Privileges & Immunities Clause

The framers crafted the privileges and immunities clause of article IV to help forge a single nation from quasi-autonomous states. It accomplishes this mission by prohibiting discrimination based on state citizenship in "the privileges of trade and commerce" and other "advantages resulting from citizenship." In this regard, it performs a similar function to that of the dormant commerce clause. The privileges and immunities clause might have been the principal vehicle for fusing a national economy were it not for its inapplicability to corporations and other business entities.

Despite its limited reach, the privileges and immunities clause often overlaps the dormant commerce clause. It is not uncommon for suits challenging economic protectionism to claim violation of both clauses. Still, the scope of review under the clauses is different. First, despite early efforts to ingrain substantive rights into the privileges and immunities clause, it is modernly understood to proclaim but a single principle: non-discrimination. Thus, unlike the commerce clause, the privileges and immunities clause does not provide normative protection for free trade or any other substantive right. A state may impose whatever burdens it likes under the clause, so long as it does so equally. Second, the clause's interdiction against discrimination is not absolute. A state can justify discrimination against nonresidents by establishing both "a 'substantial reason' for the difference in treatment" and a "substantial relationship" between the discrimination practiced and the state's objective. While the state's burden under this means-ends scrutiny is still heavy, it is less than the nearly per se invalidity of discriminatory statutes under the commerce clause.

In recent years, the privileges and immunities clause has emerged as an important tool for reviewing protectionist legislation that might be insulated from commerce clause scrutiny by the market participant doctrine. For instance, "local hire" requirements do not violate the commerce clause when the state is acting asemployer. Yet, they can, and often do, violate the privileges and immunities clause. In United Building & Construction Trades Council v. Mayor of Camden, Justice Rehnquist "declined to transfer mechanically" the market participant doctrine into the privileges and immunities clause. He stated that the clause's "concern with comity" and "interstate harmony" is compromised whether the state discriminates as market regulator or as market participant.

Perhaps one way to reconcile the dormant commerce clause with the P&I clause, is to abandon the "negative" side of the DCC entirely and to transfer its salient functions to the privileges and immunities clause. This would prevent states from discriminating against nonresidents, whether they undertook such action in a governmental or proprietary fashion, unless they could show a significant justification for differential treatment. Judicial enforcement of anti-discrimination principles, wherever they reside in the Constitution, should raise fewer federalism concerns. Indeed, if a single purpose could be ascribed to the evolution from Articles of Confederation to Constitution, it would be that of prohibiting unneighborly state relations. At the same time, balancing competing national and local interests would be left to Congress, the exact body endowed with the responsibility