Corfield and the Power of Congress

I’ve been researching how the Reconstruction Congresses understood Justice Washington’s opinion in Corfield v. Coryell. One point that I had not previously considered is that among the privileges and immunities of citizenship Washington named in that opinion was “protection by the government.” This phrase was cited many times during Reconstruction in support of the authority of Congress to enact the Ku Klux Klan Act, which was intended to protect African-Americans from private violence in various places (especially at the polls). “Protection from the government” is, of course, a positive right. Subsequent Supreme Court decisions hold that state inaction is not generally a constitutional violation. In other words, there is no general positive constitutional right to government protection. John Bingham rejected that view during the Ku Klux Klan Act debate, and one could say that Washington did as well in his era.

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