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intended essentially to constitutionalize the natural

rights philosophy of the Declaration of Independence.

Lest it be thought that Justice Washington was

idiosyncratic in his choice of language, it is important

to note that for lawyers and educated laymen alike, "priv-

ileges and immunities" was a term of art.  In fact, in his

Commentaries on the Laws of England, William Blackstone,

the primary legal authority for the founding generation,

used the term in ways that fully support Washington's exe-

gesis.33   Discussing the "rights of Englishmen," Blackstone

wrote:

The rights themselves, thus defined by these sev-

eral statutes, consist in a number of private

immunities; which will appear to be indeed no

other, than either that residuum of natural

liberty, which is not required by the laws of

society to be sacrificed to public convenience;

or else those civil privileges, which society

hath engaged to provide, in lieu of the natural

liberties so given up by individuals.34

Here, Blackstone defines "privileges" and "immunities" by

pointing back explicitly to the natural law.  In fact, the

terms serve as an explicit bridge between the state of

nature and civil society, between natural rights and civil

rights: "immunities" are either the natural rights we

retain when we enter into civil society or those "privi-

leges" we gain at that time in exchange for surrendering

certain of our natural liberties.  To fully understand and

appreciate the idea of "privileges and immunities," there-

fore, we need a clear understanding of the theory of natu-

ral rights that underpins the American experiment in

ordered liberty--and the Declaration of Independence, in

particular.

Natural Rights, the Social Contract,

and the Foundation of American Constitutionalism

What then is the natural rights philosophy, which

earlier generations thought the Privileges and Immunities

Clause stood for?  As we saw in Corfield, the language of

the Declaration of Independence provided the standard

American expression of that philosophy.  It is useful to

begin, therefore, with the relevant passage of the

Declaration:

We hold these Truths to be self-evident, that

all Men are created equal, that they are endowed