Article IV of the Constitution contains the phrase “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” The Fourteenth Amendment similarly states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The fourth article of the Articles of Confederation contained a similar provision. In The Federalist No. 80, Alexander Hamilton wrote that the phrase “may be esteemed the basis of the Union.” Yet this is one of the least developed principles in American constitutional history.
The lack of development of the Privileges and Immunities Clause was related to a similar lack of definition of the term “citizen.” One of the only attempts to do so before the Civil War was by Justice Bushrod Washington in the 1823 case of Corfield v. Coryell. This suit challenged a New Jersey law that limited the harvesting of oysters to New Jersey citizens. Washington wrote that the phrase extended to such rights 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, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: 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 in which it is to be exercised.
|1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.|
The right to harvest oysters was not among them. Antislavery men claimed that slave states had to respect the rights of free blacks under the clause, but again the unsettled question of the citizenship of free blacks prevented the development of the principle.
Thus, there was little agreement about the meaning of the phrase when it was included in the Fourteenth Amendment. When the Supreme Court first interpreted the Fourteenth Amendment, in the Slaughterhouse Cases (1873), it eviscerated the clause. In this case, some Louisiana butchers claimed that a state act limiting the slaughter of animals to a government-owned abattoir deprived them of a privilege and immunity of citizens of the United States. The majority dismissed this claim. The privileges and immunities of citizens of the United States included very few rights, mostly connected to contact with the federal government—the right to petition Congress and to enjoy the protection of American consulates abroad, for example.
The Privileges and Immunities Clause of the Fourteenth Amendment never recovered from the Slaughterhouse decision. Although the minority view—that the butchers had been deprived of fundamental rights—eventually prevailed, it did so on due process and later on equal protection grounds. Finally, Congress began to protect individual rights by its power to regular interstate commerce. Thus, the Supreme Court has defined “the right to travel” as a privilege and immunity of U.S. citizens, but also has struck down state attempts to abridge this privilege as interference with Congress’s power to regulate commerce among the states.
David S. Bogen, Privileges and Immunities: A Reference Guide to the United States Constitution (Westport, CT: Praeger, 2003).