Tuesday, January 7, 2014

The Privileges and Immunities Clause (Article IV and Fourteenth Amendment)

Privileges and Immunities Clause

I. Privileges of State Citizenship

Article IV, Section 2 of the United States Constitution, known as the Privileges and Immunities Clause, provides that “[t]he Citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” In other words, the P&I Clause prohibits discrimination by a state against nonresidents of that state.

Corporations and aliens are not protected, as they are not considered citizens of a state for purposes of the clause.

Only fundamental rights are protected. Those rights include important commercial activities (i.e. pursuit of a livelihood) and civil liberties.

Exception: Substantial Justification

A state law that discriminates against nonresidents may be valid if the state has a substantial justification for that different treatment. The state, in effect, must show that nonresidents either cause or a part of the problem that the state is attempting to solve. The state must also show that there are no less restrictive means to solve that problem.

II. Fourteenth Amendment Privileges of National Citizenship

Under the Fourteenth Amendment's Privileges and Immunities Clause, states are prohibited from denying their citizens the privileges and immunities of national citizenship. This includes matters such as the right to petition Congress for redress of grievances, the right to vote for federal officers, the right to interstate travel, the right to enter public lands, and other rights that flows from the distinct relation of a citizen to the United States government.

Corporations are not protected, as they are not citizens of the United States.

The Bill of Rights are not included. The Slaughterhouse Cases, 83 U.S. 36 (1873) held that the fundamental rights protected against federal abuse (Amendments 1 to 10) are not privileges and immunities of national citizenship within the Fourteenth Amendment's meaning. This includes basic rights such as the right to work, live, and eat. Therefore, the guarantees of the Bill of Rights are protected from state action only by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The Right to Travel under the Fourteenth Amendment

The Right to Travel includes the right of citizens that have recently arrived in the United States to enjoy the same privileges and immunities that are enjoyed by other citizens of the state.

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