Hugh said:
In Coryell, Washington seems to have more of an "inalienable rights" view, but it is not clear to me what federal powers he actually envisioned ...
Hugh, that "inalienable rights" view was in fact the Lockean natural rights view that the founders held.
The antidiscriminatorian view is what supplanted the natural rights view. Since we are talking about original public meaning here, we must necessarily look to the natural rights view and discard the (developing) antidiscriminatory jurisprudence.
Again, we are discussing the rights of citizenship as opposed to the rights of aliens. Another Lockean concept that has been held as valid in English Common Law, both before and after the revolution.
Under Art. IV § 2,
"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." This was a contracted version of what was said under Article IV of the Articles of Confederation,
"The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them."
All this to say that there was an assumed natural citizenship, to which all free men of the colonies held certain inalienable rights in common, that the States could not deny.
The prevailing fear, was that as independent States, that they would begin to treat each other as aliens, and not as the "friends and neighbors" that they had been under English rule. Yes, the Independent States were sovereign under the Confederation, but they were all still one people.
From David Uphams "Notes," pg. 28:
As has been shown, when the case of Corfield v. Coryell came before Justice Washington’s circuit court, several conflicting precedents as to the meaning of the Privileges and Immunities Clause were available. Courts in four states had affirmed, or at least suggested, that the clause protected certain absolute rights of citizenship—including the right to acquire, hold, and convey real property, and the freedom from discriminatory economic regulation and taxation—but not the political rights of citizenship.
126 In addition, two of these state courts had noted that the clause also secured the right to security in person and property, both by the government and from the government.
127 Courts in two states affirmed that the clause was designed to restrict the federal government.
128 In three other states and one federal circuit, the strictly antidiscrimination reading was affirmed.
129
- 126. These states include Delaware, Maryland, Massachusetts, and Virginia. See Douglass’ Adm’r v. Stevens, 2 Del. Cas. 489, 502 (Del. 1819); Campbell v. Morris, 3 H. & McH. 535, 553–54 (Md. 1797); Ainslie v. Martin, 9 Mass. (8 Tyng) 454, 460 (1813); Murray v. M’Carty, 16 Va. (2 Munf.) 393, 398 (1811). For more discussion of these decisions, see supra subparts IV(A), IV(D).
- 127. Maryland and Delaware. See supra notes 77–89, 114–23 and accompanying text.
- 128. Delaware and Tennessee. See supra notes 94–95, 114–19 and accompanying text.
- 129. New York, Kentucky, North Carolina, and the D.C. Circuit. See supra subpart IV(C).
So while the preceeding courts held to slightly different views, the majority however held to the inalienable rights theory. This then, sets the atmosphere for Justice Washington in
Corfield.
A careful read of
Corfield v. Coryell, one sees that Justice Washington defined a 2 part test on just what composes the privileges and immunities of this national citizenship:
[/quote]We feel no hesitation in confining these expressions to those privileges and immunities 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.[/quote]
(1) They belong, of right (and not merely indulgence) to the citizens of all free governments.
(2) They have been enjoyed by the citizens of the several states since independence.
Any of the rights listed within the Federal Bill of Rights that pass those two criteria are of their nature, a privilege and/or immunity as recognized by Art. IV § 2.
As to whatever powers the Federal Government may have had in respect to Art. IV § 2, it was precluded a mere ten years later by
Barron. In that case, the Court looked at the Constitution and correctly surmised that nowhere was the central government given a power to enforce the federal rights upon the States, therefore, such rights were entirely federal in nature, and did not apply to the States.
Even so,
Dred Scott still recognized those rights of citizenship to include everything that
Corfield laid out, and also many of the rights enumerated in the Bill of rights.
Dred Scott called these rights, privileges and immunities, several times.
What the Congress was left with, at that time, was that while the privileges and immunities of Art. IV § 2 and the Bill of Rights stated the rights of an assumed federal citizenship that the States were to acknowledge, the central government had no mandate of power to enforce those rights upon the States (
Barron).
The purpose (should I say goal?) of the 14th amendment was twofold: First, to overturn
Barron v. Baltimore. It achieves this by declaring a national citizenship; That US Citizens have certain privileges or Immunities that the States could not interfere with; Second, to give to the Congress a power they did not until then, have: The power to enforce these rights upon the States.
