Also known as: Privileges & Immunities Clause · Article IV Privileges and Immunities Clause · P&I Clause
Written by attorneys — see sources below.
The constitutional provision in Article IV, Section 2 that prohibits a state from discriminating against citizens of other states with respect to fundamental rights of citizenship. It safeguards the ability of citizens to pursue a common calling or livelihood on substantially equal terms with residents when they enter another state. A state may not impose residency-based barriers to such activities unless it demonstrates a substantial reason for the distinction and a close fit between that reason and the discriminatory means.
Phoebe Park, licensed in State A, seeks admission to the State B bar without examination under a reciprocity rule open only to State B residents. State B denies her application solely because she lives in State A. The denial prevents her from practicing law on equal terms with residents despite her qualifications and offer to maintain local ties.
Parker Phillips, a State C resident and licensed attorney, applies for reciprocal admission in State D. State D requires nonresidents to pass its bar exam while waiving the requirement for its own residents. The extra exam requirement raises the cost and delay for Parker to practice in State D.
Phuong Pham, a State E citizen visiting State F on business, faces a contract dispute and seeks to file suit in State F court. State F rules bar nonresidents from using its courts without posting a bond that residents need not post. The bond requirement blocks Phuong from pursuing her claim on equal terms.
Dennis Burnham married Francie Burnham in 1976 in West Virginia. In 1977 the couple moved to New Jersey, where their two children were born. In July 1987 the Burnhams separated. Mrs. Burnham, who intended to move to California, was visiting her parents in that State when she filed for divorce in New Jersey on grounds of extreme cruelty, seeking spousal and child support, custody of the children, and possession of the family home. In early August 1987 petitioner visited Mrs. Burnham in California to discuss the children and the separation. He took the children to San Francisco for a few days. Upon returning the children to Mrs. Burnham, petitioner was served with a summons and complaint for divorce filed in California Superior Court that also sought custody of the children. After being served, petitioner returned to New Jersey. In January 1988 petitioner made a special appearance in the California action and moved to quash service of process on the ground that the court lacked personal jurisdiction over him. The Superior Court denied the motion, and the State Court of Appeal affirmed. The California Supreme Court denied review. The United States Supreme Court granted certiorari to resolve a conflict among the state and federal courts.
View casePenelope Price, a State G citizen employed by a State H agency, receives a federal directive requiring her office to perform background checks under a national program. State H officials refuse to comply, citing limits on federal power to direct state personnel. The refusal leaves Penelope unable to carry out duties tied to her livelihood.
In 1993 Congress amended the Gun Control Act of 1968 by enacting the Brady Handgun Violence Prevention Act, which directed the Attorney General to create a national instant background-check system by November 30, 1998, and imposed interim requirements on firearms dealers and chief law enforcement officers until that system became operational. Under the interim scheme a dealer proposing to transfer a handgun had to obtain a sworn Brady Form from the purchaser, verify the purchaser's identity, forward notice and a copy of the form to the CLEO of the purchaser's residence, and wait five business days before completing the sale unless the CLEO notified the dealer that the transfer would not violate the law. Jay Printz, CLEO for Ravalli County, Montana, and Richard Mack, CLEO for Graham County, Arizona, filed separate federal actions challenging the constitutionality of the interim provisions that required CLEOs to perform background checks and related tasks. In each case the district court held that the obligation imposed on CLEOs was unconstitutional but severable from the remainder of the Act, leaving in place a voluntary background-check system. The Ninth Circuit consolidated the appeals and reversed, holding that none of the Brady Act's interim provisions violated the Constitution. The Supreme Court granted certiorari.
View casePeter Park, a State I citizen charged with a serious offense while in State J, seeks a jury trial. State J denies the request on the ground that only its own citizens receive full procedural protections. The denial treats Peter differently from residents in a fundamental criminal proceeding.
In October 1966, nineteen-year-old Gary Duncan stopped his car on Highway 23 in Plaquemines Parish, Louisiana, after seeing his two younger Negro cousins talking with four white boys near a formerly all-white high school that had recently experienced racial incidents. Duncan approached the group, spoke with the white boys, encouraged his cousins to leave, and was about to drive away when a dispute arose over whether he had slapped or merely touched one of the white boys on the elbow. At his trial in the Twenty-fifth Judicial District Court of Louisiana, the white boys and a white onlooker testified that Duncan had slapped Herman Landry, while Duncan and his cousins testified that he had only touched the boy. The trial judge found Duncan guilty of simple battery beyond a reasonable doubt. Under Louisiana law, simple battery is a misdemeanor punishable by a maximum of two years' imprisonment and a three-hundred-dollar fine. Duncan requested a jury trial, but the trial judge denied the request because the Louisiana Constitution provides for jury trials only in cases where capital punishment or imprisonment at hard labor may be imposed. Duncan was convicted by the judge alone and sentenced to sixty days in the parish prison and a fine of one hundred fifty dollars. Duncan sought review in the Supreme Court of Louisiana, which denied his application for a writ of certiorari. He then petitioned the United States Supreme Court pursuant to 28 U.S.C. § 1257(2), alleging that the denial of a jury trial violated his rights under the Sixth and Fourteenth Amendments. The Supreme Court noted probable jurisdiction and set the case for argument along with a related case.
View casePavel Petrov, a State K citizen testifying in a State L proceeding, invokes the privilege against self-incrimination. State L refuses to recognize the privilege for nonresidents. The refusal exposes Pavel to compulsion that residents would not face in the same setting.
In November 1959, Harold Malloy was arrested during a gambling raid in Hartford, Connecticut, on charges related to pool selling. He pleaded guilty to the misdemeanor, receiving a sentence of one year in jail and a five-hundred-dollar fine, with the jail term suspended after ninety days followed by two years of probation. Approximately sixteen months later, Malloy was subpoenaed to appear before a referee appointed by the Superior Court of Hartford County to investigate alleged gambling and other criminal activities in the county. During the inquiry, he was questioned about the circumstances of his 1959 arrest and conviction, including the identity of his employer, who paid his fine and bondsman, the tenant of the apartment where he was arrested, and whether he knew a man named John Bergoti. Malloy refused to answer any of these questions, asserting that his responses might tend to incriminate him. The Superior Court adjudged Malloy in contempt and ordered him committed to prison until he answered the questions. The Connecticut Supreme Court of Errors affirmed the contempt adjudication, holding that the Fifth Amendment privilege was unavailable in state proceedings and that Malloy had not properly invoked the state constitutional privilege. Malloy then sought federal habeas corpus relief in the United States District Court for the District of Connecticut, which was denied, and the Court of Appeals for the Second Circuit affirmed the dismissal. The Supreme Court granted certiorari to consider the constitutional questions presented.
View caseIt protects fundamental rights of state citizenship, including the right to pursue a common calling or livelihood on substantially equal terms with residents of the forum state. The clause prevents states from imposing residency-based barriers to such activities without a substantial reason closely related to the discrimination.
No. Corporations are not citizens within the meaning of the clause, so they cannot invoke it to challenge state discrimination. Other provisions such as the Commerce Clause may constrain state treatment of foreign corporations instead.
A state may discriminate only when it shows a substantial reason for the distinction and demonstrates that the means are closely related to that reason. Speculative concerns about nonresidents' availability or compliance do not suffice.
States may not require residency for bar admission or impose discriminatory burdens on nonresident lawyers seeking to practice law, a protected common calling, absent substantial justification closely tied to the restriction.
…is free to travel on the State's roads and water-ways; he likely enjoys the fruits of the State's economy as well. Moreover, the Privileges and Immunities Clause of Article IV prevents a state government from discriminating against a transient defendant by denying him the protections of its law or the right of access to its courts. See…