Q: What are the privileges and immunities of citizenship?
A. P&Is of federal citizenship under 14th am. (correlative rts; c/L per Crandall, too)
1. recognized by Crandall v. Nevada (rt to travel) before 14th am. passed
2. P&Is of federal citizenship under 14th cannot be abridged by anyone, even civilians! (per Crandall, not the 14th am.)
3. P&Is of federal citizenship are correlative rights & can’t be abridged by states or civilians; correlative rights come from the federal government’s national character
4. the correlative rights:
a) interstate travel
b) access to art. III courts
c) access to federal marshal
d) run for office
e) petition Congress for redress of grievances
f) protection on high seas
g) one person, one vote
h) not the BOR’s guarantees (only enforceable v. state action) Twining
B. P&Is of state citizenship under 5th am.
1. enforceable via 4.2
2. can only be enforced against state actors (includes all state action)
3. PFC: fundamental right + unfair (no subst. rzn & not narrowly tailored)
4. P&Is of state citizenship = fundamental rights!
a. why? purpose was to fuse into one nation the independent sovereign states; therefore, P&Is only apply to fundamental rights
b. fundamental: for the promotion of interstate harmony; rights that are important to the maintenance & well-being of the union
c. from Slaughter-house: P&Is are those rights which are “fundamental, which belong of right to the citizens of all free government, and which have at all times been enjoyed by citizens of the several states which compose this union, from the time of their becoming free, independent and sovereign.”
5. states can abridge P&Is of state citizenship, but only if:
a. there is a substantial reason for the difference in treatment &
b. the discrimination practiced against the nonresidents bears a substantial relationship to the state’s objective (Piper)
6. what rights have been found to be “fundamental” P&Is of state citizenship?
a. traditional c/L civil rts
b. the bills of rights guarantees (from the state
C. travel:
1. travel interstate: right of a citizen to leave one state and enter another (federal per Crandall)
2. visit another state: rt to be treated like welcome visitor rather than unfriendly alien (state only! Baldwin-different cost for hunting license; not fundmt’l)
3. become citizen: rt to become per. residents and be treated like other citizens of the state (federal per Slaughterhouse cases, Saenz)
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A: Dan Goodman's Answer
Since the adoption of the Fourteenth Amendment, there are three sets of privileges and immunities in the United States. The three sets of privileges and immunities are: privileges and immunities of a citizen of the United States; privileges and immunities of a citizen of a State, and privileges and immunities of a citizen of the several States.
Privileges and immunities of a citizen of the United States are at Section 1, Clause 2 of the Fourteenth Amendment:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Privileges and immunities of a citizen of a State are at the constitution and laws of a particular State:
“. . . Whatever may be the scope of section 2 of article IV — and we need not, in this case enter upon a consideration of the general question — the Constitution of the United States does not make the privileges and immunities enjoyed by the citizens of one State under the constitution and laws of that State, the measure of the privileges and immunities to be enjoyed, as of right, by a citizen of another State under its constitution and laws.” McKane v. Durston: 153 U.S. 684, at 687 (1894).
Privileges and immunities of a citizen of the several States are at Article IV, Section 2, Clause 1 of the Constitution:
“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).
Privileges and immunities of a citizen of the United States “owe their existence to the Federal government, its National character, its Constitution, or its laws.” Slaughterhouse Cases: 83 U.S. (16 Wall.) 36, at 79 (1873).
Privileges and immunities of a citizen of a State are expressed in the constitution and laws of a particular State. McKane v. Durston; supra.
Privileges and immunities of a citizen of the several States are those described in Corfield v. Coryell:
“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).