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Tuesday, September 29, 2009

Corfield v. Coryell and the Privileges and Immunities of Citizens in the Several States

In a previous post, I explained how antebellum legal and political use of the paired terms “privileges and immunities” generally involved a reference to a limited set of specially conferred rights.  The phrase was used not as a reference to natural rights belonging to all, but instead referred to a limited set of rights conferred upon a particular person, group or institution.  This concept of “specially conferred privileges and immunities” took on a more defined meaning when used as part of the more specific term of art: Article IV’s protection of “Privileges and Immunities of Citizens in the Several States.”

Today, the best known judicial discussion of Article IV is Justice Bushrod Washington’s opinion in Corfield v. Coryell (1823).  At the time Corfield was decided, however, a line of judicial precedents had already established a consensus understanding of Article IV’s Privileges and Immunities Clause.  In the 1797 case Campbell v. Morris, for example, Maryland’s Judge Chase explained:

It seems agreed, from the manner of expounding, or defining the words immunities and privileges, by the counsel on both sides, that a particular and limited operation is to be given to these words, and not a full and comprehensive one. It is agreed it does not mean the right of election, the right of holding offices, the right of being elected. The court are of opinion it means that the citizens of all the states shall have the peculiar advantage of acquiring and holding real as well as personal property, and that such property shall be protected and secured by the laws of the state, in the same manner as the property of the citizens of the state is protected.

According to Judge Chase, Article IV provided sojourning citizens from other states equal access to a limited set of state-conferred rights. 

This same idea was echoed by later influential jurists such as New York’s Chancellor Kent in cases like Livingston v. Van Ingen (1812).  In fact, by the time Justice Washington decided Corfield in 1823, this had become the generally accepted meaning of the Privileges and Immunities Clause.  In Corfield, Justice Washington echoed Judge Chase’s earlier point about the “particular and limited” set of rights protected under Article IV by limiting privileges and immunities to just those which were considered “fundamental” and which all states had protected since the time of the Founding (a set of rights which did not include the right of Philadelphia boatmen to gather New Jersey clams).  Washington, like Judge Chase before him, understood Article IV as protecting only a special (and limited) set of state-conferred rights.  Later antebellum cases read Corfield as applying the same principle as that articulated in Campbell and Livingston—indeed, the cases were often cited side by side.  When Thomas Cooley published his treatise on Constitutional Limitations in 1868, for example, he adopted this same understanding of Article IV—and cited both Campbell and Corfield.

In sum, the antebellum jurisprudence of Article IV was remarkably consistent—remarkable if only because of the skewing effect that the issue of slavery had on so many other areas of law.  Although some contemporary scholars argue that Washington’s opinion in Corfield referred to a set of natural (and national) privileges and immunities of United States citizens, this is not how the case (or Article IV) was broadly understood prior to 1868.  Although there were a few alternative views of Article IV (with some courts reading the Clause as a limitation on the powers of the federal government), the vast majority of antebellum judicial opinions that addressed the Privileges and Immunities Clause (both North and South, and both before and after the Civil War) all followed the general approach of Judge Chase’s 1797 opinion in Campbell: Article IV provided sojourning citizens equal access to a limited set of state-conferred rights.  Corfield was just one of many antebellum cases which stood for this basic proposition. 

On the other hand, at the same time courts were grappling with the meaning of Article IV’s “privileges and immunities of citizens in the several states,” an entirely separate line of legal thought was emerging regarding the meaning of “privileges and immunities of citizens of the United States.”  This legal term of art—one which closely resembles the language of Section One of the Fourteenth Amendment--will be the subject of my final post.

Posted by Kurt Lash on September 29, 2009 at 09:59 PM in Constitutional thoughts | Permalink


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Kurt, (see my prior comment Dan Goodman Nov 5, 2009 8:36:31pm)

I am writing to let you know that that I have revised my work on Corfield v. Coryell and the privileges and immunities of citizens of the several States. It can be read at this link: http://www.australia.to/2010/index.php?option=com_content&view=article&id=331 . Also, I would like to let you know that the second link in my prior comment no longer works. The new address is: http://www.australia.to/2010/index.php?option=com_content&view=article&id=327 .

Posted by: Dan Goodman | Jan 28, 2010 11:38:29 PM


I am looking forward to your post on the "privileges and immunities of citizens of the United States." I have completed a work on Corfied v. Coryell and the privileges and immunities of citizens of the several States. It can be read at this link: http://www.americanchronicle.com/articles/view/93081 . I think you will find the following informative also: http://www.australia.to/index.php?option=com_content&view=article&id=15882 .

Posted by: Dan Goodman | Nov 5, 2009 8:36:31 PM

Professor Lash: I notice in your article you are summarizing above that you say privileges and immunities were words used in the 18th and 19th centuries to refer to "state conferred rights." I'm wondering about your use of the word "conferred." I understand some political thought of the time discussed rights (of which some were "privileges" or "immunities") as "conferred" by governments. However, wasn't the dominant view instead that rights were "natural rights" inherent in human beings and that, in the words of the Declaration, "governments are instituted" "to confer these rights." These days we sometimes call these "Lockean rights."

I see how a "privilege" to gather clams on government property might not be a "Lockean right" or a "Lockean privilege or immunity." However, most of the rights that Justice Washington enumerates seem to be Lockean rights that governments, in the understanding of the time, were created to protect, not rights that governments conferred.

I think this distinction is relevant to your discussion of the P or I or citizens of the United States, because if "privileges" or "immunities" refer to Lockean rights, as it seems they do in the Article IV context, it seems rather odd that in the 14th Amendment the same words would refer to government-conferred rights--a different kind of "rights" than those referenced in the Declaration. I understand that you cite comments by Senator Webster and others about the use of the term of art "p or i of citizens of the U.S." that make it seem like they refer to government conferred rights. However, I don't see how that overrules the general understanding of "privileges" and "immunities" of referring to Lockean rights. That general understanding, and it's natural coupling with "citizens of the U.S." would seem to overrule any technical understanding that some governmental officials had. Therefore, the original meaning of "p or i of citizens of the U.S." to the general public in 1868 would seem to mean the equivalent of "Lockean rights of citizens of the U.S."

Am I off-base?

Posted by: anon | Sep 30, 2009 9:29:08 PM

Is your thesis that Slaughterhouse Cases was correctly decided? If so, this reminds me of McConnell's (I believe) paper wherein he argued that Brown could be supported on an originalist basis.

I think Berger was right.

Posted by: anon | Sep 30, 2009 1:15:59 PM

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