Privileges and Immunities Clause (Art IV)

The Privileges and Immunities Clause of Article IV, Section 2 provides that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. This clause prohibits states from discriminating against out-of-state citizens with respect to fundamental rights, particularly economic rights such as the right to pursue a livelihood, own property, and access the courts.

The modern framework was established in Supreme Court of New Hampshire v. Piper (1985) and refined in United States Building & Construction Trades Council v. Mayor of Camden (1984). Under this framework, a court first asks whether the state law discriminates against out-of-state citizens with respect to a fundamental privilege or immunity. If so, the state must demonstrate that (1) there is a substantial reason for the difference in treatment and (2) the discrimination practiced bears a substantial relationship to achieving the state's objective. This is an intermediate scrutiny standard that places the burden on the state to justify the discrimination.

Importantly, the Privileges and Immunities Clause protects only natural persons who are citizens, not corporations or aliens. It applies only to state discrimination against out-of-state citizens, not to discrimination by the state against its own residents. The clause is often analyzed alongside the Dormant Commerce Clause, as both limit state protectionism, but they differ in scope: the Privileges and Immunities Clause applies even when Congress has authorized state discrimination, while the Dormant Commerce Clause does not. Additionally, there is no market participant exception under the Privileges and Immunities Clause.