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 regarding the purpose of this clause. First, the clause is a guaranty to the citizens of the different states of equal treatment by Congress; in other words, it is a species of equal protection clause binding on the National Government. Though it received some recognition in the Dred Scott case,1 particularly in the opinion of Justice Catron,2 this theory is today obsolete.3 Second, the clause is a guaranty to the citizens of each state of the natural and fundamental rights inherent in the citizenship of persons in a free society, the privileges and immunities of free citizens, which no state could deny to citizens of other states, without regard to the manner in which it treated its own citizens. This theory found some expression in a few state cases4 and best accords with the natural law-natural rights language of Justice Washington in Corfield v. Coryell.5
If it had been accepted by the Court, this theory might well have endowed the Supreme Court with a reviewing power over restrictive state legislation as broad as that which it later came to exercise under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, but it was firmly rejected by the Court.6 Third, the clause guarantees to the citizen of any state the rights which he enjoys as such even when he is sojourning in another state; that is, it enables him to carry with him his rights of state citizenship throughout the Union, unembarrassed by state lines. This theory, too, the Court rejected.7 Fourth, the clause merely 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.
It was undoubtedly the object of the clause in question 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.8
The recent cases emphasize that interpretation of the clause is tied to maintenance of the Union.
Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States. Only with respect to those ‘privileges’ and ‘immunities’ bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally.9 Although the clause
was intended to create a national economic union, it also protects noneconomic interests relating to the Union.10
Hostile discrimination against all nonresidents infringes the clause,11 but controversies between a state and its own citizens are not covered by the provision.12 However, a state discrimination in favor of residents of one of its municipalities implicates the clause, even though the disfavored class consists of in-state as well as out-of-state inhabitants.13 The clause should not be read so literally, the Court held, as to permit states to exclude out-of-state residents from benefits through the simple expediency of delegating authority to political subdivisions.14 A violation can occur whether or not a statute explicitly discriminates against out-of-state interests.15
The Privileges and Immunities Clause is self-executory, that is to say, its enforcement is dependent upon the judicial process. It does not authorize penal legislation by Congress. Federal statutes prohibiting conspiracies to deprive any person of rights or privileges secured by state laws,16 or punishing infractions by individuals of the right of citizens to reside peacefully in the several states and to have free ingress into and egress from such states,17 have been held void.
Citizens of Each State
In the Dred Scott case,18 the Court answered it in the negative.
Citizens of each State, Chief Justice Taney argued, meant citizens of the United States as understood at the time the Constitution was adopted, and descendants of slaves
of the African race were not then regarded as capable of citizenship.19 The only category of national citizenship added under the Constitution comprised aliens, naturalized in accordance with acts of Congress.20 In dissent, Justice Curtis not only denied the Chief Justice's assertion that there were no slave descendants who were citizens of states in 1789 but further argued that, although Congress alone could determine what classes of aliens should be naturalized, the states retained the right to extend citizenship to classes of persons born within their borders who had not previously enjoyed citizenship and that one upon whom state citizenship was thus conferred became a citizen of the state in the full sense of the Constitution.21 So far as persons born in the United States, and subject to the jurisdiction thereof are concerned, the question was put at rest by the Fourteenth Amendment.
At a comparatively early date, the claim was made that a corporation chartered by a state and consisting of its citizens was entitled to the benefits of the comity clause in the transaction of business in other states. It was argued that the Court was bound to look beyond the act of incorporation and see who were the incorporators. If it found these to consist solely of citizens of the incorporating state, it was bound to permit them through the agency of the corporation to exercise in other states such privileges and immunities as the citizens thereof enjoyed. In Bank of Augusta v. Earle,22 this view was rejected. The Court held that the comity clause was never intended
to give to the citizens of each State the privileges of citizens in the several States, and at the same time to exempt them from the liabilities which the exercise of such privileges would bring upon individuals who were citizens of the State. This would be to give the citizens of other States far higher and greater privileges than are enjoyed by the citizens of the State itself.23 A similar result was reached in Paul v. Virginia,24 but by a different course of reasoning. The Court there held that a corporation, in this instance, an insurance company, was
the mere creation of local law and could
have no legal existence beyond the limits of the sovereignty25 which created it; even recognition of its existence by other states rested exclusively in their discretion. Later recent cases held that this discretion is qualified by other provisions of the Constitution notably the Commerce Clause and the Fourteenth Amendment.26 By reason of its similarity to the corporate form of organization, a Massachusetts trust has been denied the protection of this clause.27
All Privileges and Immunities of Citizens in the Several States
The classical judicial exposition of the meaning of this phrase is that of Justice Washington in Corfield v. Coryell,28 which was decided by him on circuit in 1823. 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 waters of the state, on board any vessel
not wholly owned by some person, inhabitant of and actually residing in this State. . . . The inquiry is, wrote Justice Washington,
what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to 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 . . . .29 He specified the following rights as answering this description:
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 must 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 benefits 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 . . . .30
After thus defining broadly the private and personal rights which were protected, Justice Washington went on to distinguish them from the right to a share in the public patrimony of the state.
[W]e cannot accede the opinion proceeds,
to the proposition . . . that, under this provision of the Constitution, the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any particular State, merely upon the ground that they are enjoyed by those citizens; much less, that in regulating the use of the common property of the citizens of such State, the legislature is bound to extend to the citizens of all other States the same advantages as are secured to their own citizens.31 The right of a state to the fisheries within its borders he then held to be in the nature of a property right, held by the state
for the use of the citizens thereof; the state was under no obligation to grant
co-tenancy in the common property of the State, to the citizens of all the other States.32 The precise holding of this case was confirmed in McCready v. Virginia;33 the logic of Geer v. Connecticut34 extended the same rule to wild game, and Hudson Water Co. v. McCarter35 applied it to the running water of a state. In Toomer v. Witsell,36 however, the Court refused to apply this rule to free-swimming fish caught in the three-mile belt off the coast of South Carolina. It held instead that
commercial shrimping in the marginal sea, like other common callings, is within the purview of the privileges and immunities clause and that a severely discriminatory license fee exacted from nonresidents was unconstitutional.37
The virtual demise of the state ownership theory of animals and natural resources38 compelled the Court to review and revise its mode of analysis of state restrictions that distinguished between residents and nonresidents39 in respect to hunting and fishing and working with natural resources. A two-pronged test emerged. First, the Court held, it must be determined whether an activity in which a nonresident wishes to engage is within the protection of the clause. Such an activity must be
fundamental, must, that is, be essential or basic,
interference with which would frustrate the purposes of the formation of the Union, . . . Justice Washington’s opinion on Circuit in Coryell afforded the Court the standard; while recognizing that the opinion relied on notions of natural rights, the Court thought he used the term
fundamental in the modern sense as well. Such activities as the pursuit of common callings within the state, the ownership and disposition of privately held property within the state, and the access to the courts of the state, had been recognized in previous cases as fundamental and protected against unreasonable burdening; but sport and recreational hunting, the issue in the particular case, was not a fundamental activity. It had nothing to do with one's livelihood and implicated no other interest recognized as fundamental.40 Subsequent cases have recognized that the right to practice law41 and the right to seek employment on public contracts42 are to be considered fundamental activity. Contrariwise, accessing public records through a state freedom of information act was held not to be a fundamental activity, and a state may limit such access to its own citizens.43
Second, finding a fundamental interest protected under the clause, in the particular case the right to pursue an occupation or common calling, the Court used a two-pronged analysis to determine whether the state's distinction between residents and nonresidents was justified. Thus, the state was compelled to show that nonresidents constituted a peculiar source of the evil at which the statute was aimed and that the discrimination bore a substantial relationship to the particular
evil they are said to represent, e.g., that it is
closely tailored to meet the actual problem. An Alaska statute giving residents preference over nonresidents in hiring for work on the oil and gas pipelines within the state failed both elements of the test.44 No state justification for exclusion of new residents from the practice of law on grounds not applied to long-term residents has been approved by the Court.45
Universal practice has also established a political exception to the clause to which the Court has given its approval.
A State may, by rule uniform in its operation as to citizens of the several States, require residence within its limits for a given time before a citizen of another State who becomes a resident thereof shall exercise the right of suffrage or become eligible to office.46
Discrimination in Private Rights
Not only has judicial construction of the comity clause excluded certain privileges of a public nature from its protection, but the courts also have established the proposition that the purely private and personal rights to which the clause admittedly extends are not in all cases beyond the reach of state legislation which differentiates citizens and noncitizens. Broadly speaking, these rights are held subject to the reasonable exercise by a state of its police power, and the Court has recognized that there are cases in which discrimination against nonresidents may be reasonably resorted to by a state in aid of its own public health, safety and welfare. To that end a state may reserve the right to sell insurance to persons who have resided within the state for a prescribed period of time.47 It may require a nonresident who does business within the state48 or who uses the highways of the state49 to consent, expressly or by implication, to service of process on an agent within the state. Without violating this section, a state may limit the dower rights of a nonresident to lands of which the husband died seized while giving a resident dower in all lands held during the marriage,50 or may leave the rights of nonresident married persons in respect of property within the state to be governed by the laws of their domicile, rather than by the laws it promulgates for its own residents.51 But a state may not give a preference to resident creditors in the administration of the property of an insolvent foreign corporation.52 An act of the Confederate Government, enforced by a state, to sequester a debt owed by one of its residents to a citizen of another state was held to be a flagrant violation of this clause.53
Access to Courts
The right to sue and defend in the courts is one of the highest and most essential privileges of citizenship and must be allowed by each state to the citizens of all other states to the same extent that it is allowed to its own citizens.54 The constitutional requirement is satisfied if the nonresident is given access to the courts of the state upon terms that, in themselves, are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically the same as those accorded to resident citizens.55 The Supreme Court upheld a state statute of limitations that prevented a nonresident from suing in the state's courts after expiration of the time for suit in the place where the cause of action arose56 and another such statute which that suspended its operation as to resident plaintiffs, but not as to nonresidents, during the period of the defendant's absence from the state.57 A state law making it discretionary with the courts to entertain an action by a nonresident of the state against a foreign corporation doing business in the state was sustained because it was applicable alike to citizens and noncitizens residing out of the state.58 A statute permitting a suit in the courts of the state for wrongful death occurring outside the state, only if the decedent was a resident of the state, was sustained, because it operated equally upon representatives of the deceased whether citizens or noncitizens.59 Being patently nondiscriminatory, a Uniform Reciprocal State Law to secure the attendance of witnesses from within or without a state in criminal proceedings, whereunder an Illinois resident, while temporarily in Florida, was summoned to appear at a hearing for determination as to whether he should be surrendered to a New York officer for testimony in the latter state, does not violate this clause.60
In the exercise of its taxing power, a state may not discriminate substantially between residents and nonresidents. In Ward v. Maryland,61 the Court set aside a state law that imposed specific taxes upon nonresidents for the privilege of selling within the state goods that were produced in other states. Also found to be incompatible with the comity clause was a Tennessee license tax, the amount of which was dependent upon whether the person taxed had his chief office within or without the state.62 In Travis v. Yale & Towne Mfg. Co.,63 the Court, although sustaining the right of a state to tax income accruing within its borders to nonresidents,64 held the particular tax void because it denied to nonresidents exemptions which were allowed to residents. The
terms ‘resident’ and ‘citizen’ are not synonymous, wrote Justice Pitney,
. . . but a general taxing scheme . . . if it discriminates against all non-residents, has the necessary effect of including in the discrimination those who are citizens of other States . . . .65 Where there were no discriminations between citizens and noncitizens, a state statute taxing the business of hiring persons within the state for labor outside the state was sustained.66
The Court returned to the privileges-and-immunities restrictions upon disparate state taxation of residents and nonresidents in Lunding v. New York Tax Appeals Tribunal.67 In this case, the state denied nonresidents any deduction from taxable income for alimony payments, although it permitted residents to deduct such payments. Although it observed that approximate equality between residents and nonresidents was required by the clause, the Court acknowledged that precise equality was neither necessary nor in most instances possible. But it was required of the challenged state that it demonstrate a
substantial reason for the disparity, and the discrimination must bear a
substantial relationship to that reason.68 A state, under this analysis, may not deny nonresidents a general tax exemption provided to residents that would reduce their tax burdens, but it could limit specific expense deductions based on some relationship between the expenses and their in-state property or income. Here, the state flatly denied the exemption. Moreover, the Court rejected various arguments that had been presented, finding that most of those arguments, while they might support targeted denials or partial denials, simply reiterated the state's contention that it need not afford any exemptions at all. This section of the Constitution does not prevent a territorial government, exercising powers delegated by Congress, from imposing a discriminatory license tax on nonresident fishermen operating within its waters.69
However, what at first glance may appear to be a discrimination may turn out not to be when the entire system of taxation prevailing in the enacting state is considered. On the basis of overall fairness, the Court sustained a Connecticut statute that required nonresident stockholders to pay a state tax measured by the full market value of their stock while resident stockholders were subject to local taxation on the market value of that stock reduced by the value of the real estate owned by the corporation.70 Occasional or accidental inequality to a nonresident taxpayer is not sufficient to defeat a scheme of taxation whose operation is generally equitable.71 In an early case the Court brushed aside as frivolous the contention that a state violated this clause by subjecting one of its own citizens to a property tax on a debt due from a nonresident secured by real estate situated where the debtor resided.72