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

prev | next

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.

The Supreme Court has long held that the right of nonresidents “to ply their trade, practice their occupation, or pursue a common calling” is a fundamental right protected by the Privileges and Immunities Clause.[1](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/occupations-and-privileges-and-immunities-clause#fn1art4 " See, e.g., Hicklin v. Orbeck, 437 U.S. 518, 524 (1978). ") Indeed, “privileges of trade and commerce” were explicitly included among the privileges and immunities listed in the Articles of Confederation.[2](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/occupations-and-privileges-and-immunities-clause#fn2art4 " Articles of Confederation of 1781 art. IV, § 1. The Supreme Court has interpreted the constitutional provision to have “no change of substance or intent” from the Articles’ version. Austin v. New Hampshire, 420 U.S. 656, 661 (1975). ") The Clause therefore “guarantees to citizens of State A” the right of “doing business in State B on terms of substantial equality with the citizens of that State.” [3](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/occupations-and-privileges-and-immunities-clause#fn3art4 " Toomer v. Witsell, 334 U.S. 385, 396 (1948). ")

In Toomer v. Witsell, the Court held that “commercial shrimping . . . like other common callings, is within the purview of the privileges and immunities clause.” [4](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/occupations-and-privileges-and-immunities-clause#fn4art4 " Id. at 403. ") Discriminatory fees exacted from nonresidents for a license to shrimp were thus unconstitutional.[5](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/occupations-and-privileges-and-immunities-clause#fn5art4 " Id. ") The Court has similarly struck down discrimination against nonresidents in licenses for commercial fishing[6](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/occupations-and-privileges-and-immunities-clause#fn6art4 " Mullaney v. Anderson, 342 U.S. 415, 418 (1952). ") and in hiring for work on oil and gas pipelines.[7](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/occupations-and-privileges-and-immunities-clause#fn7art4 " Hicklin v. Orbeck, 437 U.S. 518, 531 (1978). ")

The Court held in Supreme Court of New Hampshire v. Piper that the right to practice law, like the right to pursue other occupations, is protected under the Privileges and Immunities Clause.[8](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/occupations-and-privileges-and-immunities-clause#fn8art4 " 470 U.S. 274, 283 (1985). ") As a result, although a state may generally regulate the practice of law in its jurisdiction, it may not exclude nonresidents from state bar admission without a substantial reason.[9](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/occupations-and-privileges-and-immunities-clause#fn9art4 " Id. at 288; accord Supreme Ct. of Va. v. Friedman, 487 U.S. 59, 61 (1988); Barnard v. Thorstenn, 489 U.S. 546, 558–59 (1989). ") Nor may a federal court, without substantial reason, require an attorney to have an office within the state as a condition of admission to practice.[10](https://www.law.cornell.edu/constitution-conan/article-4/section-2/clause-1/occupations-and-privileges-and-immunities-clause#fn10art4 " Frazier v. Heebe, 482 U.S. 641, 649 (1987). Although it drew upon Piper, Frazier was decided under the Court’s inherent supervisory authority, rather than on constitutional grounds. Id. at 645. ")

Footnotes

1

See, e.g., Hicklin v. Orbeck, 437 U.S. 518 , 524 (1978).

2

Articles of Confederation of 1781 art. IV, § 1. The Supreme Court has interpreted the constitutional provision to have “no change of substance or intent” from the Articles’ version. Austin v. New Hampshire, 420 U.S. 656 , 661 (1975).

3

Toomer v. Witsell, 334 U.S. 385 , 396 (1948).

4

Id. at 403.

5

Id.

6

Mullaney v. Anderson, 342 U.S. 415 , 418 (1952).

7

Hicklin v. Orbeck, 437 U.S. 518 , 531 (1978).

8

470 U.S. 274 , 283 (1985).

9

Id. at 288; accord Supreme Ct. of Va. v. Friedman, 487 U.S. 59 , 61 (1988); Barnard v. Thorstenn, 489 U.S. 546 , 558–59 (1989).

10

Frazier v. Heebe, 482 U.S. 641 , 649 (1987). Although it drew upon Piper, Frazier was decided under the Court’s inherent supervisory authority, rather than on constitutional grounds. Id. at 645.