Legal Commentary

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.