Indiana-Style Privileges or Immunities

Anthony Sanders · August 5, 2022

This week in State Con Law we won’t be looking at a hot-off-the-press case, but a very old clause and a couple cases interpreting the clause. Or rather, the type of clause.

Fans of the Fourteenth Amendment will know about the Privileges or Immunities Clause, and also about its predecessor in Article IV of the Constitution, the Privileges and Immunities Clause. But state constitutions have clauses using these words as well. They come in a great variety of flavors, as I discussed in an article a few years back. The most predominant one goes back to the current Indiana Constitution, adopted in 1851. In Article I, Section 23 it states:

The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.

This formulation was subsequently adopted in a number of different states, including, to name just a few, Tennessee, Washington, and Arizona.

These days we read it and think it sounds like kind of the same thing as an equal protection clause. And that’s generally how they’re now interpreted. But they have a different origin. Like equal protection clauses they were crafted to treat different people the same. Their background, however, is specifically targeted at cronyism and favoritism in the marketplace and in dealings with government.

Indiana’s current constitution was written and adopted during the Age of Reform, when states were trying to address the massive turmoil coming out of the Panic of 1837. Special interests tied to state legislatures had taken the taxpayers to the cleaners over and over again in various schemes such as bank bailouts and public works projects. It was the age of canals and the beginnings of railroads and crony capitalists tried (often successfully) to get state legislatures to bail them out of failed projects (sound familiar?).

Among many other changes, the new constitution adopted its P or I clause to address this corruption. This, the delegates hoped, would prevent the General Assembly from giving special interests a leg up on ordinary citizens and for it to treat them “equally” “upon the same terms.”

Unfortunately, like so many constitutional provisions, it’s been treated very deferentially by the courts over the years, not just in Indiana but in the many other states with similar clauses. At times there’s been some teeth in how the courts interpret them, however. For example, in 2014 the Indiana Supreme Court found that it violated the clause for a municipality to ban smoking in bars and clubs (including some that allow forms of gambling) but not on a permanently docked (and apparently politically favored) riverboat that, through its “boat” status, also allowed gambling. The court explained that the “inherent differences” between the two simply didn’t justify the different treatment. Just two years later, however, the court said a virtually identical ordinance was constitutional which banned smoking in bars but not “satellite gambling establishments.” It did its best to distinguish the two cases, but the opinion isn’t at all convincing. For whatever reason it was engaged in one but not the other.

If state courts are to be serious about their P or I clauses in the future there are all kinds of targets for them to set their sights on. Many food truck laws only give out a certain number of permits or ban sales in certain areas simply to limit competition. And all kinds of corporate welfare—from sports stadiums to agricultural subsidies—seems to run afoul of the clauses’ admonition to not “grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.”

If you’re a lawyer and you think your client hasn’t been treated fairly by your state or local government, give your state constitution a review and see if there’s a Privileges or Immunities Clause in there. Although the caselaw may make it challenging, perhaps there’s a way the spirit of 1851 Indiana can help your client secure their “privileges or immunities.”

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.

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