Justice Curtis' Understanding of "the Privileges and Immunities of Citizens"

I discussed the other day Chief Justice Taney’s apparent understanding of the meaning of the phrase “Privileges and Immunities of Citizens.” In Dred Scott, Taney articulated the belief that the phrase encompassed, at a minimum, rights such as the rights of free speech and freedom of assembly, and the right to bear arms. Indeed, Taney’s understanding of the phrase seems to have been crucial to his view of the case. One senses that Taney reached the conclusion that free blacks could never be citizens in large part because the contrary conclusion was unthinkable. It was simply inconceivable to him that free blacks could have the right to assemble, carrying firearms, at any time of the day or night.

Associate Justice Benjamin Robbins Curtis, one of the two Dred Scott dissenters, ironically came to a radically different conclusion about the meaning of the phrase.

By way of background, Justice Curtis expressed the belief that the states determined citizenship in the first instance. Each state had the right to determine which of its residents would be citizens of that state. But if a state determined that certain residents, such as free blacks, were citizens of the state, then those persons were also citizens of the United States.

Justice Curtis then restated the “privileges and immunities” argument that the Chief Justice had found persuasive:

It has been further objected that, if free colored persons, born within a particular State and made citizens of that State by its Constitution and laws, are thereby made citizens of the United States, then, under the second section of the fourth article of the Constitution, such persons would be entitled to all the privileges and immunities of citizens in the several states, and, if so, then colored persons could vote, and be eligible to not only Federal offices, but offices even in those States whose Constitution and laws disqualify colored persons from voting or being elected to office.

Justice Curtis flatly denied the premise of the argument: “But this position rests upon an assumption which I deem untenable.” In a nutshell, Justice Curtis denied that citizenship, by itself, necessarily conveyed any particular civil or political rights under state law. Put slightly differently, Justice Curtis asserted that states were free to, and did, establish additional qualifications that citizens needed to fulfill in order to be entitled to exercise particular rights:

So, in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age, or sex, or the want of the necessary legal qualifications. The truth is that citizenship, under the Constitution of the United States, is not dependent on the possession of any particular political or even of all civil rights, and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided is a question to be determined by each State in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way.

Justice Curtis then turned more directly to the Privileges and Immunities Clause itself. The Clause, he asserted, did “not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities.” Citizens of one state who travel to another state “are entitled to such [privileges and immunities] as belong to citizenship [in the second state], but not to such as belong to particular citizens attended by other qualifications.”

Privileges and immunities which belong to certain citizens of a State by reason of the operation of causes other than mere citizenship are not conferred. Thus, if the laws of a State require, in addition to citizenship of the State, some qualification for office or the exercise of the elective franchise, citizens of all other States coming thither to reside and not possessing those qualifications cannot enjoy those privileges, not because they are not to be deemed entitled to the privileges of citizens of the State in which they reside, but because they, in common with the native-born citizens of that State, must have the qualifications prescribed by law for the enjoyment of such privileges under its Constitution and laws. It rests with the States themselves so to frame their Constitutions and laws as not to attach a particular privilege or immunity to mere naked citizenship. If one of the States will not deny to any of its own citizens a particular privilege or immunity -- if it confer it on all of them by reason of mere naked citizenship -- then it may be claimed by every citizen of each State by force of the Constitution, and it must be borne in mind that the difficulties which attend the allowance of the claims of colored persons to be citizens of the United States are not avoided by saying that, though each State may make them its citizens, they are not thereby made citizens of the United States, because the privileges of general citizenship are secured to the citizens of each State. The language of the Constitution is "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." If each State may make such persons its citizens, they became, as such, entitled to the benefits of this article if there be a native-born citizenship of the United States distinct from a native-born citizenship of the several States.

I cannot help but point out that Justice Curtis, quite clearly the best judge on the Court at the time, was the sole Supreme Court nominee of President Millard Fillmore.