The Nature of American Citizenship
As the New Framers Designed it
In 1866, largely at the behest of three members of the House
of Representatives—John Bingham, Samuel Fessenden, and Isaac Stevens—the
Fourteenth Amendment was sent to the States for ratification. The Amendment was
necessary, in the view of these gentlemen—all radical Republicans—because the
original framers had designed the Constitution so as to recognize persons as
"citizens of the United States" if, but only if, they were citizens
of a State. The Fourteenth Amendment changed this, by stating, in Section I,
that, "All persons born or naturalized in the United States, and subject to its jurisdiction thereof, are citizens of the United States and of the state wherein they reside."
The reason for the amendment and the new status of
citizenship it created was first explained by the Supreme Court in the Slaughterhouse
Case, (1873) 83 U.S. 36.
"The [emancipation] proclamation
of President Lincoln expressed an accomplished fact as to a large portion of
the insurrectionary districts, when he declared slavery abolished in them all.
But the war being over, those who had succeeded in re-establishing the
authority of the Federal Government were not content to permit this great act
of emancipation to rest on the actual results of the contest or
the proclamation of the Executive, both of which might have been
questioned (as unconstitutional) in later times, and they determined to
place this main and most valuable result in the Constitution of
the restored Union. Hence the Thirteenth Amendment. ("Neither slavery nor
involuntary servitude (peons, coolies, serfs, etc.), . . . shall exist in the United States. . . .")
Among the first acts of legislation
adopted by several of the States in the legislative bodies which claimed to be
in their normal relations with the Federal Government, were laws which imposed
upon the colored race onerous disabilities and burdens, and curtailed their
rights in the pursuit of life, liberty, and property to such an extent that their
freedom was of little value.
This circumstance forced upon the
statesmen who had conducted the Federal Government in safety through the crisis
of the rebellion the conviction that something more was necessary. They
accordingly passed through Congress the proposition of the fourteenth
amendment, and they declined to admit the defeated States back into Congress
until their legislatures had ratified the amendment.
The first section of the fourteenth
amendment opens with a definition of citizenship—not only citizenship of the United States, but citizenship of the States. No such definition was previously found in
the Constitution, nor had any attempt been made to define it by act of
Congress. It had been the occasion of much discussion in the courts, by the
executive departments, and in the public journals. It had been said by eminent
judges that no man was a citizen of the United States, except as he was a
citizen of one of the States composing the Union. Those, therefore, who
had been born and resided always in the District of Columbia or in the
Territories, though within the United States, were not citizens. Whether this
proposition was sound or not had never been judicially decided. But it had been
held by this court, in the celebrated Dred Scott
case, only a few years before the outbreak of the civil war, that a man
of African descent, whether a slave or not, was not and could not
be a citizen of a State or of the United States. This decision had
never been overruled; and if it was accepted as a constitutional limitation of
the right of citizenship, then all the negro race who had recently been
freemen, were still, not only not citizens, but were incapable of
becoming so by anything short of an amendment to the Constitution.
To remove this difficulty, and to
establish a clear and comprehensive definition of citizenship the first clause
of the amendment was framed.
The first observation we make is that
the amendment puts at rest the questions which we have stated to have been the
subject of differences of opinion. It declares that persons may be citizens of
the United States without regard to their citizenship of a particular State,
and it overturns the Dred Scott decision by making
all persons born within the United States and subject to its jurisdiction citizens
of the United States. That its main purpose was to establish the citizenship of
the negro can admit of no doubt.
The next observation is that the
distinction between citizenship of the United States and citizenship of a State
is clearly recognized and established. Not only may a man be a citizen of
the United States without being a citizen of a State, but an important
element is necessary to convert the former into the latter. He must reside
within the State to make him a citizen of it, but it is only necessary that he
be born or naturalized in the United States to be a citizen of the Union.
It is quite clear, then, that there is
a citizenship of the United States, and a citizenship of a State, which are
distinct from each other, and which depend upon different characteristics or
circumstances in the individual."
Note: The Supreme Court's
explanation of the Fourteenth Amendment makes plain the fact that, before the
amendment's ratification, a citizen's duty of allegiance to
the Union (i.e., the Federal Government) depended on whether he was in fact a
citizen of a State in the Union. His status as a citizen of such a State
created his duty of allegiance to the Union. If his State seceded from
the Union, necessarily his duty of allegiance to the Union was extinguished,
but his duty of allegiance to his State remained.
The Supreme Court confirmed the analysis of citizenship
given in the Slaughterhouse case, in 1875, in United States
v. Cruikshank. There Chief Justice Waite wrote this:
"We have in our political system a
government of the United States and a government of each of the several States.
Each one of these governments is distinct from the others, and each has
citizens of its own who owe it allegiance, and whose rights, within its
jurisdiction, it must protect. The same person may be at the same time a
citizen of the United States and a citizen of a State, but his rights of
citizenship under one of these governments will be different from those he has
under the other. (citing Slaughterhouse cases)
Mixed up with the concept of citizenship, at least as the
original framers of the Constitution understood it, is the concept of
sovereignty. The Constitution is not a physical substance. It is in the nature
of a grant of power, or what would be termed, in private law, a power of
attorney. A real constitution is a grant of rights or powers by a
sovereign. The sovereign cannot be limited, for he is the source of all
law. Under this principle, it is easy to see that the Federal Government is not
the sovereign, the Constitution is, for the Constitution defines the scope of
the Federal Government's power and it limits
If the sovereign, so called, is limited by some external
power, then he is not the real sovereign; it is the power imposing the limitation
that possesses sovereignty. In the case of the Constitution, it is
plain that the sovereignty is in that which created it; i.e., the people of the
first nine states that ratified it. Article VII of the Constitution makes this
plain: "The ratification of the Conventions of nine States, shall be
sufficient for the establishment of this Constitution between the States so
ratifying the same." The sovereignty in the United States, therefore, is in the people of the States.
The sovereignty in the United States is in the
people of the States. And, thus, when, in 1860-1861, the people of
the States, in convention assembled, agreed upon ordinances of secession from
the Union, they did so in their sovereign capacity and upon the basis of the
exercise of their sovereignty, never given up to the Federal Government in
relation to their domestic affairs, their ordinances were legitimate. All true
citizens of such a State, therefore, were duty bound to defend the State
against the invasion of any foreign power, the rump of the United States included. This is just the simple legal and political truth of the matter as
the founders understood the Constitution they framed for the Union.
Note: It appears that there remains one Justice sitting on the Supreme Court today, who accepts the concept that, in 1861, Virginia possessed the Constitutional right to resist by force of arms the Union's invasion of its territory. In his dissent in Arizona v. United States 2012 U.S. Lexis 4872, Justice Scalia wrote this:
"Today's opinion. . . deprives States of. . . the power to exclude from the sovereign's territory people who have no right to be there. There is no doubt that `before the adoption of the constitution of the United States, each State had the authority to prevent itself from being burdened by an influx of persons.' (Citation.) And the Constitution did not strip the States of that authority.
To the contrary, two of the Constitution's provisions were designed to enable the States to prevent `the intrusion of obnoxious aliens through other States.' (Citation.) The Articles of Confederation had provided that `the free inhabitants of each of these States shall be entitled to all privileges and immunities of free citizens in the several States.' (Citation.) This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the Constitution's Privileges and Immunities Clause provided that `the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.' (Art. IV, §2, cl.1)
[Another] provision of the Constitution is an acknowledgement of the State's sovereign interest in protecting its borders. Art. I, §10, cl. 3 provides that `no State shall, without the consent of Congress, engage in war, unless actually invaded. . . .' This limits the States' sovereignty but leaves intact their inherent power to protect their territory."