Article 4, Section 2, Clause 1 — Corporations And Privileges And Immunities Clause

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Article IV, Section 2, Clause 1:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A long line of Supreme Court cases has found the Privileges and Immunities Clause to be “inapplicable” to corporations (as opposed to natural persons).[1](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/corporations-and-privileges-and-immunities-clause#fn1art4 " W. & S. Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 656 (1981) (citing Hemphill v. Orloff, 277 U.S. 537, 548–50 (1928)). ") As early as 1839, the Court reasoned that a corporation, as a discretionary creation of state law, could not claim “the rights which belong to its members as citizens of a state.” [2](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/corporations-and-privileges-and-immunities-clause#fn2art4 " Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 586–87 (1839) (Taney, C.J.). ") The Court reached a similar conclusion in 1869 in Paul v. Virginia.[3](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/corporations-and-privileges-and-immunities-clause#fn3art4 " 75 U.S. (8 Wall.) 168, 180–81 (1869) (Field, J.). ") By 1898, the Court declared it “well settled” that “a corporation is not a citizen within the meaning of the [Privileges and Immunities Clause].” [4](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/corporations-and-privileges-and-immunities-clause#fn4art4 " Blake v. McClung, 172 U.S. 239, 259 (1898). See also, e.g., Anglo-Am. Provision Co. v. Davis Provision Co., 191 U.S. 373, 374 (1903) (Holmes, J.); Waters-Pierce Oil Co. v. Texas, 177 U.S. 28, 45 (1900). ") The Court has extended this rule to state law trusts because of their similarity to the corporate form.[5](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/corporations-and-privileges-and-immunities-clause#fn5art4 " Hemphill, 277 U.S. at 548–50. ")

The Court has continued to adhere to its settled view that the Privileges and Immunities Clause does not protect corporations,[6](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/corporations-and-privileges-and-immunities-clause#fn6art4 " See Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 8 (U.S. June 26, 2019); Asbury Hosp. v. Cass Cnty., N.D., 326 U.S. 207, 211 (1945). ") despite later holdings that other constitutional protections—such as the Equal Protection Clause,[7](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/corporations-and-privileges-and-immunities-clause#fn7art4 " Santa Clara Cnty. v. S. Pac. R. Co., 118 U.S. 394 (1886). ") First Amendment ,[8](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/corporations-and-privileges-and-immunities-clause#fn8art4 " See generally Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 342 (2010) (collecting cases). ") and Fourth Amendment [9](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/corporations-and-privileges-and-immunities-clause#fn9art4 " See Marshall v. Barlow’s, Inc., 436 U.S. 307, 311 (1978). ") —apply to corporations. As a result, challenges to state protectionism and discrimination against out-of-state corporations are typically brought under the “dormant” Commerce Clause,[10](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/corporations-and-privileges-and-immunities-clause#fn10art4 " See, e.g., Tenn. Wine & Spirits, No. 18-96, slip op. at 10; see generally ; . ") and not the Privileges and Immunities Clause.[11](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/corporations-and-privileges-and-immunities-clause#fn11art4 " But see Tyler Pipe Indus., Inc. v. Wash. State Dep’t of Revenue, 483 U.S. 232, 264–65 (1987) (Scalia, J., concurring in part and dissenting in part) (criticizing Dormant Commerce Clause doctrine as textually and historically unjustified and noting that “discrimination against citizens of other States” is more properly regulated by the Privileges and Immunities Clause). ")

Footnotes

1

W. & S. Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648 , 656 (1981) (citing Hemphill v. Orloff, 277 U.S. 537 , 548–50 (1928)).

2

Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 , 586–87 (1839) (Taney, C.J.).

3

75 U.S. (8 Wall.) 168 , 180–81 (1869) (Field, J.).

4

Blake v. McClung, 172 U.S. 239 , 259 (1898). See also, e.g., Anglo-Am. Provision Co. v. Davis Provision Co., 191 U.S. 373 , 374 (1903) (Holmes, J.); Waters-Pierce Oil Co. v. Texas, 177 U.S. 28 , 45 (1900).

5

Hemphill, 277 U.S. at 548–50.

6

See Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 8 (U.S. June 26, 2019); Asbury Hosp. v. Cass Cnty., N.D., 326 U.S. 207 , 211 (1945).

7

Santa Clara Cnty. v. S. Pac. R. Co., 118 U.S. 394 (1886) .

8

See generally Citizens United v. Fed. Election Comm’n, 558 U.S. 310 , 342 (2010) (collecting cases).

9

See Marshall v. Barlow’s, Inc., 436 U.S. 307 , 311 (1978).

10

See, e.g., Tenn. Wine & Spirits, No. 18-96, slip op. at 10 ; see generally ; .

11

But see Tyler Pipe Indus., Inc. v. Wash. State Dep’t of Revenue, 483 U.S. 232 , 264–65 (1987) (Scalia, J., concurring in part and dissenting in part) (criticizing Dormant Commerce Clause doctrine as textually and historically unjustified and noting that “discrimination against citizens of other States” is more properly regulated by the Privileges and Immunities Clause).