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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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Why is Anything Named for Senator Richard Russell?

On Saturday, Senator Chuck Schumer announced that he would introduce a resolution provided that the Russell Senate Office Building be renamed the McCain Senate Office Building. I think that this is an excellent idea, as I was a great admirer of Senator McCain and attended a fundraiser for his 2000 presidential campaign.

An even better reason for changing the Russell Building’s name, though, is that Richard Russell was a hateful segregationist who deserves no such honor. In his long Senate career from the 1930s until his death in 1971, Senator Russell’s chief “achievement” was delaying the enactment of civil rights laws. He was acknowledged by all as a master of parliamentary procedure, but mostly for a terrible cause. Get his name off the building.

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FAN 199.6 (First Amendment News) ACLU’s David Cole defends NRA’s political speech rights

Substitute Planned Parenthood or the Communist Party for the NRA, and the point is clear. If [Gov.] Cuomo can [target] the NRA, then conservative governors could have their financial regulators threaten banks and financial institutions that do business with any other group whose political views the governor opposes. — David Cole

David Cole

Over at the natioanl ACLU’s website there is a piece by David Cole, the group’s legal director. The piece is titled “New York State Can’t Be Allowed to Stifle the NRA’s Political Speech.” Here are a few excerpts from the piece:

“[I]n a lawsuit the NRA filed against [N.Y. Gov. Andrew] Cuomo this spring, the organization contends that he did more than criticize it. The NRA alleges that Cuomo and top members of his administration abused their regulatory authority over financial institutions to threaten New York banks and insurers that associate with the NRA or other “gun promotion” groups, and that those threats have jeopardized the NRA’s access to basic insurance and banking services in New York.”

“In the ACLU’s view, targeting a nonprofit advocacy group and seeking to deny it financial services because it promotes a lawful activity (the use of guns) violates the First Amendment. Because we believe the governor’s actions, as alleged, threaten the First Amendment rights of all advocacy organizations, the ACLU on Friday filed a friend-of-the-court brief supporting the NRA’s right to have its day in court.”

“The state has asked the court to dismiss the case without even permitting discovery into the administration’s actions. Our brief supports the NRA’s right to discovery on its First Amendment claims. To be clear, the ACLU does not oppose reasonable restrictions on guns (you can read more about that here). Our position in this case has nothing to do with our opinions on the NRA’s policies — it’s about the First Amendment rights of all organizations to engage in political advocacy without fear that the state will use its regulatory authority to penalize them for doing so.”

“The NRA points to both public and non-public actions taken by the Cuomo administration to penalize it for its views. State officials issued press releases and sent threatening letters to banks and insurance companies, and also allegedly communicated ‘backchannel threats’ to companies with ties to the NRA, warning that they would face regulatory action if they failed to end their relationships with the organization.”

“If the NRA’s charges are true, the state’s actions would clearly violate the First Amendment. Public officials are, of course, free to criticize groups with which they disagree. But they cannot use their regulatory authority to penalize advocacy groups by threatening companies that do business with those groups. And here the state has admitted, in its own words, that it focused on the NRA and other groups not because of any illegal conduct, but because they engage in “gun promotion” — in other words, because they advocate a lawful activity.”

“. . . . The NRA says that it has since had serious difficulty replacing its corporate insurance because nearly every potential replacement was afraid of being investigated by the state. The NRA also says that numerous banks have withdrawn bids to provide basic financial services because the April letters from the state indicated that any association with the NRA could expose them to regulatory retaliation.”

“The state argues that even if all of the NRA’s claims are true, the First Amendment doesn’t apply. We disagree, and as we note in our brief, dismissing the NRA case “would set a dangerous precedent for advocacy groups across the political spectrum. Public officials would have a readymade playbook for abusing their regulatory power to harm disfavored advocacy groups without triggering judicial scrutiny.”

There is more — read the entire piece here.

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Revisiting President Ford’s Pardon of Richard Nixon

The other day I read (for the first time) Gerald Ford’s speech giving the pardon to Richard Nixon. What caught my attention was the degree to which Ford justified the pardon on the grounds that Nixon could not get a fair trial:

After years of bitter controversy and divisive national debate, I have been advised, and I am compelled to conclude that many months and perhaps more years will have to pass before Richard Nixon could obtain a fair trial by jury in any jurisdiction of the United States under governing decisions of the Supreme Court.

. . .

The facts, as I see them, are that a former President of the United States, instead of enjoying equal treatment with any other citizen accused of violating the law, would be cruelly and excessively penalized either in preserving the presumption of his innocence or in obtaining a speedy determination of his guilt in order to repay a legal debt to society.

During this long period of delay and potential litigation, ugly passions would again be aroused. And our people would again be polarized in their opinions. And the credibility of our free institutions of government would again be challenged at home and abroad.

In the end, the courts might well hold that Richard Nixon had been denied due process, and the verdict of history would even be more inconclusive with respect to those charges arising out of the period of his Presidency, of which I am presently aware.

I guess I always thought of the pardon as being primarily about ending Watergate and healing the nation. Those considerations were relevant to Ford’s decision, but may not have predominated.

 

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FAN 199.5 (First Amendment News) 17 Groups Issue Statement Condemning “Trump’s Effort to Intimidate Book Publisher”

Reecently, the National Coalition Against Censorship (NCAC) joined 16 other organizations in condemning President Trump’s effort to intimidate a book publisher by threatening legal action. The joint statement, released on August 17, 2018, states that the President’s attempts to intimidate book publishers will fail.

According to that statement: “For the second time this year, President Trump has attempted to intimidate a book publisher. Unhinged: An Insider’s Account of the Trump White House, a book by Omarosa Manigault-Newman, contains statements that the president finds ‘disparaging.’ A letter sent to the book’s publisher, Simon & Schuster, claims that the publisher is liable for ‘substantial monetary and punitive damages.'”

“The statement stresses how important free speech and access to information about public matters are to the American people. The U.S. Supreme Court has declared that public debate on issues may include ‘vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.’ Statements about the current administration, however unpleasant, are crucial so the public has information to make informed decisions. Efforts to undermine freedom of speech and freedom of the press are, the statement reads, ‘the hallmark of a totalitarian regime.'”

The statement and the full list of signatories can be found here.

Related

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FAN 199.4 (First Amendment News) Volokh on “Super-Secret Prior Restraints”

Over at The Volokh Conspiracy (on Reason.com) blog, Professor Eugene Volokh has some quite thoughtful observations on a most unusual case.  The controversy arose in connection with an extortion case and a court-0rdered sealed emergency speech-restrictive injunction, a matter about which Volokh wrote about earlier.

Since then, the judge in the state district court of Garfield County, Oklahoma, issued a permenant injunction.

Here is how Porfessor Volokh summed up his take on the matter as of that point in time:

Professor Eugene Volokh

“This seems to me an interesting test case for many recurring questions about the First Amendment and injunctions:

  • “Should courts be able to order people not to reveal certain information because they acquired it unlawfully, because revealing it would be a breach of a duty of confidentiality, or because it is allegedly false?
  • Should it matter that the person’s motives for threatening to reveal the information seem to be extortionate—and, if so, should the court try to enjoin just the extortion, or also enjoin the revelation of the information, period?
  • Should the victims of this apparent attempted extortion be only able to proceed by calling on criminal prosecutors, or should courts be able to supplement this criminal process with fast-moving emergency injunctions? (Acosta was never prosecuted; PSSI’s counsel tells me that this is because law enforcement couldn’t locate him, and he wasn’t heard of again after being served on April 27.)
  • Was the injunction correct in barring Acosta “from contacting any governmental agency or media outlet regarding his allegations”? Or should any duty of confidentiality in such a case be rejected as against public policy, when it bars people from alerting the U.S. Department of Agriculture (or similar agencies) to possible health risks—however ill-intentioned the people were when they gathered the information, and however spurious those allegations may (or may not) prove to be when the government does investigate them?”

“These are all interesting questions, I think, and ones much worth debating. It’s certainly possible (though I think not obvious) that the right answer to those questions is that PSSI should have prevailed under all of them.”

The conceptual plot thickens

“But the problem is that it was impossible for anyone to debate them, because all the documents in the case (though, thankfully, not the docket) were sealed. I think this sealing violated the common-law and First Amendment rights of access to court records; those rights aren’t absolute, but they are quite strong, especially when sealing of entire documents (including court orders) is involved. (See this post about a different case for more on that body of law.) Moreover, as I argued in this post from two months ago, an Oklahoma statute expressly requires that any sealing order itself be public, and expressly explains why the case was sealed; in this instance, this statute wasn’t followed. (The statute was enacted in 2014, and might thus not have been on the judge’s radar.)”

Sealed Orders Unsealed 

“Fortunately, after I moved in June of this year to unseal the sealing orders—a first step towards unsealing the rest of the case—the judge promptly did so (without objection by PSSI). And as I was preparing a motion to unseal the rest of the case, the judge, to his credit, himself issued an order to show cause why the case shouldn’t be unsealed. PSSI responded that it didn’t object to the unsealing at this point, “because Defendant’s allegations regarding the presence of bacteria on equipment at the Enid Plant have been definitively proven to be false and the emergent concerns associated with the disclosure of the allegations have since subsided.” The case was indeed unsealed several days ago.”

Some New Questions

“So, to the questions I ask above, I should also add:

  • Should such disputes be litigated under seal—on the theory that this is the only way to effectively prevent the harm caused by defendant’s apparently tortious conduct—or should they be litigated in open court, on the theory that it is important for the public to be able to “monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system”?
  • Indeed, might such monitoring be especially important precisely when the courts are issuing orders restricting people from speaking—including through allegations (whether or not the courts view them as well-founded) of serious risks to public health?”

To read the full blog post, replete with all the incredible factual background, go here.

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Introduction of My New Paper

The working title is “Rediscovering Corfield v. Coryell

“ ‘[T]he citizens of each State shall be entitled to all privileges and immunities of citizens in the several states.’ Is the right which a citizen has to enjoy the common property belonging to the citizens of the state a privilege or immunity? . . . I am inclined to think that it is a privilege within the meaning of this article of the Constitution.[1]

Justice Bushrod Washington, considering Corfield v. Coryell  

Justice Bushrod Washington’s 1825 circuit opinion in Corfield v. Coryell[2]is probably the most famous constitutional decision not issued by the Supreme Court.[3]Corfield is chiefly known for its enigmatic dictum on the “privileges and immunities of citizens” secured against state denial by Article Four, Section Two of the Constitution.[4]This dictum became a focal point for the debate on the related Privileges or Immunities Clause of the Fourteenth Amendment during the Thirty-Ninth Congress.[5]While many observers argue that Corfield’s privileges-and-immunities passage should be read as a guarantee of only equal access for out-of-state citizens to some rights granted by state law,[6]others contend that Justice Washington was saying that the Constitution secured fundamental rights to all citizens in spite of state law.[7]Since Reconstruction, the latter point has been made on behalf of unenumerated liberties including women’s suffrage (prior to the ratification of the Nineteenth Amendment), the right to travel between the states, and the right to pursue a profession.[8]

This Article reveals new details about Corfield based on archival research. In 2017, the author found Justice Washington’s original notes on Corfield in the Chicago History Museum.[9]The most important revelation from the notes is that the Justice was initially inclined to hold that the state law Corfield upheld was, in fact, unconstitutional under the Privileges and Immunities Clause.[10]The notes also show that he viewed Livingston v. Van Ingen[11]as the leading precedent on privileges and immunities and backed Chancellor Kent’s view in that decision that the Constitution stated a non-discrimination rule with respect to out-of-state citizens rather than a free-standing guarantee of fundamental rights.[12]Finally, the notes show how Justice Washington wrestled with the Commerce Clause issue in Corfieldprior to the Supreme Court’s ruling in Gibbons v. Ogden[13]and then shifted his position in light of Chief Justice Marshall’s opinion for the Court.[14]In short, the Corfield notes offer a fascinating glimpse into the thinking of an important member of the Marshall Court at a crucial juncture.[15]

The discovery of Justice Washington’s notes also provides an occasion to offer one reflection on Corfield’s legacy. His opinion was the first notable legal authority to suggest that the right to vote was fundamental.[16]This idea was so radical in the nineteenth century that even the strongest supporters of Reconstruction shied away from Corfield’s implications for African-American and female voting.[17]Not until the 1960s did the Supreme Court and Congress accept the wisdom of Corfield that “the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised,” is a basic right of citizenship.[18]

Part I gives a detailed account of Corfield and explores how the case was subsequently read. Part II examines Justice Washington’s notes on the decision and shows how they expand our understanding of Corfield. Part III concludes by exploring Corfield’s revolutionary reference to voting rights.

[1]               This quote comes from Justice Washington’s notes on Corfield, which will be described hereinafter as “Washington Notebook.” See infra text accompanying notes 9, –.

[2]               Corfield v. Coryell, 6 F. Cas. 546 (No. 3,320) (C.C.E.D. Pa. 1825). There is some confusion about the proper way to cite Corfield. Many cases and secondary sources use 1823 as the date, because the case was formally from the April 1823 Term of the circuit court. The final opinion, though, was not issued until 1825 (as the case report explains), see id. at 550, and the most recent Supreme Court opinion citing Corfield gives 1825 as the date. See McBurney v. Young, 569 U.S. 221, 229 (2013). I shall use 1825 in this Article.  

[3]               See, e.g., Chester James Antieau, Paul’s Perverted Privileges or the True Meaning of the Privileges and Immunities Clause of Article Four, 9 Wm. & Mary L. Rev. 1, 12 (1967) (“[I]t would be almost impossible to overestimate the importance of the [Corfield privileges and immunities] quotation upon American law.”); cf. David R. Upham, Corfield v. Coryelland the Privileges and Immunities of American Citizenship, 83 Texas L. Rev. 1483, 1485 (2005) (“Corfield v. Coryellremains a famous, important, but largely unexamined constitutional case.”)

[4]               See U.S. Const., art. IV, § 2, cl. 1 (“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”); Corfield, 6 F. Cas. at 551-552; infra text accompanying notes —.

[5]               See U.S. Const., amend. XIV, § 1 (“No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States”); Kurt Lash, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship 27 (2014) (“It is because Corfield plays such an important role in the debates over the Privileges or Immunities Clause of the Fourteenth Amendment that it is important to take a close look at the key section of Justice Washington’s opinion.”);see also John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 29 (1980) (stating that the Fourteenth Amendment’s “framers repeatedly adverted to the Corfield discussion as the key to what they were writing”).

[6]               See, e.g., John Harrison, Reconstructing the Privileges and Immunities Clause, 101 Yale L. J. 1386, 1416 (1992); cf. McDonald v. Chicago, 561 U.S. 742, 821 (2010) (Thomas, J., concurring) (“Justice Washington did not indicate [in Corfield] whether Article IV, § 2 required States to recognize these fundamental rights in their own citizens and thus in sojourning citizens alike, or whether the Clause simply prohibited the States from discriminating against sojourning citizens with respect to whatever fundamental rights state law happened to recognize.”).

[7]               See, e.g., Hague v. CIO, 307 U.S. 496, 511 (1939) (opinion of Roberts, J.) (“At one time it was thought that [the Privileges and Immunities Clause] recognized a group of rights which, according to the jurisprudence of the day, were classed as ‘natural rights’; and that the purpose of the section was to create rights of citizens of the United States by guaranteeing the citizens of every State the recognition of this group of rights by every other State. Such was the view of Justice Washington [citing Corfield]”).

[8]               See, e.g., Congressional Reports on Woman Suffrage: The Majority and Minority Reports of the Judiciary Committee of the House of Representatives on the Woodhull Memorial 103 (New York, Woodhull, Claflin, and Co. 1871) [hereinafter House Judiciary Committee Reports]; see also Zobel v. Williams, 457 U.S. 55, 80 (1982) (O’Connor, J., concurring) (quoting Corfield in support of “the right to travel or migrate interstate”); Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 97 (1873) (Field, J., dissenting) (citing Corfield to support “the right to pursue a lawful profession in a lawful manner, without other restraint than such as equally affects all persons”).

[9]               See Washington Notebook, supra note 1. The notes are in a journal held by the Chicago Historical Society, whose collection is housed in the Chicago History Museum. Part II provides details on the journal’s contents. See infra text accompanying notes —.

[10]             See supra text accompanying note 1;infra text accompanying notes —.

[11]             9 Johns. 507 (N.Y. 1812).

[12]             See Washington Notebook, supra note 1; infra text accompanying notes —;see also Livingston, 9 Johns. at 572 (stating the Article Four “means only that citizens of other states shall have equal rights with our own citizens, and not that they shall have different or greater rights”).

[13]             22 U.S. (9 Wheat.) 1 (1824).

[14]             Indeed, Corfield was almost certainly the first circuit case to apply Gibbons. See Richard A. Epstein, Rediscovering the Classical Liberal Constitution: A Reply to Professor Hovenkamp, 101 Iowa L. Rev. 55, 69 (2015).

[15]             This Article is part of a planned biography of Justice Washington. See Gerard N. Magliocca, Bushrod Washington: From Mount Vernon to the Supreme Court  (forthcoming).

[16]             See Corfield v. Coryell, 6 F. Cas. 546, 552 (No. 3,320) (C.C.E.D. Pa. 1825).

[17]             See U.S. Const., amend. XIV, § 2; House Judiciary Committee Reports, supra note 8, at 96-97 (rejecting the argument that Corfield supported women’s suffrage).

[18]        Corfield, 6 F. Cas. at 552; see Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) (“Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.”); see also Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437.

 

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The About-Face in Corfield

One aspect of Corfield v. Coryell that escaped my notice until recently is that Justice Washington told the jury that they should find for the plaintiff in the case. This is interesting because the opinion that he subsequently wrote ruled for the defendant. In effect, he granted a jnov after telling the jury to grant the “v” in the other direction.  Why?

On the face of the opinion, the answer could be that Gibbons v. Ogden was issued after the verdict and caused Justice Washington to change his mind about the validity of the plaintiff’s Commerce Clause argument. The more likely explanation, though, is that Washington changed his mind on the Privileges and Immunities Clause issue. His notes on the case, which I found in the Chicago History Museum, indicate that he was initially inclined to rule for the plaintiff on this ground. What I did not realize (or focus on) was that he did actually instruct the jury to rule for the plaintiff. Only after more argument and reflection did he come out the other way.  More on this is my forthcoming paper.