Corfield v. Coryell: Holding, Fourteenth Amendment, and Legacy

Corfield v. Coryell is an 1823 federal circuit court decision by Justice Bushrod Washington that, while upholding a New Jersey law barring nonresidents from dredging oysters in state waters, produced the most influential early catalog of the “privileges and immunities” of citizenship in American constitutional history. That catalog was read aloud on the Senate floor when the Fourteenth Amendment was introduced, has been cited by the Supreme Court from the Slaughter-House Cases through McDonald v. City of Chicago, and remains at the center of an unresolved argument about what rights the Constitution guarantees against the states.

What Happened on Maurice River Cove

On May 15, 1821, a man named John Keene was aboard a vessel called the Hiram in Maurice River Cove, off the New Jersey coast, dredging for oysters. The Hiram was owned by Corfield, a Delaware resident, who had hired it out to a man named Hand, who in turn had hired it to Keene. A New Jersey vessel, the Independence, seized the Hiram under a state statute passed on June 9, 1820. That law prohibited any person who was not an actual resident of New Jersey from gathering clams, oysters, or shells in state waters aboard a vessel not wholly owned by state residents. It imposed a fifty-dollar penalty and authorized forfeiture and sale. The Hiram was condemned and sold at Leesburg for ten dollars.¹

Corfield sued Coryell in trespass for the seizure. The case came before Justice Bushrod Washington, sitting as Circuit Justice for the Eastern District of Pennsylvania.²

What Justice Washington Actually Held

Corfield attacked the New Jersey law on three constitutional grounds: that it violated the Privileges and Immunities Clause of Article IV, that it was an impermissible regulation of commerce, and that it intruded on federal admiralty jurisdiction. Washington rejected all three.²

The Fundamental-Rights Catalog

On the central question, Washington held that Article IV’s Privileges and Immunities Clause protects only rights that are “in their nature, fundamental; which belong, of right, to the citizens of all free governments.” He then offered the passage the case is remembered for, listing what he considered those fundamental rights to include:

protection by the government;
the enjoyment of life and liberty;
the right to acquire and possess property;
the right to pursue happiness and safety;
the right to pass through or reside in any state for trade, agriculture, or professional pursuits;
the right to claim the writ of habeas corpus;
the right to bring lawsuits in state courts;
the right to hold and dispose of real and personal property;
exemption from higher taxes than those paid by a state’s own citizens; and
the elective franchise as regulated by state law.³

Why the Oyster Law Survived

Having set out that list, Washington drew the line that decided the case. The right to harvest oysters and clams in New Jersey waters was not, he reasoned, a fundamental privilege of citizenship. It was a property right held by the state for the benefit of its own citizens. The Privileges and Immunities Clause did not grant citizens of other states a “cotenancy in the common property of the state,” and unrestricted access, he warned, could exhaust the beds entirely. The statute stood.²

Washington disposed of the other arguments briskly. Oysters growing in their beds, he wrote, were not yet articles of trade, so the law regulated their removal, not commerce in them. And the power to regulate state fisheries had remained with the states rather than passing to the federal government under the Constitution.²

One further wrinkle: the case was actually decided on a procedural point. Because Corfield had hired the Hiram out to Keene, he lacked possession at the moment of seizure and could not maintain trespass. Judgment went for the defendant on that ground, and everything about privileges and immunities was, strictly, not necessary to the outcome. That has not diminished its influence.²

Who Justice Bushrod Washington Was

Bushrod Washington was George Washington’s nephew, appointed to the Supreme Court in 1798 by President John Adams on the recommendation of John Marshall. He had studied law under James Wilson and served at the Virginia convention that ratified the Constitution in 1788. He sat on the Court for thirty-one years until his death in 1829, was a close ally of Chief Justice Marshall, and produced much of his most influential work while riding circuit in Pennsylvania and New Jersey. Corfield is the best-known product of that circuit work.⁴

Those credentials matter to the case’s later reception. Scholar David R. Upham has argued that Washington’s authority for later readers came in part from his own participation in the adoption of the Constitution.⁵

How Corfield Shaped the Fourteenth Amendment

Corfield’s real weight in constitutional law comes from what the 39th Congress did with it four decades later. When members debated how to define the “privileges or immunities of citizens of the United States” that the Fourteenth Amendment would protect, they turned again and again to Washington’s opinion.

On May 23, 1866, Senator Jacob Howard of Michigan introduced the amendment on the Senate floor and read Washington’s enumeration at length, quoting the passage about rights “fundamental” in nature and belonging “of right, to the citizens of all free governments.” Howard argued those rights should be augmented by the personal guarantees of the first eight amendments, including freedom of speech, the right to bear arms, and protection against unreasonable searches. The amendment’s purpose, he said, was to “restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”⁶⁷

Corfield had already shaped the Civil Rights Act of 1866. Senator Lyman Trumbull cited Article IV decisions including Corfield to defend the Act’s constitutionality, using Washington’s implicit distinction between civil rights (such as property ownership, which the Act protected) and political rights (such as voting) to answer critics who claimed the bill would mandate Black suffrage. When opponents insisted Congress lacked authority to enforce such protections, Representative John Bingham introduced the Fourteenth Amendment to supply that authority.⁸

The Slaughter-House Setback

Five years after ratification, the Supreme Court read Corfield the other way. In the Slaughter-House Cases (1873), Justice Samuel Miller cited Washington’s opinion but used it to shrink rather than expand federal power. The fundamental rights Washington had described, Miller held, belonged to state citizenship and remained under state care. The Fourteenth Amendment’s Privileges or Immunities Clause protected only a narrow set of rights arising from the nature of the national government, such as access to seaports and protection on the high seas.⁹

Attorney John Campbell, representing Louisiana butchers challenging a state slaughterhouse monopoly, had leaned on Corfield to argue that the right to pursue a lawful occupation was among the fundamental privileges the amendment secured. The majority rejected that reading. Justice Stephen Field dissented, calling the majority’s narrow interpretation “a vain and idle enactment” and arguing that the right to pursue a lawful employment was among the natural and inalienable rights the amendment protected.¹⁰

Slaughter-House effectively sidelined the Privileges or Immunities Clause for more than a century. Individual-rights protection against the states ran instead through the Due Process and Equal Protection Clauses.

The Oyster Holding’s Own Legacy

Washington’s actual holding — that a state may reserve its natural resources for its own residents — generated a separate line of case law. The Supreme Court confirmed the principle in McCready v. Virginia (1877), upholding a Virginia law restricting oyster harvesting to state residents. Geer v. Connecticut (1896) extended it to wild game, and Hudson Water Co. v. McCarter (1908) to water rights.¹¹

The doctrine began to erode in the twentieth century. In Toomer v. Witsell (1948), the Court struck down a South Carolina law that charged nonresident shrimp boats a $2,500 license fee against $25 for residents. Commercial shrimping was a “common calling” within the Privileges and Immunities Clause, the Court held, and the state had shown no reasonable relationship between the alleged danger to the shrimp supply and the discrimination against nonresidents. The Court called McCready’s state-ownership rationale a “fiction.”¹²

By 1977, Douglas v. Seacoast Products, Inc. described the “ownership” language in Geer and McCready as “no more than a 19th-century legal fiction.” A year later, Baldwin v. Fish and Game Commission of Montana declined to overrule Corfield or McCready but clarified that state control over wildlife is not absolute. The line the Court drew was between commercial activities, protected as means of livelihood, and recreational activities such as elk hunting, for which states may charge nonresidents more.¹³

Where Corfield Shows Up Today

In Saenz v. Roe (1999), the Supreme Court struck down a California law that limited welfare benefits for new residents to the amount they would have received in their prior state. Justice Stevens’s majority opinion cited Corfield by name, quoting Washington’s identification of the right “of a citizen of one state to pass through, or to reside in any other state” as a fundamental privilege. The Court described three components of the right to travel: entering and leaving another state, being treated as a welcome visitor while temporarily present, and being treated equally upon becoming a permanent resident. The Fourteenth Amendment’s Citizenship Clause, the Court ruled, “does not tolerate a hierarchy of subclasses of similarly situated citizens based on the location of their prior residences.”¹⁴

In McDonald v. City of Chicago (2010), Justice Clarence Thomas wrote a solo concurrence arguing that the right to keep and bear arms should be incorporated against the states through the Privileges or Immunities Clause rather than the Due Process Clause. Thomas quoted Corfield at length, invoking Washington’s definition of rights “fundamental” in nature that “belong, of right, to the citizens of all free governments.” He called substantive due process a “legal fiction” and urged the Court to “begin the process of restoring” the original meaning of the Fourteenth Amendment.¹⁵ The McDonald majority declined to take that step, citing the lack of scholarly consensus on the clause’s original meaning and the absence of clear limiting principles.¹⁶

The Scholarly Fight Over What Washington Meant

Two hundred years on, scholars still disagree about what Washington was doing when he enumerated fundamental rights. The core divide is between reading the opinion as establishing a substantive floor of rights that belong to all citizens and reading it as a nondiscrimination rule requiring states to treat out-of-state citizens the same as their own.

The nondiscrimination camp points to Chancellor Kent’s earlier opinion in Livingston v. Van Ingen (1812), which held that Article IV’s clause means only “that citizens of other states shall have equal rights with our own citizens, and not that they shall have different or greater rights.”¹⁷ The fundamental-rights camp, associated with scholars such as Akhil Amar and Randy Barnett, reads Washington as defining a substantive floor of liberty rooted in natural law and Blackstone’s “residuum of natural liberty.”¹⁸

Washington’s inclusion of “the elective franchise” in his list has drawn particular attention. Treating voting as a fundamental right of citizenship was a radical position in 1823, and even the strongest supporters of Reconstruction shied away from Corfield’s implications for African American and women’s suffrage. Not until the 1960s did the Court and Congress formally accept that voting is an essential right of citizenship.¹⁹

What Washington’s Notes Revealed

In 2017, legal scholar Gerard N. Magliocca discovered Washington’s handwritten notes on Corfield at the Chicago History Museum. Analyzed in a 2020 Notre Dame Law Review article, they contained several surprises. Washington was initially inclined to strike down the New Jersey oyster law under the Privileges and Immunities Clause, the opposite of his final ruling. The notes also show he viewed Kent’s opinion in Livingston v. Van Ingen as the “leading precedent” on the clause, favoring Kent’s nondiscrimination interpretation over a freestanding guarantee of fundamental rights. That discovery has given ammunition to nondiscrimination scholars, who read Washington’s famous catalog as illustrating the content of nondiscrimination rather than establishing a substantive floor.¹⁹

A circuit court opinion about New Jersey oysters, decided on a procedural point and written by a justice less famous than his uncle, Corfield v. Coryell sits inside the architecture of American constitutional law. Its language has been read on the Senate floor, cited and narrowed by the Supreme Court, invoked in solo concurrences pushing for doctrinal revolution, and pulled apart by generations of scholars. The arguments Washington set in motion in 1823 are still open.

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