Talk:Privileges and Immunities Clause

Edit warring

There seems to be some edit-warring going on here. See this. Is there some reason why the leading case on this clause of the Constitution (i.e. Paul v. Virginia) should not be mentioned here?

The Fourteenth Amendment did not amend the Privileges and Immunities Clause, and the Slaughterhouse cases did not purport to alter what was stated in Paul v. Virginia. So, why include lots of info about the Fourteenth Amendment and the Slaughterhouse cases, while deleting everything about Paul v. Virginia (which incidentally was decided after the Fourteenth Amendment)?Ferrylodge (talk) 02:31, 15 December 2007 (UTC)

Thanks for restoring some of the information about Paul v. Virginia. However, I have subsequently deleted the statement that "A substantial change occurred with the passage of the Fourteenth Amendment to the Constitution." The 14th Amendment did not change anything that was said in Paul v. Virginia, because Paul v. Virginia was decided after the 14th Amendment was ratified.

Please come to this talk page and talk about your edits. Thanks.Ferrylodge (talk) 07:48, 15 December 2007 (UTC)

Hi. Let me answer you second question first, then the first. The Fourteenth Amendment did not amend the Privileges and Immunities Clause, the Supreme Court did. In the Slaughterhouse Cases, the Supreme Court dealt with two clauses of the Fourteenth Amendment: Section 1, Clause 1 and Section 1, Clause 2. To this the Slaughterhouse court discuss three citizenships. They are(were):

   citizenship of the United States,
   citizenship of the states, and 
   citizenship of a state.  

Citizenship of the United States and citizenship of a state were treated in Section 1, Clause 1 of the Fourteenth Amendment. Citizenship of the United States and citizenship of the (several) states were covered in Section 1, Clause 2 of the Fourteenth Amendment.

(And as I just added to the Privileges and Immunities page, being a citizen of the several States is not the same as being a citizen of a state. Privileges and immunities of state citizenship, in general, are to be found in the constitution and laws of the individual state. On the other hand, privileges and immunities of citizenship of the several States are designated in Article IV, Section 2, Clause 1 of the Constitution of the United States.)

On page 75 of its opinion it states:

"In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: 'The citizens of each State shall be entitled to all the privileges and immunities of citizens OF the several States.' "

However, Article IV, Section 2, Clause 1 states:

"The citizens of each State shall be entitled to all privileges and immunities of citizens IN the several States."

And, on page 76, it reads:

"Fortunately we are not without judicial construction of this clause of the Constitution (that is, Article IV, Section 2, Clause 1). The first and the leading case on the subject is that of Corfield v. Coryell, decided by Mr. Justice Washington in the circuit court for the district of Pennsylvania in 1823. 4 Wash C. C. 371.

'The inquiry,' he says, 'is, what are the privileges and immunities of citizens OF the several States?'"

But, in Corfield v. Coryell, it is written:

“The inquiry is what are the privileges and immunities of citizens IN the several states?”

As I am certain you are aware, words in law are deliberately chosen. The Supreme Court, in its opinion, deliberately changed the word, as indicated above; that is, IN to OF for a reason. That reason, as stated in my edit to the Privilege and Immunities page was to alter the application of Article IV, Section 2, Clause 1 from a citizen of a state to a citizen of the several States, since it was decided that there were now two seperate and distinct citizens under the Constitution (and not the Fourteenth Amendment), a citizen of the United States and a citizen of the several States.

Proof of this was provided on the Privileges and Immmunities page. “The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship, and to communicate all the privileges and immunities which the citizen of the same State would be entitled to under like circumstances.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).

There is also the following:

". . . [I]t was also decided that a corporation did not have the rights of its personal members, and could not invoke that provision of §2, article 4, of the Constitution of the United States, which gave to the citizens of each state the privileges and immunities of citizens OF the several states. See also Pembina Consol. Silver Min. & Mill. Co. v. Pennsylvania, 125 U.S. 181 , 31 L. ed. 650, 8 Sup. Ct. Rep. 737; Ducat v. Chicago, 10 Wall. 410, 19 L. ed. 972." Waters-Pierce Oil Company v. State of Texas: 177 U.S. 28, 45 (1900).

Regarding Paul v. Virginia, I left what you had in the first paragraph, now. I agree that Paul is very important. Seeing it gone did not do it justice. I added my new wording distinguing between privileges and immunities of state citizenship and privileges and immunities of citizenship of the several States for that reason.

You may want to add Ward v. State of Maryland, 12 Wall. 430, 20 L. ed. 452. This was decided before Paul and deals with the Privileges and Immunities Clause in Article IV, Section 2, Clause 1 of the Constitution of the United States.--Gettingitdone (talk) 07:59, 15 December 2007 (UTC)

Thanks for responding. You say that the Supreme Court amended the Privileges and Immunities Clause of Article IV of the Constitution, in the Slaughterhouse cases. But Gettingitdone, the Court in the Slaughterhouse cases did not say anything contrary to what the Court had said in Paul v. Virginia. Where does anything in the Slaughterhouse Cases contradict what was said in Paul v. Virginia?

The Slaughterhouse cases were primarily about the Privileges OR Immunities Clause, in the Fourteenth Amendment. The Slaughterhouse Cases were not primarily about the Privileges AND Immunities Clause in Article IV of the original Constitution. Right?Ferrylodge (talk) 08:06, 15 December 2007 (UTC)

I continue to believe that the Slaughterhouse cases are relevant in the article about the Privileges OR Immunities Clause, but not very relevant in this article about the Privileges AND Immunities Clause. So, if there are no objections, I'll remove that material.Ferrylodge (talk) 22:02, 15 December 2007 (UTC)

Hi Ferrylodge.

You are right. The Supreme court, in the Slaughterhouse Cases, did not say anything contrary to what it said in Paul v. The State of Virginia. It did, however, in Cole v. Cunningham, make clear that the Privileges and Immunities Clause in Article IV, Section 2, Clause 1 now had two (and not one) purposes:

“The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship, and to communicate all the privileges and immunities which the citizen of the same State would be entitled to under like circumstances, and this includes the right to institute actions.” Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).

The second part of this sentence, ". . . and to communicate all the privileges and immunities which the citizen of the same State would be entitled to under like circumstances . . ." relates specifically to Paul. Therefore, the authority of Paul is recognized and reaffirmed. The first part, "The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship . . ." was to confirm what it did in the Slaughtherhouse Cases; that is, to establish Article IV, Section 2, Clause 1 as the source for the privileges and immunities for a citizen of a several States. How they did this I showed in my previous response.--Gettingitdone (talk) 01:31, 18 December 2007 (UTC)

There is in addition the following:

“There can be no doubt that Balk, as a citizen of the state of North Carolina, had the right to sue Harris in Maryland to recover the debt which Harris owed him. Being a citizen of North Carolina, he was entitled to all the privileges and immunities of citizens OF the several states, one of which is the right to institute actions in the courts of another state.” Harris v. Balk: 198 U.S. 215, 223 (1905). --Gettingitdone (talk) 05:08, 18 December 2007 (UTC)

Gettingitdone, you primarily rely upon two cases: Cole v. Cunningham: 133 U.S. 107 and Harris v. Balk: 198 U.S. 215, 223. I don't think they say what you say they say.

Consider Cunningham. That decision merely reiterated what Joseph Story had famously explained in 1833:

"It is obvious, that, if the citizens of each state were to be deemed aliens to each other, they could not take, or hold real estate, or other privileges, except as other aliens. The intention of this clause was to confer on them, if one may so say, a general citizenship; and to communicate all the privileges and immunities, which the citizens of the same state would be entitled to under the like circumstances."

Here in Story's Commentaries, the phrase about "general citizenship" is explained by a later phrase, rather than being additional to the later phrase. Michael Kent Curtis has studied Story's explanation, and Curtis has concluded that Story thought the P&I clause was meant "only to provide temporary visitors with equality in certain rights with the citizens of the states they were visiting." The Supreme Court in Cunningham used the same language as Story, which does not clearly indicate anything beyond an "equality" reading of the P&I Clause.

Likewise in Balk, the Supreme Court did not suggest anything beyond an "equality" interpretation of the P&I Clause:

"There can be no doubt that Balk, as a citizen of the state of North Carolina, had the right to sue Harris in Maryland to recover the debt which Harris owed him. Being a citizen of North Carolina, he was entitled to all the privileges and immunities of citizens of the several states, one of which is the right to institute actions in the courts of another state. The law of Maryland provides for the attachment of credits in a case like this....It thus appears that Balk could have sued Harris in Maryland to recover his debt, notwithstanding the temporary character of Harris' stay there; it also appears that the municipal law of Maryland permits the debtor of the principal debtor to be garnished, and therefore if the court of the state where the garnishee is found obtains jurisdiction over him, through the service of process upon him within the state, then the judgment entered is a valid judgment."

The Court did say in Balk that "the right to institute actions in the courts of another state" is one of the "privileges and immunities of citizens of the several states," but the Court then went on to ground this right in "the municipal law of Maryland." Grounding the right in the municipal law of Maryland would have been completely unnecessary if the Court had adopted your interpretation of the P&I Clause.Ferrylodge (talk) 03:31, 24 December 2007 (UTC)

Hi Ferrylodge,

Your citation to Story's Commentaries is valid in relation to Cole v. Cunningham.

Indeed, if you look at Ward v. The State of Maryland, which was decided before Paul you will see the following:

"Grant that the states may impose discriminating taxes against the citizens of other states, and it will soon be found that the power conferred upon Congress to regulate interstate commerce is of no value, as the unrestricted power of the states to tax will prove to be more efficacious to promote inequality than any regulations which Congress can pass to preserve the equality of right contemplated by the Constitution among the citizens OF the several states." Ward v. State of Maryland: 79 U.S. 418, 430-431 (1870).

Which means that citizenship of the several States existed before the Slaughterhouse Cases. And so, too, before the Fourteenth Amendment:

"Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision." Minor v. Happersett: 88 U.S. 162, 165 (1874).

Before the Fourteenth Amendment there was only one class of citizens under the Constitution of the United States. A person, as such, was a citizen in three capacities: as a citizen of a State, as a citizen of the several States, and as a citizen of the United States. Each was based on jurisdiction, that is, the jurisdiction of the appropriate government and under each a person had rights and privileges. As a citizen of the State, the constitution and laws of the individual state provided the rights and privileges. As a citizen of the several States, a citizen of a State had the same rights and privileges (in general) as the citizens of the State in which he was in. And, as a citizen of the United States, the Bill of Rights and constitutional provisions and amendments plus the laws of the United States contained them.

After the adoption of the Fourteenth Amendment, the Supreme Court, in the Slaughterhouse Cases, decided that because of the Fourteenth Amendment, there were now two citizens (separate and distinct) under the Constitution of the United States (and not the Fourteenth Amendment); a citizen of the United States and a citizen of the several States.

Before Slaughterhouse (and possibly Ward), one could be a citizen of the several States and a citizen of the United States. After Slaughterhouse, however, one could be a citizen of the United States or a citizen of the several States, but not both.

Being a citizen of the United States is not the same as being a citizen of the several States. Privileges and immunities of a citizen of the United States are found in the 14th Amendment; whereas privileges and immunities of a citizen of the several States are located at Article IV, Section 2, Clause 1. By force of the Fourteenth Amendment, a United States citizen residing in a state (of the Union) becomes a citizen of that state. As such he or she would have privileges and immunities found in the Fourteenth Amendment plus those privileges and immunities provided for under the constitution and laws of the state where he or she resides. A citizen of the several States domicile in a state (of the Union) becomes by Article IV, Section 2, Clause 1, a citizen of that state. As such he or she would have privileges and immunities located in Article IV, Section 2, Clause 1, plus those privileges and immunities provided for under the constitution and laws of the state where he or she is domicile.

A citizen of the several States is, by Article IV, Section 2, Clause 1, a citizen of a state. A citizen of the United States, by force of the Fourteenth Amendment, can become a citizen of a state, by residing in such state. Therefore, in any state of the Union, there can now exist two types of state citizens, a citizen of the United States and a citizen of the several States.

This is why OF is used instead of IN. IN refers to pre Fourteenth Amendment, where one is a citizen of a state, a citizen of the several States, and a citizen of the United States. OF relates to post Fourteenth Amendment, where one is, in this case, a citizen of the United States or a citizen of the several States (but not both) and is either resident in a state of the Union (Fourteenth Amendment) or domicled in an individual state (Article IV, Section 2, Clause 1).

So before the Fourteenth Amendment and Slaughterhouse, under Article IV, Section 2, Clause 1, one was a citizen of a state and then a citizen of the several States. Whereas after Slaughterhouse one, under Article IV, Section 2, Clause 1, was a citizen of the several States and then a citizen of an individual state. This is because now there are two state citizens, a citizen of the United States and a citizen of the several States. This is why one who is a citizen of the several States is identified as also being a citizen of an individual state (Balk). --Gettingitdone (talk) 06:02, 25 December 2007 (UTC)

Gettingitdone, I agree with you that the Fourteenth Amendment changed many aspects of citizenship. I also agree with you that the P&I Clause in Article IV did likewise, by creating a sort of general citizenship whereby a citizen of one state could visit another state and still be entitled to many rights of citizenship in the visited state.

Regarding Slaughterhouse, I hope you're okay with the way it's covered in the article now. The article now quotes that decision's discussion of the Article IV P&I Clause: "Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction."Ferrylodge (talk) 18:14, 25 December 2007 (UTC)

Hi Ferrylodge,

Happy Holidays.

I wish to make a correction to my previous response to you. I wrote:

"Indeed, if you look at Ward v. The State of Maryland, which was decided BEFORE Paul you will see the following:"

It should have been:

"Indeed, if you look at Ward v. The State of Maryland, which was decided AFTER Paul you will see the following:

My mistake. And so, too, my apology.

I have discovered another way to show that the Supreme court in the Slaughterhouse Cases decided that because of the Fourteenth Amendment, there were now two citizens (separate and distinct) under the Constitution of the United States (and not the Fourteenth Amendment); a citizen of the United States and a citizen of the several States.

Please go to this link citizen of the several states or this url address (the same spot): http://en.wikipedia.org/wiki/Citizen_of_the_several_states . As you can see the Slaughterhouse court uses the terms "citizens of the states" and "citizens of the several states" interchangeably. And they are employed in contradistinction to the term "citizens of the United States".

I think this shows much better than the IN and OF that there are now two citizens under the Constitution of the United States; a citizen of the United States and a citizen of the several States.

Before Slaughterhouse (and possibly Ward), one could be a citizen of the several States and a citizen of the United States. After Slaughterhouse, however, one could be a citizen of the United States or a citizen of the several States, but not both. . . .

Just to make clear that a citizen of the United States is not the same as a citizen of the several states, Ferrylodge, there is the following:

"To determine, then, who were citizens of the United States before the adoption of the (Fourteenth) amendment it is necessary to ascertain what persons originally associated themselves together to form the nation, and what were afterwards admitted to membership. Looking at the Constitution itself we find that it was ordained and established by 'the people of the United States,' and then going further back, we find that these were the people of the several States that had before dissolved the political bands which connected them with Great Britain, and assumed a separate and equal station among the powers of the earth, and that had by Articles of Confederation and Perpetual Union, in which they took the name of 'the United States of America,' entered in to a firm league of friendship with each other for their common defence, the security of their liberties and their mutual and general welfare, binding themselves to assist each other against all force offered to or attack made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.

Whoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen-a member of the nation created by its adoption. He was one the persons associating together to form the nation, and was, consequently, one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons of certain classes of persons were part of the people at the time, but never as to their citizenship if they were." Minor v. Happersett: 88 U.S. 162, 166-167 (1874).

"(And,) before the Fourteenth Amendment and Slaughterhouse, under Article IV, Section 2, Clause 1, one was a citizen of a state and then a citizen of the several States. Whereas after Slaughterhouse one, under Article IV, Section 2, Clause 1, was a citizen of the several States and then a citizen of an individual state. This is because now there are two state citizens, a citizen of the United States and a citizen of the several States." (previous reply).

Recall that by force of the Fourteenth Amendment, a United States citizen residing in a state of the Union becomes a citizen of that state, and a citizen of the several States domicile in an individual state becomes by Article IV, Section 2, Clause 1, a citizen of that state.

Therefore, Article IV, Section 2, Clause 1 stills relates to a citizen of a state, but to one who is a citizen of the several states, as distinguished from a citizen of the United States. Therefore, Paul v. The State of Virginia is still controlling as regards this clause, Ferrylodge. Cole v. Cunningham makes this clear:

"The intention of section 2, Article IV (of the Constitution), was to confer on the citizens of the several States a general citizenship, and to communicate all the privileges and immunities which the citizen of the same State would be entitled to under like circumstances" Cole v. Cunningham: 133 U.S. 107, 113-114 (1890).

The only difference is that Article IV, Section 2, Clause 1, relates to a state citizen who is a citizen of the several states and not a citizen of the United States:

"The court below proceeded upon the assumption that petitioner was a citizen of the United States; and his status in that regard is not questioned. The effect of the privileges and immunities clause of the Fourteenth Amendment, as applied to the facts of the present case, is to deny the power of Ohio to impose restraints upon citizens of the United States resident in Alabama in respect of the disposition of goods within Ohio, if like restraints are not imposed upon citizens resident in Ohio.

The effect of the similar clause found in the Fourth Article of the Constitution (section 2), as applied to these facts, would be the same, since that clause is directed against discrimination by a state in favor of its own citizens and against the citizens of other states. Slaughterhouse Case (Live-Stock Dealers' & Butchers' Ass'n v. Crescent City Live-Stock Landing & Slaughter-House Co.), Fed.Cas. No. 8,408, 1 Woods 21, 28; Bradwell v. State of Illinois, 16 Wall. 130, 138.” Whitfield v. State of Ohio: 297 U.S. 431, 437 (1936).

I think I have shown sufficently the consequences of the Slaughterhouse opinion. I would like to Wikilink to your article from my article, citizen of the several states, (and if you so chose wikilink to my article from your article). The Slaughterhouse Cases did change to whom Article IV, Section 2, Clause 1 applied. Before it applied to a citizen of a state, whereas with the adoption of the Fourteenth Amendment, it applied to a citizen of a state who is a citizen of the several States (Cole). Wording to this effect would be acceptable to me, Ferrylodge.

Comments? --Gettingitdone (talk) 04:22, 29 December 2007 (UTC)

Happy Holidays to you too. I'm still kind of unclear about what the practical effect would be of your statement that, "The Slaughterhouse Cases did change to whom Article IV, Section 2, Clause 1 applied." I'll put your article citizen of the several states on my watchlist, and will keep an eye on it, to see if things become clearer for me. Thanks for your comments, Gettingitdone.Ferrylodge (talk) 05:30, 30 December 2007 (UTC)

Hi Ferrylodge,

Thought this might be of interest to you. It is from Paul v. State of Virginia. It is written at pages 178-179:

"But in no case which has come under our observation, either in the State or Federal courts, has a corporation been considered a citizen within the meaning of that provision of the Constitution, which declares that the citizens of each State shall be entitled to all the privileges and immunities of citizens OF the several States."

I have also made some additions to my article Citizen of the several states which might bring some clearity. I hope so. Let me know. --Gettingitdone (talk) 04:21, 4 January 2008 (UTC)

FYI, there's a Wikipedia article about Corporate personhood.Ferrylodge (talk) 00:55, 7 January 2008 (UTC)

Hi Ferrylodge,

A most interesting article. I am not that well versed on this topic.

There is a website that is related, its at http://www.rmbowman.com/Bowman2000/28thFlyer.htm (Citizens’ Sovereignty Amendment).

The following case is related, too, but was not mentioned in the article: Osborn v. Bank of United States: 22 U.S. 738. --Gettingitdone (talk) 03:25, 8 January 2008 (UTC)

Hi Ferrylodge,

I got a chance to read Senator Jacob Howard in the Congressional Globe.

I saw your reference to him was throught the Supreme Court case Adamson v. California, (332 U.S. 46).

This might be of interest to you:

". . . Before the adoption of the Constitution of the United States, the citizens of each State were, in a qualified sense at least, aliens to one another, for the reason that the several States before that event were regarded by each other as independent Governments, each one possessing a sufficiency of sovereign power to enable it to claim the right of naturalization; and, undoubtedly, each one of them possessed for itself the right of naturalizing foreigners, and each one, also, if it had seen fit so to exercise its sovereign power, might have declared the citizens of every other State to be aliens in reference to itself. With a view to prevent such confusion and disorder, and to put the citizens OF the several States on an equality with each other as to all fundamental rights, a clause was introduced in the Constitution declaring that "the citizens of each State shall be entitled all privileges and immunities of citizens IN the several States."

The effect of this clause was to constitute ipso facto the citizens of each one of the original States[,] citizens of the United States. And how did they antecedenty become citizens of the several States? By birth or by naturalization. They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States as were born in the country or were made such by naturalization; and the Constitution declares that they are entitled, as citizens, to all the privileges and immunities of citizens in the several States. They are, by constitutional right, entitled to these privileges and immunities, and may assert this right and ask for their enforcement whenever they go within the limits of the several States of the Union.

It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. I do not propose to go at any length into that question at this time. It would be a somewhat barren discussion. But it is certain the clause was inserted in the Constitution for some good purpose. It has in view some results beneficial to the citizens of the several States, or it would not be found there; yet I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guarantied. . . . But we may gather some intimation of what probably will be the opinion of the judiciary by referring to a case adjudged many years ago in one of the circuit courts of the United States by Judge Washington; and I will trouble the Senate but for a moment by reading what that very learned and excellent judge says about these privileges and immunities of the citizens of each State in the several States. It is the case of Corfield vs. Coryell, found in 4 Washington's Circuit Reports, page 380. Judge Washington says:

The federal law 48 U.S.C. § 737 extend this constitutional clause to the U.S. Citizens in the jurisdiction of Puerto Rico. Puerto Ricans have been granted U.S. citizenship in 1917 due to the Jones-Shafroth Act however the law 48 U.S.C. § 737 that extend this constitutional clause to the jurisdiction of Puerto Rico was approved later.

§ 737. Privileges and immunities

The rights, privileges, and immunities of citizens of the United States shall be respected in Puerto Rico to the same extent as though Puerto Rico were a State of the Union and subject to the provisions of paragraph 1 of section 2 of article IV of the Constitution of the United States. --Seablade (talk) 02:58, 8 June 2009 (UTC)

'The next question is whether the act infringes that section of the Constitution which declares that 'the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.

The inquiry is, what are the privileges and immunities of citizens in the several States? . . .'

Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution." http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=072/llcg072.db&recNum=846 Senator Jacob Howard, Congressional Globe - Senate, 39th Congress, 1st Session, Page 2765.

Yes, I did read that speech. See here. It was very historic.Ferrylodge (talk) 15:55, 12 January 2008 (UTC)