This Article reveals new details about Corfield v. Coryell based on archival research. In 2017, the author found Justice Washington’s original notes on Corfield in the Chicago History Museum. The most important revelation about Corfield is that the Justice was initially inclined to hold that the state law his decision upheld was, in fact, unconstitutional under the Privileges and Immunities Clause. The notes also say that he saw Livingston v. Van Ingen as the leading precedent on the Privileges and Immunities Clause and backed Chancellor Kent’s view in that case that the Clause articulated a nondiscrimination rule for out-of-state citizens instead of a freestanding guarantee of fundamental rights. Even more important may be the disclosure from the notes that Justice Washington wrestled with the Commerce Clause issue in Corfield prior to the Supreme Court’s ruling in Gibbons v. Ogden in a way that probably influenced Chief Justice John Marshall’s landmark opinion for the Court. In short, the Corfield notes provide a fascinating glimpse into the thinking of a key member of the Marshall Court at a crucial stage.
The discovery of Justice Washington’s notes also provides an occasion to offer one reflection on Corfield’s legacy. His opinion was the first notable legal authority to say that the right to vote is fundamental. This idea was so radical in the nineteenth century that even the strongest supporters of Reconstruction shied away from Corfield’s implications for African American and female voting. Indeed, not until the 1960s did the Supreme Court and Congress accept Corfield’s wisdom that “the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised,” is an essential right of citizenship, though the United States still struggles to reconcile that right with the reality of state and local regulation of election administration.
Part I gives a detailed account of Corfield and explores how the case was subsequently understood. Part II examines Justice Washington’s notes on the case and shows how they expand our understanding of Gibbons and Corfield. Part III explores Corfield’s revolutionary reference to voting rights.
Gerard N. Magliocca,
Rediscovering Corfield v. Coryell,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol95/iss2/4