Pearl Harbor

It's late, and I have nothing unique to say, but I just don't want to let this day pass without honoring those who died sixty five years ago -- and those who fought to avenge them. Thanks.

Rather than the typical Pearl Harbor graphic, I'll close with a picture of the peace that their sacrifices allow us to enjoy:

The Corporate Origins of Judicial Review

Alerted by Orin Kerr's post over at The Volokh Conspiracy, I read earlier today an article in the latest edition of the Yale Law Journal, The Corporate Origins of Judicial Review by Mary Sarah Bilder of Boston College Law School. From the introduction:

"This Article traces a new historical account of the origins of judicial review. It argues that judicial review arose from a longstanding English corporate practice under which a corporation's ordinances were reviewed for repugnancy to the laws of England. This English corporation law subsequently became a transatlantic constitution binding American colonial law by a similar standard of not being repugnant to the laws of England. After the Revolution, this practice of bounded legislation slid inexorably into a constitutional practice, as 'the Constitution' replaced 'the laws of England.' With the Constitution understood to embody the supreme authority of the people, the judiciary would void ordinary legislation repugnant to this supreme law. Over a century later, this practice gained a new name: judicial review. The widespread acceptance of this name eventually obscured the degree to which the origins of the practice lay in older practices regarding the delegated nature of corporate and colonial authorities, rather than in a new constitutional theory of judicial power."

With all due respect, I would say the article is OK but not great. On the plus side, I learned lots of things about the history of corporate charters (of both what we would now call commercial entities and municipal corporations). In addition, Professor Bilder's thesis, as a hypothesis, makes a lot of sense. It would explain, for example, why so many of the founding generation seem to have assumed that some sort of judicial review existed without ever discussing it in detail -- in the corporate context, it was just part of the generally assumed legal background, so common that no one thought to re-examine it or analyze it. But where the article falls down, I think, is in its failure to point to hard evidence establishing that limitations on corporate bylaws served as the unconscious blueprint for what we now call judicial review.

Make no mistake, the article is well worth reading. Professor Bilder may well be correct, and the journey is a fascinating one. I'm just not sure she gets us all the way to her destination.

Hummingbird at Sunset

After a long day

Poor James Madison!

I see that one Michael Lind, billed as the Whitehead senior fellow at the New America Foundation, is patting himself on the back for listing George Bush (43) as only the fifth worst president. But what really caught my eye was his nominee for fourth worst: none other than James Madison.

I would agree that Mr. Madison was a poor president. He got us into a war that was totally unnecessary and for which we were utterly unprepared -- not a good combination. Mr. Lind makes the case for the prosecution:

"Madison, the 'Father of the Constitution,' was a great patriot, a brilliant intellectual -- and an absolutely abysmal president. In his defense, the world situation during the Napoleonic Wars was grim. The United States was a minor neutral nation that was frequently harassed by both of the warring empires, Britain and France. But cold geopolitics should have led Washington to prefer a British victory, which would have preserved a balance of power in Europe, to a French victory that would have left France an unchecked superpower. Instead, eager to conquer Spanish Florida and seize British Canada, Madison sided with the more dangerous power against the less dangerous. It is as though, after Pearl Harbor, FDR had joined the Axis and declared war on Britain, France and the Soviet Union.

"It might have been worse. In 1812, Madison wrote Thomas Jefferson to ask what the former president thought of waging war simultaneously against Britain and France. Alarmed, Jefferson replied that this was "a solecism worthy of Don Quixote." Instead, the United States fought only the British, who torched Washington, D.C., while Madison and first lady Dolley fled to Virginia. Gen. Andrew Jackson's victory in the Battle of New Orleans (waged two weeks after the United States and Britain, unknown to Jackson, had signed a peace treaty) helped Americans pretend that the War of 1812 was something other than a total wipe-out."

But fourth worst? Worse, for example, than Franklin Pierce, whose foolish support of the Kansas-Nebraska Act started the Union on its final descent into Civil War? Worse than Jimmy Carter, whose craven weakness earned us the contempt of the Middle East, a contempt we are still dealing with today?

Ironically, Madison's presidency illustrates the vagaries of history. In the end, Madison got very, very lucky. Great Britain got tired of the war, and the United States was blessed with canny negotiators, including Henry Clay and future president John Quincy Adams. The resulting Treaty of Ghent, negotiated without the benefit of Andy Jackson's victory at New Orleans, extricated the United States from the war on reasonable terms. In the aftermath of Jackson's victory, the United States perceived itself as the victor. They had fought the British to a draw, or better, and shown themselves to be a power to be reckoned with.

Should Madison get the credit, as well as the blame? On the one hand, he really doesn't deserve it. But on the other, the fact is things turned out well. So long as Andrew Jackson, John Quincy Adams, Henry Clay, and others (Steven Decatur, Oliver Hazard Perry and Winfield Scott, for example) are not deprived of their shares, perhaps poor James Madison may have some too.

For further reading, I heartily recommend Gary Wills' brief book on Madison's presidency. Wills pulls no punches recounting Madison's numerous blunders, but in the end appreciates him for all his failings.

Historians Acting Badly II

Perhaps this sheds some light. In an essay about 9/11, published less than a month after the event, Eric Foner began as follows:

"I'm not sure which is more frightening: the horror that engulfed New York City or the apocalyptic rhetoric emanating daily from the White House. 'We will rid the world of evil-doers,' President Bush announces as he embarks on an open-ended 'crusade' (does he understand the historical freight this word carries?) against people who 'hate us because we are free'. This Manichean vision of the world, so deeply rooted in our Puritan past and evangelical present, is daily reinforced by the media as an emblem of national resolve."

Any questions?

Chief Justice or Circuit Justice?

Here's an odd and obscure one. Over at Prawsblawg, Steve Vladeck discusses Roger Taney's decision in Ex Parte Merryman. I'll let Professor Vladeck speak for himself:

"The short version: Taney, in Merryman, holds that President Lincoln's unilateral suspension of habeas corpus in Maryland at the outset of the Civil War was unconstitutional, a ruling that is just as famous for Lincoln's response (he ignored it), as for what Taney actually said.

"For this post, though, I want to focus briefly on one of the oddest things about the case: There is absolutely no historical consensus about the capacity in which Taney issued the decision. None. Whatsoever." (Emphasis added.)

After almost 150 years? Simply amazing!

Historians Acting Badly

Eric Foner has now joined Sean Wilentz in labelling President Bush (II) as the worst president in history. The purpose of this entry is not to explain why both articles are ludicrous -- if you don't know that, you're in the wrong place. Instead, I want to consider what they suggest about history and historical reasoning.

In his thoughtful post about the Foner article at the Alincoln blog, Brian Dirck expressed concern that it was inappropriate for historians to write such articles:

"As a practicing, professional historian, however, I have no business using my professional status to turn that perspective into an historical judgment concerning Bush's relative worth compared to other presidents in American history. To do so is impossible.

"Worse, I think it risks turning our profession into nothing more than a witting tool for the political exigencies of the moment. I know there are those in my profession who feel historians can and should use their training in our craft to involve themselves actively in the political controversies of our day. I respect that point of view, but I'm afraid I'd have to disagree. Professional historians are far more valuable as dispassionate, sober analysts who can use the tools of our craft to promote balanced, careful assessments of both the present and the past."

As I commented there, I have a related, but somewhat different, concern. I wonder whether articles such as these demonstrate that the reasons traditionally given for studying history are meaningless propaganda spread by our high school history teachers.

I am not a professional historian, practicing or otherwise. I read history simply because I find it interesting and often amazing. It's simply incredible to me that the Greeks defeated the Persians, that Socrates lived (but never wrote a word), that the conception of the role of the federal government 150 years ago bears no relationship to our current understanding of it, or that men charged from the trenches in World War I. You couldn't, as they say, make this stuff up. I read history looking for answers sometimes, but they are usually answers to historical questions. How did the Russians and Chinese come to be ruled by monsterous regimes? Why did white southern yeomen enthusiastically back secession?

But most historians, I think -- and certainly my high school history teacher -- would claim far more for the study of history, summed up in the adage, "Those who forget the past are condemned to repeat it." By studying history, the reasoning goes, one can learn lessons that can be applied to the present. I suppose the tendency to generalize is instinctive among humans, and I am guilty as everyone else, although I recognize that others may disagree with the conclusions I draw.

The most unfortunate corrolary of the Foner and Wilentz articles, I think, is that they tend to discredit the study of history and the generally accepted reason for studying history. If two such respected members of the academy can produce such silly partisan hit pieces cloaked in the objectivity of historically-based reasoning, does that not suggest that historically-based reasoning is an utter fraud -- something so malleable and manipulable that it is not worth the paper it is written on? The good professors seem bent on proving that the field of study to which they have devoted their lives wears no clothes.

Although my expectations are usually disappointed -- I do not recall historians condemning Professor Wilentz after his performance in The Rolling Stone -- I am hoping that Professor Foner's contribution may yet rouse historians (in addition to Professor Dirck) to express concern about the damage that such amateurish partisanship does to the study of history. I'm particularly hoping that historians such Don Kagan and Victor Davis Hanson will make their presence felt.

I'm going to watch for developments and will report any I encounter.

Another Book for the List

Robin Einhorn's new book, American Taxation, American Slavery (University of Chicago Press 2006) looks fascinating.

Other references:

University of Chicago Press page on the book

The Chicago Blog

A Washington Times review

A review in the William & Mary Quarterly

A related essay by Einhorn, "Tax Aversion and the Legacy of Slavery"

The Little Magician Is OK

Over at American Presidents blog, elementaryhistoryteacher has a fun post about Martin Van Buren's possible connection with the origin of the phrase "OK."

I'm more of a Henry Clay man than an Andrew Jackson guy, but I do have a soft spot for the Little Magician. He looks a bit like an elf, doesn't he? And it wasn't his fault that, within several months after his inauguration in March 1837, the economy collapsed and went into a depression for some ten years.

More significantly, citing an 1827 letter from Van Buren to Thomas Ritchie of Virginia, Michael F. Holt points out that he had the foresight to see that party conflict could serve as an "antidote" to sectional conflict. The Political Crisis of the 1850s (New York: W.W. Norton 1983), at 20-21. That's one smart guy.

My Accent's From New York!

These quizzes often are all screwed up, but in this case it's spot on.

What American accent do you have? Your Result: The Northeast Judging by how you talk you are probably from north Jersey, New York City, Connecticut or Rhode Island. Chances are, if you are from New York City (and not those other places) people would probably be able to tell if they actually heard you speak.
Philadelphia
The Inland North
The Midland
The South
Boston
The West
North Central
What American accent do you have? Take More Quizzes

Was Slavery on the Way Out in 1860? II

In an earlier post, I explained why I believed slavery was thriving as an economic institution immediately before the Civil War.

I'm pleased to see that Professor Link of the University of North Carolina is of the same opinion:

"Especially during [the 1850s], the Transportation Revolution expanded markets, spread commercial agriculture, fostered manufacturing, extended mining, and, not the least important, reinvigorated slavery's economic position. Wherever dynamic market forces made an appearance, slavery accompanied them, and, far from verging on extinction on the eve of the Civil War, the peculiar institution in Virginia remained adaptable, viable and modernizing. The evidence of slavery's resiliency can be found not only in rising slave prices but also in the use of slave labor for various enterprises."

William A. Link, Roots of Secession: Slavery and Politics in Antebellum Virginia (Chapel Hill: The University of North Carolina Press 2003), at 29.

The Oath of Office: A Coda

You may have heard or read that there's a tempest in a teacup brewing over a report that Keith Ellison (D-Minn.) may be sworn in over the Koran. It's clear that Mr. Ellison is bad news -- a radical muslim who has lied about his past. But what piqued my interest was whether the Constitution permitted the use of Koran in a swearing-in and, more particularly, the history of officeholders using books other than the bible, or no book at all.

Eugene Volokh has authored several interesting and persuasive posts on the topic, in which he has pointed to evidence that Presidents Pierce and Hoover affirmed, rather than swore (suggesting they used no book at all), and that John Quincy Adams swore but did not swear over a bible because he believed that the bible should be reserved for religious use. The posts are here and here.

I had never heard the John Quincy Adams story, although it is not inconsistent with what I have read about him. In his biography of JQA, Robert Remini briefly describes the swearing-in ceremony without referring to whether a bible was used (pp. 75-76):

"On inauguration day, March 4, 1825, Adams recorded his thoughts on this momentous occasion. 'After two successive sleepless nights,' he wrote, 'I entered upon this day with a supplication to Heaven, first, for my country; secondly, for myself and for those connected with my good name and fortunes, that the last results of its events may be auspicious and blessed.' Then, accompanied by companies of militiamen, he arrived at the Capitol and was inaugurated in the presence of Monroe, Vice President Calhoun, and many of his rivals and friends. In his address he spoke about his belief that 'the will of the people is the source and the happiness of the people the end of all legitimate government upon earth.' He also described how the country had grown into a 'confederated representative democracy,' a term not used publicly by any previous president. When he concluded his remarks, he took the oath of office from Chief Justice John Marshall."

I decided to go back further. Dimly recalling from David Currie that the very first statute passed by the First Congress controversially prescibed the form of oath to be taken by state as well as federal officeholders, I looked it up. Sure enough, 1 Stat 23 (June 1, 1789), "An Act to regulate the Time and Manner of administering certain Oaths," specifically permits affirmations and does not require the use of a bible or any book at all. It states, in relevant part:

"That the oath or affirmation required by the sixth article of the Constitution of the United States, shall be administered in the form following, to wit: 'I, A.B. do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States.'"

The Miracles of Tung Oil

For a neophyte woodworker, there's no finish easier than Tung Oil. Just wipe it on, let dry, sand . . . about five coats. Here, I'm just applying an initial coat to a cherry-veneered subwoofer. Makes quite a difference, huh?

Antigone

Here's the "Tig" of Elektratig. She was a cranky old lady of 22 years when this picture was taken. By that point she was pretty stiff and not washing herself too well. She's in particular disarray here since she's just woken from a nap on the bed on our screened-in porch.

I adopted her and her sister, Elektra, from Bide-A-Wee when they were eight weeks old. Bide-A-Wee apparently made an exception to its policy by putting them up for adoption although they had ear mites. The rep said that they had just been rescued from a bad situation -- no details -- and the shelter wanted to get them placed as soon as possible despite the minor medical issue. It was love at first sight.

Another Book for the List

I can't even figure out what this book is about, but it looks interesting.

Mark Gruber, Dred Scott and the Problem of Constitutional Evil (New York: Cambridge University Press 2006).

An examination of what is entailed by pledging allegiance to a constitutional text and tradition saturated with concessions to evil. The Constitution of the United States was originally understood as an effort to mediate controversies between persons who disputed fundamental values, and did not offer a vision of good society. In order to form a 'more perfect union' with slaveholders, late eighteenth century citizens fashioned a constitution that plainly compelled some injustices and was silent or ambiguous on other questions of fundamental right. This constitutional relationship could survive only as long as a bisectional consensus was required to resolve all constitutional questions not settled in 1787. Dred Scott challenges persons committed to human freedom to determine whether antislavery northerners should have provided more accommodations for slavery than were constitutionally strictly necessary or risked the enormous destruction of life and property that preceded Lincoln's new birth of freedom.


Here is an H-Net review.

Original Intent In the Original Congress?

Another interesting article. Will Jack Rakove have a response?

Louis J. Siroco (Villanova Law), Original Intent in the First Congress

Abstract: Most of the literature on this country's Founding Era concludes that at least in the very early years, the Founders did not look to original intent to construe the Constitution. However, this study looks not at what the Founders said they believed, but how they acted. In the First Federal Congress, the members did use arguments based on original intent. This study identifies their originalist arguments and categorizes them into five rhetorical categories. It concludes that these arguments did not dominate the debates, but were one type of argument among many.

Lincoln and Taney

A new article on SSRN: James Simon (New York Law School), Lincoln and Chief Justice Taney: Slavery, Secession and the President's War Powers

Abstract: The clashes between President Abraham Lincoln and Chief Justice Roger B. Taney over slavery, secession, and the president's constitutional war powers went to the heart of Lincoln's presidency. James F. Simon, author of the acclaimed What Kind of Nation - an account of the battle between President Thomas Jefferson and Chief Justice John Marshall to define the new nation - brings to vivid life the passionate struggle during the worst crisis in the nation's history, the Civil War. The issues that underlaid that crisis - race, states' rights, and the president's wartime authority - resonate today in the nation's political debate. Lincoln and Taney's bitter disagreements began with Taney's Dred Scott opinion in 1857, when the chief justice declared that the Constitution did not grant the black man any rights that the white man was bound to honor. In the famous Lincoln-Douglas debates, Lincoln attacked the opinion as a warped judicial interpretation of the Framers' intent and accused Taney of being a member of a pro-slavery national conspiracy. In his first inaugural address, President Lincoln insisted that the South had no legal right to secede. Taney, who administered the oath of office to Lincoln, believed that the South's secession was legal and in the best interests of both sections of the country. Once the Civil War began, Lincoln broadly interpreted his constitutional powers as commander in chief to prosecute the war, suspending the writ of habeas corpus, censoring the mails, and authorizing military courts to try civilians for treason. Taney opposed every presidential wartime intiative and openly challenged Lincoln's suspension of the writ of habeas corpus. He accused the president of assuming dictatorial powers in violation of the Constitution. Lincoln ignored Taney's protest, convinced that his actions were both constitutional and necessary to preserve the union. Almost 150 years after Lincoln's and Taney's deaths, their words and actions reverberate in constitutional debate and political battle. Lincoln and Chief Justice Taney tells their dramatic story in fascinating detail.

Rakove for the Supremes!

Over at his Legal Theory Blog, Lawrence Solum recommends an article arguing that there should "lay justices" -- that is, non-lawyers -- on the Supreme Court.

Luckily for the rest of the country, I'm not president. But if I were, I wouldn't hesitate. My first nomination for the Supremes would be Jack Rakove.

The Fourteenth Amendment and Incorporation V

Well, I’m going out of order, but hey, it’s my blog, so tough. Having told you about Corfield v. Coryell, I’m going to discuss the principal speech of Senator Jacob Howard (Republican – Michigan), who discussed the case. It also gives me an opportunity to give Raoul Berger a whack or two.

Senator Howard was a member of the Joint Committee on Reconstruction, which created the Fourteenth Amendment. He was considered at the time, and historians consider him now, a moderate. It’s worth bearing that in mind. If Senator Howard he was a “moderate,” does it make sense to think that “Radical Republicans” disagreed with what he said?

Senator Howard presented the Joint Resolution containing the proposed amendment to the Senate, sitting as a committee of the whole, on behalf of the Joint Committee in a speech on May 23, 1866. The speech appears in the Congressional Globe, Cong. Globe, 39th Cong., 1st sess., 2764, et seq. (May 23, 1866), and is available online. By all means read it yourself.

After some introductory remarks, Senator Howard quoted the draft of Section 1 as it then stood:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Senator then began his discussion as follows:

“It will be observed that this is a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States. That is the first clause, and I regard it as very important. . . .

“The first clause of this section relates to the privileges and immunities of citizens of the United States as such, and as distinguished from all other persons not citizens of the United States. It is not, perhaps, very easy to define with accuracy what is meant by the expression, ‘citizen of the United States.’”

Senator Howard then moved on to the meaning of the phrase “privileges or immunities” in the proposed amendment. He began by citing and quoting at length from Corfield v. Coryell to identify some of the privileges and immunities secured by Article IV, Section 2. His quotation from Corfield v. Coryell included the entire passage that I quoted in an earlier entry.

He then continued (emphasis added):

“Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be – for they are not and cannot be fully defined in their entire extent and precise nature – to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search and seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him; and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

“Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

“Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guaranties. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause [another name for the Necessary and Proper Clause] of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guaranties.”

In short, Senator Howard specifically and clearly stated that the “privileges and immunities” protected by the amendment included “the personal rights guarantied and secured by the first eight amendments of the Constitution." He then specifically mentioned:

* “the freedom of speech and of the press” (the First Amendment);

* “the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people” (the First Amendment again);

* “the right to keep and to bear arms” (the Second Amendment);

* “the right to be exempted from the quartering of soldiers in a house without the consent of the owner” (the Third Amendment);

* “the right to be exempt from unreasonable searches and seizures, and from any search and seizure except by virtue of a warrant issued upon a formal oath or affidavit” (the Fourth Amendment);

* "the restriction contained in the Constitution against the taking of private property for public use without just compensation" (the Fifth Amendment);

* “the right of an accused person to be informed of the nature of the accusation against him (the Sixth Amendment);

* “his right to be tried by an impartial jury of the vicinage” (the Sixth Amendment again);

* “the right to be secure against excessive bail and against cruel and unusual punishments (the Eighth Amendment).

It is, frankly, hard to imagine a statement that more clearly conveys the point that the “privileges or immunities” clause of the proposed amendment was intended to incorporate the Bill of Rights.

In his book Government by Judiciary, Raoul Berger attempted to minimize Senator Howard’s speech. He said that the sum and substance of Senator Howard’s contribution to the incorporation debate was simply noting, after the privileges and immunities listed in Corfield v. Coryell, that “to these privileges and immunities . . . should be added the personal rights guarantied and secured by the first eight amendments.” According to Berger, this “remark” by Senator Howard was “casually tucked away in a long speech.”

I have quoted at length from Senator Howard’s speech precisely because it makes crystal clear how dishonest Berger’s description is. Michael Kent Curtis has correctly described Berger’s characterization as “grossly inaccurate:”

“The characterization is grossly inaccurate. In his speech Howard listed rights included in the Bill of Rights, pointed out that the courts had held that they did not operate as a restraint or prohibition on state legislation, summarized the holding in Barron v. Baltimore, and said that ‘the great object of the first section of this amendment is, therefore, to restrain the power of the States and to compel them at all times to respect these great fundamental guaranties.’ Howard’s statement on the Bill of Rights comprises about one-half of his entire discussion of the privileges or immunities clause of the Fourteenth Amendment and about one-ninth of his ‘long’ speech. In short, treatment of it as a ‘remark casually tucked away in a long speech’ is a serious misstatement.”

Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights at pp. 126-27 (footnotes omitted).

Senator Howard’s speech – including the portions in which he specifically referred to the Bill of Rights – was reported in detail in the press. Both the New York Times, on May 24, 1866, and the New York Herald (the latter then ranked as the nation’s best-selling newspaper) reprinted the passage on the Bill of Rights on their front pages. Curtis, No State Shall Abridge, p. 128; Akhil Amar, America’s Constitution: A Biography, p. 197.

Previous posts:

The Fourteenth Amendment and Incorporation I
The Fourteenth Amendment and Incorporation II
The Fourteenth Amendment and Incorporation III
The Fourteenth Amendment and Incorporation IV

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.