Justice Bushrod Washington's famous discussion in Corfield v. Coryell1 of the meaning of the Privileges and Immunities Clause2 is, as Charles Fairman remarked, "certainly one of the most famous pronouncements ever made in a circuit court."3 The fame of Washington's decision is well-deserved, for it was long considered the authoritative interpretation of the Privileges and Immunities Clause.4 His discussion of the clause was one of the first offered by a federal court. He was surely capable of undertaking such initiatory interpretation, as he was no doubt aware of the original understanding of the clause. He had studied law with James Wilson (whom he replaced on the Supreme Court in 1798) and had been a member of the Virginia ratifying convention, where he had voted with James Madison, John Marshall, and others in favor of the Constitution.5 In fact, his pronouncement in Corfield represents one of the few elaborate interpretations of the Privileges and Immunities Clause left by anyone who participated in the adoption of the Constitution.6
Washington's Corfield opinion not only served as a leading interpretive authority for the Privileges and Immunities Clause, but also greatly influenced the drafting of the later Privileges or Immunities Clause of the Fourteenth Amendment.7 In the minds of the drafters of that Amendment, Corfield provided the most authoritative interpretation of the expression "privileges and immunities of citizens."8 Indeed, Washington's pronouncement was the legal authority to which the congressional framers most frequently appealed in describing the constitutional privileges of citizenship.9 Most notably, while introducing the proposed Amendment to the Senate, Jacob Howard explained the import of the "privileges and immunities of citizens" secured therein by means of a lengthy quotation from Corfield.10
Washington's exposition of "privileges and immunities of citizens" is, therefore, essential to American constitutional studies, for it provides evidence crucial to any inquiry into the roots of two different clauses of the Constitution: the Privileges and Immunities Clause of Article IV and the Privileges or Immunities Clause of the Fourteenth Amendment. Through Corfield, Washington both became the leading judicial expounder of the former provision and posthumously influenced the drafting of the latter. Surely, if one is to understand the history of the privileges of citizenship, as guaranteed in both the original and the amended Constitution, one must understand Corfield.
Despite the compelling significance of the case, legal scholars have largely failed to give Corfield much attention. Even in studies devoted to the Privileges and Immunities Clause, discussions of the case generally cover no more than a few pages.11 In sum, Corfield v. Coryell remains a famous, important, but largely unexamined constitutional case.
It is the purpose of this Note to provide, for the first time, a close analysis of Justice Washington's famous remarks. After surveying the scholarly treatment of Corfield in Part I, I begin the study with a sketch of the understanding of the Privileges and Immunities Clause that prevailed before Corfield. In Part II, I briefly examine the Framers' understanding of the provision; in Part III, I discuss some of the important questions that the Framers left unanswered; and, in Part IV, I survey the ways in which courts grappled with the clause prior to the Corfield decision. In Part V, the longest part, I present a detailed analysis of Justice Washington's opinion. In the concluding part, I consider in what way this opinion sheds light on the original understanding of the Privileges or Immunities Clause of the Fourteenth Amendment.
I. The Limited Scholarship on Corfield
In large part, the failure by scholars to give Corfield any careful attention is due to the fact that, for the courts, Washington's pronouncement no longer carries the authority that it once enjoyed. …