Purpose of Privileges and Immunities Clause

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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.

At least four theories have been proffered as to the purpose of the Privileges and Immunities Clause. First, the Clause could be read as a guarantee to the citizens of the different states of equal treatment by Congress, as a kind of equal protection clause binding on the federal government. Though this view received some recognition in Justice John Catron’s opinion in Dred Scott v. Sandford,1 it has long been viewed as obsolete.2

Second, the Clause could be read to guarantee to the citizens of each state certain natural, fundamental rights inherent in the citizenship of people in a free society, which no state could deny to citizens of other states (and without regard to how it treats its own citizens). This theory found some expression in a few early state cases,3 and best accords Justice Bushrod Washington’s famous dicta on the Clause in Corfield v. Coryell.4 This theory might have endowed the Supreme Court with authority to review state legislation similar to that which it later came to exercise under the Fourteenth Amendment’s Due Process and Equal Protection Clauses, but it was firmly rejected by the Court.5

Third, the Clause could be read to guarantee the citizen of any state the same rights that he enjoys at home, even when he is in another state. On this view, the Clause would enable a citizen to carry his rights of state citizenship with him throughout the United States, unaffected by state lines. The Court has also rejected this theory.6

The fourth theory—and the one the Court ultimately accepted—is that the Clause forbids any state to discriminate against citizens of other states in favor of its own. It is this narrow interpretation that has become the settled one. As the Court explained in the 1869 case Paul v. Virginia:

It was undoubtedly the object of [the Privileges and Immunities Clause] to place the 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. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in 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; and it secures to them in other States the equal protection of their laws.7

1: 60 U.S. (19 How.) 393, 518, 527–29 (1857) (Catron, J., concurring), superseded by constitutional amendment, U.S. Const. amend. XIV, § 1.
2: Instead, the Court read the Fifth Amendment’s Due Process Clause to impose equal protection standards on the federal government. See, e.g., Bolling v. Sharpe, 347 U.S. 497 (1954); Schneider v. Rusk, 377 U.S. 163, 168 (1964); Shapiro v. Thompson, 394 U.S. 618, 641–42 (1969).
3: Campbell v. Morris, 3 H. & McH. 288 (Md. 1797); Murray v. McCarty, 2 Munf. 373 (Va. 1811); Livingston v. Van Ingen, 9 Johns. 507 (N.Y. 1812); Douglas v. Stephens, 1 Del. Ch. 465 (1821); Smith v. Moody, 26 Ind. 299 (1866).
4: 6 F. Cas. 546, 550 (Washington, Circuit Justice, C.C.E.D. Pa. 1823); see also Hague v. Comm. of Indus. Org., 307 U.S. 496, 511 (1939) ( “At one time it was thought that [the Privileges and Immunities Clause] recognized a group of [natural] rights . . . and that the purpose of the section was to create rights of citizens of the United States by guaranteeing the citizens of every State the recognition of this group of rights by every other State. Such was the view of Justice Washington.” ).
Other notable proponents of the natural-rights view include Justices Stephen Johnson Field, Joseph Bradley, and Benjamin Robbins Curtis. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 97–98 (1973) (Field, J., dissenting); id. at 117–18 (Bradley, J., dissenting); Dred Scott, 60 U.S. at 580 (Curtis, J., dissenting). The natural rights concept of privileges and immunities was also strongly held by abolitionists and their congressional allies, who drafted the Privileges or Immunities Clause of the Fourteenth Amendment. Howard Jay Graham, Our ‘Declaratory’ Fourteenth Amendment, reprinted in Howard Jay Graham, Everyman’s Constitution: Historical Essays on the Fourteenth Amendment, the Conspiracy Theory, and American Constitutionalism 295 (1968).
5: See, e.g., McKane v. Durston, 153 U.S. 684, 687 (1894).
6: See, e.g., City of Detroit v. Osborne, 135 U.S. 492, 498 (1890).
7: 75 U.S. (8 Wall.) 168, 180 (1869); see also Slaughter-House Cases, 83 U.S. (16 Wall.) at 77; Chambers v. Balt. & Ohio R.R., 207 U.S. 142 (1907); Whitfield v. Ohio, 297 U.S. 431 (1936).