Privileges and Immunities of Article IV

Article IV's Privileges and Immunities Clause bars states from discriminating against citizens of other states in fundamental matters such as earning a living, unless there is a substantial reason and a close relation to it (Toomer v. Witsell, 1948; Supreme Court of New Hampshire v. Piper, 1985).

Article IV, Section 2 says: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." You saw it among the rules of interstate relations in Civics and Government. It overlaps with the dormant Commerce Clause but works differently: it protects people who are citizens of other states, it has a clear textual basis, and it has no market participant exception.

Article IV, Section 2, Clause 1.

Why it works

The clause came from the Articles of Confederation, which had a similar guarantee. Its purpose, the Court has said, is to help fuse independent states into one nation: a citizen of Ohio who goes to Kentucky to work or do business should not be treated as a foreigner there. In Federalist No. 80, Hamilton called it "the basis of the Union." The clause does not require states to give out-of-staters every benefit; it protects rights fundamental to national unity, such as earning a living.

The test from Toomer v. Witsell (1948) and later cases.
Step	Question
1	Does the law discriminate against citizens of other states (often by residency)?
2	Does it burden a "privilege" protected by the clause: one fundamental to national unity, such as pursuing a common calling or doing business?
3	If so, is there a substantial reason for the difference, and does the discrimination bear a substantial relationship to it (are nonresidents a peculiar source of the problem; are there less restrictive means)?

Key idea

Article IV's Privileges and Immunities Clause bars states from discriminating against citizens of other states in fundamental matters such as earning a living, unless there is a substantial reason closely related to the discrimination (Toomer v. Witsell, 1948; Supreme Court of New Hampshire v. Piper, 1985).

Worked example: Toomer v. Witsell (1948)

South Carolina charged 25 dollars for a shrimp-boat license to residents and 2,500 dollars to nonresidents. Apply the test.

Step 1: the fee discriminates against nonresidents.
Step 2: commercial shrimping is a common calling, earning a living: a protected privilege.
Step 3: the state pointed to conservation and enforcement costs, but nothing showed nonresidents caused a special problem, and a hundredfold difference was not closely related to any extra cost.

Answer: Invalid. A state may charge nonresidents more to cover real extra costs, but not a fee that shuts them out.

Worked example: Recreation versus livelihood: Baldwin (1978)

Montana charged nonresidents far more than residents for elk-hunting licenses. Does the clause apply?

Step 1: yes, the fee discriminates against nonresidents.
Step 2: recreational big-game hunting is not fundamental to the nation as a single entity; it is not a way of earning a living.
So the clause does not apply, and the law stands.

Answer: Upheld, because the privilege at stake was not fundamental. Compare Piper (1985): practicing law is a common calling, so New Hampshire could not limit bar admission to residents.

Common mistake

Applying the clause to corporations. It protects citizens, which corporations are not for this purpose (Paul v. Virginia, 1869); corporations rely on the dormant Commerce Clause instead. Check: is the challenger an individual citizen of another state?

Which doctrine fits each challenge?

This is an educational course, not legal advice.

Privileges and Immunities of Article IV

Practice

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