Interstate Relations: The Neglected Dimension of Federalism

By Joseph F. Zimmerman | Go to book overview
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5
Privileges and Immunities

The privileges and immunities guaranteed by Section 2 of Article IV of the U.S. Constitution are similar to the full faith and credit guarantee in promoting interstate citizenship and decreasing the quasi-sovereign powers of states. The section stipulates that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." A parallel guarantee is contained in Section 1 of the Fourteenth Amendment which provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The Article IV guarantee is designed to protect sojourners whereas the Fourteenth Amendment guarantee protects citizens of a state against discrimination in terms of privileges and immunities by the state government. The protected privileges and immunities are those possessed by citizens of the United States and cannot be defined by a state.

In common with many other provisions of the U.S. Constitution, general phraseology is employed, and no definitions of the terms privileges and immunities are provided. The guarantee, however, suggests equal privileges and immunities. Furthermore, the guarantee does not name who is forbidden to deny privileges and immunities to visitors from other states but is assumed that it is the state which may not deny the privileges and immunities.

The privileges and immunities guarantee involves a conflict of laws similar to that encountered by the full faith and credit guarantee. Each state is free to define privileges and immunities, provided they do not diminish the ones protected by the Fourteenth Amendment. A sojourner cannot demand that a state extend to him/her all the privileges and immunities extended by the sojourner's state of residence. However, a visitor can challenge discrimination by mounting a due process of law, equal protection of the laws, or interstate commerce challenge. Brainerd Currie and Herma H. Schreter pointed out that "a state may without offense to the privileges and immunities clause decline to apply its law for the benefit of a citizen of another state if to do so would violate the full faith and credit clause or the due process clause." 1

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