Article IV and Campbell v. Morris: Wrong Judge, Wrong Court, Wrong Holding and Wrong Conclusion?

Abstract

One of the earliest cases interpreting the Article IV privileges and immunities clause is that of the Maryland General Court in Campbell v. Morris, 3 H. & McH. 535 (Md. Gen. Court, 1797). Because of the supposed link between Article IV and the Fourteenth Amendment, scholars, particularly Charles Fairman and Raoul Berger, used Campbell to try to support a narrow reading of the Fourteenth Amendment. With the U.S. Supreme Court’s granting of certiorari in McDonald v. Chicago, ___ U.S. ___, 174 L. Ed. 2nd 632, 78 U.S. L. W. 3169 (September 30, 2009), the issue of the enforcement of the Bill of Rights against the states is again before the Court and there is a renewed interest in Campbell. The question of the importance of this case - especially in comparison with Justice Bushrod Washington’s later Circuit Court decision in Corfield v. Coryell 6 F. Cas. 546, No. 3230. (C.C.E.D.Pa. 1823) - is a matter of some disagreement to be addressed in a subsequent article. However, this essay suggests that working with a case from 1797 under old Maryland procedures has proven to be a challenge to many authors. Scholars utilizing this case have often:• Mistaken the name and authority of the court which decided the case. The General Court was not the highest Court in Maryland, but rather a trial court; • Mistaken the identity of the judge who was its author. The author was not future U.S. Supreme Court Justice Samuel Chase, but rather his more obscure cousin, Jeremiah T. Chase. • Misinterpreted the case itself by failing to note that the portion treating Article IV was dicta because the General Court vacated the attachment of property, making it unnecessary to reach the question of whether the Maryland attachment statute violated Article IV. • Misinterpreted the dicta. While some of the dicta focused upon equality/non-discrimination (“in the same manner” and “on the same footing”), parts of the dicta indicate that substantive rights are protected: the right to obtain property and the right of securing and protecting “personal rights.”• Overlooked the fact that the trial court was overruled by the Maryland Court of Appeals and • Generally reached erroneous conclusions in trying to assess its impact. This case was often cited on state law issues (attachment, equity interests in property) in the first fifty years after it was decided. But in that same time period, Campbell was cited by only one Maryland Court, in dicta, on an Article IV issue and by no courts outside of Maryland. The goals of this essay include trying to correct these errors and help future scholars avoid repeating them. It is also hoped that a better understanding of Campbell will help inform our understanding of the Fourteenth Amendment.