Saturday, November 04, 2006

The Fourteenth Amendment and Incorporation IV

In 1823 – just 34 years after the Constitution was ratified – Justice Bushrod Washington of the United States Supreme Court, sitting as Circuit Court Judge, wrote what amounted to a paean to the phrase “privileges and immunities.” The decision, Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3,230), became one of the best known in the first half of the nineteenth century. In it, Justice Washington reflected the growing idea that “privileges and immunities” included all those privileges and immunities implicit in the concepts of the rights to enjoy life and liberty, to acquire and possess property of every kind, and to pursue and obtain happiness and safety:

“The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.’"

The breadth of the definition is remarkable. It encompasses – and is in fact broader than – the “life, liberty and pursuit of happiness” of the Declaration of Independence, for it also includes the rights “to acquire and possess property” and to “obtain” happiness. Privileges and immunities are so vast that it would be “tedious” to “enumerate” them.

We shall meet Corfield again in the debates over the Fourteenth Amendment.

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