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What is the “Privileges and Immunities Clause”?
Article IV, Section 2 states that, “Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” This clause seeks to avoid individuals gaining an advantage or being discriminated against by a state government simply because of the person’s state or residency. States may discriminate against members of other states in favor of its residents if there is a “substantial justification”. Substantial is a floating standard that may be subject to challenge by a court.
- Note: Try to think about the methods that a state could treat members of another state differently, such as through voting rights, ownership of property, taxation, etc.
- Example: State A cannot charge businesses organized in State B a higher rate of sales taxation on sales carried out in State A. This would be an unconstitutional privilege in favor of members of State A.
Discussion: Can you think of a way in which a state has discriminated against citizens of another state that was held invalid by the court? What about a situation where one state discriminates against the citizens of another state and it is held to be valid? (Hint: If you are in a public university, think about your tuition payments.)
- In Oregon Waste Systems vs Department of Environmental Quality of state of Oregon, 1994. The Supreme Court restricted state-waste disposal options that were initially applied in Philadelphia by New Jersey State. The Philadelphia case proposed that “a State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located within its borders”. The Supreme Court ruled that a state may not impose an extra charge on the in-state disposal of waste generated in another state. USA is a country that is known to offer scholarships to students. Thus a student from another state may not necessarily be covered by scholarships offered in a foreign state where they are schooling. Tuition fees may also vary from one state to another since other states may be facing hardships such as frequent natural calamities and thus the government may provide aids to relieve them.
Practice Question: Ellen and Gina are romantically involved and decide to marry in the state of Vermont. Soon after marrying, Ellen’s employer transfers her to its office in Alabama. Alabama does not recognize same-sex marriage. Because of the transfer, Alabama state law does not recognize any of Gina’s rights as Ellen’s spouse. This becomes particularly important with regard to state insurance, real property, and inheritance law. Do you see any constitutional law issue?
- Because there are two states involved here, the Federal law seems to be of much influence than the state laws. Evidence of the Federal government allowing same sex marriage is Obergefell v. Hodges, 576 (2015) – The U.S. Supreme Court made same-sex marriages legal in all 50 states. The Supreme Court stated that both the Due Process Clause and the Equal Protection Clause which were the Fourteenth Amendment to the United States Constitution were in line with same sex marriage, thus it was not a violation of the constitution. The privileges and immunities clause also affirms to same sex marriage. Whether in Alabama or State of Vermont the federal government still demands the states to consider two clauses in addition to the “Privileges and Immunities Clause”. These are “due process clause” which safeguards an individual from denial of life, liberty or property by a state. The “Equal Protection Clause” which provides that a state shall not deny any person equal protection of the laws within it’s domain.
Denning, Brannon P., Why the Privileges and Immunities Clause of Article Iv Cannot Replace the Dormant Commerce Clause Doctrine. Minnesota Law Review, Vol. 88, p. 384, 2003. Available at SSRN: https://ssrn.com/abstract=460242
Lash, Kurt T., The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment (February 28, 2010). 99 Georgetown Law Journal 329 (2011). Available at SSRN: https://ssrn.com/abstract=1561183 or http://dx.doi.org/10.2139/ssrn.1561183
Lash, Kurt T., The Enumerated Rights Reading of the Privileges or Immunities Clause: A Response to Randy E. Barnett and Evan D. Bernick’s ‘The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment’ (March 12, 2019). Available at SSRN: https://ssrn.com/abstract=3351142 or http://dx.doi.org/10.2139/ssrn.3351142
Lash, Kurt T., The Origins of the Privileges or Immunities Clause, Part I: ‘Privileges and Immunities’ as an Antebellum Term of Art (August 18, 2009). Georgetown Law Journal, Vol. 98, p. 1242, 2010. Available at SSRN: https://ssrn.com/abstract=1457360
Barnett, Randy E. and Bernick, Evan D., The Privileges or Immunities Clause Abridged: A Critique of Kurt Lash on the Fourteenth Amendment (March 7, 2019). Notre Dame Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3348680
Jay, Stewart, Origins of the Privileges and Immunities of State Citizenship Under Article IV (February 20, 2013). Loyola University Chicago Law Journal, Vol. 45, No. 1, 2013; University of Washington School of Law Research Paper No. 2011-01. Available at SSRN: https://ssrn.com/abstract=1853777 or http://dx.doi.org/10.2139/ssrn.1853777
Natelson, Robert G., The Original Meaning of the Privileges and Immunities Clause (August 7, 2009). Georgia Law Review, Vol. 43, p. 1117, 2009. Available at SSRN: https://ssrn.com/abstract=1445638
Rooney, M. Frances, The Privileges or Immunities Clause of the Fourteenth Amendment and an Originalist Defense of Gender Nondiscrimination (2017). 15 Georgetown Journal of Law & Public Policy 737, 2017. Available at SSRN: https://ssrn.com/abstract=2961578