In the federal circuit court case of Corfield v. Coryell,[1] Justice Bushrod Washington wrote in 1823 that the protections provided by the clause are confined to privileges and immunities which are, "in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign."
On the contrary, Washington's handwritten notes indicate his belief that this provision of the Constitution did not address how a legislature must treat its own citizens.
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.Thus, Story thought that the clause was meant "only to provide temporary visitors with equality in certain rights with the citizens of the states they were visiting.
[7] In 1866, during the congressional debates about the draft Fourteenth Amendment to the United States Constitution, Senator Jacob Howard noted that the U.S. Supreme Court had never squarely addressed the meaning of the Privileges and Immunities Clause: 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 am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guarantied.
The Privileges and Immunities Clause prevents discrimination against people from out of state, but only with regard to basic rights.
For example, the Court has asked: "Does the distinction made by Montana between residents and nonresidents in establishing access to elk hunting threaten a basic right in a way that offends the Privileges and Immunities Clause?"
If the court had found that recreation and sports were fundamental rights, it would have still had to examine whether the state had a compelling interest (protecting elk herds from being over-hunted), and whether the law was designed to address that problem.
[11] Indeed, in the 1982 case of Zobel v Williams, a majority of the U.S. Supreme Court agreed that the Privileges and Immunities Clause plausibly includes a right of interstate travel.
[12] In that case, Justice Sandra Day O'Connor explained:[13] Article IV's Privileges and Immunities Clause has enjoyed a long association with the rights to travel and migrate interstate.
While the Framers of our Constitution omitted the reference to "free ingress and regress," they retained the general guaranty of "privileges and immunities."
Commentators, therefore, have assumed that the Framers omitted the express guaranty merely because it was redundant, not because they wished to excise the right from the Constitution.
Early opinions by the Justices of this Court also traced a right to travel or migrate interstate to Art.
That means that even when a state is acting as a producer or supplier for a marketable good or service, the Privileges and Immunities Clause may prevent it from discriminating against non-residents.
In its opinions, the Court, without elaborating, relied on the insular cases of Downes and Balzac as precedent for the application of these constitutional rights.