The last sentence alone militates against an “all-inclusive” reading of Corfield.44
In the main, these are the privileges and immunities enumerated in the Civil Rights Bill. Justice Washington’s inclusion of the “elective franchise, ” as Charles Fairman remarked, was “plainly wrong.” 45 Article IV hardly intended to enable a transient migrant to vote, and this after excluding him from dredging for oysters. From the beginning, admission to suffrage had been the province of the State, as Chief Justice Parker of Massachusetts held at about the same time as Corfield, being preceded by Judge Samuel Chase of Maryland.46 Right or wrong, it was open to Congress to take a narrower view than that of Washington for purposes of the Act which the Fourteenth Amendment was to constitutionalize. Trumbull did just this, saying of Washington, “This judge goes further than the bill” in including the “elective franchise.” 47 Graham dwells on the Corfield phrase “Protection by the government; the enjoyment of life and liberty . . . and to pursue and obtain happiness.” 48 Here, too, the framers could choose to exclude protection for the “pursuit of happiness,” but in truth it was to Trumbull’s mind a synonym for property: “the great fundamental rights of life, liberty, and the pursuit of happiness.” 49 And so it was read by Justice Bradley in the Slaughter-House Cases: the rights “to life, liberty and the pursuit of happiness are equivalent to the rights of life, liberty and property.” 50 At any rate, the “pursuit of happiness” found no place in the Amendment; in its stead the framers substituted the bare word “property,” clinging to the traditional trinity: “life, liberty, and property.”
It remains to notice two earlier cases also cited in the debates. In Campbell v. Morris (1797), Judge Chase, before long to be a Supreme Court Justice, stated on behalf of the General Court of Maryland that counsel were agreed
that a particular and limited operation is to be given to these words [privileges and immunities] and not a full and comprehensive one. It is agreed that it does not mean the right of election . . . The court are of opinion it means . . . the peculiar advantage of acquiring and holding real as well as personal property, that such property shall be protected and secured by the laws of the state, in the same manner as the property of the citizens of the state is protected. It means, such property shall not be liable to any taxes or burdens which the property of the citizens of the state is not subject to . . . It secures and protects personal rights.51
Mark that the emphasis is on freedom from discrimination, on equality with respect to described rights. In 1827, shortly after Corfield, Chief Justice Parker declared on behalf of the highest court of Massachusetts, in Abbott v. Bayley, that the privileges and immunities phrase confers a “right to sue and be sued,” that citizens who remove to a second State “cannot enjoy the right of suffrage,” but “may take and hold real estate.” 52 Thus, long before 1866 courts had held that “privileges and immunities” were comprised of the rights Blackstone had enumerated; the framers, aware of Blackstone and the decisions, embodied those rights, and those rights only, in the Civil Rights Act of 1866.
That, however, is not the neoabolitionist reading of the history. So Alfred Kelly remarked, “Trumbull made it clear that his notion of the rights incidental to national citizenship were exceedingly comprehensive in character . . . Citing the dictum in Corfield v. Coryell, he argued that the rights of national citizenship included all ‘privileges which are in their nature fundamental’ . . . In short, he nationalized the comity clause [Article IV, §2] and turned it into a national bill of rights against the states, as the pre-war antislavery theorists had pretty generally done.” 53 Such interpretations are poles removed from Trumbull’s carefully restricted explanations. In the debates on the Civil Rights Bill, Trumbull made no mention of the Bill of Rights, but tied the “privileges and immunities” phrase to “certain great fundamental rights such as the right to life, to liberty,” and the benefit of laws passed for the enforcement of those rights, explicitly excluding “political” rights. His fellows even more clearly viewed the enumerated rights as restrictive.54 As the citations to Blackstone and Kent show, “fundamental,” “natural” rights had become words of received meaning.55 TenBroek himself states that “the area of disagreement” about “privileges and immunities was not large, since their natural rights foundation was generally accepted”; they were “the natural rights of all men or such auxiliary rights as were necessary to secure and maintain those natural rights. They were the rights to life, liberty, and property. They were the rights to contract, and to own, use and dispose of property.” 56
Nevertheless, tenBroek remained fuzzy as to the meaning of “fundamental” rights as is shown by his citation to Senator Henderson. After noting Henderson’s explanation of the purpose of the Civil Rights Act, to give the rights therein enumerated (which he read into the record), and his reference to “those fundamental rights of person and property which cannot be denied to any person,” tenBroek concludes: “This was the sweeping view of those who sponsored . . . the Fourteenth Amendment.57 Henderson, however, had emphasized that the “only effect” of the Civil Rights Bill was to give the blacks the rights there listed, that because the “negro is the object of that unaccountable prejudice against race” the “country is not prepared” to give them more.58
The Graham–tenBroek–Kelly writings have muddied analysis; they are not true to the historical facts. Shortly restated, those facts are that the “fundamental” rights which the framers were anxious to secure were those described by Blackstone—personal security, freedom to move about and to own property; they had been picked up in the “privileges and immunities” of Article IV, §1; the incidental rights necessary for their protection were “enumerated” in the Civil Rights Act of 1866; that enumeration, according to the framers, marked the bounds of the grant; and at length those rights were embodied in the “privileges or immunities” of the Fourteenth Amendment. An argument to the contrary, it may be stated categorically, will find no solid ground in the debates of the 39th Congress.
Supplementary Note on the Civil Rights Act and the Fourteenth Amendment: Fundamental Rights
The Fourteenth Amendment provides: “No state shall . . . abridge the privileges or immunities of citizens of the United States.” Robert Bork considers that the “intended meaning” of the clause “remains largely unknown.” 1 I beg to differ. The “intended meaning” of “privileges or immunities” can be explicated by (1) the relation between the Civil Rights Act of 1866 and the Fourteenth Amendment, and (2) by the historical derivation of the terms. We may put to one side Corfield v. Coryell,2 upon which activists beat a tattoo3 and which, I agree with Bork, is “a singularly confused opinion in 1823 by a single Justice [Bushrod Washington] of the Supreme Court,” 4 and look rather to the historical derivation of the terms. For as Justice Story stated, if the Framers used terms that had been defined at common law, that definition was “necessarily included as much as if they stood in the text,” 5 as the framers of the Amendment well knew.6
A
The words “privileges and immunities” first appear in Article IV of the Articles of Confederation, which specified “all the privileges of trade and commerce.” 7 The words were adopted in Article IV of the Constitution, which, according to Chief Justice White, was intended “to perpetuate [the] limitations ” of the earlier Article IV.8 White repeated Justice Miller’s statement in the Slaughter-House Cases that “There can be but little question that . . . the