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.