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Why Justice Bushrod Washington Rejected a “Deeply Rooted in History” Standard for Fundamental Rights and Instead Adopted a Broader “All Times” Standard
Andrew Hyman

Justice Bushrod Washington’s circuit court opinion in Corfield v. Coryell was the leading antebellum opinion on the Comity Clause of Article IV in the U.S. Constitution.  The Comity Clause says, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”  Corfield was later widely discussed during the Thirty-Ninth Congress, which wrote the similar clause called the Privileges or Immunities Clause in the Fourteenth Amendment.  I contend that Washington’s opinion was driven in a significant way by public relations and public diplomacy, and this under-appreciated aspect of his Corfield opinion probably has implications for the meaning of the similar clause in the Fourteenth Amendment.  Washington intelligently and deliberately adopted an “all-times” standard for fundamental rights, instead of adopting a “deeply-rooted-in-history” standard, as I will explain presently.

The text of the Comity Clause bars discrimination by a host state against visitors who are citizens from other states.  There are longstanding libertarian arguments that the Comity Clause should also prevent a state from violating natural rights of its own citizens, but that has always been a minority position, for good reason.  While the concept of “natural rights” has been known and respected for centuries, terms like “natural privileges” or “natural immunities” have been virtually unknown, and instead privileges and immunities have been understood for centuries as things that states grant or withhold regardless of whether natural rights are involved or not.  So, the correct consensus legal position for centuries has been (and remains) that the Comity Clause bars discrimination against citizens from out of state, but does not affect how a state treats its own citizens, although there is a possible textual exception that a state cannot prevent its citizens from leaving the state to go enjoy privileges and immunities in other states.  

Justice Washington agreed that the Comity Clause is mainly an anti-discrimination provision rather than a font of substantive natural rights, and indeed Washington wrote in his notes 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.”  That’s the natural reading of the clause’s text.  The Corfield case involved a citizen of one state visiting another state to harvest oysters.  Although the text of the Comity Clause does grant visitors “all” privileges and immunities of citizens in the visited state, Washington reasonably understood the words “privileges and immunities of citizens” to mean traditional rights of citizenship rather than whatever rights are currently respected by a state as to its current citizens.  Washington wrote (emphasis added):

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. 

Instead of writing “at all times,” Washington could have written that the rights protected by the Comity Clause had to be deeply-rooted in history, or something like that.  There is a very significant distinction there, and Washington had good reason to favor the “at all times” formulation instead of the “deeply-rooted-in-history” formulation, given that the former includes recent and current times whereas the latter does not.  Washington understood from the plain text of the Comity Clause that it was a non-discrimination provision that protected citizens from out of state, and he had a strong motive to avoid suggesting that such visitors could be deprived of fundamental enforceable rights so long as the visited state’s own citizens were also deprived of fundamental enforceable rights, and so he defined his way out of that pickle.  Washington reasonably and carefully defined the word “fundamental” so any right that a state is presently declining to recognize is not “fundamental” even if it is deeply-rooted in history.  It would have been highly impolitic for Washington to suggest that the Comity Clause invites states to violate any fundamental rights it wishes, either with respect to native citizens or visiting citizens, and that is the reason why he defined a right as fundamental only if it was deeply-rooted in history and still protected by a state.  Even if you somehow doubt this rather obvious explanation, there is no doubt that the term “all times” includes both past and present whereas “deeply-rooted-in-history” only includes the past, and Washington used the former rather than the latter standard.  This ensured that states could treat categories of their own citizens however they want so long as they treat visiting categories of citizens the same way, as to rights deeply rooted in history, without stigmatizing a state that decides to treat both its own citizens and visiting citizens in new or unusual ways that depart from established tradition.

Fast forward now to 1866, when the Thirty-Ninth Congress was debating the Privileges or Immunities Clause.  That clause says, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….”  Those last three words “of the United States” are critically important in view of Corfield, and including those three words greatly expanded the scope of protected rights.  This assertion is different from Justice Miller’s assertion in the Slaughter-House Cases in 1873 that those last words of the PI Clause greatly narrowed the scope of protected rights, although Miller was 100% right to perceive that those words point to federal law rather than state law.  Had those three words not been included, then we would have to look at both state and federal law to determine what are the fundamental privileges and immunities in question, and states would be as free as they were in Corfield to exclude any right from fundamental status merely by not recognizing or enforcing it with respect to any category of their own citizens.  

Fortunately, those last three words (“of the United States”) were included in the PI Clause rather than excluded, and so we are called upon to look at federal law rather than state law to determine what rights are sufficiently fundamental that states must respect them.  Inevitably, that will include the rights found in the Bill of Rights, but it will also include federal statutory rights that have, at all times since 1776, been enjoyed by the citizens of the United States with respect to the government of the United States.  Such rights must be both deeply-rooted as well as currently in force (not merely deeply-rooted) in order to apply against the states via the PI Clause.  In other words, Congress has a substantive role under the PI Clause, with respect to unenumerated rights that are deeply-rooted in history; if Congress believes those rights to be outdated, then Congress can repeal them from federal law.  Otherwise, those rights that are deeply-rooted in U.S. history apply against the states via the PI Clause.  To properly interpret the Privileges or Immunities Clause, there is a need to go looking back to 1776 but no farther back, because we are examining rights of U.S. citizenship, not British citizenship; as Justice Washington put it, we should focus on rights that have been respected from the time of “becoming free, independent, and sovereign.”

Some modern scholars believe that the PI Clause is largely about equality and preventing discrimination of various sorts, rather than the interpretation that I’ve described above (for the first time publicly).  In my view, the Equal Protection Clause is broad enough to do that job, although there is likely some overlap between the two clauses.

Professor Lessig has recently written that Congress has a much broader substantive role under the PI Clause than the limited role discussed here, whereas the courts have said Congress has no such role at all; I don’t know what the best answer would be from a policy point of view, but properly understanding Corfield can certainly illuminate the policy choice made in the 1860s.