Not to be confused with the Privileges or Immunities Clause of the Fourteenth Amendment, Section 1, Clause 2, the Privileges and Immunities Clause of Article IV, Section 2 of the Constitution, also known as the Comity Clause, provides that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” This clause protects the fundamental rights of individual citizens and restrains state efforts to discriminate against out-of-state citizens.
Because of its ambiguity, much debate surrounds the specific rights the Privileges and Immunities Clause protects. Its textual predecessor, Article IV of the Articles of Confederation, stated that "to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States . . . shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof."
The Federalist Papers also provide some insight. James Madison in the Federalist No. 42 explained, “Those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State . . . .” For his part, Alexander Hamilton in Federalist No. 80 expressed his belief in the Clause’s importance when he wrote that the Privileges and Immunities Clause (the version in the Constitution) is “the basis of the union.”
Justice Washington, sitting as a judge for the United States Circuit Court for the Eastern District of Pennsylvania, outlined certain limits to the clause in Corfield v. Coryell, 6 F. Cas. 546, 552 (Washington, Circuit Justice, C.C.E.D. Pa. 1823). He explained that the Privileges and Immunities Clause protects only certain “fundamental” rights: “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.”
Before denying Constitutional protections to Dred Scott, Chief Justice Taney in Dred Scott v. Sandford, 60 U.S. 393 (1856) extensively analyzed the Privileges and Immunities Clause, explaining that its protections are “confined to citizens of a State who are temporarily in another State without taking up their residence there. It gives them no political rights in the State as to voting or holding office, or in any other respect. For a citizen of one State has no right to participate in the government of another. But if he ranks as a citizen in the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another State, the Constitution clothes him, as to the rights of person, with all the privileges and immunities which belong to citizens of the State.”
Justice O’Connor’s concurrence in Zobel v. Williams, 457 U.S. 55 (1982) argued that the right to interstate travel comes from the Privileges and Immunities Clause.
The Supreme Court explained the differences between the Dormant Commerce Clause and the Privileges and Immunities Clause in Building Trades & Construction Trades Council v. Mayor of Camden, 465 U.S. 208 (1984):
“The two Clauses have different aims, and set different standards for state conduct. The [Dormant] Commerce Clause acts as an implied restraint upon state regulatory powers. Such powers must give way before the superior authority of Congress to legislate on (or leave unregulated) matters involving interstate commerce. When the State acts solely as a market participant, no conflict between state regulation and federal regulatory authority can arise. The Privileges and Immunities Clause, on the other hand, imposes a direct restraint on state action in the interests of interstate harmony. This concern with comity cuts across the market regulator-market participant distinction that is crucial under the Commerce Clause. It is discrimination against out-of-state residents on matters of fundamental concern which triggers the Clause, not regulation affecting interstate commerce.” (internal citations omitted).
[Last updated in March of 2024 by the Wex Definitions Team]