State Parochialism, the Right to Travel, and the Privileges and Immunities Clause of Article IV

40 Pages Posted: 9 Nov 2007 Last revised: 8 May 2010

Abstract

State discrimination against out-of-staters falls into two conceptually distinct categories. On the one hand, a state might treat its own residents more favorably than residents of other states who are temporarily within the state's jurisdiction. The Court has generally viewed this kind of resident-nonresident discrimination as subject to the Privileges and Immunities Clause of Article IV. The Commerce Clause has also been invoked against such discrimination, in the context of commercial discrimination against nonresident buyers or sellers. On the other hand, a state might discriminate among those currently claiming residence in the state, on the basis of how recently they moved into the state or on their motives for moving into the state. This type of policy divides residents into two classes: those accepted as bona fide, established residents, and those disfavored as latecomers with inadequate ties or attachment to the state, suspect motives for immigrating, or perhaps both. Because the latecomers have, by definition, recently exercised the right to travel into the state discriminating against them, the Court has tended to view such discrimination as impinging on that right, thereby triggering strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment. This has been the basis for the Court's development of the so-called right to travel strand of equal protection analysis.

Regardless of whether a state discriminates against nonresidents or recent residents, a survey of recent Supreme Court cases, as discussed in Part I of this Note, confirms that invalidation is the rule for such state laws. The Court's 1984-85 Term yielded four cases striking down different parochial state policies. One was decided under the Article IV Privileges and Immunities Clause, one was a Commerce Clause case in equal protection clothing, one was a right-to-travel case, and one was just plain confusing.

Part II of this Note surveys the constitutional doctrine relating to state parochial discrimination and discusses two broad areas where the Article IV Privileges and Immunities Clause has already been used or proposed for use as the constitutional source for a new, clarified doctrine. Part III focuses on the goals and problems of the right-to-travel doctrine and the possibility of analyzing those cases under a Privileges and Immunities Clause rationale. Part IV concludes that the Privileges and Immunities Clause, freed of cramped and anachronistic interpretations, should be the basis for a new, more stringent test for scrutinizing state parochial legislation, a test more clearly tied to the language and structure of the Constitution and better suited to carry out its guarantees.

Keywords: state parochialism, interstate discrimination, travel, interstate travel, right to travel, privileges and immunities clause, commerce clause, equal protection clause, constitutional law

JEL Classification: K10

Suggested Citation

Wildenthal, Bryan H., State Parochialism, the Right to Travel, and the Privileges and Immunities Clause of Article IV. Stanford Law Review, Vol. 41, No. 6, p. 1557, 1989, Thomas Jefferson School of Law Research Paper No. 1028679, Available at SSRN: https://ssrn.com/abstract=1028679

Bryan H. Wildenthal (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
United States

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