"[T]he citizens of each State shall be entitled to all privileges [and] immunities of citizens in the several States." Is the right which a citizen has to enjoy the common property belonging to the citizens of the State a privilege or immunity?... I am inclined to think that it is a privilege within the meaning of this article of the Constitution. ---Justice Bushrod Washington (1) INTRODUCTION
Justice Bushrod Washington's 1825 circuit opinion in Corfield v. Coryell (2) is probably the most famous constitutional decision not issued by the Supreme Court. (3) Corfield is chiefly known for its enigmatic dicta on the privileges and immunities of citizens secured against state denial by Article IV, Section 2 of the Constitution. (4) This dicta became a focal point for the debate in the Thirty-Ninth Congress on the Civil Rights Act of 1866 and the Privileges or Immunities Clause of the Fourteenth Amendment. (5) Many commentators contend that Corfield s privileges-and-immunities passage should be read as a guarantee of only equal access for out-of-state citizens to some rights granted by state law. (6) Others argue that Justice Washington was saying that the Constitution secured certain fundamental rights to all national citizens in spite of state law. (7) Since Reconstruction, the latter point has been made on behalf of unenumerated liberties including women's suffrage (prior to the ratification of the Nineteenth Amendment), the right to travel between the states, and the right to pursue a profession. (8)
This Article reveals new details about Corfield based on archival research. In 2017, the author found Justice Washington's original notes on Corfield in the Chicago History Museum. (9) The most important revelation about Corfield is that the Justice was initially inclined to hold that the state law his decision upheld was, in fact, unconstitutional under the Privileges and Immunities Clause. (10) The notes also say that he saw Livingston v. Van Ingen (11) as the leading precedent on the Privileges and Immunities Clause and backed Chancellor Kent's view in that case that the Clause articulated a nondiscrimination rule for out-of-state citizens instead of a freestanding guarantee of fundamental rights. (12) Even more important may be the disclosure from the notes that Justice Washington wrestled with the Commerce Clause issue in Corfield prior to the Supreme Court's ruling in Gibbons v. Ogden (13) in a way that probably influenced Chief Justice John Marshall's landmark opinion for the Court. (14) In short, the Corfield notes provide a fascinating glimpse into the thinking of a key member of the Marshall Court at a crucial stage.
The discovery of Justice Washington's notes also provides an occasion to offer one reflection on Corfield![section] legacy. His opinion was the first notable legal authority to say that the right to vote is fundamental. (15) This idea was so radical in the nineteenth century that even the strongest supporters of Reconstruction shied away from Corfield! s implications for African American and female voting. (16) Indeed, not until the 1960s did the Supreme Court and Congress accept Corfield s wisdom that "the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised," is an essential right of citizenship, (17) though the United States still struggles to reconcile that right with the reality of state and local regulation of election administration. (18)
Part I gives a detailed account of Corfield and explores how the case was subsequently understood. Part II examines Justice Washington's notes on the case and shows how they expand our understanding of Gibbons and Garfield. Part III explores CorfielcTs revolutionary reference to voting rights.
UNDERSTANDING THE OPINION
This Part explains Corfield and the way in which the case was cited afterwards. My narrative will go beyond the standard one by discussing the Commerce Clause issue and the Privileges and Immunities Clause in the case. In part, that decision is motivated by Justice Washington's ideas about the Commerce Clause in his notes, but another factor is that Corfield contains vital clues about how Gibbons was decided in the Supreme Court.
The Factual and Procedural Background
Corfield is best understood as presenting a "tragedy-of-the-commons" problem. (19) In 1820, New Jersey enacted a statute restricting the harvesting of oysters within state waters to prevent exhaustion of a natural resource. (20) Oyster harvesting was barred from May until September, and during the rest of the year only state residents were allowed to take oysters from state waters. (21) The plaintiff in Corfield, who was not a New Jersey resident, was the owner of a vessel that conducted oyster harvesting in state waters and was manned by crew who were also not state residents. (22) The vessel and its contents were seized by state authorities and auctioned off. (23)
Plaintiff brought a trespass action in federal court and made four constitutional claims in alleging that his ship was wrongfully seized and sold. (24) First, the state statute on oyster harvesting was "contrary to the second section of the fourth article of the constitution of the United States, by denying to the citizens of other states, rights and privileges enjoyed by those of New Jersey." (25) Second, the state statute was "contrary to that part of the constitution which vests in congress the power to regulate trade and commerce between the states." (26) Third, the statute violated "the second section of the third article, which extends the judicial authority to all cases of admiralty and maritime jurisdiction." (27) Fourth, the state proceedings "were contrary to the fourth article of the amendments to the constitution; the seizure having been made without a warrant." (28)
Corfield came before the Circuit Court of the Eastern District of Pennsylvania and was heard by Justice Bushrod Washington. (29) In this era, the Supreme Court Justices were required to "ride circuit" and hold civil and criminal trials in designated areas of the country. (30) A trial was held and the Justice, "after stating to the jury the great importance of many of the questions involved in this cause, recommended to them to find for the plaintiff, and assess the damages." (31) Trial courts possessed more discretion to comment on the evidence and influence a jury's verdict in the nineteenth century than they do now, and in Corfield the jury took the court's advice and found for plaintiff in the amount of $560. (32)
At this point, scholars familiar with the constitutional analysis in Corfield might sit up and take notice. Justice Washington's opinion in the case held for the defendant. (33) Why, then, did he ask the jury to find for the plaintiff? The official case report says only that the "case was argued, on the points of law agreed by the counsel to arise on the facts, at the October term 1824, and was taken under advisement until April term 1825, when the following opinion was delivered." (34) In other words, well after the trial ended in the plaintiff s favor, legal arguments were heard and resolved by the court in the defendant's favor. There are two possible explanations for this about-face. Either Justice Washington changed his mind, or some new case came down that changed the correct result.
One possible answer is that Gibbons was decided in March 1824 and required Justice Washington to consider new arguments on the Commerce Clause issue in Corfield?* Gibbons, of course, was the Supreme Court's first case discussing the Commerce Clause in detail and held that a New York statute granting a monopoly for steamboat traffic in that state's waters was contrary to multiple acts of Congress. (36) Chief Justice Marshall's opinion explained: "Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations... in all its branches, and is regulated by prescribing rules for carrying on that intercourse." (37) Marshall added that the commerce power, "like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution." (38) Nevertheless, the Court wrote that there were many state statutes with "a remote and considerable influence on commerce" that were permissible. (39) Examples included "[ijnspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c." (40) Justice Washington joined the Court's opinion in Gibbons knowing full well that Corfield raised the question of whether a state statute restricting oyster harvesting in navigable waters came within the category of legislation that Gibbons said fell outside of the commerce power. (41)
The Commerce Clause Analysis
When the Justice gave his opinion in Corfield, he began the discussion of the merits by asking whether the New Jersey oyster law "is repugnant to the power granted to congress to regulate commerce." (42) Citing Gibbons, he wrote that the commerce power "does by no means impair the right of the state government to legislate upon all subjects of internal police within their territorial limits... even although such legislation may indirectly and remotely affect commerce." (43) Washington also quoted the Chief Justice's opinion almost verbatim in stating that "inspection, quarantine, and health laws; laws regulating the internal commerce of the state; laws establishing and regulating turnpike roads, ferries, canals, and the like" were instances of valid state legislation. (44) The Justice then made his main point, which was that
if the power which congress possesses to regulate commerce does not interfere with that of the state to regulate its internal trade, although the latter may remotely...