IS OUT OF STATE TUITION UNCONSTITUTIONAL UNDER THE PRIVILEGES AND IMMUNITIES CLAUSE?

Written by Ryan C. Griffith

The Founders of this country envisioned that United States citizens could travel throughout the union without being denied fundamental rights based on their state residency.¹ This was specifically outlined in Article IV, Section II of the U.S. Constitution, known as the privileges and immunities clause, which reads: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."²

In The Federalist Papers, both James Madison and Alexander Hamilton discussed the importance of ensuring that states did not discriminate against each other.³ The Federalist Papers were key documents leading to the creation of the U.S. Constitution.⁴ In Federalist No. 42, James Madison wrote: "Nothing which ends to facilitate the intercourse between the States can be deemed unworthy of the public care."⁵ Alexander Hamilton was even more adamant that states be in harmony with each other when he wrote in Federalist No. 80: "Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control."⁶ To achieve harmony between the states, Hamilton further wrote: "It may be esteemed the basis of the Union, that ‘the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.’"⁷

One of the landmark cases analyzing the privileges and immunities clause is Toomer v. Witsell, 334 U.S. 385 (1948).⁸ In Toomer, the U.S. Supreme Court acknowledged the primary purpose of the privileges and immunities clause is to ensure that citizens of different states were given equal privileges to citizens of other states.⁹ The high court, however, acknowledged that the privileges and immunities clause was not absolute.¹⁰ A state can discriminate for a substantial reason that is closely tied to achieving a state interest.¹¹ For example, in Toomer South Carolina passed a law that drastically discriminated against out-of-state shrimp fishers by charging a license fee of $2,500 for out-of-state fishers