Corfield v. Coryell (1823)
Corfield v. Coryell was a circuit court case that established some of our unenumerated rights. Corfield was particularly important to the framers of the Fourteenth Amendment (1868) and their understanding of privileges and immunities. The Privileges and Immunities Clause of the Fourteenth Amendment protects citizens from having state governments infringe on their privileges and immunities. Privileges and immunities are, for the most part, synonymous with fundamental rights. In Corfield, Justice Bushrod Washington identified the following enumerated and unenumerated rights or privileges and immunities:
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; subject nevertheless to such restraints as the Government must justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefits of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State.
Civil Rights Act of 1866
The Civil Rights Act of 1866 was not only important in defining some of our most important enumerated and unenumerated rights, it also led to the passage of the Fourteenth Amendment to enforce the civil rights legislation. The legislation served primarily to protect newly free slaves after the Civil War. The Act defines our rights and privileges and immunities as:
To make and enforce contracts, sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefits of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
Meyer v. Nebraska (1923)
In Meyer v. Nebraska, Justice James McReynolds protected the following enumerated and unenumerated rights or privileges and immunities:
The Court has never attempted to define, with exactness, the liberty guaranteed by the Fourteenth Amendment. Without a doubt, it denotes not merely liberty from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship according to the dictates of his own conscious, and generally to enjoy those privileges long recognized at statutory law as essential to the orderly pursuit of happiness by free men.
Justice McReynolds would protect educational choice and parental rights two years later in Pierce v. Society of Sisters. In Pierce, McReynolds ruled that it was a right for “parents and guardians to direct the upbringing and education of children under their control.”
Identifying and Protecting Unenumerated Rights
Identifying and protecting unenumerated rights should be an open and closed debate. There are two legal avenues within the Constitution to identify and protect rights, either the Ninth Amendment or the Fourteenth Amendment. Unfortunately, courts and legislatures have made a mess of this topic.
The Ninth Amendment has been long forgotten because of lack of use and precedent. The Ninth Amendment has been marginalized by jurists referring to it as an inkblot (redacted) or a truism with no legal meaning.
The Fourteenth Amendment’s all-important Privileges and Immunities Clause for identifying rights was essentially redacted in the Slaughter-House Cases (1873). The Privileges and Immunities Clause was, in fact, redacted just 5 years after the Fourteenth Amendment’s passage and just 9 years after the Civil War ended. The outcome of the Slaughter-House Cases should never be forgotten. Over 600,000 Americans died to have an opportunity to pass the Thirteenth, Fourteenth, and Fifteenth Amendments. Regretfully, the Supreme Court marginalized the result of the Civil War and reduced the impact of millions of Americans who made huge sacrifices to support the war effort. What is worse, the Slaughter-House Cases have never been overturned and therefore, the case must be interpreted as good constitutional precedent. This case will be addressed in other blogs.
The Court presently utilizes a doctrine called Substantive Due Process to identify and protect rights. The Substantive Due Process Doctrine uses the Due Process Clause of the Fourteenth Amendment to both identify and protect rights. I truly believe the framers of the Fourteenth Amendment intended for the Privileges and Immunities Clause to be used to identify rights, whereas the Due Process Clause was to be used to protect rights. Nevertheless, Substantive Due Process, in my opinion, has done a huge disservice to fundamental rights. Substantive Due Process has been especially detrimental to unenumerated rights, such as the right to work and contract, which were decimated during the FDR administration.
I fully support restoring the use of the Ninth Amendment and Privileges and Immunities Clause to better protect the rights of citizens and move sovereignty back to where it should reside - With “We the People.” We will explore the topic of protecting rights further in future blogs.
Patrick Bohan is not a historian or lawyer, just a patriot who has independently studied these subjects.
