You’re staring at an MBE Constitutional Law question about “privileges and immunities,” and your brain freezes. Wait—is this the Article IV clause or the Fourteenth Amendment? They sound identical, but they protect completely different things, apply to different actors, and trigger different analysis. This confusion costs points on exam day.

Let’s break down both clauses so you can spot them instantly and apply the right test every time.

Why the MBE Loves Testing Both Privileges Clauses

The examiners know these two provisions trip up test-takers. Both contain the phrase “privileges and immunities.” Both involve constitutional limits on state action. But that’s where the similarity ends.

The Article IV Privileges and Immunities Clause (sometimes called the Comity Clause) prevents states from discriminating against out-of-state citizens regarding fundamental rights. The Fourteenth Amendment Privileges or Immunities Clause protects rights of national citizenship from state infringement—but it’s been interpreted so narrowly that it rarely applies.

On the MBE, you’ll see Article IV tested frequently. The Fourteenth Amendment version appears mainly as a wrong answer choice designed to trap you. Understanding both means you won’t fall for the bait.

Article IV Privileges and Immunities: The Comity Clause

This is the workhorse provision you need to master for the bar exam.

The Rule: Article IV, Section 2 provides that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Translation: a state cannot discriminate against out-of-state citizens with respect to fundamental rights or important economic activities without substantial justification.

The analysis has three steps:

First, does the law discriminate against out-of-state citizens? The discrimination must be based on state citizenship or residency. If the law treats everyone the same regardless of where they’re from, Article IV doesn’t apply.

Second, does the discrimination involve a fundamental right or important economic activity? Fundamental rights under this clause include:

Recreational activities like hunting or sports fishing are not fundamental rights. States can charge out-of-state residents higher fees for hunting licenses without violating Article IV.

Third, is the discrimination substantially related to a substantial state interest? This is tough to satisfy. The state must show that (1) non-residents are a peculiar source of the problem the law addresses, and (2) there are no less restrictive means available.

Spotting Article IV Issues on the MBE

Here’s a classic fact pattern: A state passes a law requiring all construction companies working on state-funded projects to hire at least 80% in-state residents. An out-of-state contractor challenges the law.

This screams Article IV. The law explicitly discriminates against out-of-state citizens. Employment is a fundamental right under the Comity Clause. Can the state justify it? Probably not—the state would need to show that out-of-state workers are a peculiar source of some problem, and a hiring preference is rarely narrowly tailored.

Another example: A state charges non-residents triple the court filing fees that residents pay. Again, Article IV applies. Access to courts is fundamental. The state cannot justify charging non-residents more simply because they don’t pay state taxes—that’s not a substantial justification for discriminating regarding a fundamental right.

Key limitation: Article IV only protects individuals who are citizens of other states. It does not protect corporations or aliens. If the question involves a corporation claiming discrimination, Article IV is not the right answer—look to the Dormant Commerce Clause instead.

The Fourteenth Amendment Privileges or Immunities Clause: The Ghost Provision

Now let’s address the Fourteenth Amendment version, which states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Sounds powerful, right? It could have been. But in the Slaughter-House Cases (1873), the Supreme Court interpreted this clause so narrowly that it became nearly useless. The Court held that the Privileges or Immunities Clause protects only rights of national citizenship—things like the right to petition Congress, the right to access navigable waters, and the right to interstate travel.

What it does NOT protect: The fundamental rights you think of as constitutional—free speech, due process, property rights—are not privileges or immunities of national citizenship under this clause. Those rights are protected by other constitutional provisions (the First Amendment, Due Process Clause, etc.), but not by the Fourteenth Amendment Privileges or Immunities Clause.

When it matters on the MBE: Almost never as the correct answer. You’ll see it as a distractor in questions where Article IV or another constitutional provision is the real issue. The examiners include it because it sounds right to panicked test-takers who vaguely remember “privileges and immunities.”

The one context where the Fourteenth Amendment clause has teeth: the right to travel interstate. The Supreme Court has held that the right to travel from state to state is a privilege or immunity of national citizenship. If a state law penalizes new residents (like denying welfare benefits for the first year of residency), the Fourteenth Amendment Privileges or Immunities Clause may apply—but even then, Equal Protection analysis usually provides a clearer path to the answer.

How to Keep Them Straight on Exam Day

Use this decision tree:

Does the law discriminate against out-of-state citizens regarding a fundamental right or important economic activity? → Article IV Privileges and Immunities Clause

Does the law abridge a right of national citizenship (almost never)? → Fourteenth Amendment Privileges or Immunities Clause

Does the question involve a corporation or alien facing discrimination? → Not Article IV (try Dormant Commerce Clause or Equal Protection)

Is the law challenged as interfering with interstate travel by penalizing new residents? → Could be Fourteenth Amendment Privileges or Immunities, but Equal Protection is usually the better answer

Here’s the brutal truth: if you’re unsure which privileges clause applies, default to Article IV if the question involves discrimination against out-of-state citizens. The Fourteenth Amendment version is almost always a trap answer.

Practice Hypothetical: Applying the Right Test

A state passes a law requiring anyone who wants to practice law in the state to have been a resident for at least one year before applying for a law license. An attorney who just moved to the state from another state challenges the law.

Analysis: This implicates Article IV Privileges and Immunities. The law discriminates against out-of-state citizens (recent arrivals). Practicing law is an important economic activity—it’s a livelihood. Can the state justify the one-year residency requirement as substantially related to a substantial state interest?

The state might argue it ensures lawyers are familiar with local law or have ties to the community. But that’s weak. The bar exam already tests knowledge of state law, and residency doesn’t guarantee competence. The requirement is not substantially related to a legitimate interest. The law likely violates Article IV.

Wrong answer trap: Fourteenth Amendment Privileges or Immunities Clause. Practicing law is not a right of national citizenship under the narrow Slaughter-House interpretation. Don’t fall for it.

What You Need to Memorize

Lock in these distinctions:

Article IV Privileges and Immunities:

Fourteenth Amendment Privileges or Immunities:

If you can recite those bullet points under pressure, you’ll avoid the most common privileges and immunities mistakes on the MBE.

Organizing Constitutional Law for Active Recall

Constitutional Law is dense. You’re juggling separation of powers, federalism, individual rights, and procedural doctrines—all with overlapping tests and exceptions. Passive reading won’t cut it.

You need these rules organized in a format that forces active recall. FlashTables Constitutional Law breaks down all 87 rules tested on the MBE, including both privileges clauses, into structured two-column tables. Each rule shows you exactly what elements to spot and apply. When you’re reviewing privileges and immunities, you see Article IV and Fourteenth Amendment side-by-side, making the distinctions impossible to forget.

The difference between reading an outline and testing yourself with structured rules is the difference between recognizing the law and applying it under time pressure. On exam day, you won’t have time to reason through the Slaughter-House Cases from first principles. You need instant recall: Article IV protects out-of-state citizens from discrimination regarding fundamental rights. Fourteenth Amendment is narrow and rarely applicable. Done.

Master the distinction between these two clauses, and you’ll pick up points other test-takers leave on the table. The MBE rewards precision, and nowhere is that more true than with privileges and immunities.