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Privileges & Immunities Clause: Definition & Examples

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  • 0:06 Article IV
  • 1:21 Fourteenth Amendment Clause
  • 2:01 Privileges and…
  • 4:43 Fundamental Rights
  • 5:59 Lesson Summary
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Lesson Transcript
Instructor: Ashley Dugger

Ashley is an attorney. She has taught and written various introductory law courses.

The United States Constitution includes two privileges and immunities clauses. These clauses protect citizens' fundamental rights and prevent states from discriminating against out-of-state citizens. This lesson explores the use of the privileges and immunities clauses, including how these clauses are used in business relations.

Article IV

The first privileges and immunities clause is found in Article IV of the United States Constitution. This clause says that 'The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.' The framers added this clause in hopes of encouraging travel between the states. They wanted U.S. citizens to feel secure in their travels between states and know that they would be guaranteed the same general rights everywhere in the U.S.

Throughout history, the Supreme Court has narrowly interpreted which rights are provided through Article IV. Some of the rights that are protected include the right to acquire and possess property, the right to bring and defend actions in a court of law, and the right to receive the same tax treatment as the citizens of the taxing state. For example, the State of Georgia can charge a sales tax on all groceries, but Georgia can't charge one tax rate for its citizens and another for non-citizens. But this doesn't mean that states can't ever charge a higher rate for non-residents. The Supreme Court ruled that state universities could charge out-of-state residents a higher tuition rate.

The Fourteenth Amendment

There's a second privileges and immunities clause found in the Fourteenth Amendment to the Constitution. This clause says that 'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' This clause was added after the abolition of slavery and as a part of the Fourteenth Amendment's equal protection guarantees. Though slaves were now free under the federal law, Congress wanted to ensure that the states respected the new rights and freedoms of the former slaves. It's helpful to remember that not all states were in favor of abolishing slavery.

Privileges and Immunities Clause in Business

The two clauses work together to guard the fundamental constitutional rights of individual United States citizens. They also prevent state governments from discriminating against out-of-state citizens or from favoring their own citizens over the citizens of other states. Generally, this means that a state can't deny rights to people simply because they aren't citizens of that state. However, it's helpful to note that the privileges and immunities clauses don't often apply to business activity. One reason is because corporations and companies aren't citizens, and the clauses only grant rights to citizens.

Another reason is because the clauses only grant rights based on U.S. citizenship. The famous and controversial 1873 Slaughterhouse Cases demonstrate this point. The Slaughterhouse Cases combined three separate federal cases - originally involving hundreds of plaintiffs - all about the same Louisiana statute. The statute gave one New Orleans corporation the exclusive right to butcher area livestock. All other meatpacking companies were required to pay a fee for using the slaughterhouses. The Louisiana statute was an attempt to regulate public health and prevent the contamination of the water supply because butchering practices at that time were unsanitary.

The Supreme Court upheld the statute, saying that the privileges and immunities clause applied only to newly freed slaves and granted individual rights based on U.S. citizenship, rather than state citizenship. This meant that Louisiana could use its police power to govern public health if it wanted to, since Louisiana wasn't infringing a right granted to the butchers by the United States. The Slaughterhouse Cases came to the Supreme Court just five years after the Fourteenth Amendment was enacted.

Notably, the Supreme Court has always narrowly construed the privileges and immunities clause of the Fourteenth Amendment, often ruling that the clause doesn't prevent business discrimination. In fact, the privileges and immunities clauses actually allow differential treatment as long as that treatment advances a legitimate state interest. For example, many states require heightened standards for out-of-state doctors, lawyers, and other licensed professionals in order to ensure the competency of out-of-state professionals. The Court has held that this is a legitimate state interest.

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