Corfield v. Coryell

No book about Bushrod Washington would be complete without a thorough discussion of his most famous opinion. In Corfield, the Justice offered up this dictum about the privileges and immunities of citizens under the Constitution.

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) “the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.”

There is no shortage of literature on Corfield, so I’ll have to work though that in developing my own thoughts.  But here is a tentative observation that, I think, is original.

Corfield is that first significant legal authority to stress the importance of the right to vote. If you look at the Founding era, you would be hard-pressed to find anything that talked about that right for individuals.  The Framers certainly cared about popular sovereignty, but they said little about voting rights. The Constitution, of course, left the definition of voting rights to the states. Justice Washington was thus far ahead of his time.  Even Section One of the Fourteenth Amendment and the Civil Rights Act of 1866, which some members of Congress read against the backdrop of Corfield, refused to embrace the radical idea that voting was a right.

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2 Responses

  1. Viva Voce says:

    http://avalon.law.yale.edu/18th_century/ny01.asp

    VI. And whereas an opinion hath long prevailed among divers of the good people of this State that voting at elections by ballot would tend more to preserve the liberty and equal freedom of the people than voting viva voce: To the end, therefore, that a fair experiment be made, which of those two methods of voting is to be preferred —

    Be it ordained, That as soon as may be after the termination of the present war between the United States of America and Great Britain, an act or acts be passed by the legislature of this State for causing all elections thereafter to be held in this State for senators and representatives in assembly to be by ballot, and directing the manner in which the same shall be conducted.(8) And whereas it is possible that, after all the care of the legislature in framing the said act or acts, certain inconveniences and mischiefs, unforseen at this day, may be found to attend the said mode of electing by ballot:

    It is further ordained, That if, after a full and fair experiment shall be made of voting by ballot aforesaid, the same shall be found less conducive to the safety or interest of the State than the method of voting viva voce, it shall be lawful and constitutional for the legislature to abolish the same, provided two-thirds of the members present in each house, respectively, shall concur therein. And further, that, during the continuance of the present war, and until the legislature of this State shall provide for the election of senators and representatives in assembly by ballot, the said election shall be made viva voce.

    VII. That every male inhabitant of full age, who shall have personally resided within one of the counties of this State for six months immediately preceding the day of election, shall, at such election, be entitled to vote for representatives of the said county in assembly; if, during the time aforesaid, he shall have been a freeholder, possessing a freehold of the value of twenty pounds, within the said county, or have rented a tenement therein of the yearly value of forty shillings, and been rated and actually paid taxes to this State: Provided always, That every person who now is a freeman of the city of Albany, or who was made a freeman of the city of New York on or before the fourteenth day of October, in the year of our Lord one thousand seven hundred and seventy-five, and shall be actually and usually resident in the said cities, respectively, shall be entitled to vote for representatives in assembly within his said place of residence.

  2. Joe says:

    “the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised”

    It does not seem that revolutionary to — along with everything else — note one of the “privileges” of citizenship is voting, especially with the proviso that it is “regulated” (no women need apply!) in various ways. It wasn’t some sort of natural right. It was established and regulated, allowing various people to be denied the right to vote.

    I think various people can be found before 1823, including some framers, discussing the importance of some basic right to vote, which is a necessity for a republican form of government. It’s a basic understanding that “citizens” vote, serve on juries etc. Such questions arose when determining if free blacks were citizens. http://press-pubs.uchicago.edu/founders/documents/a4_2_1s16.html