The Privileges and Immunities Clause (P&I Clause) of Article IV, Section 2 reads:
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

As this language indicates, there is considerable overlap between the dormant Commerce Clause and the Privileges and Immunities Clause (P&I Clause). There are, however some significant differences in who is protected by the two clauses and what, if any exceptions apply. The P&I Clause only applies to citizens and not to corporations or aliens. Further, since the P&I Clause is a direct limitation on states as opposed to a power given to Congress, Congress has no authority to authorize discrimination that falls under the P&I Clause. Again, because the clause is a direct limitation on the powers of states, the state cannot avoid a P&I claim by being a market participant.

As you read through the cases, you will notice that the Court has interpreted the term “Privileges and Immunities” in a fairly narrow fashion. Finally, the test under the P&I Clause is different than the two dormant Commerce Clause tests. The test is whether the discrimination is substantially related to a substantial state interest.

Questions re Baldwin v. Fish and Game Commission of Montana (1978)

• Is hunting a Privilege that is or should be covered by the P&I clause?

• What is the majority’s definition?

• What kinds of activities fall under the clause?

• Do you agree with the dissent that the majority is allowing states to “irrationally, wantonly, and even invidiously discriminat[e] against nonresidents”?

• What test would the dissent apply to such discriminatory practices?

• Should this case have been brought under the equal protection clause, or under the Dormant Commerce Clause?

Questions re McBurney v. Young (2013)

• What kind of information were the two plaintiffs attempting to receive?

• What four privileges were the plaintiffs arguing they were being denied?

• What test did the majority use to determine if they were privileges covered by the P&I clause?

• Did they meet the test?

• Did Virginia deprive the plaintiffs of any of the privileges?

• Why wasn’t it enough that those within the state had easier access to the information in question than the plaintiffs?

• Why isn’t equal access to public information fundamental for a thriving democracy?

• Why are there no dissents in this case? Did you agree with the unanimous Court?

• Should this case be read as a public function exception to the P&I Clause?