Friday, October 21, 2011
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The Privileges and Immunities Clause (U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents a state from treating citizens of other states in a discriminatory manner. The text of the clause reads:
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
In the federal circuit court case of Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D.Pa. 1823) Justice Bushrod Washington determined that the protections provided by the clause are confined to 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."
In his explanation of the scope of the rights protected by the clause, Justice Washington included the right to travel through states, the right of access to the courts, the right to purchase and hold property, and an exemption from higher taxes than state residents pay. The Corfield case involved the rights of an out-of-state citizen, rather than the rights of an in-state citizen, and Justice Washington's opinion did not suggest that this provision of the Constitution addresses how a legislature must treat its own citizens.
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The privileges and immunities which Justice Washington opined in Corfield v. Coryell, before the adoption of the Fourteenth Amendment and the Slaughterhouse Cases, were fundamental rights belonging to a citizen of any particular State.
ReplyDeleteHowever, after the adoption of the Fourteenth Amendment and the Slaughterhouse Cases, these fundamental rights now belong to a citizen of the several States, under Article IV, Section 2, Clause 1:
“In the Slaughter House Cases, 16 Wall. 36, 76, in defining the privileges and immunities of citizens of the several States, this is quoted from the opinion of Mr. Justice Washington in Corfield v. Coryell, 4 Wash. Cir. Ct. 371, 380.” Hodges v. United States: 203 U.S. 1, at 15 (1906).
“In speaking of the meaning of the phrase ‘privileges and immunities of citizens of the several States,’ under section second, article fourth, of the Constitution, it was said by the present Chief Justice, in Cole v. Cunningham, 133 U.S. 107, that the intention was ‘to confer on the citizens of the several States a general citizenship, and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances, and this includes the right to institute actions.’ ” Maxwell v. Dow: 176 U.S. 581, at 592 (1900).