Privileges and Immunities Clause

The Privileges and Immunities Clause (U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents a state from treating citizens of other states in a discriminatory manner. Additionally, a right of interstate travel may plausibly be inferred from the clause.

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

The clause is similar to a provision in the Articles of Confederation: "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."

James Madison discussed that provision of the Articles of Confederation in Federalist No. 42. Madison wrote: "those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State...." Madison apparently did not believe that this clause in the Articles of Confederation dictated how a state must treat its own citizens. Alexander Hamilton wrote in Federalist No. 80 that the corresponding Privileges and Immunities Clause in the proposed federal Constitution is "the basis of the union".

In the federal circuit court case of Corfield v. Coryell, Justice Bushrod Washington wrote that the protections provided by the clause are confined to privileges and immunities which are, "in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign."

In his explanation of the scope of the rights protected by the clause, Justice Washington included the right to travel through states, the right of access to the courts, the right to purchase and hold property, and an exemption from higher taxes than state residents pay. The Corfield case involved the rights of an out-of-state citizen, rather than the rights of an in-state citizen, and Justice Washington's opinion did not suggest that this provision of the Constitution addresses how a legislature must treat its own citizens.

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