Privileges & Immunities Clauses — Interstate Equality & Citizenship Rights
The Constitution contains two "Privileges and Immunities" clauses — similar in name but different in function. The Article IV Privileges and Immunities Clause (Art. IV, § 2, cl. 1) provides: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." This is the Comity Clause — it prevents states from discriminating against citizens of other states with respect to fundamental rights like working, doing business, owning property, and accessing the courts. If you move from Ohio to Texas, Texas cannot treat you as a second-class citizen — it must extend to you the same fundamental rights it extends to its own citizens. The Fourteenth Amendment Privileges or Immunities Clause (Amend. XIV, § 1) provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This clause was intended by the Reconstruction Congress to protect the fundamental rights of national citizenship — particularly the rights of newly freed Black citizens. But in the Slaughter-House Cases (1873), the Supreme Court gutted the clause, holding that it protects only a narrow set of rights of national citizenship (like the right to travel to the national capital, the right of access to federal offices, and rights on the high seas) — not the broad range of civil rights the framers of the Fourteenth Amendment intended. This decision has been called the worst in Supreme Court history by some scholars, and the Fourteenth Amendment's Privileges or Immunities Clause remains largely a dead letter — with the Equal Protection and Due Process Clauses doing the work that the Privileges or Immunities Clause was designed to do. The Article IV clause, however, remains an active and important protection against interstate discrimination.
Current Law (2026)
| Parameter | Value |
|---|---|
| Article IV Clause | Art. IV, § 2, cl. 1 — "Privileges and Immunities of Citizens in the several States" |
| Fourteenth Amendment Clause | Amend. XIV, § 1 — "privileges or immunities of citizens of the United States" |
| Article IV function | Prevents states from discriminating against out-of-state citizens in fundamental rights |
| Article IV test | Two-part: (1) does the law burden a "fundamental" right? (2) is there a "substantial reason" for the discrimination? (Toomer v. Witsell, 1948) |
| Fourteenth Amendment status | Largely dormant since Slaughter-House Cases (1873); limited revival in Saenz v. Roe (1999) |
| Right to travel | Protected under Article IV, 14th Amendment P&I, and the structural Constitution |
| Key cases | Slaughter-House Cases (1873), Toomer v. Witsell (1948), Supreme Court of NH v. Piper (1985), Saenz v. Roe (1999) |
Legal Authority
- U.S. Constitution, Art. IV, § 2, cl. 1 — "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States"
- U.S. Constitution, Amend. XIV, § 1 — "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"
- Slaughter-House Cases (1873) — Narrowed the 14th Amendment clause to rights of national (not state) citizenship
- Toomer v. Witsell (1948) — Established two-part test for Article IV claims; struck down higher fishing license fees for non-residents
- Supreme Court of New Hampshire v. Piper (1985) — States cannot limit bar admission to state residents
- Saenz v. Roe (1999) — The right to travel includes the right of new residents to be treated equally; partially revived the 14th Amendment P&I Clause
How It Works
The Article IV Comity Clause prevents states from treating out-of-state citizens worse than their own citizens with respect to fundamental rights and activities — those "bearing upon the vitality of the Nation as a single entity" (Baldwin v. Fish & Game Commission, 1978). Fundamental rights include pursuing a livelihood (working, practicing a profession, doing business), owning property, accessing the courts, and receiving equal tax treatment. Non-fundamental privileges — like recreational hunting and fishing licenses — may be priced higher for non-residents without violating the clause. The governing test from Toomer v. Witsell (1948): (1) does the law discriminate against non-residents with respect to a fundamental right? and if yes, (2) is there a substantial reason for the difference, closely related to the discrimination? States regularly lose this test: Supreme Court of NH v. Piper (1985) struck down New Hampshire's bar admission residency requirement — the practice of law is a fundamental right, and excluding non-resident lawyers served no substantial purpose. The Fourteenth Amendment has a separate Privileges or Immunities Clause meant to be the primary post-Civil War protection for civil rights — but the Slaughter-House Cases (1873), decided just five years after ratification, gutted it by distinguishing between rights of state citizenship (the broad range of civil rights — contracts, property, due process, which the Court left to state control) and rights of national citizenship (a narrow list: access to federal courts, protection on the high seas, travel to Washington). This interpretation left Equal Protection and Due Process to carry the Fourteenth Amendment's weight.
The most significant modern use of the Fourteenth Amendment's Privileges or Immunities Clause came in Saenz v. Roe (1999), where the Court struck down California's law limiting welfare benefits for new residents to the amount they would have received in their prior state for the first year. The Court held that the right to travel has three components: the right to enter and leave a state, the right to be treated as a welcome visitor (Article IV), and the right of new citizens to be treated the same as long-time residents — and this third component is protected by the Fourteenth Amendment's Privileges or Immunities Clause. Saenz was the first time the Court relied on the 14th Amendment P&I Clause in over a century. The Dormant Commerce Clause and Article IV P&I Clause both prevent state discrimination but differ in scope: the DCC protects interstate commerce (including corporations); the P&I Clause protects citizens only (not corporations). The DCC applies to nondiscriminatory burdens on commerce; the P&I Clause applies only to discriminatory treatment. Congress can override the DCC; it cannot override the P&I Clause.
How It Affects You
If you're moving to a new state or recently relocated: The Article IV Privileges and Immunities Clause (Art. IV, § 2) and the Fourteenth Amendment's Saenz v. Roe (1999) holding give you concrete protections as a new resident. Your new state cannot impose a waiting period before you receive the same welfare, Medicaid, or public benefits as long-time residents — Saenz struck down California's attempt to pay new residents lower welfare benefits for their first year. Your new state cannot charge you higher fees to access courts, cannot bar you from earning a living solely on the basis of being new (though reasonable licensing requirements apply equally), and cannot discriminate against you in property ownership. The practical question if you face discriminatory treatment: is the right "fundamental" under the P&I framework? Courts have found that the right to be employed (Toomer v. Witsell, 1948), the right to access courts (Doe v. Bolton, 1973), and the right to pursue common callings are fundamental — recreational licenses are not. If you believe you're being discriminated against as a new resident in employment or benefit access, contact your state attorney general's office or a civil rights attorney.
If you're a licensed professional working across state lines: States cannot prohibit non-residents from practicing a profession within the state when the practice constitutes a "fundamental right" under Article IV — but states can impose equal licensing requirements as long as they apply to everyone. The key case: Supreme Court of Virginia v. Friedman (1988) struck down Virginia's bar admission requirement that was more burdensome for non-residents than residents. What this means: if you're a lawyer, doctor, engineer, or other licensed professional who wants to work in another state, that state can require you to meet its licensing standards (education, exam, experience), but it cannot add additional hurdles solely because you're not a resident without substantial justification. Many professions now have interstate compacts (nursing, physical therapy, psychology) that streamline licensure across state lines — these operate alongside P&I protections. If you're denied a professional license in a new state and the denial appears to single out non-residents, a P&I claim is worth exploring.
If you're a sole proprietor, freelancer, or individual doing business across state lines: The Article IV P&I Clause protects natural persons — not corporations. If you're a sole proprietor or individual professional offering services across state lines, discriminatory treatment by the state (higher fees, additional requirements, denial of permits not applied to in-state individuals) may violate the P&I Clause. The key test (United Building & Construction Trades Council v. Mayor of Camden, 1984): is the discriminated right "fundamental to national unity"? Courts have recognized economic interests — employment, pursuit of common callings, business activity — as fundamental. For corporate entities, the parallel protection comes from the Dormant Commerce Clause (which covers corporations but uses a different balancing test). If you operate as an LLC or corporation, you'll need to argue under the Commerce Clause; if you operate as a sole proprietor or individual, the P&I Clause may provide additional leverage.
If you're a state or local government official crafting residency-preference rules: State and local residency preferences in employment, contracting, and licensing face scrutiny under both the Article IV P&I Clause and the Dormant Commerce Clause. Municipal residency hiring preferences for city jobs have been challenged — United Building & Construction Trades Council (1984) held that Camden, N.J.'s requirement that 40% of workers on city-funded projects be Camden residents was subject to P&I analysis, though the Court remanded without resolving it. For state procurement: preferences for in-state suppliers in government purchasing face Commerce Clause challenges, though courts apply a "market participant" exception when the government is itself the buyer. For residency preferences in professional licensing: Chalker v. Birmingham & NW Ry. Co. (1920) and its successors establish that residency-based licensing discrimination requires substantial justification tied to a genuine non-protectionist interest. Document that justification carefully before enacting residency-preference rules.
State Variations
The Privileges and Immunities Clauses constrain all states:
- States may still impose residency requirements for some benefits (voting, in-state tuition, holding state office) — these aren't considered discrimination against non-residents but rather benefits of citizenship in that state
- Professional licensing reciprocity varies significantly — some states are more open to non-resident practitioners than others
- Tax treatment of non-residents varies but must pass scrutiny under both the P&I Clause and the Dormant Commerce Clause
- The practical impact of Saenz varies by state depending on benefit levels and residency distinctions
Implementing Regulations
The Privileges and Immunities Clause (Art. IV, § 2) and the Fourteenth Amendment Privileges or Immunities Clause are constitutional provisions — no implementing regulations exist. Art. IV § 2 prevents states from discriminating against citizens of other states regarding fundamental rights. The 14th Amendment clause (Slaughter-House Cases, 1873) has been interpreted narrowly to protect only rights of national citizenship — leaving the broader civil rights protections to the Equal Protection and Due Process Clauses. Key case: Saenz v. Roe (1999, right to travel under 14th Amendment Privileges or Immunities — new residents must be treated equally to long-time residents from day one).
Pending Legislation
No standalone legislation — see Equal Protection and Due Process Clause.
Recent Developments
The Fourteenth Amendment's Privileges or Immunities Clause continues to attract scholarly calls for revival — overruling the Slaughter-House Cases and using the clause as it was originally intended to protect fundamental rights against state infringement. Justice Thomas has expressed interest in reconsidering Slaughter-House in several opinions, but no majority has joined. In practice, the Equal Protection and Due Process Clauses continue to do the work that the Privileges or Immunities Clause was designed to do. The Article IV clause remains active — professional licensing disputes, tax cases, and residency-based discrimination continue to generate litigation.