The Reason For the Privileges and Immunities Dicta in Corfield

One question that is often asked about Justice Washington’s opinion in Corfield is why he decided to think out loud about what the privileges and immunities of citizens were when the case before him did not involve such a privilege. The entire discussion is dicta and includes many of the hallmarks of dicta, such as a lack of precision. Was this just sloppy or ill-considered?

Justice Washington’s notes on Corfield suggest an answer. He initially thought that the case before him DID involve a privilege or immunity of citizenship.  For reasons unknown, he changed his mind. Writing out what some of the privileges and immunities were may have helped clarify his thinking or been seen my him as necessary to explain why the case ultimately fell on the “not a privilege” side of the line.

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1 Response

  1. John Dereszewski says:

    Or could it be that he wanted to add some skin and muscle to the bare bones of the P&I clause before deciding the case on other grounds? This would not be the only time when statements first placed in dicta were used to help define an argument that would occur years later – which is exactly what happened when Congress debated what would become the 14th Amendment.

    This reminds me of one of the most significant constitutional “land mines” that was ever planted. It occurred in the 1914 McCabe case. In the course of dismissing a premature challenge to a segregated public transportation law, Justice Hughes, in pure and blatant dicta, essentially said “and by the way, if you want to have a separate law it damn well better be equal” – or words to that effect. Lying dormant for over a generation, this doctrine proved key to the Court’s decision in the Gaines case – written by Chief Justice Hughes – that struck down a clearly discriminatory Jim Crow law for not being equal. This set the stage for the series of laws that chipped away at “separate but equal” until the Court entirely rejected the doctrine in Brown. But without this first step, the road to Brown would have been a lot more complex.

    Perhaps I am giving Washington – who certainly was no Hughes – too much credit here, but it is a nice thing to speculate about. (And I always love bringing up the McCabe tale.)