Privileges and Immunities of Citizens Defined

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Article IV, Section 2, Clause 1:

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

The classical judicial exposition of the meaning of “privileges and immunities” is that of Justice Bushrod Washington in 1823 in Corfield v. Coryell.1 The question at issue was the validity of a New Jersey statute that prohibited “any person who is not, at the time, an actual inhabitant and resident in this State” from raking or gathering clams, oysters, or shells in any of the state’s waters on board any vessel not owned by state residents.2 In Corfield, Justice Washington described the privileges and immunities under the Clause as “those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union.” 3 Although a full list would be “tedious,” Justice Washington opined that they include:

Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state . . . .4

After so defining the private and personal rights that were protected, Justice Washington distinguished them from a right to share in a state’s public property. In particular, Corfield held that the right of a state to the clams and oysters within its waters to be in the nature of a property right, held by the state “for the use of the citizens thereof.” 5 The statute at issue was thus upheld because New Jersey need not grant “cotenancy in the common property of the State, to the citizens of all the other States.” 6

Following Corfield, the Court has held that for an activity to be protected by the Privileges and Immunities Clause as “fundamental,” it must be so “basic and essential” that “interference with [it] would frustrate the purposes of the formation of the Union.” 7 Activities such as the pursuit of occupations or common callings within the state8 (including the right to practice law9 ), the right to seek employment on public contracts,10 the ownership and disposition of property within the state,11 and access to state courts,12 have all been recognized as fundamental and protected under the Privileges and Immunities Clause. In contrast, recreational fishing and hunting (that is, not tied to one’s commercial livelihood13 ) has been held not a fundamental activity.14 Accessing public records through a state freedom of information act has also been held not to be a fundamental activity; a state may therefore limit such access to its own citizens.15

1: 6 F. Cas. 546 (Washington, Circuit Justice, C.C.E.D. Pa. 1823); Austin v. New Hampshire, 420 U.S. 656, 661 (1975) (characterizing Corfield as “the first, and long the leading, explication of the [Privileges and Immunities] Clause” ).
2: Corfield, 6 F. Cas. at 550.
3: Id. at 551.
4: Id. at 551–52.
5: Id. at 552.
6: Id.
7: Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 387 (1978).
8: See, e.g., Hicklin v. Orbeck, 437 U.S. 518, 524 (1978); Toomer v. Witsell, 334 U.S. 385, 403 (1948); Ward v. Maryland, 79 U.S. 418, 430 (1870).
9: See, e.g., Supreme Ct. of N.H. v. Piper, 470 U.S. 274 (1985).
10: See United Bldg. & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208 (1984).
11: See, e.g., Blake v. McClung, 172 U.S. 239, 258 (1898); see also Williams v. Bruffy, 96 U.S. 176, 184 (1878).
12: See, e.g., Can. N. Ry. v. Eggen, 252 U.S. 553, 560 (1920).
13: See, e.g., Toomer, 334 U.S. at 403; Mullaney v. Anderson, 342 U.S. 415, 418 (1952).
14: Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 388 (1978); McCready v. Virginia, 94 U.S. 391, 395 (1876).
15: McBurney v. Young, 569 U.S. 221, 228–29 (2013). The Court further found that any incidental burden on a nonresident’s ability to earn a living, own property, or exercise another fundamental activity could largely be ameliorated by using other available authorities, emphasizing that the primary purpose of the state freedom of information act was to provide state citizens with a means to obtain an accounting of their public officials. Id.