Wednesday, November 12, 2008

Privileges, immunities, Article IV, and the Fourteenth Amendment

I have received a few questions in the last week seeking a clarification on the similarities or differences between the Constitution's two clauses guaranteeing citizens their privileges or immunities. These questions are representative.

QUESTION: I am still unclear about the differences between the two. If you can review my summary below, I would appreciate it if you can correct my understanding or fill in any missing key points.

Privileges and Immunities Clause of Artilce IV Sec. 2
- General Purpose: to protect against state discrimination of out-of-staters with regard to "fundamental" rights or important economic activities.
- Test: Intermediate Scrutiny Test: Such discrimination will be allowed only it is substantially related to achieving a substantial state interest

ANSWER: That seems like an accurate summary to me. The one caveat I would add is that the rights for which Article IV scrutiny is triggered (when provided on a discriminatory basis) are a not necessarily the same as those considered "fundamental" as a matter of due process. There may be considerable overlap, but they are not the same. For instance, commercial shrimping is not protected by the Due Process Clause.

QUESTION: Privileges or Immunities Clause of 14th Amend. (I am unclear about this one)
- General Purpose: after incorporation, 14th Amend protects citizens from discrimination of fundamental rights, such as rights enumerated in the Bill of Rights, by the State. (Are there any other fundamental rights?)
- Test: Strict Scrutiny Test: State's interest must be compelling and necessary means.

ANSWER: Not quite. I think it is true that the Court has come to understand one of the purposes of Section 1 of the Fourteenth Amendment as prohibiting states from depriving persons of their "fundamental rights"--most of the rights enshrined in the first eight amendments as well as some other unenumerated ones. But it has not done this via the Privileges or Immunities Clause. Rather, it has occurred as a matter of due process. The only right that the Supreme Court has recognized as protected by the Privileges or Immunities Clause of the Fourteenth Amendment is the aspect of the right to travel that involves interstate migration of United States citizens. And Saenz v. Roe suggests that the infringement of this right warrants strict scrutiny.