The Underused and Overused Privileges and Immunities Clause

By Redish, Martin H.; Johnson, Brandon | Boston University Law Review, September 2019 | Go to article overview

The Underused and Overused Privileges and Immunities Clause


Redish, Martin H., Johnson, Brandon, Boston University Law Review


Introduction

When the Constitutional Convention met in Philadelphia in the spring of 1787, one of the primary dangers facing the newly founded United States was the very real risk that the loosely configured Union established by the Articles of Confederation would soon break apart. From its beginning, the confederation contemplated by the Articles was just that-a loosely connected group of sovereign states, uneasily joined together by little more than their combined victory over Great Britain.1 Many citizens still considered themselves citizens of their state first and of their nation second (if at all).2 And the Articles of Confederation had done preciously little to seek to change those attitudes. It purposely declined to establish a strong federal government, effectively giving in to (or protecting, depending on the perspective of the individuals who had created the document) the concept of vigorous state sovereignty.3 It was thus not surprising that, in the nation's years under the Articles' rule, individual states were often far more concerned with their own economic survival than with that of the nation as a whole.4

It is almost a cliché of U.S. history that one of the fatal defects of the Articles of Confederation was the absence of any ability of the federal government to enforce its directives.5 Yet, while much has been written about this shortcoming, far less attention has been paid to the equally disconcerting scarcity of sufficient mechanisms for either preventing or resolving interstate disputes within the Confederation. Despite this disproportionate fixation in the scholarly literature on federal enforcement capabilities, the goal of those attending the Constitutional Convention was not only to build a more effective federal government, but also to create the tools of interstate dispute resolution that the Articles of Confederation so sorely lacked.6

The Framers included several provisions in the new Constitution designed to help knit the nation more tightly together and lessen many of the interstate tensions that had persisted under the Articles. Assigning the power to control interstate commerce to the federal government is a prime example of this type of provision.7 Similarly, the insertion of prohibitions on the ability of states to apply tariffs to exports and imports was designed to improve interstate relations.8 Perhaps the most important provision in the Constitution for managing interstate relations is Article IV,9 which includes the Full Faith and Credit Clause,10 the Fugitive Slave Clause,11 and, the subject of this Article, the Privileges and Immunities Clause.12

The Privileges and Immunities Clause is a holdover from one of the few provisions in the Articles of Confederation designed to promote a sense of national unity.13 The parallel provision in the Articles included a preamble, which declared that the intention of the provision was to "better . . . secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union."14 In its final form, in Article IV of the Constitution, the Clause reads: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."15 That the Clause was intended to serve the same pro-interstate harmony purpose as its predecessor in the Articles of Confederation was confirmed by Charles Pinckney, who reminded the Convention that the Privileges and Immunities Clause was "formed exactly upon the principles of the 4th article of the present Confederation."16 That the Clause was seen as a vital tool for holding the young country together was confirmed by Alexander Hamilton, who wrote in the Federalist Papers that "it may be esteemed the basis of the Union that 'the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.'"17 Yet, despite this emphasis the Framers put on the federalism-preserving function of the Clause, it has not often been used for its intended purpose. …

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