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Constitutional Law II
University of Iowa School of Law
Pettys, Todd Edward

CONSTITUTIONAL LAW II
THE PRIVILEGES AND IMMUNITIES CLAUSES
Article IV
· Art. IV, § 2: “The Citizen of ea State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
· Like commerce clause (C/C), Art IV is a restraint on state efforts to bar out-of-staters from access to local resources
o But Art IV diff than C/C in these ways:
§ Corporations don’t enjoy protection under Art IV
§ Art IV is a rights provision, nt an authority grant to Congress => arguably nonwaivable by Congress
§ Standard of review for P/I denials is stricter than balancing test used for dormant commerce clause
· But less stricter than standard used for discriminatory legislation challenged as commerce violation
§ Art IV extends only to “fundamental rights,” nt to all commerce activities
§ SCt has recognized no “market participant” exception to Art IV violations
14th Amendment
· Part of the post-Civil War Amendments: 13th, 14th, and 15th Amendments
· Second sentence of 14th Amend specifically addressing states (and their political subdivisions), saying tht states can’t mk or enforce laws interfering w/ privileges and immunities
o At the time of passage, many widely believed tht this meant tht the states hv to also follow the Bill of Rights
§ Purpose was to combat “black codes”: laws in South tht still kept blacks inferior to whites (eg., blacks can’t testify against whites in court)
§ Some also argued tht, it goes passed inclding Bill of Rights and include more rights tht aren’t specifically spelled out (ie., basic rights in being a human being)
· But then Slaughter-House Cases decision changed tht; SCt sd tht 14th Amend didn’t convey any of the above rights => states are the ones tht give this right, nt fed constitution
· One of the functions of the privileges and immunities clause is to give rights to former slaves
· Originally, SCt did nt extend scope of these amendments past the problem w/ch prompted them (ie., slavery)
o Eg., Slaughter-House Cases
§ SCt’s first real effort to interpret the 14th Amend
· Ct sets in motion certain styles of legal reasoning
· Slaughter-House Cases (1873) (CB 449):
o LA granted a 25-yr monopoly to Crescent City Livestock Landing and Slaughter-House Co. to maintain slaughterhouses, but it had to permit independent butchers to slaughter cattle in the facilities at fees set by statute. Independent b

everyone
o There is a distinction frm being a citizen of the U.S. (just hv to be born in U.S. or naturalized) and a citizen of a State (hv to be domiciled in the state)
§ 14th Amend states tht “No State shall make or enforce any law w/ch shall abridge the privileges or immunities of citizens of the United States.”
· b/c state citizenship is distinct frm natl, the Amend doesn’t intend to protect against infringements of state privileges or immunities
o The rights tht the independent buthchers are claiming are state rights (w/ch are protected by the U.S. Constitution, but by the state w/I the meaning of the 14th Amend)
o Regarding π’s due process violation claim, SCt sd the state law, in no way tht the ct can see, violates due process rights
o Regarding π’s equal protection violation claim, SCt sd tht it only applies to blacks
The P&I clause of 14th Amend was nt meant to “destroy the main features of the general system” despite the Civil War