Clause 1. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.Clause 2. A person charged in any State with Treason, Felony, ...
Clause 1. State Citizenship: Privileges and Immunities
Clause 1. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Origin and Purpose
"The primary purpose of this clause, like the clauses between which it is located. . .was to help fuse into one Nation a collection of independent sovereign States."
If it had been accepted by the Court, this theory might well have endowed the Supreme Court with a reviewing power over restrictive state legislation as broad as that which it later came to exercise under the due process and equal protection clauses of the Fourteenth Amendment, but it was firmly rejected by the Court.
The recent cases emphasize that interpretation of the clause is tied to maintenance of the Union. "Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States. Only with respect to those 'privileges' and 'immunities' bearing upon the vitality of the Nation as a single entity must the State treat all citizens, resident and nonresident, equally."
Hostile discrimination against all nonresidents infringes the clause,
This clause is self-executory, that is to say, its enforcement is dependent upon the judicial process. It does not authorize penal legislation by Congress. Federal statutes prohibiting conspiracies to deprive any person of rights or privileges secured by state laws,
Citizens of Each State
A question much mooted before the Civil War was whether the term could be held to include free Negroes. In the Dred Scott case,
In dissent, Justice Curtis not only denied the Chief Justice's assertion that there were no Negro citizens of States in 1789 but further argued that while Congress alone could determine what classes of aliens should be naturalized, the several States retained the right to extend citizenship to classes of persons born within their borders who had not previously enjoyed citizenship and that one upon whom state citizenship was thus conferred became a citizen of the State in the full sense of the Constitution.
Corporations.-At a comparatively early date, the claim was made that a corporation chartered by a State and consisting of its citizens was entitled to the benefits of the comity clause in the transaction of business in other States. It was argued that the Court was bound to look beyond the act of incorporation and see who were the incorporators. If it found these to consist solely of citizens of the incorporating State, it was bound to permit them through the agency of the corporation to exercise in other States such privileges and immunities as the citizens thereof enjoyed. In Bank of Augusta v. Earle,
All Privileges and Immunities of Citizens in the Several States
The classical judicial exposition of the meaning of this phrase is that of Justice Washington in Corfield v. Coryell,
After thus defining broadly the private and personal rights which were protected, Justice Washington went on to distinguish them from the right to a share in the public patrimony of the State. "[W]e cannot accede" the opinion proceeds, "to the proposition . . . that, under this provision of the Constitution, the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any particular State, merely upon the ground that they are enjoyed by those citizens; much less, that in regulating the use of the common property of the citizens of such State, the legislature is bound to extend to the citizens of all other States the same advantages as are secured to their own citizens."
The virtual demise, however, of the state ownership theory of animals and natural resources
Second, finding a fundamental interest protected under the clause, in the particular case the right to pursue an occupation or common calling, the Court employed a two-pronged analysis to determine whether the State's distinction between residents and non-residents was justified. Thus, the State was compelled to show that nonresidents constituted a peculiar source of the evil at which the statute was aimed and that the discrimination bore a substantial relationship to the particular "evil" they are said to represent, e.g., that it is "closely tailored" to meet the actual problem. An Alaska statute giving residents preference over nonresidents in hiring for work on the oil and gas pipelines within the State failed both elements of the test.
Discrimination in Private Rights
Not only has judicial construction of the comity clause excluded certain privileges of a public nature from its protection, but the courts also have established the proposition that the purely private and personal rights to which the clause admittedly extends are not in all cases beyond the reach of state legislation which differentiates citizens and noncitizens. Broadly speaking, these rights are held subject to the reasonable exercise by a State of its police power, and the Court has recognized that there are cases in which discrimination against nonresidents may be reasonably resorted to by a State in aid of its own public health, safety and welfare. To that end a State may reserve the right to sell insurance to persons who have resided within the State for a prescribed period of time.
Access to Courts
The right to sue and defend in the courts is one of the highest and most essential privileges of citizenship and must be allowed by each State to the citizens of all other States to the same extent that it is allowed to its own citizens.
In the exercise of its taxing power, a State may not discriminate substantially between residents and nonresidents. In Ward v. Maryland,
The Court returned to the privileges-and-immunities restrictions upon disparate state taxation of residents and nonresidents in Lunding v. New York Tax Appeals Tribunal.
However, what at first glance may appear to be a discrimination may turn out not to be when the entire system of taxation prevailing in the enacting State is considered. On the basis of overall fairness, the Court sustained a Connecticut statute which required nonresident stockholders to pay a state tax measured by the full market value of their stock while resident stockholders were subject to local taxation on the market value of that stock reduced by the value of the real estate owned by the corporation.
Clause 2. Interstate Rendition
Clause 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.
Duty to Surrender Fugitives From Justice
Although this provision is not in its nature self-executing, and there is no express grant to Congress of power to carry it into effect, that body passed a law shortly after the Constitution was adopted, imposing upon the Governor of each State the duty to deliver up fugitives from justice found in such State.
Fugitive From Justice Defined.-To be a fugitive from justice within the meaning of this clause, it is not necessary that the party charged should have left the State after an indictment found or for the purpose of avoiding a prosecution anticipated or begun. It is sufficient that the accused, having committed a crime within one State and having left the jurisdiction before being subjected to criminal process, is found within another State.
Procedure for Removal.-Only after a person has been charged with a crime in the regular course of judicial proceedings is the governor of a State entitled to make demand for his return from another State.
Trial of Fugitives After Removal.-There is nothing in the Constitution or laws of the United States which exempts an offender, brought before the courts of a State for an offense against its laws, from trial and punishment, even though he was brought from another State by unlawful violence,
Clause 3. Fugitives from Labor
Clause 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.
This clause contemplated the existence of a positive unqualified right on the part of the owner of a slave which no state law could in any way regulate, control, or restrain. Consequently the owner of a slave had the same right to seize and repossess him in another State, as the local laws of his own State conferred upon him, and a state law which penalized such seizure was held unconstitutional.