Article IV Stops States From Punishing Americans for Being From Somewhere Else

Suppose a state legislature woke up one morning and decided to charge outsiders a hundred times the resident fee to run a shrimp boat in its waters, to bar them from practicing law in its courts, or to reserve its oil and gas jobs for its own residents. It would be a protectionist's dream and a constitutional nightmare. And every one of those examples is real. A state actually tried each of them, and the Supreme Court struck each one down under a clause most Americans have never heard of.

The clause is the Privileges and Immunities Clause of Article IV. Its job is simple to state and hard to overstate: it makes an American from Ohio something more than a foreigner when she crosses into Pennsylvania. She may work, buy property, use the courts and pay taxes on the same terms as the locals in the things that matter most. She may not, it turns out, insist on the same price for an elk license. Explaining why the first is protected and the second is not tells us a great deal about what kind of Union the Founders built.

The text

Article IV, Section 2, Clause 1 reads, in full:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

That is the whole clause. Nineteen words. It does not list the privileges, define the immunities or say which differences in treatment are permitted. As with much of the Constitution, the meaning comes from history, from the document it replaced, and from two centuries of cases.

Two features stand out at once.

1. It protects citizens of other states. The clause is about interstate discrimination. It does not govern how a state treats its own citizens; that is a matter for the state constitution and, since 1868, the Fourteenth Amendment.
2. It protects "Citizens." Corporations, the Supreme Court held in Paul v. Virginia (1869), are not citizens for this purpose. The clause protects people.

Its roots in the Articles of Confederation

The clause descends from Article IV of the Articles of Confederation, which said:

The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively.

The purpose is stated in the first words: "to secure and perpetuate mutual friendship and intercourse among the people of the different States." The thirteen states had fought a war together. If, in peacetime, each treated the others' people as aliens, the friendship would not last a generation.

The Articles' version had problems of drafting. It spoke of "free inhabitants" in one place and "free citizens" in another, leaving it unclear whom it protected. James Madison, in Federalist 42, mocked the confusion, pointing out that under the Articles' wording a person who was an inhabitant but not a citizen of one state might claim greater privileges in another state than its own citizens enjoyed. The Constitution's shorter version cleaned up the language and kept the principle. We compare the two charters in The Articles of Confederation Next to the Constitution, Side by Side.

Alexander Hamilton put the stakes plainly in Federalist 80. The clause, he wrote, "may be esteemed the basis of the Union." He argued that the federal courts should hear disputes in which one state's citizens claimed against another's, precisely so the guarantee could be enforced impartially.

Corfield v. Coryell: the catalogue of fundamental rights

The first great interpretation came in 1823, not from the full Supreme Court but from Justice Bushrod Washington, George Washington's nephew, sitting as a circuit judge in Pennsylvania.

The case, Corfield v. Coryell, arose from a New Jersey law that barred nonresidents from gathering oysters in New Jersey's waters. A vessel engaged in oystering was seized, and its owner claimed the law violated the Privileges and Immunities Clause.

Justice Washington upheld the law. Oyster beds, he reasoned, were common property of the state's own citizens, like a public resource held in trust, and a state could reserve them. But in explaining what the clause did protect, he wrote the most famous description of it. The privileges and immunities were those which are, in their nature, fundamental, which belong of right to the citizens of all free governments. He listed them under general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject to such restraints as the government may justly prescribe for the general good of the whole.

He then gave particulars: the right of a citizen of one state to pass through or reside in another for trade, agriculture, professional pursuits or otherwise; to claim the benefit of habeas corpus; to bring and maintain actions in the state's courts; to take, hold and dispose of property; and to be exempt from higher taxes or impositions than the state's own citizens pay.

Read that list again and notice how much of it is the language of natural rights, the same vocabulary as the Declaration of Independence. Corfield became a touchstone for the men who wrote the Fourteenth Amendment. Its fate there is the subject of The Slaughter-House Cases Gutted the 14th Amendment's Best Clause in 1873.

Toomer v. Witsell: the shrimp boats

A century and a quarter later, the Supreme Court applied the clause to a law that made Corfield's oyster exception look modest.

South Carolina required a license for commercial shrimp boats fishing in its offshore waters and charged nonresidents a fee one hundred times what it charged residents. In Toomer v. Witsell (1948), the Court struck the scheme down. Chief Justice Fred Vinson, writing for the Court, explained that the clause was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy.

The clause does not forbid every difference in treatment, the Court said. A state may treat nonresidents differently if there is a substantial reason for the difference and the discrimination bears a close relation to that reason. Nonresidents may be a peculiar source of the evil the law addresses, for example, or may impose particular costs. But South Carolina had shown nothing of the sort. It simply wanted to drive out-of-state boats away from a commercial fishery, and the clause forbids that kind of economic protectionism in the pursuit of a common calling.

Baldwin v. Montana: the elk license

Now the case that every hunter who has ever bought a nonresident tag already knows in his wallet.

Montana charged nonresidents far more than residents for an elk-hunting license; the nonresident combination license cost many times the resident price. A group of out-of-state hunters sued. In Baldwin v. Fish and Game Commission of Montana (1978), the Supreme Court upheld the scheme, six to three, in an opinion by Justice Harry Blackmun.

The key move was to ask whether recreational elk hunting was a "fundamental" privilege protected by the clause. The Court said it was not. The clause protects activities "basic to the maintenance or well-being of the Union," such as earning a living, owning property and access to the courts. Recreational sport hunting, the Court said, was not of that character. Montana could charge visitors more to hunt its elk, and could reasonably ask nonresidents to bear a larger share of the cost of conserving the herds. Justice William Brennan, in dissent, argued that the Court should have asked whether the price difference was justified by the costs nonresidents imposed, rather than whether hunting was fundamental.

So the shrimper wins and the elk hunter loses. The difference is not that one is a resident and the other is not. Both are nonresidents. The difference is that the shrimper is earning a living, a fundamental privilege, and the elk hunter is pursuing recreation. Hunters can draw their own lesson: the case for reasonable nonresident tags is a matter for state wildlife policy, not constitutional litigation. We discuss the user-pay tradition that funds conservation in Duck stamps and the Dingell-Johnson Act, conservation the sportsman paid for.

Lawyers, pipelines and other common callings

The Court has applied the clause to protect nonresidents' right to work in several other cases.

• In Hicklin v. Orbeck (1978), it struck down "Alaska Hire," a law requiring that Alaska residents be preferred for jobs connected with the state's oil and gas leases. Alaska had not shown nonresidents were the source of its unemployment.
• In Supreme Court of New Hampshire v. Piper (1985), it struck down a rule limiting bar admission to state residents. Practicing law, the Court held, is a privilege protected by the clause.
• In United Building and Construction Trades Council v. Mayor and Council of Camden (1984), it held that the clause applies to a city ordinance favoring residents for public-works jobs, though it sent the case back to determine whether the preference was justified.

And it has recognized limits. In McBurney v. Young (2013), the Court unanimously upheld Virginia's rule limiting its public-records law to Virginia citizens. Access to a state's public records, the Court said, is not a fundamental privilege of the kind the clause protects.

Saenz v. Roe: the newcomer's right

One more case extends the logic to people who move permanently.

California passed a law limiting new residents' welfare benefits, during their first year in the state, to the amount they would have received in the state they came from. In Saenz v. Roe (1999), the Supreme Court struck it down, seven to two, in an opinion by Justice John Paul Stevens. The Court explained that the "right to travel" has three components: the right to enter and leave another state; the right to be treated as a welcome visitor rather than an unfriendly alien while temporarily present, which is the Article IV clause; and, for those who choose to become permanent residents, the right to be treated like other citizens of that state. That third component, the Court held, is protected by the Fourteenth Amendment's Privileges or Immunities Clause. Justice Clarence Thomas, in dissent, argued that the Court should reconsider that clause's meaning from the ground up rather than apply it piecemeal.

Saenz matters because it is a rare modern case in which the Court rested a holding on the Fourteenth Amendment's Privileges or Immunities Clause, the provision the Slaughter-House Cases had nearly erased in 1873.

The strongest objection, and the answer

The objection. The clause stops states from favoring their own people, which is exactly what a self-governing community ought to be able to do. A state's taxpayers built its roads, schools and fisheries. Why shouldn't its residents get first claim on the jobs, licenses and benefits those taxpayers funded? A conservative who believes in local self-government should let each state look after its own.

The answer.

1. States may still favor their residents where it counts as self-government. Voting, holding state office, in-state tuition, public records and recreational licenses can all be limited or priced differently. Baldwin and McBurney show the clause leaves room for genuine community interests.
2. The clause forbids protectionism, not community. Toomer and Hicklin struck down laws whose purpose was to keep outsiders from earning a living. That is economic warfare among the states, the very thing the Constitution was written to end. We trace that history in What Commerce Among the Several States Meant to the Men Who Wrote It.
3. The alternative unravels the Union. If each state could close its professions, its courts and its job sites to other Americans, the country would become fifty walled markets. Every state would retaliate against every other, and every American would be a foreigner fifty miles from home.
4. It protects individuals, not governments. The clause is a guarantee to the citizen who moves to find work or opportunity, often a young person or a working family with the least political power in the new state. That is the kind of mobility that has made America prosperous.

The verdict: the clause does not abolish state loyalty. It abolishes state hostility. We make the broader case for the states in Federalism Lets Fifty States Experiment, and the Constitution Planned It.

What it means for a family

Picture, hypothetically, a family from Kentucky that takes a job across the river in Ohio, or moves there outright. Under Article IV, Ohio may not bar them from working in a trade, buying a house, suing in its courts or tax their wages more heavily than an Ohioan's simply because they came from Kentucky. If they become Ohio residents, Saenz says Ohio must treat them as Ohioans. What Ohio may do is charge them nonresident tuition until they qualify as residents, refuse them a ballot in its elections while they live elsewhere, and charge the father more for a deer tag if he still lives in Kentucky.

That is the balance the Founders struck: one people in the things that make a living and a life, fifty communities in the things that make a home. A companion clause in the same article makes sister states honor each other's judgments, which we explain in Full Faith and Credit Makes an Ohio Judgment Count in Texas, Within Limits. The two clauses together turn thirteen jealous former colonies into one country.

The case in brief

1. Article IV, Section 2 entitles the citizens of each state to all privileges and immunities of citizens in the several states, a guarantee Hamilton called "the basis of the Union."
2. Corfield v. Coryell (1823) described the protected privileges as fundamental ones: work, property, the courts, travel and equal taxation.
3. Toomer v. Witsell (1948), Hicklin v. Orbeck (1978) and New Hampshire v. Piper (1985) struck down laws that shut nonresidents out of common callings without a close justification.
4. Baldwin v. Montana (1978) and McBurney v. Young (2013) show the limits: recreation and public-records access are not fundamental, so states may favor residents there.
5. Saenz v. Roe (1999) added that newcomers who settle in a state must be treated like its other citizens.

What you can do: read Article IV on our Constitution page, and if your state legislature is considering a residency preference for jobs or licenses, testify or write your state legislator about whether it can be justified under the clause.