Under Article IV, Section 2, of the United States Constitution, noncitizens of a state are assured that in their “fundamental” privileges and immunities they will be accorded equality with citizens of the state,6 0 although by judicial interpretation the “fundamental” privileges and immunities are indeed rare.61
Toomer v. Witsell, 2 which gave non-citizens equality of access to fish in the marginal seas, is the rare case in recent years which has accorded substantial protection to non-citizens under this privilege and immunities clause.
There the Court clearly pointed out that the clause “does bar discrimination against citizens of other states where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other states.’ ‘ 6 4
Although the Fourteenth Amendment privileges and immunities clause would have been given legal significance by Mr. Justice Harlan,” and although in our own time Justices Douglas,6 Black, 6 Murphy,6 Jackson,68 Roberts,O and Hughes70 have indicated a willingness to make this privileges and immunities clause a meaningful guarantee of protection and equality against state inroads, there seems little likelihood at this writing that any substantial equal protection will flow from this clause. 1
It has been suggested by Warren and others that the use of the privileges and immunities clause of the Fourteenth Amendment to invalidate inequalities would be preferable to use of the equal protection clause because the states are forbidden to pass “any” law abridging privileges and immunities.
This literalism, however, seems naively to disregard the fate of other absolutely expressed Constitutional provisions, such as the First Amendment or the contract clause.
There is little reason to prefer use of the privileges and immunities clause over equal protection unless one is inclined to decrease the judicial protection of corporations from state regulation, and there have been worthy Supreme Court justices who believed that artificial persons were not entitled to the protection of either the equal protection or the due process clauses.73
Since not only associations but aliens would suffer from emasculation of the equal protection clause in favor of the privileges and immunities clause of the Fourteenth, revivification of the corpse is hardly justified.