The origins of the privileges or inununities clause, part I: "Privileges and immunities" as an antebellum term of art

Georgetown Law Journal

Volumn 98, Issue 5, 2010, Pages 1241-1302

  Lash, Kuit T ^a  

^a WHITMAN COLLEGE   (United States)

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EID: 77954883226     PISSN: 00168092     EISSN: None     Source Type: Journal    
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References (366)

1. AKHIL. REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 191 (1998) (describing Bingham's "pious blending of phraseology from no fewer than four sections of the pre-1866 Constitution (Article I, section 10; Article IV; and Amendments I and V)");
2. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 28-29 (1980) (claiming that the "amendment's framers repeatedly adverted to the Corfield discussion [of Article IV] as the key to what they were writing" (citing Corfield v. Coryell, 6 F. Cas. 546 (CCE.D. Pa. 1823) (No. 3,230)));
3. David P. Currie, The Reconstruction Congress, 75 U. Cm. L. REV. 383,404 (2008) (describing Bingham's use of Article TV in crafting the Clause);
4. Daniel A. Farber, Constitutional Cadenzas, 56 DRAKE L. REV. 833, 842-43 (2008) ("The debates confirm that, by referring to privileges or immunities, the supporters of the Fourteenth Amendment were drawing a link to the 'P & I' Clause of the original Constitution In the House, Bingham explained that the effect of the Amendment was 'to protect by national law⋯ the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State.'");
5. Risa E. Kaufman, Access to the Courts as a Privilege or Immunity of National Citizenship, 40 CONN. L. REV. 1477, 1493 (2008) ("Scholars arguing that the Privileges or Immunities Clause of the Fourteenth Amendment was modeled on Article IV's Comity Clause note that proponents of the Fourteenth Amendment, including its primary author. Representative Bingham, often referred to Justice Washington's language in Corfield, including its discussion of the right to access the courts.");
6. Derek Shaffer, Note, Answering Justice Thomas in Saenz; Granting the Privileges or Immunities Clause Full Citizenship Within the Fourteenth Amendment, 52 STAN. L. REV. 709,721 (2000) ("Bingham envisioned that the Clause would serve a vital role in securing substantive protection for certain fundamental rights of the sort enumerated in Corfield and previously violated by the states.").
7. 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3,320).
8. See, e.g., AMAR, supra note 1, at 177-78;
9. RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 61-62 (2004) ("It is not seriously disputed, however, that some time after ratification it came to be widely insisted by some judges, scholars, and opponents of slavery that Article IV was indeed a reference to natural rights. Nor is it disputed that, whenever it first developed, the members of the Thirty-ninth Congress meant to import this meaning into the text of the Constitution by using the language of 'privileges' and 'immunities' in the Fourteenth Amendment.");
10. Jack M. Balkin & Sanford Levinson, Thirteen Ways of Looking at Dred Scott, 82 CHI.-KENT L. REV. 49,57 (2007) (stating that Republicans believed that "the purpose of the Fourteenth Amendment" was to give Congress power to grant the authority to enforce the rights protected under Article IV);
11. Farber, supra note 1, at 842-43 (discussing references to Corfield during the debates);
12. John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 YALE L.J. 524, 565-67 (2005) (same);
13. James E. Pfander, The Tidewater Problem: Article III and Constitutional Change, 79 NOTRE DAME L. REV. 1925, 1958 (2004) ("If still contested, the story of the Privileges or Immunities Clause of the Fourteenth Amendment has a familiar set of chapters. Most everyone agrees that it broadens and extends the guarantees that had previously appeared in the Privileges and Immunities Clause of Article IV, making them applicable to citizens of the United States as well as to citizens of the several states.").
14. A recent example of this scholar's linking of Corfield, Article IV, and the Privileges or Immunities Clause is found in a recent amicus brief signed by five legal scholars supporting incorporation of the Second Amendment
15. See Brief of Constitutional Law Professors as Amid Curiae in Support of Petitioners, McDonald v. City of Chicago, No. 08-1521 (U.S. July 9, 2009) (signed by professors Richard L. Aynes, Jack M. Balkin, Randy R. Barnett, Michael Kent Curtis, Michael A. Lawrence, and Adam Winkler).
16. 83 U.S. (16 Wall.) 36(1872)
17. See, e.g., Richard L. Aynes, Unintended Consequences of the Fourteenth Amendment and What They Tell Us About Its Interpretation, 39 AKRON L. REV. 289, 298 (2006) (claiming mat in the Slaughter-House Cases Justice Miller erroneously distinguished the nature of rights protected under Article IV and Section One);
18. Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291, 317 (2007) (linking the Privileges or Immunities Clause to Article IV of the original Constitution and criticizing the majority in Slaughter-House for its "crabbed reading[, which] was not faithful to the constitutional text and underlying constitutional principles because the Privilege or Immunities Clause was supposed to be the Amendment's major source for constitutional protection of both civil liberty and civil equality")
19. See, e.g., Richard L. Aynes, Ink Blot or Not: The Meaning of Privileges and/or Immunities, 11 U. PA. J. CONST. L. 1295,1297 (2009) ("[T]hese terms were part of the usage and culture of people in America for at least 250 years prior to their use in the proposed Fourteenth Amendment.").
20. Part II is currently in the draft stages, but at times I have cited it to indicate where my thoughts will be further elaborated. It is cited in this Article as Kurt T. Lash, The Origins of the Privileges or Immunities Clause, Part II: Mr. Bingham's Epiphany, 99 Geo. L.J. (forthcoming 2010), available at http://papers.ssm.com/abstract=1457360.
21. A number of contemporary Fourteenth Amendment scholars stress the importance of legal theory and argument in securing sufficient political majorities for legislative and constitutional change.
22. See, e.g., EARL M. MALTZ, CIVIL RIGHTS, THE CONSTITUTION, AND CONGRESS, 1863-1869, at 12 (1990) (discussing the importance of framing text and crafting legal arguments in a manner acceptable to Republican moderates in the Thirty-ninth Congress).
23. See generally ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN: THE IDEOLOGY OF THE REPUBLICAN PARTY BEFORE THE CIVIL WAR 85 (1970);
24. DANIEL W. HAMILTON, THE LIMITS OF SOVEREIGNTY: PROPERTY CONFISCATION IN THE UNION AND THE CONFEDERACY DURING THE CIVIL WAR (2007).
25. FONER, supra note 9, at 85.
26. WALTER GASTON SHOTWELL, DRIFTWOOD: BEING PAPERS ON OLD-TIME AMERICAN TOWNS AND SOME OLD PEOPLE 81 (photo, reprint 1966) (1927) (quoting Bingham);
27. see also Richard L. Aynes, Charles Fairman, Felix Frankfurter, and the Fourteenth Amendment, 70 CHI.-KENT L. REV. 1197, 1254 n.382 (1995) (citing Shotwell's discussion with Bingham).
28. For outstanding theoretical works on contemporary originalism, see University of Illinois Professor Lawrence Solum's Semantic Originalism, and Princeton University Professor Keith E. Whittington's CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW. See infra note i4.
29. See Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204 (1980);
30. H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985).
31. See, e.g., KETTH E. WHITINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999);
32. Balkin, supra note 6;
33. Randy E. Bamett, An Origination for Nonoriginalists, 45 LOY L. REV. 611 (1999);
34. John O. McGinnis & Michael B. Rappaport, A Pragmatic Defense of Originalism, 101 Nw. U. L. REV. 383 (2007);
35. John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution, 98 GEO. L.J. (forthcoming 2010);
36. Lawrence B. Solum, Semantic Originalism 15 (III. Pub. Law & Legal Theory Research Paper Series, No. 07-24, 2008), available at http://papers.ssm.com/abstract=1120244.
37. See Solum, supra note 14, at 18.
38. BARNETT, supra note 3;
39. MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS (1986);
40. PHILIP HAMBURGER, LAW AND JUDICIAL DUTY (2008);
41. LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004);
42. WHITTINGTON, supra note 14;
43. Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 TEX. L. REV. 7 (2008);
44. John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385 (1992);
45. Michael W. McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947 (1995);
46. Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 Nw. U. L. REV. 923 (2009).
47. See KRAMER, supra note 16, at 3-8.
48. See James Madison, Speech in Congress Opposing the National Bank (Feb. 2, 1791), in WRITINGS: JAMES MADISON 480,482-83,489 (Jack Rakove ed., 1999).
49. See, e.g., RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (2d ed. Liberty Fund, Inc. 1997) (1977);
50. 2 WILLIAM WINSLOW CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES (1953);
51. CURTIS, supra note 16;
52. CHARLES FAIRMAN, RECONSTRUCTION AND REUNION 1864-88 (1971);
53. JACOBUS TENBROEK, EQUAL UNDER LAW (rev. ed., Collier Books 1965) (1951);
54. Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding, 2 STAN. L. REV. 5 (1949). Even those works that criticized originalism found themselves caught up in the debates over original intent.
55. See, e.g., WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 2-12 (1988).
56. See generally BERGER, supra note 19
57. William Winslow Crosskey, Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. Cm. L. REV. 1,2-119 (1954);
58. Fairman, supra note 19.
59. Gordon S. Wood, The History of Rights in Early America, in THE NATURE OF RIGHTS AT THE AMERICAN FOUNDING AND BEYOND 233,233 (Barry Alan Shain ed., 2007).
60. For example, the first major American edition of Blacks tone's Commentaries was a self-conscious effort by the author to translate English common law into the context of American constitutionalism.
61. See ST. GEORGE TUCKER, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND THE LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES, AND THE COMMONWEALTH OF VIRGINIA (Phila., Birch & Small 1803).
62. See John Phillip Reid, The Authority of Rights at the American Founding, in THE NATURE OF RIGHTS OF THE AMERICAN FOUNDING AND BEYOND, supra note 21, at 67,68;
63. see also EDMUND S. MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND AMERICA 101-21 (1988).
64. Wood, supra note 21, at 235.
65. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 14-15 (1969).
66. JOHN LOCKE, TWO TREATISES OF GOVERNMENT AND A LETTER CONCERNING TOLERATION $$ 138-40, at 161-63 (Ian Shapiro ed., Yale Univ. Press 2003) (1689) (discussing the rights to freedom from arbitrary government and deprivation of property only by consent of the people's representatives);
67. 1 WILUAM BLACKSTONE, COMMENTARIES * 137-38 (discussing the necessity of courts to protect against arbitrary executive deprivations of life, liberty, and property, and to ensure the enforcement of the law of the land).
68. See James Wilson, State House Yard Speech (Oct. 6, 1787), in 1 COLLECTED WORKS OF JAMES WILSON 171,172 (Kermit L. Hall & Mark David Hall eds., 2007).
69. See James Madison, Speech in Congress Proposing Constitutional Amendments (June 8, 1789), in WRITINGS, supra note 18, at 437,442-43.
70. See U.S. CONST, amend. LX ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."); U.S. CONST, amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are,reserved to the States respectively, or to the people.").
71. Campbell v. Morris, 3 H. & McH. 535, 554 (Md. 1797). This locution, originally found in the Articles of Confederation, continued to be used as a description of the limited delegated powers of the federal government after the adoption of the Constitution.
72. See Kurt T. Lash, The Original Meaning of an Omission: The Tenth Amendment, Popular Sovereignty and "Expressly" Delegated Power, 83 NOTRE DAME L. REV. 1889,1899 (2008).
73. See Madison, supra note 18.
74. See James Madison, Report on the Alien and Sedition Acts (Jan. 7, 1800), in WRITINGS, supra note 18, at 608, 631-55;
75. John Marshall, The Address of the Minority in the Virginia Legislature to the People of that State, Containing a Vindication of the Constitutionality of the Alien and Sedition Laws (Dec. 1798)
76. JOHN MARSHALL: MAJOR OPINIONS AND OTHER WRITINGS 34, 34-47 (John P. Roche ed., 1967).
77. See Alexander Hamilton, Opinion on the Constitutionality of the Bank (Feb. 23,1791), reprinted in 3 THE FOUNDERS' CONSTITUTION 247,248-49 (Philip B. Kurland & Ralph Lerner eds., 1987);
78. see also John Marshall, Report of the Minority on the Virginia Resolutions (Jan. 22,1798), partially reprinted in 5 THE FOUNDERS' CONSTITUTION, supra, at 136,138-39.
79. 32 U.S. (7 Pet.) 243,249 (1833).
80. For a general discussion of the variety of rights in play at the time of the Founding, see KURT T. LASH, THE LOST HISTORY OF THE NINTH AMENDMENT 82-83 (2009);
81. RICHARD A. PRIMUS, THE AMERICAN LANGUAGE OF RIGHTS 78-91 (1999).
82. 1 ANNALS OF CONG. 732 (Joseph Gales ed., 1834) (statement of Rep. Theodore Sedgwick) (discussing the unenumerated individual right of a man "to wear .his hat if he pleased" or "go to bed when he thought proper").
83. LOCKE, supra note 27, $$ 95-99, at 141-43 ("When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.").
84. See THE DECLARATION OF INDEPENDENCE (1776) (identifying the people's right of revolution).
85. See EMMERICH DE VATTEL, THE LAW OF NATIONS bk. 1, ch. 3, $ 31, at 94 (Thomas Nugent trans., Bela Kaposey & Richard Whatmore eds. Liberty Fund, Inc. 2008) (1758) (discussing "[t]he rights of a nation with respect to its constitution and government");
86. Lord Mansfield, Speech in the House of Lords (1770),
87. Lord Mansfield, Speech in the House of Lords (1770), in WILLIAM SCOTT, LESSONS IN ELOCUTION 262 (1788) (Early Am. Imprints, Series 1, no. 21451) (claiming that a proposed bill "is no less than to take away from two thirds of the legislative body of this great kingdom, certain privileges and immunities of which they have been long possessed").
88. See, e.g., James Madison, Notes for Speech in Congress (June 8, 1789) ("Contents of Bill of Rhts⋯ 3. natural rights, retained"-as Speech, Con "), in 12 PAPERS OF JAMES MADISON 193, 194 (Charles F. Hobson & Robert A. Rutland eds., 1979).
89. See generally DE VATTEL, supra note 46 (a common source of law during the Founding generation and long afterwards).
90. See, e.g. TUCKER, supra note 22 (an extremely influential edition of Blacks tone's Commentaries during the early decades of the Constitution).
91. See generally Reid, supra note 23. John Reid reminds us that, despite the common use of die language of natural rights during the revolutionary period, natural law was generally used as an additional authority for the rights being claimed by the colonists-rights that mainly involved being treated equally with those royal subjects in England.
92. PRIMUS, supra note 42, at 85.
93. Article I, Section 8 conferred upon Congress the power to establish national citizenship by way of its power to establish uniform rules of naturalization, while Article IV (both impliedly and as a matter of later interpretation) referred to preexisting and ongoing rights associated with state citizenship. U.S. CONST, art. I, $ 8;
94. id art. V. These two forms of citizenship were distinguished at law throughout the antebellum period.
95. See infra Part IV.
96. See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386, 387 (1798). For an analysis of the state-autonomy aspects of Calder
97. see LASH, supra note 42, at 177-81.
98. For more detailed discussion of rights at the time of the Founding, see generally PRIMUS, supra note 42, at 78-91;
99. THE NATURE OF RIGHTS AT THE AMERICAN FOUNDING AND BEYOND, supra note 21;
100. Scholars like Michael Kent Curtis have done important work showing how the individual terms "privileges" and "immunities" were sometimes used in reference to the rights listed in the first eight amendments to the Constitution.
101. See Michael Kent Curtis, Historical Linguistics, Inkblots, and Life After Death: The Privileges or Immunities of Citizens of the United States, 78 N.C. L. REV. 1071, 1095 (2000) (stating that "[t]he words 'rights' and 'privileges' were used interchangeably" in colonial America).
102. See THE FIRST CHARTER OF VIRGINIA (1606) ("[King James I grants to] all and every the Persons being our Subjects⋯ all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions."), reprinted in 7 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS 3783, 3788 (Francis Newton Thorpe ed., Wash. Gov't Printing Office 1909);
103. see also 16 THE PARLIAMENTARY DEBATES FROM THE YEAR 1803 TO THE PRESENT TIME 144 (London, Hansard 1812) ("That the Liberties, Franchises, Privileges, and Jurisdictions of Parliament, are the ancient and undoubted birthright and inheritance of the subjects of England⋯.").
104. JOURNALS OF THE HOUSE OF BURGESSES OF VIRGINIA, 1761-1765, at 360 (John Pendleton Kennedy ed., 1907).
105. 1 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 68 (Worthington Chancey Ford ed., Wash. Gov't Printing Office 1904) (1774).
106. See Robert G. Natelson, The Original Meaning of the Privileges and Immunities Clause, 43 GA. L. REV. 1117,1133 (2009) ("P]t appears that 'immunity' and 'privilege' were reciprocal words for the same legal concept.").
107. Campbell v. Morris, 3 H. & McH. 535, 553 (Md. 1797);
108. see also Douglass' Adm'r v. Stevens, 2 Del. Cas. 489, 501 (1819) ("By the second section of the fourth article of the Constitution of the United States the citizens of each state shall be entitled to all the privileges and immunities of the citizens in the several states. The words 'privileges' and 'immunities' are nearly synonymous. Privilege signifies a peculiar advantage, exemption, immunity. Immunity signifies exemption, privilege.").
109. See, e.g., WILLIAM PERRY, THE ROYAL STANDARD ENGLISH DICTIONARY 411, 442 (1st Am. ed., Worcester, Mass., Thomas 1788) (Early Am. Imprints, Series 1, no. 21385) (defining "Right" as a "just claim; justice; interest; prerogative, privilege," and "Privilege" as a "publick right; peculiar advantage");
110. PHILADELPHIA SCHOOL DICTIONARY, OR, EXPOSITOR OF THE ENGLISH LANGUAGE 105, 152 (3rd ed., Phila., Johnson 1812) (defining "Privilege" as a "[p]eculiar advantage" and "Immunity" as a "privilege, exemption").
111. 1 BLACKSTONE, supra note 27, at * 129 (describing personal rights as "private immunities" and "civil privileges").
112. See id at *468 (discussing the "privileges and immunities" of corporations).
113. See supra note 63;
114. see also Natelson, supra note 61, at 1130 (discussing early dictionary definitions of "privileges" as having four components "(1) a benefit or advantage; (2) conferred by positive law; (3) on a person or place; (4) contrary to what the rule would be in absence of the privilege" (citation omitted)).
115. According to Blackstone: We have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But, as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable, it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality. These artificial persons are called bodies politic, bodies corporate, (corpora corporata) or corporations: of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and for ever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct If [a college] were a mere voluntary assembly, the individuals which compose it.. could neither frame, nor receive any laws or rules of their conduct; none at least, which would have any binding force, for want of a coercive power to create a sufficient obligation. Neither could they be capable of retaining any privileges or immunities: for, if such privileges be attacked, which of all this unconnected assembly has the right, or ability, to defend them? And, when they are dispersed by death or otherwise, how shall they transfer these advantages to another set of students, equally unconnected as themselves?.. But when they are consolidated and united into a corporation, they and their successors are then considered as one person in law [T]he privileges and immunities, the estates and possessions, of the corporation, when once vested in them, will be forever vested, without any new conveyance to new successions 1 BLACKSTONE, supra note 27, at *467-68.
116. See, e.g., REPORTS OF CASES RULED AND DETERMINED BY THE COURT OF CONFERENCE OF NORTH-CAROLINA 217,234 (Duncan Cameron & William Norwood eds., Raleigh, Gales 1805) (Early Am. Imprints, Series 2, no. 9035) ("[Although the King cannot be sued, yet his aliene may be, for he does not partake of his privileges or immunities.")
117. In 1783, the Society of Cincinnati published a defense of the society, reminding readers that it lacked the "privileges or immunities" granted to corporations. See A REPLY TO A PAMPHLET, ENTITLED, CONSIDERATIONS ON THE SOCIETY OR ORDER OF CINCINNATI 18 (Annapolis, Green 1783) (Early Am. Imprints, Series 1, no. 18149).
118. See An Act to Alter the Name of the Second Presbyterian Church of Newark (Jan. 31, 1811), in ACTS OF THE THIRTY-FIFTH GENERAL ASSEMBLY, OF THE STATE OF NEW-JERSEY 402, 402 (Trenton, Wilson 1811) (Early Am. Imprints, Series 2, no. 23525) ("[N]othing in this act contained shall in any manner or degree invalidate or impair any rights, powers, privileges or immunities to which the said body politic and corporate are entitled by the said act of incorporation and the said supplement thereto.").
119. See, e.g., An Act, Regulating the Militia in this Colony, in ACTS AND LAWS OF THE ENGLISH COLONY OF RHODE-ISLAND AND PROVIDENCE-PLANTATIONS, IN NEW-ENGLAND, IN AMERICA 179,189 (Newport, Hall 1868) (Early Am. Imprints, Series 1, no. 10749) ("PROVIDED always. That nothing in this Act contained shall extend, or be construed to extend to take away or diminish any of the Liberties, Privileges, or Immunities of any independent or Artillery-Company or Companies established by Law in this Colony; but that the same, according to their Establishment, be preserved to them entire, any Thing herein contained to the contrary.")
120. See 1 JOHN GIFFORD, THE HISTORY OF FRANCE, FROM THE EARLIEST TIMES, TILL THE DEATH OF LOUIS SIXTEENTH 500 (Phila., Bioren & Madan 1796) (Early Am. Imprints, Series 1, no. 30489) (discussing die "particular privileges or immunities, granted by the pope to ecclesiastics").
121. See DAVID OSGOOD, A DISCOURSE ON THE VALIDITY OF THE PRESBYTERIAN ORDINATION 12 (Cambridge, Hilliard 1802) (Early Am. Imprints, Series 2, no. 2830) ("At the height of their exaltation however, [the Apostles] acknowledged themselves in all other respects, to be but earthen vessels, on a par with one another and with their Christian brethren in general, subject alike with them, both to the same infirmities and to the same laws, having no exclusive privileges or immunities.").
122. See, e.g. ACT OF INCORPORATION, CONSTITUTION, BY-LAWS, &C. OF THE ASSOCIATED MECHANICS AND MANUFACTURERS OF THE STATE OF NEW-HAMPSHIRE 4-5 (Portsmouth, N.H., Treadwell 1810) (Early Am. Imprints, Series 2, no. 19389) ("And be it further enacted. That the said corporation, shall have a common seal, such as shall be determined on by a major vote at any meeting, and which seal shall be affixed to grants of real estates that may be made by the corporation, and to grants of privileges or immunities to any member, and to certificates."). The references to the privileges and immunities of corporations are far too many to list, and in fact, not surprising in light of the references in Blackstone's Commentaries.
123. See supra note 67 and accompanying text.
124. The 1772 laws of New York protected die "Powers, Pre-eminences, Privileges or Immunities over, or in Respect to me said Township of Harlem." LAWS OF NEW-YORK, FROM THE YEAR 1691, TO 1773 INCLUSIVE 714 (N.Y., Gaine 1772).
125. JOSEPH HAMILTON, JOHNSON'S DICTIONARY OF THE ENGLISH LANGUAGE 71 (2d ed., Newburyport, Thomas & Whipple 1806) (Early Am. Imprints, Series 2, no. 10643);
126. see also SUSANNA ROWSON, A SPELLING DICTIONARY 42 (2d ed., Portland, Me., A & J Shirley 1807) (Early Am. Imprints, Series 2, no. 35815) (children's version of Johnson's Dictionary with the same definition of " disfranchise").
127. See, e.g., J.V. Smith, Ohio Constitutional Convention, OHIO DAILY STATESMAN, Feb. 14,1851, at 2 [hereinafter Smith, Ohio Constitutional Convention (Feb.)] (reporting on a proposed clause in the Ohio Bill of Rights providing that the legislature may have a right "to alter, revoke, repeal or abolish.. any grant or law conferring special privileges or immunities, upon any portion of the people, which cannot reasonably be enjoyed by all");
128. J.V. Smith, Ohio Constitutional Convention, OHIO DAILY STATESMEN, Mar. 1, 1851, at 2 [hereinafter Smith, Ohio Constitutional Convention (Mar.)] (reporting on a proposal to remove a portion of a proposed amendment to the Ohio Bill of Rights stating "and no special privileges or immunities shall ever be granted injurious to the public, and which cannot reasonably be enjoyed by all");
129. The Constitutional Convention, FREEDOM'S CHAMPION (Atchison City, Kan.), July 23,1859, at 1 (discussing an article from Kansas's Bill of Rights that was adopted at Kansas's Constitutional Convention stating that "[n]o special privileges or immunities shall ever be granted by the Legislature which may not be altered, revoked or repealed by the same body");
130. Virginia Legislature-House of Delegates Convention, RICHMOND ENQUIRER (Va.), Jan. 15, 1829, at 1 (citing statement of Representative Mason of Frederick: "But, sir, under what sanction can individuals of the same community, holding a peculiar species of property, or any particular district of country, stipulate in like manner for especial privileges or immunities to that property, as a pre-requisite to the formation of a common government?" (emphasis added)).
131. See Douglass' Adm'r v. Stevens, 2 Del. Cas. 489, 501 (1819) ("By the second section of the fourth article of the Constitution of the United States the citizens of each state shall be entitled to all the privileges and immunities of the citizens in the several states. The words 'privileges' and 'immunities' are nearly synonymous. Privilege signifies a peculiar advantage, exemption, immunity. Immunity signifies exemption, privilege.");
132. PHILADELPHIA SCHOOL DICTIONARY, supra note 63, at 152 (defining "Privilege" as a "[p]eculiar advantage" and "Immunity" as a "privilege, exemption");
133. see also Magill v. Brown, 16 F. Cas. 408, 428 (C.C.E.D. Pa. 1833) (No. 8,952) ("The words 'privileges and immunities' relate to the rights of persons, place or property; a privilege is a peculiar right, a private law, conceded to particular persons or places. ⋯ ").
134. In 1841, The Emancipator called for "[e]qual rights, equal and exact justice to all men, and no exclusive privileges or immunities." The Necessity of a Liberty Party, THE EMANCIPATOR (N.Y.), Nov. 11,1841, at 112.
135. See Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823) (No. 3,230) (discussing the "particular privileges and immunities" protected under Article IV);
136. Campbell, 3 H. & McH. at 554 (stating that a "particular and limited operation is to be given to [the privileges and immunities clause of Article IV)");
137. UNITED INS. Co. v. ARNOLD, supra note 71, at 7 (denying a diplomat any "particular privileges or immunities above those enjoyed by the native subjects of the country");
138. 1 GIFFORD, supra note 75, at 500 (discussing the "particular privileges or immunities, granted by the pope to ecclesiastics, with the permission of their sovereigns").
139. A Vindication of the Democratic Constitutions of America 1803 An editorial in the Aurora General Advertiser declared that neither state legislatures nor the Federal Senators they elected possessed special or "exclusive rights, powers and immunities" other than those "granted to them by the people." Editorial, AURORA GEN. ADVERTISER (Phila.), Aug. 20, 1803, at 2. In 1820, a Mr. Grundy offered the following resolution in the Tennessee legislature: Whereas, the Congress of the United States will probably at their present session, take into consideration the propriety of establishing a uniform system of Bankruptcy throughout the United States, and whereas this General Assembly consider every measure, which bestows on one class of our citizens, rights, privileges or immunities, which are withheld from others, as unjust and impolitic ⋯.
140. Legislature of Tennessee, AGRIC. INTELLIGENCER, & MECHANIC REG. (Boston), Jan. 21,1820, at 23.
141. The Cry of the Poor Against the Rich, OHIO STATESMAN (Columbus), July 10,1839, at 4.
142. Banks, a Privileged Order, Wis. ENQUIRER, Oct. 17,1840, at 1.
143. The Necessity of a Liberty Party, supra note 82.
144. Smith, Ohio Constitutional Convention (Feb.), supra note 80, at 2;
145. THE FIRST CHARTER OF VIRGINIA, supra note 58, at 3788 ("[King James I grants to] all and every the Persons being our Subjects⋯ all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions.");
146. See, e.g., PA. GAZETTE, June 19,1766, at 2 (reporting news of a treaty between Great Britain and Sweden stating that "[t]he two Powers shall reciprocally enjoy, in the Towns, Ports, Harbours and Rivers of their respective States, all the Rights, Advantages, and Immunities, which have been, or may be henceforth enjoyed there by the most favoured Nations").
147. See ARTICLES OF CONFEDERATION, art. IV, § 1 (1788).
148. U.S. CONST., art. IV, § 2, cl. 1.
149. See THE FEDERALIST No. 42, at 269 (James Madison) (Clinton Rossiter ed., 1961) ("In the fourth article of the Confederation, it is declared 'that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall, in every other, enjoy all the privileges of trade and commerce,' etc. There is a confusion of language here which is remarkable.").
150. THE FEDERALIST No. 80, at 478 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Hamilton misquotes the provision as "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States."
151. Id. The error, however, does not affect his general point about the value of having a neutral (federal) tribunal available for trying cases involving disputes between one state and citizens from another state.
152. See THE FEDERALIST NO. 42, supra note 95, at 269-71 (describing how Article IV of the proposed Constitution avoided the confused and legally problematic language of the related provision in the Articles of Confederation). In the first constitutional treatise, St George Tucker had little to say about the clause beyond the fact that it was based on the earlier provision in the Articles of Confederation and would not apply to individuals made citizens by state law but not made citizens in conformance with a law establishing a uniform federal law of naturalization.
153. One could, for example, read the Clause as requiring all states to protect a certain set of rights, and to protect them in an equal manner, regardless of state citizenship-a kind of "full and equal" protection
154. 3 H & McH. 535 (Md. 1797).
155. There is some question whether Samuel Chase authored this opinion. If he did, then he was doing double duty at the time on both the United States Supreme Court and the Maryland court. Additionally, there was another "Chase" on the Maryland court at the time the opinion was issued-J.T. Chase. Regardless, later antebellum courts appear to have believed Samuel Chase authored the opinion.
156. See Anderson v. Baker, 23 Md. 531, 624 (1865) (attributing the decision to C.J. Chase-an appellation only Samuel and not J.T. would have had at the time Campbell was decided);
157. Opinion of Judge Appleton, 44 Me. 521,548 (1857) (same).
158. Some scholars have suggested Judge Chase in Campbell read Article IV to protect a set of substantive fundamental personal rights, such as property rights, regardless of whether the rights had been protected under state law.
159. See, e.g., Douglas O. Smith, The Privileges and Immunities Clause of Article IV, Section 2: Precursor of Section 1 of the Fourteenth Amendment, 34 SAN DIEGO L. REV. 809, 845 (1997);
160. David R. Upham, Note, Corfield v. Coryell and the Privileges and Immunities of American Citizenship, 83 TEX. L. REV. 1483, 1501-02 (2005). At least one abolitionist pressed this reading of Chase at the time of the Civil War.
161. See 2 JOHN CODMAN HURD, THE LAW OF FREEDOM AND BONDAGE IN THE UNITED STATES 343 (Boston, Little, Brown & Co. 1862). At the time, however, despite frequent citation to the decision, no court read Chase's opinion as presenting a theory of fundamental personal rights. Instead, it was regularly paired with other judicial opinions that read Article IV as protecting a limited set of state-conferred rights.
162. See infra note 122 and accompanying text
163. See, e.g., Tatem v. Wright, 23 N.J.L. 429, 445-46 (N.J. 1852);
164. Commonwealth v. Milton, 51 Ky. (12 B. Mon.) 212,216-17 (1851).
165. See Hadfield v. Jameson, 16 Va. (2 Munf.) 53, 56 (1811) (explaining, in an opinion written by Tucker, that Article TV entitled citizens from other states to the same judicial remedies available to citizens of Virginia). In his View of the Constitution, Tucker wrote about Article IV in the context of federal power to establish a uniform rule of naturalization: The citizens of each state shall be entitled to all the privileges and immunities of citizens of the several states. This article, with some variation, formed a part of the confederation: we have in another place supposed, that the states retain the power of admitting aliens to become denizens of the states respectively, notwithstanding the several acts of congress establishing an uniform rule of naturalization. But such denizens, not being properly citizens, would not, I apprehend, be entitled to die benefit of this article in any other state. They would still be regarded as aliens in every state, but in that of which they may be denizens. Consequently, an alien before he is completely naturalized, may be capable of holding lands in one state, but not of holding them in any other.
166. Livingston v. Van Ingen, 9 Johns. 507,561 (N.Y. 1812) (Yates, J., opinion).
167. Id at 577 (Kent, C J., opinion). Kent made the same point in his Commentaries on American Law. The article in the constitution of the United States, declaring that the citizens of each state were entitled to all the privileges and immunities of citizens in the several states, applies only to natural-bom or duly nationalized citizens; and if they remove from one state to another, they are entitled to the privileges that persons of the same description are entitled to in the state to which the removal is made, and to none other.
168. 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW pt. 4, at 35 (7th ed., N.Y., Kent 1851).
169. Although the vast majority of cases decided in this early period of the Republic follow Judge Chase's equal state-conferred rights reading of Article IV, two cases appear to read Article IV as a constraint on the powers of Congress, forbidding any federal grant of special privileges or immunities to citizens of a particular state.
170. See Douglass' Adm'r v. Stevens, 2 Del. Cas. 489, 502 (1819) ("The privileges and immunities to be secured to all citizens of the United States are such only as belong to the citizens of the several states, which includes the whole United States;
171. and must be understood to mean such privileges as should be common, or the same in every state, which seems to limit the operation in the clause in the Constitution to federal rules, and to be designed to restrict the powers of Congress as to legislation, so that no privilege or immunity should be granted to one citizen of the United States but such as should be common to all. It is not that the citizens in any state shall be entitled to all the privileges of citizens in each state.⋯ ");
172. Kincaid v. Francis, 3 Tenn. (Cooke) 49, 53-54 (1812) ("It seems to us most probable that this clause in the Constitution was intended to compel the general government to extend the same privileges and immunities to the citizens of every State, and not to permit that government to grant privileges or immunities to citizens of some of the States and withhold them from those of others; and that it was never designed to interfere with the local policy of the State governments as to their own citizens.").
173. 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3,230).
174. Id. at 547-48.
175. Id. at 550.
176. Id. at 552.
177. See, e.g., CONG. GLOBE, 39th Cong., 1st Sess. 1117-18 (1866) (remarks of Rep. Wilson);
178. Corfield, 6 F. Cas. at 551-52.
179. See id. at 551-52. For a critical account of Washington's opinion in terms of its original meaning
180. See supra note 104 (using the "fundamental rights" passage to distinguish persons from corporations). Other scholars also have noticed the lack of later judicial reliance on Washington's fundamental rights language.
181. Proponents of women's suffrage also would call upon Washington's language in Corfield. See 2 ELIZABETH CADY STANTON BT AL. HISTORY OF WOMAN SUFFRAGE 453 (Rochester, N.Y., Mann 1887) (citing Bushrod Washington's Corfield opinion in support of women's suffrage);
182. see also Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism and the Family, 115 HARV. L. REV. 947,972 n.68 (2002).
183. See, e.g., Smith v. Moody, 26 Ind. 299 (1866). In Moody, a newly elected panel of Republican judges upheld the Civil Rights Act and may have interpreted Corfield as referring to fundamental national rights.
184. Id. at 302,307.
185. Some scholars treat Corfield as an outlier among a more dominant trend of judicial interpretation of Article IV. See, e.g., Earl M. Maltz, Fourteenth Amendment Concepts in the Antebellum Era, 32 AM. J. LEGAL HIST. 305, 337-38 (1988) (describing Corfield as a widely cited but "somewhat equivocal exception" to the dominant trend in antebellum case law regarding Article IV privileges and immunities). This was probably true in regard to Washington's brief reference to state-regulated suffrage as an Article IV privilege and immunity.
186. See Currie, supra note 1, at 405 a 133;
187. Harrison, supra note 16, at 1417. Judge Chase certainly disagreed with Washington on this point.
188. See, e.g., Wiley v. Parmer, 14 Ala. 627,632 (1848).
189. In 1848, Alabama Chief Justice Henry Collier collected the cases and explained: By the second section of the fourth article of the federal constitution, it is enacted, that "the citizens of each State, shall be entitled to all privileges and immunities of citizens in the several States." It has been held that the intention of this clause was to confer on the citizens of each State a general citizenship; and to communicate all, the privileges and immunities, which the citizens of the same State would be entitled to, under the like circumstances.
190. Corfield v. Cargill [Corfield v. Coryell], 4 Wash. C. C. Rep. 371;
191. Livingston v. Van Ingen, 9 Johns. Rep. 507.
192. In Campbell v. Morris, 3 Har. & McH. Rep. 535, it was said that the terms privilege and immunity are synonymous, or nearly so;'privilege, signifies a peculiar advantage, exemption, immunity; immunity, signifies exemption, privilege. A particular and limited operation is to be given to the words "immunities and privileges" in this section of the constitution, and not a full and comprehensive one. ⋯ The object of the entire provision was to secure to the citizens of all the States the peculiar advantage of acquiring and holding real as well as personal property, and to provide 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.
193. Wiley, 14 Ala. at 631-32;
194. see also Baker v. Wise, 57 Va. (16 Gratt.) 139, 215-17 (1861) (although noting the lack of any full and authoritative interpretation of the clause, citing both Corfield and Campbell as representative cases and applying Campbell's equal access to state-conferred privileges and immunities analysis in upholding as reasonable the discriminatory treatment of process for nonresidents).
195. For additional cases citing Corfield alongside of Campbell, Livingston, or both, see United States v. New Bedford Bridge, 27 F. Cas. 91 (C.C.D. Mass. 1847) (No. 15,867);
196. Atkinson v. Phila. & T.R. Co., 2 F. Cas. 105 (C.C.E.D. Pa. 1834) (No. 615);
197. Oliver v. Wash. Mills, 93 Mass. (11 Allen) 268 (1865). Although there are a number of cases involving disputes over waterways, tidelines, and fisheries that cite Corfield alone, I have managed to find only four cases prior to the Civil War (three of them again involving fisheries or clams) that discussed the Privileges and Immunities Clause and cited to Corfield but not to Campbell or Livingston.
198. See Bennett v. Boggs, 3 F. Cas. 221, 226 (C.C.D.N.J. 1830) (No. 1,319) (citing Corfield in favor of state right to regulate fisheries);
199. Dunham v. Lamphere, 69 Mass. (3 Gray) 268 (1855) (citing Corfield and Boggs);
200. State v. Medbury, 3 R.I. 138 (1855);
201. Commonwealth v. Milton, 51 Ky. (12 B. Mon.) 212 (1851). All four adopt the same equal access to a limited set of state-conferred rights approach of Campbell and Livingston.
202. In Tatem v. Wright, the New Jersey court cited to Corfield alone but only to illustrate that the privileges and immunities of Article IV extend to persons, not corporations.
203. See 23 N.J.L. 429, 445-46 (N.J. 1852);
204. see also Slaughter v. Commonwealth, 57 Va. (13 Gratt) 767, 779 (1856) (containing a single sentence referencing Corfield for the proposition that corporations are not protected under Article IV). This, too, echoes the language of Campbell: "It secures and protects personal rights." Campbell, 3 H. & McH. at 554.
205. A small number of cases read Article IV to forbid federal statutes that discriminated among the several states.
206. See supra note 108 and accompanying text.
207. For example, in an 1833 circuit opinion. United States Supreme Court Justice Henry Baldwin recapitulated much of this Article's discussion of the historical roots of both the terms "privileges" and "immunities" as well as the common usage of the paired terms as referred to a set of state-conferred rights.
208. See Magill v. Brown, 16 F. Cas. 408,428 (C.C.E.D. Pa. 1833) (No. 8,952).
209. 23 Mass. (6 Pick.) 89 (1827).
210. Id. at 92-93. During the Reconstruction debates, radical Republicans like Representative Samuel Shellabarger of Ohio cited Abbott as representing the consensus understanding of the Privileges and Immunities Clause of Article IV.
211. See CONO. GLOBE, 39th Cong., 1st Sess. app. 293 (1866) (remarks of Rep. Shellabarger);
212. 59 U.S. (18 How.) 591,593-94 (1855) (holding that marriage contracts are governed by the law of the state in which they were enacted and that Article IV does not require the State of Louisiana to confer the same rights upon parties to out-of-state marriage contracts that are conferred upon parties to in-state marriage contracts).
213. Id.
214. Article IV received an occasional reference in antebellum Supreme Court cases.
215. See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 69 (1824) ("The constitution does not profess to give, in terms, the right of ingress and regress for commercial or any other purposes, or the right of transporting articles for trade from one State to another. It only protects the personal rights of the citizens of one State, when within the jurisdiction of another, by securing to them 'all the privileges and immunities of a citizen' of that other, which they hold subject to the laws of the State as its own citizens; and it protects their property against any duty to be imposed on its introduction."). The references, however, continued to follow Judge Chase's equality of state-conferred rights reading of Article IV and provided no guidance as to the specific rights covered by the Clause.
216. For example, in 1855, the Chief Justice of the Rhode Island Supreme Court relied on Corfield in an opinion that rejected an attempt to read Article IV as requiring a state to grant visiting citizens all the rights and privileges granted by that state to its own citizens: Article 4, sec. 2, of the Constitution of the United States, provides "that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." This section has been referred to in the argument, as though it conferred on the citizens of each State, all the privileges and immunities which the citizens of the several States enjoy. Such is neither its language nor its import No Court or Legislature in the Union has ever given such a construction to it; but on the contrary, a marked distinction has ever been made by them between the rights and powers of the citizens of a State, and the rights and powers of all other persons resident within the limits of the State, whether they are citizens of other States or foreigners. To deny the right to every State to make such distinction would be to annihilate the sovereignty of the States, and to establish a consolidated government in their stead. But this section in its terms, confers on the citizens of each State, "all privileges and immunities of citizens in the several States," that is, the rights and powers of citizenship. They are not to be deemed aliens. They are not to be accounted as foreigners; or as persons who may become enemies. They are to have the right to cany on business, to inherit and transmit property, to enter upon, reside in and remove from the territory of each State, at their pleasure, yielding obedience to and receiving protection from the laws. Such are some of the privileges and immunities conferred by this section, and all that are granted by it are of the same character. That the right claimed by the defendant is not one of these, has been expressly decided in the cases of Corfu-Id v. Coryell, (4 Wash. p. 376.)[.]
217. Baker, 57 Va. at 215-17 (citations omitted).
218. See, e.g., Lavery v. Woodland, 2 Del. Cas. 299,307 (1817) (stating that, under Article IV, "[t]he Constitution certainly meant to place, in every state, the citizens of all the states upon an equality as to their private rights, but not as to political rights").
219. 8 Del. (3 Houst.) 49,60-62 (1864).
220. The decisions continued to adopt this approach during the war, as well. According to an 1865 decision of the Massachusetts Supreme Court: [Article 4, Section 2] was doubtless taken and condensed from art. 4, § 1, of the articles of confederation and perpetual union, adopted by congress July 9th 1778, and which formed the basis of a national government for the United States prior to the adoption of the constitution. It was thereby provided that the "people of each state should enjoy in any other state all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively." The object of substituting the constitution for the articles of confederation was to make a more perfect Union. One of the most efficient methods of effecting this purpose was to vest in the general government the power to regulate not only foreign trade and commerce, but also that between the different states of the Union, and to secure an equality of rights, privileges and immunities in each state for the citizens of all the states. It is obvious that the power of a state to impose different and greater burdens or impositions on the property of citizens of other states than on the same property belonging to its own subjects would directly conflict with this constitutional provision. By exempting its own citizens from a tax or excise to which citizens of other states were, subject, the former would enjoy an immunity of which the latter would be deprived. Such has been the judicial interpretation of this clause of the constitution by courts of justice in which the question has arisen.
221. See 1 JOHN BOUVIER, INSTITUTES OF AMERICAN LAW 66 (2d ed., Phila., Peterson & Co. 1854) ("[The Privileges and Immunities Clause of Article IV] evidently refers to the privilege or capacity of taking, holding, and conveying lands lying within any state of the Union, and also of enjoying all civil rights which citizens of any State were entitled to; but it cannot be extended to give a citizen of another state a right to vote or hold office immediately on his entering the state."). A number of cases other than the ones cited in this section also embrace this principle.
222. See Costin v. Washington, 6 F. Cas. 612, 613-14 (C.C.D.C. 1821) (No. 3,266) ("P]f there be a class of people more likely than others to disturb the public peace, or corrupt the public morals, and if that class can be clearly designated, [the government] has a right to impose upon that class, such reasonable terms and conditions of residence, as will guard the state from the evils which it has reason to apprehend. A citizen of one state, coming into another state, can claim only those privileges and immunities which belong to citizens of the latter state, in like circumstances.");
223. Davis v. Pierse, 7 Minn. 13, 1862 WL 1242, at *6 (1862) ("The main object of the section was to prevent each State from discriminating in favor of its own people, or against those of any other ⋯ ." (citing Corfield in support));
224. Sheepshanks & Co. v. Jones, 9 N.C. (2 Hawks) 211,213(1822) ("If our own laws do not permit our own citizens who are not freeholders in this State to serve on a Jury, it cannot be considered as the denial of a right or privilege to the citizens of another State, who are not freeholders here, to consider them disqualified. For, upon the supposition that the right to serve on a jury here was claimed by the citizen of another State, as a privilege or immunity, he must shew that it is enjoyed by our own citizens not otherwise qualified than himself; otherwise it would be a claim, not of privileges equal to, but greater than those of our own citizens.");
225. Amy v. Smith, 11 Ky. (1 LitL) 326, 335 (1822) ("[Article IV's Privileges and Immunities Clause] can not, upon any principle, be construed to secure to the citizens of other states, greater privileges, within this state; than are allowed by her institutions to her own citizens.");
226. Barrell v. Benjamin, 15 Mass. (14 Tyng) 354, 358 (1819) (noting that, if a citizen of Massachusetts "has the privilege to sue any foreigner who may come within this state," then an out-of-state citizen "has the same privilege secured to him by the constitution");
227. Lavery v. Woodland, 2 Del. Cas. 299, 307 (1817) ("[Under Article IV, a] redress of the private or civil rights belonging to individuals is certainly one of the privileges secured to the citizens of other states. This redress, or the exercise of this privilege, must be commensurate with the wrong and must be adapted to it, and must be obtained or exercised in the same manner and form of suit as if he were a citizen of the state. The Constitution certainly meant to place, in every state, the citizens of all the states upon an equality as to their private rights, but not as to political rights. A citizen of another state may pursue the same legal remedy by suit or action at law, whenever his right is invaded, as a citizen of the state is entitled to, but he is not entitled to the same political rights.").
228. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATE OF THE AMERICAN UNION 15 (Boston, Little, Brown & Co. 1868).
229. See id. at 15 n.3,397 n.2.
230. In addition to disputes over the Article IV privileges and immunities of sojourning citizens, the controversy over slavery also triggered disputes over the scope of privileges granted to a state's own citizens. During the 1829 Virginia Constitutional Convention, for example, Representative Mason of Frederick complained: Independent and sovereign States can stipulate for advantages, and give and take equivalents in adjusting a federative government, and will do so, as the South did then, in the exercise of a wise and sound policy. But, sir, under what sanction can individuals of the same community, holding a peculiar species of property, or any particular district of country, stipulate in like manner for especial privileges or immunities to that property, as a pre-requisite to the formation of a common government? Virginia Legislature-House of Delegates Convention, supra note 80.
231. See infra notes 164-71 and accompanying text.
232. 40 U.S. (15 Pet.) 449 (1841).
233. See supra note 124 (discussing Magill's focus on state-conferred rights).
234. Groves, 40 U.S. at 515 ("Hence, it is apparent, that no state can control this traffic, so long as it may be carried on by its own citizens, within its own limits; as part of its purely internal commerce, any state may regulate it according to its own policy; but when such regulation purports to extend to other states or their citizens, it is limited by the Constitution, putting the citizens of all on the same footing as their own.").
235. see also Mary Sarah Bilder, The Struggle Over Immigration: Indentured Servants, Slaves, and Articles of Commerce, 61 Mo. L. REV. 743, 807-12 (1996) (discussing Groves and the antebellum legal debates about the status of persons as articles of commerce).
236. See Gerard M. Magliocca, Preemptive Opinions: The Secret History of Worcester v. Georgia and Dred Scott, 63 U. Prrr. L. REV. 487,569-70 (2002) (discussing the breadth of Baldwin's opinion).
237. 60 U.S. (19 How.) 393 (1856), superseded by constitutional amendment, U.S. CONST, amend. XTV, as recognized in Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 73 (1872). Although all nine Justices wrote an opinion in Dred Scott, the seven Justices in the majority allowed Taney's opinion to be designated as the opinion of the Court.
238. See MARK A. GRABER, DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL 19-20 (2006)
239. Dred Scott, 60 U.S. at 416-17.
240. See, e.g., DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS (1978);
241. GRABER, supra note 149;
242. Symposium, 150th Anniversary of the Dred Scott Decision, 82 CHI.-KENT L. REV. 3 (2007). Taney's reference to the right to keep and carry arms has received particular attention in the debates regarding the incorporation of the Second Amendment.
243. See, e.g., Akhil Reed Amar, The Second Amendment: A Case Study in Constitutional Interpretation, 2001 UTAH L. REV. 889, 899-900;
244. Nelson Lund, Have Gun, Can't Travel: The Right to Arms Under the Privileges and Immunities Clause of Article IV, 73 U. MO.-KAN. CTTY L. REV. 951, 955-56 (2005);
245. see also SAUL CORNELL, A WELL REGULATED MILITIA: THE FOUNDING FATHERS AND THE ORIGINS OF GUN CONTROL IN AMERICA 150 n.24 (2006).
246. See ARTICLES OF CONFEDERATION art. IV (1781).
247. See, e.g., AKHIL. REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 387 (2005);
248. DON E. FEHRENBACHER, SLAVERY, LAW AND POLITICS 188-90 (1981);
249. Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863, 886 (1986);
250. Rebecca E. Zietlow, Congressional Enforcement of the Rights of Citizenship, 56 DRAKE L. REV. 1015, 1023 (2008).
251. See NELSON, supra note 19, at 118 ("American states in the mid-nineteenth century did, in fact, provide their citizens with most of the protections contained in the Bill of Rights").
252. Justice Curtis, in dissent, argued that Taney was wrong about Article TV's application to race-based constraints.
253. See id. at 480 (Daniel, J., concurring) ("He may emancipate his negro slave, by which process he first transforms that slave into a citizen of his own State; he may next, under color of article fourth, section second, of the Constitution of the United States, obtrude him, and on terms of civil and political equality, upon any and every State in this Union, in defiance of all regulations of necessity or policy, ordained by those States for their internal happiness or safety.")
254. The subject also came up, if only obliquely, in Justice Curtis's dissent where he argued that the language of Article IV, which dropped the reference to "free inhabitants" from the Articles of Confederation, suggested that the Framers believed mat blacks "were entitled to the privileges and immunities of general citizenship of the United States." Dred Scott, 60 U.S. at 575-76.
255. For a discussion of the opinion, including Justice Curtis's discussion of privileges and immunities, see Mark A. Graber, Desperately Ducking Slavery: Dred Scott and Contemporary Constitutional Theory, 14 CONST. COMMENT. 271,311 (1997).
256. see also Alfred Brophy, Note, Let Us Go Back and Stand upon the Constitution: Federal-State Relations in Scott v. Sandford, 90 COLUM. L. REV. 192,221 (1990) (arguing that the Dred Scott decision "catalyzed Northern fears of the nationalization of slavery").
257. Abraham Lincoln was convinced that the Dred Scott decision was part of a broader conspiracy to nationalize slavery and warned of a nice little niche, which we may, ere long, see filled with another Supreme Court decision, declaring that the Constitution of the United States does not permit a state to exclude slavery from its limits. ⋯ Such a decision is all that slavery now lacks of being alike lawful in all the States. Welcome or unwelcome, such decision is probably coming, and will soon be upon us, unless the power of the present political dynasty shall be met and overthrown. We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free; and we shall awake to the reality, instead, that the Supreme Court has made Illinois a slave State.
258. Abraham Lincoln, "House Divided" Speech at Springfield, 111. (June 16, 1858), in ABRAHAM LINCOLN: SPEECHES AND WRITINGS 1832-1858, at 426, 432 (Don E. Fehrenbacher ed., 1989). For a discussion of Lincoln's repeated warnings of a "second Dred Scott,"
259. see Michael Stokes Paulsen, Lincoln and Judicial Authority, 83 NOTRE DAME L. REV. 1227,1247-66 (2008).
260. Lemmon v. The People, 20 N.Y. 562 (1860).
261. John D. Gordan, III, The Lemon Slave Case, HIST. SOC'Y FOR CTS. ST. N.Y., 2006, at 1, 8, available at http://www.courts.state.ny.us/history/pdf/HSNLVol. 4.pdf.
262. Editorial, GA. TELEGRAPH (Macon), Apr. 28, 1857, at 2 (ruefully reporting on the New York resolutions).
263. According to a November 17,1857 editorial in the Washington Union: The Constitution declares that 'the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several States.' Every citizen of one State coming into another State has, therefore, a right to the protection of his person, and that property which is recognized as such by the Constitution of the United States, any law of a State to the contrary notwithstanding. So far from any State having a right to deprive him of this property, it is its' bounden duty to protect him in its possession. If these views are correct-and we believe it would be difficult to invalidate them-it follows that all State laws, whether organic or otherwise, which prohibit a citizen of one State from settling in another, and bringing his slave property with him, and most especially declaring it forfeited, are direct violations of the original intention of a Government which, as before stated, is the protection of person and property, and of the Constitution of the United States, which recognizes property in slaves, and declares that 'the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States,' among the most essential of which is the protection of person and property. ⋯ The protection of property being, next to that of person, the most important object of all good government. ⋯ CONG. GLOBE, 35th Cong., 1st Sess. app. at 199 (1858) (internal quotation marks omitted) (editorial read aloud in the assembly).
264. Id. at 632. For discussion of Lemmon v. The People and the Privileges and Immunities Clause aspects of the holding
265. see PAUL FINKELMAN, AN IMPERFECT UNION: SLAVERY, FEDERALISM, AND COMITY 302 (1981).
266. Cases such as Prigg v. Pennsylvania presented the same dichotomy of interests, with the Court in that case choosing pro-slavery nationalism over anti-slavery localism.
267. See Prigg v. Pennsylvania, 41 U.S. 539 (1842) (striking down state law protecting free blacks and runaway slaves as conflicting with Article IV and the Federal Fugitive Slave Law).
268. There was considerable fear at the time that the New York court's decision in Lemmon would be appealed to the United States Supreme Court, where its reversal would constitute the "second Dred Scotf' decision, which Lincoln and others had warned about, in which the Supreme Court would nationalize slavery.
269. See, e.g., The Dred Scott Case, 1 HARPER'S WKLY., 193,193 (1857) (commenting on the possible future of the Lemmon case and complaining that "all these slave cases are sour enough");
270. The Issue Forced upon Us, EVENING J. (Albany), Mar. 9,1857, at 2 ("The Lemmon case is on its way to this corrupt fountain of law. Arrived there, a new shackle for the North will be handed to the servile Supreme Court, to rivet upon us. ⋯ [It] shall complete the disgraceful labors of the Federal Judiciary in behalf of Slavery ⋯ The Slave breeders will celebrate it as the crowning success of a complete conquest.");
271. see also THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND APPLICATION OF STATUTORY AND CONSTITUTIONAL LAW 604 n.† (N.Y., Voorhies 1857) ("The Lemmon Case, as it is commonly called presents the transit question in one aspect distinctly, and is now before the Supreme Court of the State of New York on appeal. The case known as the Dred Scott Case, recently decided by the Supreme Court of the United States, is understood to have incidentally discussed this subject; but we have as yet no authoritative report of the judgment of the court. If the People v. Lemmon shall go up on appeal to the Federal tribunal, the case will, in all probability, call for a settlement of the law on this important question.") (citation omitted).
272. 75 U.S. (8 Wall.) 168,180 (1868).
273. See id. at 180 n. 16.
274. I have identified one early newspaper editorial that might contain a nationalist reading of Article IV. In 1807, the editors of the New Jersey Journal published an editorial that complained about the taking of property without compensation for the construction of turnpikes. According to the author, this unconstitutionally deprived citizens of their right of possessing the property which they have procured by their industry and talents, without any interruption or molestation, as tolerated by their political constitution, or as their political constitution says they shall enjoy it, is directly and catagorically infringed and violated and they (the citizens) deprived of one of their primary constitutional privileges or immunities. Letter to the Editor, The Present Mode of Tumpiking Particularly Considered, &c, N.J.J., Aug. 25, 1807, at 2. This may reflect an understanding that Article IV provided substantive protection for rights listed in the Fifth Amendment. It is not clear, however, whether the author was referring to Article IV privileges and immunities.
275. Caleb Cuishing, Speech on the Bill for Admitting the State of Arkansas into the Union (June 9, 1836)
276. Reported in SALEM GAZETTE (Mass.), July 15, 1836, at 1. Arkansas had submitted a draft Constitution that included a clause providing: "The General Assembly shall have no power to pass laws for the emancipation of slaves, without the consent of the owners. They shall have no power to prevent emigrants to this State from bringing with them such persons as are deemed slaves by the laws of any one of the United States."
277. Id. In his speech, Cushing addressed a proposed amendment to the Act of Admission by John Quincy Adams, which would have provided "that nothing in this act shall be construed as an assent by Congress to the article in the Constitution of the said State [of Arkansas] relating to slavery and to the emancipation of slaves."
278. Id. (emphasis omitted). Arkansas was admitted as a slave state in June of 1836.
279. 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1800, at 674-75 (Boston, Hilliard, Gray, & Co. 1833). In his own work, Commentaries on American Law, James Kent adopted the use of Washington's language in Corfield, including Washington's argument that privileges and immunities did not include all state-conferred rights, but only those deemed fundamental.
280. See 2 KENT, supra note 107, pt. 4, at 35-36.
281. William Rawle, in his 1829 treatise A View of the Constitution of the United States of America, says little about the Privileges and Immunities Clause beyond noting that it clarified the more ambiguous version in the Articles of
282. WILLIAM RAWLE, A VIEW OF THE CONSTTTUTION OF THE UNITED STATES OF AMERICA 84-85 (2d ed., Phila., Nicklin 1829). Beyond that, Rawle simply notes with rather dry understatement that "[i]t cannot escape notice, that no definition of the nature and rights of citizens appears in the Constitution."
283. Finally, in his treatise Constitutional Law, Thomas Sergeant describes the facts and holding of Campbell, as well as the debates over the admission of Missouri, before adding that "[i]t has been also held, that the above clause of the constitution means only, that citizens of other States shall have equal rights with the citizens of a particular state, and not that they shall have different, or greater rights. Their persons and property must be in all respects, subject to the laws of such state."
284. THOMAS SERGEANT, CONSTITUTIONAL LAW 393-94 (2d ed., Phila., Nicklin & Johnson 1830). Here, Sergeant adds a footnote citing among other cases, Livingston v. Van Ingen.
285. Id. at 394 n.(i).
286. 3 STORY, supra note 178, § 1800, at 675 n.l
287. Treaty of Purchase Between the United States and the French Republic, art. III, U.S.-Fr., Apr. 30,1803, 8 Stat. 200,202.
288. 10 Op. Att'y Gen. 382,383 (1862).
289. Murray v. M'Carty, 16 Va. (2 Munf.) 393, 398 (1811). The Virginia court went on to hold that the privileges and immunities secured under Article IV did not include the political rights conferred upon state citizens. For an additional example of officials distinguishing national from state-conferred privileges and immunities
290. see CODE OF LAWS FOR THE DISTRICT OF COLUMBIA: PREPARED UNDER THE AUTHORITY OF THE ACT OF CONGRESS OF THE 29TH OF APRIL 1816, at 26 (Wash., D.C, Davis & Force 1819) (providing laws for the District of Columbia that granted each inhabitant "all the benefits, rights, privileges and immunities, secured to the citizens of Virginia and Maryland respectively by the respective constitutions and declarations of rights of those states respectively, and to all the benefits, rights, privileges and immunities of citizens of the United States so far as such benefits, rights, privileges, and immunities are consistent with the political and local situation of the inhabitants of the said District, and with the constitution of the United States.").
291. U.S. CONST, amend. I ("Congress shall make no law respecting an establishment of religion ⋯.").
292. For a discussion of the law of state religious establishment at the time of the Founding, see generally PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE (2002);
293. Kurt T. Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 ARIZ. ST. L.J. 1085 (1995).
294. Treaty of Purchase Between the United States of America and the French Republic, supra note 180, art. III;
295. see also The Same Old Case, N.H. PATRIOT, Oct. 24, 1860, at 2 (citing an editorial written by the editor of the Keene Sentinel as stating that the terms of the Louisiana Cession Act provided inhabitants of its territory with "[t]he privileges of citizens of the United States").
296. Louisiana Memorial, E. ARGUS (Portland, Me.), Nov. 8,1804, at 2 (emphasis added).
297. See DEBATES IN THE HOUSE OF REPRESENTATIVES, ON THE BILLS FOR CARRYING INTO EFFECT THE LOUISIANA TREATY 60 (Phila., Palmer Bros. 1804) (Early Am. Imprints, Series 2, no. 7492) (providing remarks of Representative Gaylord Griswold).
298. MARCUS, AN EXAMINATION OF THE EXPEDIENCY AND CONSTITUTIONALITY OF PROHIBITING SLAVERY IN THE STATE OF MISSOURI 17 (N.Y., Wilet & Co. 1819).
299. See Treaty of Amity, Settlement, and Limits, Between the United States of America and his Catholic Majesty, U.S.-Spain, art. 7, Oct. 24, 1820-Feb. 19, 1821, 8 Stat. 252, 258. Additionally, the treaty included language noting that "[t]he treaty with Spain, by which Florida was ceded to the United States, is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States."
300. Id. at 252 n.(a).
301. According to a proposed bill regarding the annexation of Texas: And whereas the then territory of Texas was a part of the said territory of Louisiana, ceded by France to the United States by the treaty aforesaid: And whereas the said territory of Texas was ceded by the United States to Spain by the treaty of Florida of the 22d February, 1819: And whereas the citizens of said territory have declared, vindicated, and established their independence as a nation, and erected for themselves an independent republic; and, as it is represented, are desirous of having said territory reannexed to these United States, and the citizens of said republic restored to the rights, privileges, and immunities guarantied by the said third article of the said treaty of Louisiana: And whereas a faithful adherence to the stipulations of treaties is the glory of a nation, and should be preserved inviolate; and good faith to France, and justice to the citizens of Texas, require that it shall be done ⋯.
302. CONG. GLOBE, 28th Cong., 2d Sess. 76 (1845).
303. S. EXEC. DOC. NO. 30-52, at 83 (1848).
304. See Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico, ait IX, U.S.-Mex., May 30,1848,9 Stat. 922,930.
305. Treaty Concerning the Cession of the Russian Possessions in North America by His Majesty the Emperor of All the Russias to the United States of America, U.S.-Russ., art. m, Mar. 30-June 20,1867, 15 Stat. 539,542.
306. For additional discussion of the use of the terms "privileges" and "immunities" in antebellum treaties and their relevance to Section One of the Fourteenth Amendment
307. As pointed out in the first substantive section of this Article, die terms "privileges" and "immunities" were words used interchangeably with terms like "rights" and "advantages." Thus, it is not surprising to find Article III of the Louisiana Cession Act's language of "rights, advantages and immunities" paraphrased as "immunities and privileges" or simply "privileges." For example, one can find Article IV of the Bill of Rights' reference to "privileges and immunities" described as a reference to the "rights, advantages, and immunities" conferred by a state upon its own citizens.
308. See Cushing, supra note 177. All of these phrases were interchangeable-me key difference was on which group me privileges and immunities (or rights, advantages, and immunities) were conferred.
309. Tallmadge's amendment, see infra text accompanying note 207, was approved by the House but rejected by the Senate. When the House voted to reapprove the amendment, the result was to put the matter over until the next Congress.
310. See SEAN WILENTZ, THE RISE OF AMERICAN DEMOCRACY: JEFFERSON TO LINCOLN 224 (2005).
311. For a discussion of the legal side of the congressional debate, see DAVID R CURRIE, THE CONSTITUTION IN CONGRESS: THE JEFFERSONIANS, 1801-1829, at 232-49 (2001).
312. DANIEL WALKER HOWE, WHAT HATH GOD WROUGHT: THE TRANSFORMATION OF AMERICA, 1815-1848, at 147 (2007);
313. WILENTZ, supra note 203, at 218-40.
314. See, e.g., Debate on the Missouri Bill in the House of Representatives, HILLSBORO' TELEGRAPH (Amherst, N.H.), Mar. 18, 1820, at 1 (providing comments of Representative Clifton Clagett of New Hampshire).
315. HOWE, supra note 204, at 147.
316. See Remonstrance of the Grand Jury of Howard County, ST. LOUIS ENQUIRER, Aug. 4,1819, at 2 (arguing that, per the terms of the Lousiana Cession Act, Congress could not condition the admission of Missouri on the banning of slavery).
317. See 35 ANNALS OF CONG. 1083 (1820).
318. Henry Shaw, Letter to the Editor, The Missouri Slave Question, DAILY NAT'L INTELLIGENCER (Wash., D.C.), May 8,1819, at 2.
319. Virginia Legislature: Missouri Question, CAROLINA CENTINEL (Newbeni, N.C.), Jan. 22, 1820, at 2.
320. DANIEL WEBSTER ET AL., A MEMORIAL TO THE CONGRESS OF THE UNITED STATES, ON THE SUBJECT OF RESTRAINING THB INCREASE OF SLAVERY IN NEW STATES TO BE ADMITTED INTO THE UNION 15 (Boston, Phelps 1819) (Early Am. Imprints, Series 2, no. 47390). Although Webster was one of four signatories, he chaired the Committee that produced the report. According to his biographer, "[t]he resulting memorial clearly bore die marks of Webster's hand."
321. ROBERT V. REMINI, DANIEL WEBSTER: THE MAN AND HIS TIME 169 (1997). Remini goes so far as to call the Memorial Webster's "handiwork."
322. Id. For purposes of this paper, I will follow Remini's lead and treat Webster as the prime, if not the sole, author of the Memorial.
323. Aristides, To the People of Illinois, EDWARDSVILLE SPECTATOR (III.), June 5,1819, at 6.
324. Joseph Hemphill, Speech on the Missouri Question in the House of Representatives (Feb. 5, 1820)
325. JOSEPH HEMPHILL, SPEECH OF MR. HEMPHILL ON THE MISSOURI QUESTION: IN THE HOUSE OF REPRESENTATTVE OF THE U. STATES 16 (Wash., D.C., Shaw & Shoemaker 1820) (Early Am. Imprints, Series 2, no. 48206).
326. Report of a Committee of the Delaware Society (Sept. 29,1819), in MINUTES OF THE SIXTEENTH AMERICAN CONVENTION FOR PROMOTING THE ABOLITION OF SLAVERY, AND IMPROVING THE CONDITION OF THE AFRICAN RACE 18,25 (Phila., Fry 1819) (Early Am. Imprints, Series 2, no. 46985).
327. David Morill, Remarks of Mr. Morill in the Senate of the United States on the Missouri Question (Jan. 17,1820), in HUXSBORO' TELEGRAPH (Amherst, N.H.), Mar. 4,1820, at 1.
328. A PMLADELPHIAN, FREE REMARKS ON THE SPIRIT OF THE FEDERAL CONSTITUTION, THE PRACTICE OF THE FEDERAL GOVERNMENT, AND THE OBUGATIONS OF THE UNION RESPECTINO THE EXCLUSION OF SLAVERY FROM THE TERRITORIES AND NEW STATES 49 (Phila., Finley 1819);
329. see also Shaw, supra note 211.
330. MARCUS, supra note 194, at 17-18. Marcus continued: It is the privilege, and a great a glorious one, of a citizen of Massachusetts, that his security and comfort cannot be destroyed by a slave population. This privilege is denied to the citizens of Georgia. On this very subject the laws of the different states grant different rights. Therefore they are not federal but state rights, and the inhabitants of Missouri may be admitted to the enjoyment of the rights, advantages, and immunities of citizens of the U.S. with or without the power of slave holding.
331. WEBSTER ET AL., supra note 214, at 15.
332. Morill, supra note 218.
333. Rufus King, Observations on the Slavery Question (Nov. 22,1819), in CONN. J. (New Haven), Dec. 21,1819, at 1;
334. see also Letter from Rufus King to R. Peters, Jr. (Nov. 30,1819), in 6 THE LIFE AND CORRESPONDENCE OF RUFUS KINO 235-38 (Charles R. King ed. Da Capo Press 1971) (1900).
335. Louis McLane, Speech of Mr. McLane, of Delaware, on the Missouri Question (Feb. 7,1820), in AM. WATCHMAN (Wilmington, Del.), Mar. 29, 1820, at 2. McLane was arguing that the Louisiana Cession Act stipulated that "the inhabitants of the ceded territory shall be incorporated in the union of the United States, and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States."
336. James Tallmadge, Jr., Speech of the Hon. James Tallmadge, Jun., in the House of Representative of the United States, on the Bill for Authorising the People of the Territory of Missouri To Form a Constitution and State Government, and for the Admission of the Same into the Union, in COM. ADVERTISER (N.Y.), Apr. 17,1819, at 1.
337. Report of a Committee of the Delaware Society, supra note 217, at 25.
338. Id. at 25-26.
339. As discussed, this was the consensus position prior to the 1823 decision of Corfield v. Coryell. See supra section III.A.
340. Id. at 16-17. According to Pennsylvania Representative Joseph Hemphill: If the right to hold slaves is a federal right and attached merely to citizenship of the United States, it could maintain itself against state authority, and on this principle the owner might take his slaves into any state he pleased, in defiance of the state laws, but this would be contrary to the constitution, and even the broad language that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states does not produce this effect, as is plainly manifested by the article which directs that persons escaping from labor shall be delivered up to the party to whom the labor is due, this shows that if slaves are intentionally taken into a state to reside, the state can deny to the master any right to hold them as slaves within its jurisdiction.
341. Hemphill, supra note 216, at 16.
342. See DANIEL WEBSTER ET AL., A MEMORIAL TO THE CONGRESS OF THE UNITED STATES, ON THE SUBJECT OF RESTRAINING THE INCREASE OF SLAVERY IN NEW STATES TO BE ADMITTED INTO THE UNION (1819), reprinted in THE POLITICAL TEXT-BOOK, OR ENCYCLOPEDIA 601, 601-04 (M.W. Cluskey e&, Wash., D.C., Wendell 1857).
343. Missouri Enabling Act, ch. 22, § 8,3 Stat. 545,548 (1820) (repealed 1854) (emphasis added).
344. According to Taney: In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State ⋯ Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them.
345. Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 405 (1856), superseded by constitutional amendment, U.S. CONST, amend. XTV, as recognized in Slaughter-House Cases, 83 U.S. (16 Wall.) 36,73 (1872).
346. In Justice McLean's words: Allowing to my brethren the same right of judgment that I exercise myself, I must be permitted to say that it seems to me the principle laid down will enable the people of a slave State to introduce slavery into a free State, for a longer or shorter time, as may suit their convenience; and by returning the slave to the State whence he was brought, by force or otherwise, the status of slavery attaches, and protects the rights of the master, and defies the sovereignty of the free State.
347. Id. at 559 (McLean, J., dissenting).
348. Curtis stated: "And my opinion is, that, under the Constitution of the United States, every free person bom on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States."
349. Id. at 576 (Curtis, J., dissenting). Curtis goes on to argue that Article IV implicitly recognizes that citizens in the states are, thereby, citizens of the United States.
350. Id. at 581;
351. see also CONG. GLOBE, 39th Cong., 1st Sess. 158 (1866) (containing Representative Bingham's remarks that the privileges and immunities clause contains an ellipsis that protects the privileges and immunities of citizens (of the United States) in the several states).
352. According to Curtis: 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.
353. Id.
354. According to Curtis: Besides, (his clause of the Constitution does not confer on die citizens of one State, in all other States, specific and enumerated privileges and immunities. They are entitled to such as belong to citizenship, 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-bom 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.
355. Id. at 583-84.
356. As far as the particular holding in Dred Scott was concerned, Congress simply ignored the Court's decision and, during the Civil War, proceeded to ban slavery in the territories.
357. See supra notes 181-86 and accompanying text.
358. See Stephen A. Douglas, Speech on the President's Message (Dec. 9. 1857), in SPEECH OF SENATOR DOUGLAS OF ILLINOIS ON THE PRESIDENT'S MESSAGE, DELIVERED IN THE SENATE OF THE UNITED STATES 8 (Wash., D.C., Towers 1857);
359. U.S. CONST, amend. XTV.
360. U.S. CONST, amend. XTV, § 1 (emphasis added).
361. See supra notes 3-4.
362. Sources criticizing the majority decision in The Slaughter-House Cases are too many to cite.
363. CHARLES L. BLACK, JR., A NEW BIRTH OF FREEDOM 55 (1997) (claiming that the Slaughter-House decision is "probably the worst holding, in its effect on human rights, ever uttered by the Supreme Court").
364. See supra notes 3-4.
365. CONG. GLOBE, 42d Cong., 1st Sess. app. at 84 (1871) (emphasis added).
366. See CONG. GLOBE, 39th Cong., 1st Sess. 1088-91 (1866).