Rediscovering Corfield v. Coryell

Gerard N. Magliocca*

Justice Bushrod Washington’s 1825 circuit opinion in Corfield v. Coryell² is probably the most famous constitutional decision not issued by the Supreme Court.³ Corfieldis chiefly known for its enigmatic dicta on the privileges and immunities of citizens secured against state denial by Article IV, Section 2 of the Constitution.⁴ This dicta became a focal point for the debate in the Thirty-Ninth Congress on the Civil Rights Act of 1866 and the Privileges or Immunities Clause of the Fourteenth Amendment.⁵ Many commentators contend that Corfield’s privileges-and-immunities passage should be read as a guarantee of only equal access for out-of-state citizens to some rights granted by state law.⁶ Others argue that Justice Washington was saying that the Constitution secured certain fundamental rights to all national citizens in spite of state law.⁷ Since Reconstruction, the latter point has been made on behalf of unenumerated liberties including women’s suffrage (prior to the ratification of the Nineteenth Amendment), the right to travel between the states, and the right to pursue a profession.⁸

This Article reveals new details about Corfield based on archival research. In 2017, the author found Justice Washington’s original notes on Corfield in the Chicago History Museum.⁹ The most important revelation about Corfield is that the Justice was initially inclined to hold that the state law his decision upheld was, in fact, unconstitutional under the Privileges and Immunities Clause.¹⁰ The notes also say that he saw Livingston v. Van Ingen¹¹ as the leading precedent on the Privileges and Immunities Clause and backed Chancellor Kent’s view in that case that the Clause articulated a nondiscrimination rule for out-of-state citizens instead of a freestanding guarantee of fundamental rights.¹² Even more important may be the disclosure from the notes that Justice Washington wrestled with the Commerce Clause issue in Corfield prior to the Supreme Court’s ruling in Gibbons v. Ogden¹³ in a way that probably influenced Chief Justice John Marshall’s landmark opinion for the Court.¹⁴ In short, the Corfield notes provide a fascinating glimpse into the thinking of a key member of the Marshall Court at a crucial stage.

Continue reading in the print edition . . .

© 2019 Gerard N. Magliocca. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Samuel R. Rosen Professor, Indiana University Robert H. McKinney School of Law. Thanks to Elizabeth Monroe for her comments on an earlier draft.

2 Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1825) (No. 3230). There is some confusion about the proper way to cite Corfield. Many cases and secondary sources use 1823 as the date, because the case was formally from the April 1823 Term of the circuit court. The final opinion, though, was not issued until 1825 (as the case report explains). See id. at 550. The most recent Supreme Court opinion citing Corfield gives 1825 as the date. See McBurney v. Young, 569 U.S. 221, 229 (2013). I shall use 1825 in this Article.

3 See, e.g., Chester James Antieau, Paul’s Perverted Privileges or the True Meaning of the Privileges and Immunities Clause of Article Four, 9 Wm. & Mary L. Rev. 1, 12 (1967) (“[I]t would be almost impossible to overestimate the importance of the [Corfield privileges-and-immunities] quotation upon American law.”); David R. Upham, Note, Corfield v. Coryell and the Privileges and Immunities of American Citizenship, 83 Tex. L. Rev. 1483, 1485 (2005) (“Corfield v. Coryell remains a famous, important, but largely unexamined constitutional case.”).

4 See U.S. Const. art. IV, § 2, cl. 1 (“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”); Corfield, 6 F. Cas. at 551–52; infra text accompanying note 58.

5 See U.S. Const. amend. XIV, § 1 (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .”); Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (codified as amended at 42 U.S.C. §§ 1981–1982 (2012)) (guaranteeing some common-law rights to all Americans); Kurt T. Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship 27 (2014) (“It is because Corfield plays such an important role in the debates over the Privileges or Immunities Clause of the Fourteenth Amendment that it is important to take a close look at the key section of Justice Washington’s opinion.”); infra text accompanying notes 67–71; see also John Hart Ely, Democracy and Distrust 29 (1980) (stating that the Fourteenth Amendment’s “framers repeatedly adverted to the Corfield discussion as the key to what they were writing”).

6 See, e.g., John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1416 (1992); cf. McDonald v. City of Chicago, 561 U.S. 742, 821 (2010) (Thomas, J., concurring in part and concurring in the judgment) (“Justice Washington did not indicate [in Corfield] whether Article IV, § 2, required States to recognize these fundamental rights in their own citizens and thus in sojourning citizens alike, or whether the Clause simply prohibited the States from discriminating against sojourning citizens with respect to whatever fundamental rights state law happened to recognize.”).

7 See, e.g., Hague v. Comm. for Indus. Org., 307 U.S. 496, 511 (1939) (opinion of Roberts, J.) (“At one time it was thought that [the Privileges and Immunities Clause] recognized a group of rights which, according to the jurisprudence of the day, were classed as ‘natural rights’; and that the purpose of the section was to create rights of citizens of the United States by guaranteeing the citizens of every State the recognition of this group of rights by every other State. Such was the view of Justice Washington [in Corfield].”).

8 See A.G. Riddle, Speech in Support of the Woodhull Memorial, Before the Judiciary Committee of the House of Representatives, in 2 History of Woman Suffrage 448, 453 (Elizabeth Cady Stanton et al. eds., Rochester, N.Y., Charles Mann Printing Co. 1881); see also Zobel v. Williams, 457 U.S. 55, 80 (1982) (O’Connor, J., concurring) (quoting Corfield in support of the “right to travel or migrate interstate”); Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 97 (1873) (Field, J., dissenting) (citing Corfield to support “the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons”).

9 See Washington Notebook, supra note 1. The notes are in a journal held by the Chicago Historical Society, whose collection is housed in the Chicago History Museum. Part II describes some of the journal’s contents. See infra text accompanying notes 86–92.

10 See supra text accompanying note 1; infra text accompanying note 114.

11 Livingston v. Van Ingen, 9 Johns. 507 (N.Y. 1812).

12 See Washington Notebook, supra note 1; infra text accompanying notes 114–21; see also Livingston, 9 Johns. at 577 (opinion of Kent, C.J.) (stating that Article IV “means only that citizens of other states shall have equal rights with our own citizens, and not that they shall have different or greater rights”).

13 22 U.S. (9 Wheat.) 1 (1824); see U.S. Const. art. I, § 8, cl. 3 (stating that Congress shall have power “[t]o regulate Commerce . . . among the several States”).

14 Corfield was almost certainly the first circuit case to apply Gibbons. See Richard A. Epstein, Rediscovering the Classical Liberal Constitution: A Reply to Professor Hovenkamp, 101 Iowa L. Rev. 55, 69 (2015).