Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School
Article IV, Section 2, Clause 1-3
1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Of these clauses in Article IV, Section 2, the last, the Fugitive Slave Clause, similar to one adopted by the Confederation Congress in the Northwest Ordinance contemporaneous with the drafting of the Constitution, is now a dead letter. Another, the Extradition Clause, imposes a theoretical duty (“shall…be delivered”) on the state governors. But the Supreme Court ruled in 1861 that judicial compulsion, by writ of mandamus, was unavailable. As a result, governors have considered themselves at liberty to refuse requests for extradition when, in their opinions, justice so demands. Rather, the clause is enforced (more or less) politically through interstate compacts, uniform state laws, and (indirectly) federal fugitive-from-justice legislation.
The first clause, the (“Interstate”) Privileges and Immunities Clause, has a long pedigree, yet remains murky in meaning and ambiguous in scope. It is derived from Article IV of the Articles of Confederation (as are the Constitution’s Extradition and Full Faith and Credit Clauses). The existence of these clauses in both charters is evidence of the continuity reflected in the Constitution’s Preamble “to form a more perfect [not a new] Union.” These clauses also are one more manifestation of the bedrock federalism principle of union among states (rather than simply creation of a national government over the states) that runs through both charters.
The Constitution’s version of the P&I Clause is a redaction of the more compendious version in the Articles. Unfortunately, concision did not bestow clarity. Four different meanings have been advanced. The first is that the clause is actually a restriction on Congress not to pass laws that discriminate among different states and the citizens thereof. This interpretation received support from Justice Catron in his concurring opinion in the Dred Scott Case. It is constitutionally obsolete today.
Another interpretation is that the clause guarantees the citizens of each state various rights that are enjoyed by citizens in any other state. That view was specifically rejected by the Supreme Court a century ago. It would have given the Supreme Court the kind of power of review over state laws that it came to acquire more gradually through judicial expansion of the 14th Amendment by the “incorporation” of various Bill of Rights guarantees into the due process clause and the creation of new categories of unconstitutional discrimination under the equal protection clause.
A third interpretation is that the clause guarantees the right of a citizen of a state to exercise the rights that he has in his own state even when visiting another state, that is, to carry his rights of state citizenship throughout the Union. That view, as well, has been rejected by the Supreme Court, albeit implicitly, well over a hundred years.
The fourth, and constitutionally accepted, understanding is that the clause prohibits certain forms of discrimination by a state against citizens from other states who are sojourning within its borders. This creates a kind of equal protection principle. The Constitution had no clause that prohibited discrimination against (some) individuals overtly as the 14th Amendment’s Equal Protection Clause does today. But there were some clauses that operated through a limited and implied non-discrimination principle. The P&I Clause is one.
The P&I clause does not apply to corporations or other merely “legal” persons. Nor does it apply to aliens. Neither of those limits is significant today, in light of the Court’s expansive reading of the 14th Amendment. The P&I Clause also provides no minimum protections of rights. To the extent the state limits the exercise of rights of its own citizens, it may do so for outsiders coming into the state, at least under this provision. Outsiders have the right not to be treated unfavorably due to their status as visitors, but have no right to be treated more favorably.
Not all rights are protected. The exact definition has always been elusive. The seminal opinion in this area is a circuit court opinion by Justice Bushrod Washington from 1823, Corfield v. Coryell. He wrote: “We have no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.”
Such flourishes, while rhetorically satisfying, do not provide concrete guidance. Justice Washington carries on, but does little to penetrate the verbal fog; “What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: 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.”
He finally delivers himself of some examples of protected rights, privileges, and immunities. “The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise;…to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state….These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.’”
Such rights, deemed fundamental to the concept of a single nation, do not include the right to hunt game, to fish, or to engage in certain “quasi-public” businesses, such as insurance. Nor does it include a right to vote or to attend college at in-state rates, though, oddly, it includes the right not only to receive welfare payments without residency requirements, but to receive the same level of payment as those who have lived in the state for many years. To curtail even marginally the opportunities of welfare recipients to spend their “down time” in a state with higher benefits than their current domicile by having to meet the new state’s residency requirement is an intolerable burden on the right to travel. To be sure, the Supreme Court’s decisions on the matter rest on uncertain constitutional foundations, that eminent tribunal having referred to Article IV, to the Commerce Clause, to the 14th Amendment’s Equal Protection and (most recently) Privileges or Immunities Clauses as havens for a right to travel. Since states would like these welfare recipients to keep traveling, the Court has also re-characterized the right as “moving to another state.”
The P&I Clause of Article IV apparently was intended as a significant part of the constitutional edifice. With the Supreme Court’s inflation of the 14th Amendment, and Congress’ frequent resort to legislation under the commerce clause, it has become virtually redundant. Still, every decade or so, a case comes along to remind us that there is “still some life left in the carcass.”
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.