The Original Meaning of the Privileges and Immunities Clause

Abstract

The Constitution’s Privileges and Immunities Clause drew on words and phrases common in Anglo-American law and law practice at the time the Clause was written. Modern courts and commentators have largely overlooked that law and practice, and thus have misinterpreted the Clause. It did not protect a right to travel, natural rights, colonial charter rights, or the “rights of Englishmen.” The Clause meant only that if a state voluntarily bestowed positive legal benefits as incidents of its own citizenship, then that state had to grant those same benefits to visitors who were citizens of other U.S. states. This included all such benefits, not merely those deemed “fundamental.” Applying the original meaning of the Privileges and Immunities Clause often yields the same results the Supreme Court has reached, but there are some interesting differences as well.

Keywords: Constitution, privileges and immunities, privileges, immunities, comity, legal history, constitutional history

JEL Classification: K10, K19, K30, K39