<<  <  >  >>

Page 8

delegates to the Constitutional Convention understood the

Privileges and Immunities Clause to be "formed exactly

upon the principles of the 4th article of the present

confederation,"28 the clause must be read not simply as an

equal protection clause, devoid of content, but as a guar-

antee of substantive rights, much like similar clauses in

those other documents.

Prior to the Civil War, the basis and content of

those substantive guarantees were addressed in only one

significant decision, Corfield v. Coryell, by Supreme Court

Justice Bushrod Washington, nephew of George Washington and

a delegate to the 1788 Virginia ratifying convention.  Al-

though Corfield was a circuit decision, not a decision of

the Supreme Court, in both legal and popular opinion it

was considered the authoritative interpretation of article

IV's Privileges and Immunities Clause.29   The clause, Wash-

ington held, protected rights

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.30

Contending that it would be "more tedious than difficult"

to enumerate those rights, Washington offered illustrative

categories, such as "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."31

Three points are worth noticing here.  First, the

Privileges and Immunities Clause is unreservedly read by

Washington as imbued with substance: for him, it is not a

mere equal protection clause, the content to be supplied

later by some legislative body.  Second, he obviously con-

siders uncontroversial his view on that and on the scope

of the rights protected; indeed, enumerating those rights

would be "more tedious than difficult."  Finally, Washing-

ton's language echoes clearly the language of the Declara-

tion of Independence.  Since the decision received no

criticism--in fact, it stood as the authoritative explica-

tion of the Privileges and Immunities Clause--Washington's

use of the Declaration to illuminate the Constitution was

apparently considered unremarkable.32   Indeed, if Corfield

stands for anything today, it stands for the idea that we

too may need to recapture the view that was obvious to the

point of tedium to Americans of the 18th and early 19th

centuries: that the Privileges and Immunities Clause was