Definition
Privileges and immunities, in American constitutional law, refers to the protections guaranteed to citizens against discriminatory or abridging action by state governments. The phrase appears in two distinct constitutional provisions, each with its own scope, history, and judicial interpretation.
1. Article IV, Section 2 (Comity Clause): Provides that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." This clause prevents states from discriminating against citizens of other states in favor of their own citizens with respect to fundamental rights — the right to travel, to conduct business, to access courts, and to enjoy basic civil liberties. It does not require states to treat out-of-state citizens identically to residents in all respects, but only as to rights that are "fundamental."
2. Fourteenth Amendment, Section 1 (Privileges or Immunities Clause): Prohibits states from making or enforcing any law that abridges "the privileges or immunities of citizens of the United States." This clause was intended, in the view of many constitutional scholars, to be the primary vehicle for applying federal constitutional rights against the states. In practice, the Supreme Court's decision in the Slaughter-House Cases (1873) drained this clause of most of its force by distinguishing between national citizenship and state citizenship, leaving only a narrow set of rights — such as access to federal offices, the right to travel to the seat of government, and protection on the high seas — within its scope. The clause has remained largely dormant since, though debate over its revival continues.
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Common Confusion
The two Privileges and Immunities Clauses are frequently conflated, but they operate differently and protect different rights. The Article IV clause protects citizens traveling between states from in-state discrimination — it is an anti-discrimination provision with an interstate dimension. The Fourteenth Amendment clause was designed (or at least argued) to protect a broader set of fundamental national rights against state encroachment, but judicial interpretation has largely transferred that work to the Due Process and Equal Protection Clauses of the same amendment. A researcher who finds the phrase "privileges and immunities" in a case or treatise must first determine which clause is being invoked before drawing any conclusions about the doctrine being applied.
Additionally, "privileges and immunities" in constitutional law must not be confused with "privilege" in the law of evidence — a wholly separate doctrine governing protected communications. See the RELATED TERMS section and the encyclopedia entries on spousal and clergy-penitent privileges.
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Core Elements
For a state law or action to violate the Article IV Privileges and Immunities Clause, courts have generally required:
1. The plaintiff is a citizen of a different state (corporations and aliens cannot invoke this clause).
2. The state discriminated against that citizen in favor of its own residents.
3. The right at issue is "fundamental" — closely related to the maintenance or well-being of the Union, such as the right to pursue a livelihood, own property, or access courts.
4. The state lacks sufficient justification or substantial reason for the differential treatment.
The Fourteenth Amendment clause, as currently interpreted after Slaughter-House, does not require a multi-part test in the same way — its surviving applications are narrow and largely definitional rather than fact-specific.
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Why It Matters in Research
This is one of the most historically loaded phrase-pairs in American constitutional law, and researchers must track it carefully across time periods.
Pre-1868 sources (including the Articles of Confederation and early Republic materials) use "privileges and immunities" exclusively in the Article IV comity sense. After ratification of the Fourteenth Amendment, the phrase takes on a second, contested meaning, and the two clauses begin appearing in the same cases and treatises, sometimes without clear distinction.
The Slaughter-House Cases (1873) are the hinge point. Cases and scholarship written before 1873 may assume a far more expansive Fourteenth Amendment clause than post-Slaughter-House sources reflect. Conversely, late nineteenth and early twentieth century materials may treat the clause as nearly meaningless — a view that does not account for the ongoing scholarly and judicial debate about revival.
The revival debate is live: McDonald v. City of Chicago (2010) saw Justice Thomas argue for applying the Second Amendment to the states via the Privileges or Immunities Clause rather than substantive due process, signaling that the clause remains contested ground. Researchers working in modern constitutional sources should be alert to this developing line.
Corpus trap: "Privileges and immunities" appears in state constitutions, early statutes, and diplomatic instruments with meanings that may not track either federal constitutional clause. Read context carefully before importing federal doctrine.
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Historical Dictionary Support
Bouvier's entry correctly identifies that the phrase appears in both the Fourteenth Amendment and earlier constitutional documents, and anchors the definition to rights that are "fundamental" and that "have at all times been enjoyed by citizens of the United States." The citations Bouvier supplies — tracking to the Slaughter-House Cases line and subsequent Fourteenth Amendment jurisprudence — confirm that by Bouvier's era, the narrowing construction was already established doctrine.
What Bouvier's entry does not fully capture is the distinction between the Article IV clause and the Fourteenth Amendment clause. The entry addresses them together under a single definition, which reflects common practice in nineteenth century legal writing but obscures the analytical separation that later courts would draw. Researchers relying solely on Bouvier should be alert to this compression.
Bouvier also does not address the extent to which the Fourteenth Amendment clause was gutted by Slaughter-House as opposed to merely interpreted — a normative question that would not have been Bouvier's concern but is essential to understanding how the term functions in twentieth and twenty-first century constitutional argument.
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Jurisdictional Note
The Privileges and Immunities Clauses are federal constitutional provisions and apply uniformly across all states. However, many state constitutions contain their own privileges and immunities provisions, which may be interpreted more broadly under state constitutional law than their federal counterparts. Researchers in state constitutional cases should not assume federal doctrine controls state-law analysis.
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Encyclopedia Cross-Reference
The Privileges or Immunities Clause — Dead Letter or Revival? (The Law Mind Constitutional Law Encyclopedia) — Primary reference for the Fourteenth Amendment clause, Slaughter-House, and the revival debate.
Spousal Privileges — Testimonial Privilege and Marital Communications (The Law Mind Civil Procedure & Evidence Encyclopedia) — For evidentiary privilege doctrine; distinct from constitutional privileges and immunities.
Clergy-Penitent and Other Recognized Privileges (The Law Mind Civil Procedure & Evidence Encyclopedia) — Same caution applies; evidentiary privilege is a separate body of law.
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