Select Page

Constitutional Law II
St. Johns University School of Law
Barrett, John Q.

Constitutional Law 2 Barrett Spring 2018
A. Article IV
Privileges and Immunities Clause of Art. IV, §2:
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
“Citizens” limited to individuals who are U.S. citizens: not corporations or aliens.
This provision is limiting the ability of a state to discriminate against out-of-staters with regards to fundamental rights or important economic activities (national interests, which cannot be undercut by state interests.)
Interests must be sufficiently fundamental to the promotion of interstate harmony.
Excludes: hobbies, activities, political rights (voting.)
Citizens of the same state can’t trigger the Privileges and Immunities Clause because they can use the political process.
Discrimination will be allowed only it is substantially related to achieving a substantial state interest. Or activity constituted a peculiar source of evil.
 City of Camden (NJ. 1984) (holding all cities/municipalities are actions of the state.)
14Am. has P or I clause for national citizenship. A4 has P&I for state citizens.
Has the state discriminated against out-of-staters with regard to privileges and immunities that it accords its own citizens?
The rights associated with being a citizen of any state (Corfield v. Coryell) (clamming decided not fundamental.)
Protection by the government
The enjoyment of life and liberty
The right to acquire and to possess property of every kind
To pursue and obtain happiness and safety
Most often the clause is triggered in cases involving challenges to state/local laws that discriminate against out-of-staters’ ability to make a living.
The right to “acquire and possess property” insinuates the right to earn money as a means to reach that end.
One exceptional case regarding the exercise of fundamental constitutional rights: Doe v. Bolton (1973)
Companion case to Roe v. Wade w

ute is aimed” (Toomer v. Witsell (1948) – out-of-state fisherman weren’t proven to blame for the threat of excessive trawling)
The out-of-staters aren’t deprived of any fundamental right of national citizenship (Baldwin v. Fish and Game Commission of Montana (1978) – Appellants were not deprived of a means of livelihood or of access to any part of the state. Hunting is not a basic right. )
Misc: Can a state do something?
Under Rational Basis:
Interest (end) -> look for coherent interest
Fit (means) -> look for directional / logical means to an end
Under Strict Scrutiny:
Interest (end) -> look for compelling state interest
Fit (means) -> look for tight fit; no less restrictive alternative
 The Privileges and Immunities Clause and the Dormant Commerce Clause (