Unlike the majority, I would look to history to ascertain the original meaning of the Clause. At least in American law, the phrase (or its close approximation) appears to stem from the 1606 Charter of Virginia, which provided that "all and every Persons being our Subjects, which shall dwell and inhabit within every or any of the said several Colonies, shall HAVE and enjoy all Liberties, Franchises, and Immunities; as if they had been abiding and born, within this our Realme of England." Federal and State Constitutions, Colonial Charters and Other Organic Laws 3788 (F. Thorpe ed. 1909). Other colonial charters contained similar guarantees.
Years later, as tensions between England and the American Colonies increased, the colonists adopted resolutions reasserting their entitlement to the privileges or immunities of English citizenship.
The colonists' repeated assertions that they maintained the rights, privileges and immunities of persons "born within the realm of England" and "natural born" persons suggests that, at the time of the founding, the terms "privileges" and "immunities" (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens, and more broadly, by all persons.
J. Thomas, dissenting in Saenz v Roe
Thanks for the explanation. I’ve always heard the term “common law”, and understood it referred to a body of law from England that had never been legislated. I never understood how such a thing could be considered part of American law.
Is it considered to be included due to the 9th amendment’s enumeration clause?