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A Small Mistake in the Draft Dobbs Opinion at Footnote 22: Corfield v. Coryell Was Not “Describing Unenumerated Rights”
Andrew Hyman

The draft opinion in Dobbs v. Jackson Women’s Health is probably going to be revised considerably before it’s finalized, and likely has already changed to some extent, but I would like to mention a tiny and easily-fixable error that I hope does not survive in the final opinion.  At footnote 22, the draft says that the case of Corfield v. Coryell was “describing unenumerated rights under the Privileges and Immunities Clause, U.S. Const. Art. IV, § 2…” (emphasis added).  For clarity, I will refer to the Privileges and Immunities Clause of Art. IV by its more distinctive name: the Comity Clause.

Contrary to footnote 22, the decision in Corfield was about an enumerated right, and about whether a visiting citizen from out of state was entitled to share in that enumerated right of native citizens.  The enumerated right in question was spelled out by the New Jersey legislature on June 9, 1820.  As described by Justice Washington in Corfield, the statute defined a right of New Jersey citizens to gather oysters from September 1 to May 1 provided that no dredging technique was used.  There was nothing unenumerated about it.  

Moreover, any state back in 1820 that chose to recognize only enumerated legal rights of its citizens was not compelled by the Comity Clause of Article IV to offer any unenumerated rights whatsoever to anyone in that state.  Justice Washington’s opinion in Corfield never suggested otherwise.  In fact, Justice Washington’s notes about the case specifically said that he was inclined toward believing that “the meaning of this Article is that the citizens of each State shall within every other state have equal privileges or rights as the citizens of such state have, the words all privileges of citizens being equivalent to equal privileges.”  So, if the citizens of a state enjoyed no unenumerated rights in that state, then neither did visitors to such state have any unenumerated rights.  This is what the U.S. Supreme Court has consistently reiterated beginning with its 1869 decision in Paul v. Virginia.

One could argue that Corfield implied something about unenumerated rights in the event that some hypothetical state were to support unenumerated rights for its own citizens, but that’s not what New Jersey was doing in 1820.  Corfield never remotely suggested that any state would have to start recognizing unenumerated rights, or would have to maintain any unenumerated rights that it already recognized.  And everyone in 1866-1868 understood that the Comity Clause only required that when a state extended certain “fundamental” rights to their own citizens, they had to extend the same privilege to visiting citizens from other states.  Which brings me to a somewhat more general point....

Relying upon Corfield is risky business when it comes to interpreting the 14th Amendment.  That’s because the first draft of the 14th Amendment closely tracked the Comity Clause of Article IV, but the first draft was postponed in the House of Representatives by a vote of 110-37 on February 28, 1866, never to see the light of day again.  Then the final draft of the 14th Amendment instead used language much different from that used in Article IV and in the rejected first draft.  

The first draft of the 14th Amendment said, “The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states....”  In contrast, the final draft uses very different language about citizenship:  “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”  This language about citizenship in the 14th Amendment needs to be evaluated according to its own text and history, not by equating it to language of Article IV that was deliberately and overwhelmingly eschewed by Congress.  And besides, as Justice Washington and later the whole U.S. Supreme Court have explained, the language of Article IV does not force any state to start recognizing unenumerated rights, nor does it even require any state to maintain unenumerated rights that it may have already recognized. 

P.S. Many thanks to Professor Kurt Lash for commenting on a draft of this blog post.