Introduction

Beginning in the 1820s, although citizenship remained in most important respects shaped at the state level, a new substantive sense of membership in a national community slowly came into being and began to receive judicial recognition. In the late eighteenth and early nineteenth centuries, the Privileges and Immunities Clause of the U.S. Constitution, which provided that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States,” had meant simply that states could not discriminate against citizens of other states by imposing special disabilities on them. But in Corfield v. Coryell (1823), Justice Bushrod Washington read the Clause as giving rise to a notion of national citizenship possessed of a substantive core of uniform “fundamental” privileges. He listed some of the most important as follows:

The most cursory examination of this list of the “fundamental” privileges of citizenship suggests that one or more of them were unavailable to the vast majority of the United States’ native-born population. Even as talk of a substantive national citizenship was growing, the country's native-born population continued to be slotted, at the federal and state levels, into a variety of legal statuses.