D. Pa. 1823) (No. 3230). ↩︎
29. 16 Albert Bushnell Hart, The American Nation, 1831–1841, at 276–77 (Albert Bushnell Hart ed., 1906). ↩︎
30. Mo. Const. of 1821, art. III, § 26. ↩︎
31. Resolution Providing for the Admission of the State of Missouri into the Union, on a Certain Condition, ch. 54, 3 Stat. 645 (1821). ↩︎
32. Amy v. Smith, 11 Ky. 326, 334 (1822). ↩︎
33. Id. at 335. ↩︎
34. Costin v. Washington, 6 F. Cas. 612, 613–14 (C.C.D.C. 1821) (No, 3,266). ↩︎
35. 3 Story’s Commentaries § 1800. ↩︎
36. 2 James Kent, Commentaries on American Law 71–72 (2d ed. 1832). ↩︎
37. Committee on Commerce, Free Colored Seamen—Majority and Minority Reports, H.R. Rep. No. 80, at 2 (1843). ↩︎
38. The Cynosure, 6 F. Cas. 1102, 1103 & n.3 (D. Mass. 1844) (No. 3529). ↩︎
39. In re Dorsey (E.D. Va. 1864) (Op. of Underwood, J.), reprinted in Edward McPherson, The Political History of the United States of America During the Great Rebellion 442–43 (2d ed. 1865). ↩︎
40. Dred Scott v. Sandford, 60 U.S. 393 (1857). ↩︎
41. Id. at 417. ↩︎
42. Id. at 468 (Nelson, J., concurring). ↩︎
43. 20 N.Y. 562 (N.Y. 1860). ↩︎
44. Id. at 608. ↩︎
45. Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union (Dec. 24, 1860), in 2 Alexander H. Stephens, A Constitutional View of the Late War Between the States 671, 674 (1870). ↩︎
46. Confederate Const., art. IV, § 2, cl. 1 (1861). ↩︎
47. Minor v. Happersett, 88 U.S. 162, 171 (1874). ↩︎
48. Id. at 175. ↩︎
49. Speech of Sen. Jacob Howard on a Proposed Fourteenth Amendment (May 23, 1866), in 2 The Reconstruction Amendments: The Essential Documents 185 (Kurt T. Lash ed., 2021). ↩︎
50. Adamson v. People of State of California, 332 U.S. 46, 105 (Black, J., dissenting) (quoting Sen. Jacob Howard, 39 Cong. Globe, 39th Cong., 1st Sess. 2764 (1866)). ↩︎
51. 75 U.S. 168, 180 (1869) (citing Lemmon v. People, 20 N.Y. 562, 607 (1860) (opinion of Denio, J.)). ↩︎
52. United Bldg. & Constr. Trades Council v. Mayor & Council of Camden, 465 U.S. 208 (1984). ↩︎
53. McBurney v. Young, 569 U.S. 221 (2013). ↩︎
54. Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371 (1978). ↩︎
55. Saenz v. Roe, 526 U.S. 489, 501 (1999). ↩︎
56. Id. at 521 (1999) (Thomas, J., dissenting). ↩︎
57. Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 370 (2023) (citing Tyler Pipe Indus., Inc. v. Wash. State Dept. of Revenue, 483 U.S. 232, 265 (1987) (Scalia, J., concurring in part and dissenting in part)); id. at 408–409 (Kavanaugh, J., concurring). ↩︎