Tuesday, July 17, 2012

MBE Fast Fact: Privileges and Immunities Clause (Art. IV)

It's important not to forget (especially on an essay), that when analyzing the Privileges and Immunities Clause (Art. IV), if you've determined that a state law is discriminating against non-residents, and the discrimination involves either a civil right (for example, a residency requirement to have an abortion), or commercial activities (for example, a requirement that non-residents pay $2,000 for a commercial fisherman's license while residents only pay $25), then you can conclude that the Privileges and Immunities Clause has likely been violated.

But don't stop there. Even if a state law discriminates against non-residents in regards to civil liberties or commercial activities, the state law may be valid if the state has a substantial justification for the different treatment. The state will be required to prove that the non-residents are the cause of the problem that the state is attempting to solve, and that the discriminatory state law is the least restrictive means of solving the problem.

If a civil right or commercial activity is not involved (for example, a state law in which non-residents are treated differently than residents in regards to a recreational hunting license), then there is no need to apply the "substantial justification" test, because the Privileges and Immunities Clause does not apply to invalidate the state law.


  1. could you briefly contrast this with the 14th amendment privileges or immunities clause? Is the latter just the right to travel?

  2. Here's the dilemma: it's hard to tell what constitutes a civil right...

    Also, are you saying a hunting license isn't a civil right, a commercial activity, or both?

  3. Yes, in regards to the 14th A. P& I, for MBE purposes, that amendment provides rights of national citizenship, such as to travel from state to state. When a question asks about discrimination against non-residents, you would not address it, but rather you'd address Art. IV.

  4. Civil rights are a bit of a judgement call, but a good rule of thumb is to think of them as the rights stated to be fundamental rights under the Due Process Clause (the right to vote, the right to privacy, etc).

    A law that regulates hunting licenses can implicate P&I, if it is a commercial hunting license being regulated. If it's a recreational hunting license, then P&I will not prevent the law from passing.