17.1 Article IV Privileges and Immunities

Article IV's Privileges and Immunities Clause aims to prevent states from discriminating against citizens of other states. It ensures equal treatment for all Americans when traveling or doing business across state lines, promoting national unity and protecting fundamental rights.

The clause applies to essential rights like travel, livelihood, and property ownership. States can't unreasonably burden out-of-state citizens but may make distinctions if there's a substantial reason. Courts use intermediate scrutiny to review cases, balancing state interests against potential discrimination.

Purpose and Scope of Article IV

Constitutional Basis and Text

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• The Article IV Privileges and Immunities Clause is found in Article IV, Section 2, Clause 1 of the U.S. Constitution
• The clause states: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States"

Objectives and Rationale

• The purpose of the clause is to prevent states from discriminating against citizens of other states and to promote national unity
• The clause aims to ensure that citizens of each state are treated equally when they travel or do business in other states
• The clause reflects the idea that all citizens are part of a single nation and should not be treated as foreigners when they cross state lines

Scope and Applicability

• The clause applies to fundamental rights, such as the right to travel, the right to pursue a livelihood, and the right to own property
• The clause does not create any new rights but rather protects existing fundamental rights from state discrimination based on state citizenship
• The clause does not prohibit all distinctions between residents and non-residents, but it does require that such distinctions be justified by a substantial state interest

Limitations on State Discrimination

Unreasonable Burdens and Substantial Reasons

• States may not impose unreasonable burdens on citizens of other states exercising their fundamental rights
• States must have a substantial reason for treating out-of-state citizens differently, and the discrimination must be closely related to the state's objective
• For example, a state may not require out-of-state attorneys to maintain a permanent office in the state as a condition of practicing law there

Valid Distinctions and Finite Resources

• States may distinguish between residents and non-residents if there is a valid reason for the distinction, such as preserving finite resources for state residents
• For example, a state may charge higher tuition rates for out-of-state students at public universities to ensure that limited spaces are available for state residents
• However, the distinction must be reasonable and not a pretext for discrimination against out-of-state citizens

Fees, Taxes, and Cost of Services

• States may impose higher fees or taxes on out-of-state citizens if the fees or taxes are reasonably related to the cost of providing services to those citizens
• For example, a state may charge higher fishing license fees for non-residents to cover the cost of maintaining fishing resources
• The fees or taxes must not be excessive or discriminatory and must be justified by the actual cost of providing services to out-of-state citizens

Preferential Treatment for In-State Citizens

• States may not use the Privileges and Immunities Clause to give their own citizens preferential treatment in areas of fundamental rights
• For example, a state may not grant its own citizens exclusive access to certain professions or trades
• The clause is designed to prevent states from favoring their own citizens over citizens of other states in areas of fundamental rights

Fundamental vs Non-Fundamental Rights

Defining Fundamental Rights

• Fundamental rights are those that are "basic to the livelihood of the Nation" and are protected by the Privileges and Immunities Clause
• The Supreme Court has identified several fundamental rights, including the right to travel, the right to pursue a common calling, and the right to own property
• These rights are considered essential to the functioning of the national economy and the ability of citizens to participate in the life of the nation

Examples of Fundamental Rights

• The right to travel: Citizens have the right to move freely between states without facing unreasonable barriers or discrimination
• The right to pursue a common calling: Citizens have the right to engage in their chosen profession or trade without facing discriminatory licensing or certification requirements
• The right to own property: Citizens have the right to acquire, possess, and dispose of property on an equal basis with residents of the state

Non-Fundamental Rights and State Discretion

• Non-fundamental rights, such as the right to hunt or fish for recreation, are not protected by the Privileges and Immunities Clause
• States have more leeway to discriminate against out-of-state citizens in areas of non-fundamental rights
• For example, a state may charge higher fees for non-resident hunting or fishing licenses or limit the number of licenses available to non-residents

Lack of Clear Test for Fundamental Rights

• The Supreme Court has not provided a clear test for determining which rights are fundamental under the Privileges and Immunities Clause
• The Court has relied on a case-by-case analysis of whether a particular right is essential to the national economy or the ability of citizens to participate in the life of the nation
• This lack of a clear test has led to some uncertainty and inconsistency in the application of the Privileges and Immunities Clause

Standard of Review for Article IV Cases

Intermediate Scrutiny Standard

• The Supreme Court applies intermediate scrutiny to cases involving the Privileges and Immunities Clause
• Under intermediate scrutiny, the state must show that the discriminatory law or policy serves a substantial state interest and that the discrimination is substantially related to achieving that interest
• This standard is higher than the rational basis test used for most economic regulations but lower than the strict scrutiny test used for cases involving suspect classifications or fundamental rights

Burden of Proof on the State

• The burden is on the state to justify the discrimination; the challenger does not need to prove that the discrimination is unjustified
• The state must provide evidence that the discriminatory law or policy is necessary to achieve a substantial state interest
• The state must also show that the discrimination is narrowly tailored to achieve that interest and is not a pretext for favoritism or protectionism

Examples of Unconstitutional Discrimination

• The Supreme Court has struck down state laws that discriminate against out-of-state citizens in areas such as employment, licensing, and access to medical services
• For example, the Court struck down a New Hampshire law that required all members of the state bar to be residents of the state
• The Court also struck down a Connecticut law that prohibited out-of-state residents from obtaining a license to practice medicine in the state

Examples of Permissible Discrimination

• The Court has upheld state laws that impose reasonable residency requirements for voting, tuition benefits, and other state services
• For example, the Court upheld a Minnesota law that required students to reside in the state for one year before being eligible for in-state tuition rates at public universities
• The Court also upheld a New York law that required state residents to be given preference in admission to state universities