Pg 20 Flashcards
Essentially what is the difference between the two different privileges and immunities clauses?
– section 1 of the 14th amendment: protects the rights of the citizens of the United States
– article 4 section 2: says that you can’t treat residents differently from non-residents
What is involved in article IV section 2 of the privileges and immunities clause?
Requires that citizens of each state get all of the privileges and immunities of citizens of other states and prohibits any distinctions in law between citizens of a state and citizens of other states if those distinctions are unreasonable. Any classification that burdens someone if they are not a citizen of the state must reasonably relate to a legitimate state or local purpose. This forbids regulations that treat non-residents differently from residents for basic rights and essential activities
If a citizen moves from one state to another state does he carry his old privileges and immunities from his old state with him?
No, he is entitled to the privileges and immunities enjoyed by the citizens that belong to the new state, but he does not carry his old privileges and immunities with him
What are some examples of basic fundamental rights of individuals that are derived from state citizenship under article 4 section 2 of the privileges and immunities clause?
The right to access navigable waters, entry to ports, travel, petitions to Congress,
How do you approach an essay question that deals with the privileges and immunities clause?
- Ask if the privilege or immunity fundamentally belongs to citizens of all free governments
- ask if there was discrimination
– ask if the discrimination was regarding a fundamental right
– see if any exceptions apply including: peculiar source of evil, valid or independent reasons
Does article 4 section 2 of the privileges and immunities clause bar all discrimination absolutely?
No, the bar is not absolute. It only bars discrimination of out-of-state citizens when there is no substantial reason for the discrimination except that they are citizens of other states.
This doesn’t stop a disparity when there are perfectly valid independent reasons for it, or when there’s a non-fundamental right with substantial reasoning
What is the difference between how fundamental rights and non-fundamental rights are treated with regard to article 4 section 2 of the privileges and immunities clause?
- fundamental rights: need a substantial reason for the discrim that reasonably relates to it in order to be valid
– non-fundamental rights: only invalid if there is no substantial reason for the discrim besides citizenship in another state
How are fundamental rights dealt with under article 4 section 2 of the privileges and immunities clause?
It is unconstitutional to discriminate against someone of another state regarding fundamental rights that bear on the vitality of the nation as a single entity. This type of discrimination is barred if there’s no substantial reason for it except that the person is a citizen of another state.
If there’s a valid reason for it, the degree of discrimination must bear a close relation to the reasons.
What are things that are considered to be fundamental rights under article 4 section 2 of the privileges and immunities clause?
The right to acquire property in the state, to live in any state, to make contracts, to do business, ingress and egress, to earn a living, residency requirements for voting, to get public benefits, licensing, right to medical care, access to state courts, right to travel, right to move freely between the states, right to be treated equally in all states when visiting, right of new citizens to be treated like longtime citizens of the state, right to do agriculture, right to get a writ of habeas corpus, to file suit, to dispose of property, etc.
How do you deal with fundamental rights under article 4 section 2 of the privileges and immunities clause on an exam?
- Ask if there’s a compelling government interest (without this, the court will not allow discrimination)
– ask if non-residency is the problem
– ask if there are less restrictive means available
What are the two exceptions that apply to fundamental rights under article 4 section 2 of the privileges and immunities clause?
– Public well-being exception
– particular source of evil exception
What is involved in the public well-being exception for fundamental rights under article 4 section 2 of the privileges immunities clause?
- Laws that disadvantage non-residents from doing occupations that are intimately related to the public’s well-being, such as police and firefighters, are OK
- same for sharing natural resources or other non-fundamental rights if there is a reason for the disadvantage besides not being a resident
What is involved in the “particular source of evil” exception to fundamental rights under article 4 section 2 of the privileges and immunities clause?
- If a fundamental protected interest is involved, the state must show that non-residents are UNIQUELY THE SOURCE OF EVIL the law is trying to avoid
- and that there is NO LESS RESTRICTIVE WAY to serve that interest
– and a SUBSTANTIAL RELATIONSHIP exists between the discriminatory treatment and the state interest
***If there is no difference between the non-resident that has been discriminated against and the resident, besides citizenship, then the non-citizen is not a peculiar source of evil. IE: the state cannot say that unemployment is a substantial reason for discrimination, because banning non-residents will not solve unemployment
Are states allowed to discourage people from coming to the state under article 4 section 2 of the privileges and immunities clause?
No, that is an impermissible government purpose
Are States allowed to impose waiting periods for new citizens before they can get things in the state like benefits, voting rights, or driver’s licenses?
This is only acceptable if the government had sufficient reason or a compelling interest to make the waiting period besides discouraging people from coming to the state or just trying to save money.
Ie: 30 day waiting period on voting in the state is OK to make sure that the person is really a citizen by then. 50 days is the highest number that has been upheld. Fraud is a constitutionally recognized interest to protect.
