Article IV: Duties of the State and Federal Governments

With the three branches being defined, the Framers focused on how the States would interact with each other and the Federal government, and how the Federal government would interact with the States.

Section 1:

  • Every state will give full faith and credit to the public acts, records and judicial proceedings of every other state.
  • Congress may regulate through law the manner that these things may be admitted

This means, according to the US Supreme Court (Mills v. Duryee), that the merits of a case as settled in one state must be recognized in all states. However, out of state judgments are still subject to the procedural law of the states where they are to be enforced (McElmoyle v. Cohen). In that case, a judgment obtained in South Carolina was attempted to be enforced in Georgia, where the statue of limitations had run out. Georgia refused to enforce the judgment.

The main point of this article to to achieve consistency among the states, and to help prevent States from trying similar cases over and over.

Section 2:

  • The citizens of each state are granted the privileges and immunities of citizens
  • Anyone who is charged in any state with treason, felony or other crime, who flees to another state, will be returned to the state with jurisdiction over the charge upon demand of the executive authority of that State (Extradition; this clause was also in the Articles of Confederation)
  • No person who is held to service or labor in one State who escapes to another will not be discharged from their service or labor, but will be returned on claim of the party to whom such labor is due. (Fugitive Slave Clause)

At first glance, Privileges and Immunities may seem to be vague, but while the term may not jump out as to its meaning, it includes such things as (and some of these may surprise you):

  • The right to travel through the states
  • The right to sojourn in a state (temporarily stay in a state)
  • The right of access to the courts
  • The right to purchase and hold property
  • an exemption from paying higher taxes than the inhabitants do
  • The right to free speech
  • The right to assemble
  • The right to keep and bear arms
  • The right to sue
  • And the all important right to vote

The above list is not all inclusive, but in general, a state has to treat visitors and travelers the same as they would treat their own citizens, and they must receive the same equal protection under their laws. At the time this was written, however, it did not apply to slaves, as they were not considered citizens.  It should also make clear that only citizens have privileges and immunities, not aliens, illegal or otherwise.

These rights have been enumerated by various justices over the years. Justice Bushrod Washington, the nephew of George Washington wrote in Corfield v. Coryell (1825) the Privileges and Immunities included the right to travel through states, the right of access to the courts, the right to purchase and hold property, and an exemption from higher taxes than state residents pay.

Justice Joseph Story took it further in 1833: “It is obvious, that, if the citizens of each state were to be deemed aliens to each other, they could not take, or hold real estate, or other privileges, except as other aliens. 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.”

But it was Justice Roger B. Taney in the infamous Dred Scott decision who said, while speaking for the majority, that this Clause gives state citizens, when in other states, the right to travel, the right to sojourn, the right to free speech, the right to assemble, and the right to keep and bear arms. 

You may wonder why things like Free Speech, the Right to Assemble, and the Right to keep and bear arms are considered Privileges of Citizenship, but are also protected in the First and Second Amendments. This is because these rights were not spelled out and enumerated. Founding Fathers like George Mason and Patrick Henry fought to make sure there was a Bill of Rights enumerating these rights and protections. In 1868, the Supreme Court, which had pretty much been silent on the Privileges and Immunities clause, issued this ruling (Paul v. Virginia):

It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws.

It was not intended by the provision to give to the laws of one State any operation in other States. They can have no such operation, except by the permission, express or implied, of those States.

The Fourteenth Amendment did not change the Privilege and Immunities clause, but added the newly freed slaves when it conferred citizenship upon them.

In the 1873 ruling of the Slaughterhouse Cases, which was the first test of the newly minted Fourteenth Amendment, the Supreme Court said this about the Privileges and Immunities clause:

Privileges and immunities….are, in the language of Judge Washington, those rights which are fundamental. Throughout his opinion, they are spoken of as rights belonging to the individual as a citizen of a State….The constitutional provision there alluded to did not create those rights….It threw around them in that clause no security for the citizen of the State in which they were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens. Its sole purpose was to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.

There are those who believe that the Slaughterhouse Cases essentially gutted the Fourteenth Amendment, but it is outside the scope of this article to debate that.

The Thirteenth Amendment eliminated the Fugitive Slave clause.

Section 3:

  • New states can be admitted to the Union by Congress.
  • No new states will be enacted within the jurisdiction of another state, that is, within the borders of another, two or more states cannot be combined into a larger state, or parts of states combined without the consent of all of the legislatures of the states concerned as well as the consent of Congress
  • Congress shall make and/or dispose of all rules and regulations concerning any territory or property owned by the United States, meaning that they can allow territories to become states, independent nations, or can sell off the property.
  • Nothing in the Constitution will be construed to harm either the Federal government or the states in cases of dispute over property.

Section 4:

  • Each state is guaranteed a Republican form of government, and upon application to the Congress (or the President if Congress cannot be convened), it will defended against invasion and domestic violence.

When the application for statehood is received, an applicant territory is considered a part of the whole, and will defend it against invasion, and against violence from another state.

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