The Best Non-Supreme Court Decision: Corfield v. Coryell

In 1823, Circuit Judge Bushrod Washington wrote the opinion for Corfield v. Coryell. The Court upheld a New Jersey law which prohibited non-residents from gathering oysters and clams from State waters. Washington refused the argument of applying Article IV, section 2 of the Constitution: “citizens of the several states are allowed to participate in the all the rights which belong exclusively to the citizens of any other particular state.” Washington explained that Article IV section 2 of the Constitution “did not guarantee equal access to all public benefits a State may choose to make available to its citizens.” Instead, Washington explained that the section in question of the Constitution only “applied to those rights which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.” Below is how Washington defined our rights, privileges, and immunities in the Coryell decision:

“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.”

This opinion is important because it was key in developing the language for the Fourteenth Amendment over 40 years later. The Coryell decision coupled with the 1866 Civil Rights Act defines our rights, privileges, and immunities not mentioned in the Bill of Rights. The 1866 Civil Rights Act says “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefits of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

Unfortunately, the Slaughter House cases in 1873 wrote the privilege and immunities clause out of the Fourteenth Amendment. In 1875, in United States v. Cruikshank the Court held that the Civil Rights law of 1866 to be unconstitutional because Congress could only control state discrimination, not individual discrimination. Cruikshank further held that the Bill of Rights did not apply to the states. Cruikshank was upheld in the 1883 Civil Rights cases. These cases also limited the scope of the Thirteenth Amendment to apply only to abolishing state sanctioned slavery rather than using it to deny discriminatory infractions as well. These decisions were precedent for the horrible 1896 decision Plessy v. Ferguson which established the “separate but equal” doctrine (Jim Crow laws). Why are these cases important? Because they are still valid precedent that has never been overturned (Plessy was overturned by Brown v. School Board).

The consequences of the Civil Rights cases, Cruikshank, and the Slaughter House cases has led the Court to apply the Constitution in ways it was never intended. The Commerce Clause has been used to uphold the 1964 Civil Rights Act. The Fourteenth Amendment’s “due process” and “equal protection” clauses have been expanded to cover things that should fall under the “privileges and immunities” clause. For example, the “privileges and immunities” clause was to be used to apply the Bill of Rights to the states, however later Supreme Courts would use the “due process” clause and the “equal protection” clause to accomplish this task. The due process clause was used to elevate new fundamental rights such as gay marriage and abortion. This makes no sense. Due Process merely applies to whether or not someone had a fair treatment throughout the judicial process. Due process does not apply to our fundamental privileges and immunities outlined by Washington in Coryell and by the 1866 Civil Rights Act.

In the 2010 case McDonald v. Chicago in his majority concurrence, Justice Thomas gives a very revealing argument to overrule Cruikshank and the Slaughter House Cases and finally use the privileges and immunities clause for its intended purpose. In this case, the Court held that the second amendment applied to the states via the due process clause. Thomas concurred, but properly wanted to apply the privilege and immunities clause instead of the due process clause.

Washington’s decision in Corfield v. Coryell is important even though the privileges and immunities he outlines are never applied properly, but instead our rights outlined in that case are still applied via the due process and equal protection clauses. Note: rights and privileges and immunities mean the same thing and are used interchangeably on purpose to illustrate that fact.