follows: "The free inhabitants of each of these States, paupers,
vagabonds, and fugitives from justice, excepted, shall be entitled to
all the privileges and immunities of free citizens in the several
States."
The fact that free persons of color were citizens of some of the
several States, and the consequence, that this fourth article of the
Confederation would have the effect to confer on such persons the
privileges and immunities of general citizenship, were not only known
to those who framed and adopted those articles, but the evidence is
decisive, that the fourth article was intended to have that effect,
and that more restricted language, which would have excluded such
persons, was deliberately and purposely rejected.
On the 25th of June, 1778, the Articles of Confederation being under
consideration by the Congress, the delegates from South Carolina moved
to amend this fourth article, by inserting after the word "free," and
before the word "inhabitants," the word "white," so that the
privileges and immunities of general citizenship would be secured only
to white persons. Two States voted for the amendment, eight States
against it, and the vote of one State was divided. The language of the
article stood unchanged, and both by its terms of inclusion, "free
inhabitants," and the strong implication from its terms of exclusion,
"paupers, vagabonds, and fugitives from justice," who alone were
excepted, it is clear, that under the Confederation, and at the time
of the adoption of the Constitution, free colored persons of African
descent might be, and, by reason of their citizenship in certain
States, were entitled to the privileges and immunities of general
citizenship of the United States.
Did the Constitution of the United States deprive them or their
descendants of citizenship?
That Constitution was ordained and established by the people of the
United States, through the action, in each State, of those persons who
were qualified by its laws to act thereon, in behalf of themselves and
all other citizens of that State. In some of the States, as we have
seen, colored persons were among those qualified by law to act on this
subject. These colored persons were not only included in the body of
"the people of the United States," by whom the Constitution was
ordained and established, but in at least five of the States they had
the power to act, and doubtless did act, by their suffrages, upon the
question of its adoption. It would be strange, if we were to find in
that instrument anything which deprived of their citizenship any part
of the people of the United States who were among those by whom it was
established.
I can find nothing in the Constitution which, _proprio vigore_,
deprives of their citizenship any class of persons who were citizens
of the United States at the time of its adoption, or who should be
native-born citizens of any State after its adoption; nor any power
enabling Congress to disfranchise persons born on the soil of any
State, and entitled to citizenship of such State by its Constitution
and laws. And my opinion is, that, under the Constitution of the
United States, every free person born on the soil of a State, who is a
citizen of that State by force of its Constitution or laws, is also a
citizen of the United States.
I will proceed to state the grounds of that opinion.
The first section of the second article of the Constitution uses the
language, "a natural-born citizen." It thus assumes that citizenship
may be acquired by birth. Undoubtedly, this language of the
Constitution was used in reference to that principle of public law,
well understood in this country at the time of the adoption of the
Constitution, which referred citizenship to the place of birth. At the
Declaration of Independence, and ever since, the received general
doctrine has been, in conformity with the common law, that free
persons born within either of the colonies were subjects of the King;
that by the Declaration of Independence, and the consequent
acquisition of sovereignty by the several States, all such persons
ceased to be subjects, and became citizens of the several States,
except so far as some of them were disfranchised by the legislative
power of the States, or availed themselves, seasonably, of the right
to adhere to the British Crown in the civil contest, and thus to
continue British subjects (McIlvain _v._ Coxe's Lessee, 4 Cranch, 209;
Inglis _v._ Sailors' Snug Harbor, 3 Peters, p. 99; Shanks _v._ Dupont,
Ibid, p. 242.)
The Constitution having recognised the rule that persons born within
the several States are citizens of the United States, one of four
things must be true:
_First._ That the Constitution itself has described what native-born
persons shall or shall not be citizens of the United States; or,
_Second._ That it has empowered Congress to do so; or,
_Third._ That all free persons, born within the several States, are
citizens of the United States; or,
_Fourth._ That it is left to each State to determine what free
persons, born within its limits, shall be citizens of such State, and
_thereby_ be citizens of the United States.
If there be such a thing as citizenship of the United States acquired
by birth within the States, which the Constitution expressly
recognises, and no one denies, then these four alternatives embrace
the entire subject, and it only remains to select that one which is
true.
That the Constitution itself has defined citizenship of the United
States by declaring what persons, born within the several States,
shall or shall not be citizens of the United States, will not be
pretended. It contains no such declaration. We may dismiss the first
alternative, as without doubt unfounded.
Has it empowered Congress to enact what free persons, born within the
several States, shall or shall not be citizens of the United States?
Before examining the various provisions of the Constitution which may
relate to this question, it is important to consider for a moment the
substantial nature of this inquiry. It is, in effect, whether the
Constitution has empowered Congress to create privileged classes
within the States, who alone can be entitled to the franchises and
powers of citizenship of the United States. If it be admitted that the
Constitution has enabled Congress to declare what free persons, born
within the several States, shall be citizens of the United States, it
must at the same time be admitted that it is an unlimited power. If
this subject is within the control of Congress, it must depend wholly
on its discretion. For, certainly, no limits of that discretion can be
found in the Constitution, which is wholly silent concerning it; and
the necessary consequence is, that the Federal Government may select
classes of persons within the several States who alone can be entitled
to the political privileges of citizenship of the United States. If
this power exists, what persons born within the States may be
President or Vice President of the United States, or members of
either House of Congress, or hold any office or enjoy any privilege
whereof citizenship of the United States is a necessary qualification,
must depend solely on the will of Congress. By virtue of it, though
Congress can grant no title of nobility, they may create an oligarchy,
in whose hands would be concentrated the entire power of the Federal
Government.
It is a substantive power, distinct in its nature from all others;
capable of affecting not only the relations of the States to the
General Government, but of controlling the political condition of the
people of the United States. Certainly we ought to find this power
granted by the Constitution, at least by some necessary inference,
before we can say it does not remain to the States or the people. I
proceed therefore to examine all the provisions of the Constitution
which may have some bearing on this subject.
Among the powers expressly granted to Congress is "the power to
establish a uniform rule of naturalization." It is not doubted that
this is a power to prescribe a rule for the removal of the
disabilities consequent on foreign birth. To hold that it extends
further than this, would do violence to the meaning of the term
naturalization, fixed in the common law, (Co. Lit., 8 a, 129 a; 2
Ves., sen., 286; 2 Bl. Com., 293,) and in the minds of those who
concurred in framing and adopting the Constitution. It was in this
sense of conferring on an alien and his issue the rights and powers of
a native-born citizen, that it was employed in the Declaration of
Independence. It was in this sense it was expounded in the Federalist,
(No. 42,) has been understood by Congress, by the Judiciary, (2
Wheat., 259, 269; 3 Wash. R., 313, 322; 12 Wheat., 277,) and by
commentators on the Constitution. (3 Story's Com. on Con., 1-3; 1
Rawle on Con., 84-88; 1 Tucker's Bl. Com. App., 255-259.)
It appears, then, that the only power expressly granted to Congress to
legislate concerning citizenship, is confined to the removal of the
disabilities of foreign birth.
Whether there be anything in the Constitution from which a broader
power may be implied, will best be seen when we come to examine the
two other alternatives, which are, whether all free persons, born on
the soil of the several States, or only such of them as may be
citizens of each State, respectively, are thereby citizens of the
United States. The last of these alternatives, in my judgment,
contains the truth.
Undoubtedly, as has already been said, it is a principle of public
law, recognised by the Constitution itself, that birth on the soil of
a country both creates the duties and confers the rights of
citizenship. But it must be remembered, that though the Constitution
was to form a Government, and under it the United States of America
were to be one united sovereign nation, to which loyalty and obedience
on the one side, and from which protection and privileges on the
other, would be due, yet the several sovereign States, whose people
were then citizens, were not only to continue in existence, but with
powers unimpaired, except so far as they were granted by the people to
the National Government.
Among the powers unquestionably possessed by the several States, was
that of determining what persons should and what persons should not be
citizens. It was practicable to confer on the Government of the Union
this entire power. It embraced what may, well enough for the purpose
now in view, be divided into three parts. _First_: The power to remove
the disabilities of alienage, either by special acts in reference to
each individual case, or by establishing a rule of naturalization to
be administered and applied by the courts. _Second_: Determining what
persons should enjoy the privileges of citizenship, in respect to the
internal affairs of the several States. _Third_: What native-born
persons should be citizens of the United States.
The first-named power, that of establishing a uniform rule of
naturalization, was granted; and here the grant, according to its
terms, stopped. Construing a Constitution containing only limited and
defined powers of government, the argument derived from this definite
and restricted power to establish a rule of naturalization, must be
admitted to be exceedingly strong. I do not say it is necessarily
decisive. It might be controlled by other parts of the Constitution.
But when this particular subject of citizenship was under
consideration, and, in the clause specially intended to define the
extent of power concerning it, we find a particular part of this
entire power separated from the residue, and conferred on the General
Government, there arises a strong presumption that this is all which
is granted, and that the residue is left to the States and to the
people. And this presumption is, in my opinion, converted into a
certainty, by an examination of all such other clauses of the
Constitution as touch this subject.
I will examine each which can have any possible bearing on this
question.
The first clause of the second section of the third article of the
Constitution is, "The judicial power shall extend to controversies
between a State and citizens of another State; between citizens of
different States; between citizens of the same State, claiming lands
under grants of different States; and between States, or the citizens
thereof, and foreign States, citizens, or subjects." I do not think
this clause has any considerable bearing upon the particular inquiry
now under consideration. Its purpose was, to extend the judicial power
to those controversies into which local feelings or interests might so
enter as to disturb the course of justice, or give rise to suspicions
that they had done so, and thus possibly give occasion to jealousy or
ill will between different States, or a particular State and a foreign
nation. At the same time, I would remark, in passing, that it has
never been held, I do not know that it has ever been supposed, that
any citizen of a State could bring himself under this clause and the
eleventh and twelfth sections of the judiciary act of 1789, passed in
pursuance of it, who was not a citizen of the United States. But I
have referred to the clause, only because it is one of the places
where citizenship is mentioned by the Constitution. Whether it is
entitled to any weight in this inquiry or not, it refers only to
citizenship of the several States; it recognises that; but it does not
recognise citizenship of the United States as something distinct
therefrom.
As has been said, the purpose of this clause did not necessarily
connect it with citizenship of the United States, even if that were
something distinct from citizenship of the several States, in the
contemplation of the Constitution. This cannot be said of other
clauses of the Constitution, which I now proceed to refer to.
"The citizens of each State shall be entitled to all the privileges
and immunities of citizens of the several States." Nowhere else in the
Constitution is there anything concerning a general citizenship; but
here, privileges and immunities to be enjoyed throughout the United
States, under and by force of the national compact, are granted and
secured. In selecting those who are to enjoy these national rights of
citizenship, how are they described? As citizens of each State. It is
to them these national rights are secured. The qualification for them
is not to be looked for in any provision of the Constitution or laws
of the United States. They are to be citizens of the several States,
and, as such, the privileges and immunities of general citizenship,
derived from and guarantied by the Constitution, are to be enjoyed by
them. It would seem that if it had been intended to constitute a class
of native-born persons within the States, who should derive their
citizenship of the United States from the action of the Federal
Government, this was an occasion for referring to them. It cannot be
supposed that it was the purpose of this article to confer the
privileges and immunities of citizens in all the States upon persons
not citizens of the United States.
And if it was intended to secure these rights only to citizens of the
United States, how has the Constitution here described such persons?
Simply as citizens of each State.
But, further: though, as I shall presently more fully state, I do not
think the enjoyment of the elective franchise essential to
citizenship, there can be no doubt it is one of the chiefest
attributes of citizenship under the American Constitutions; and the
just and constitutional possession of this right is decisive evidence
of citizenship. The provisions made by a Constitution on this subject
must therefore be looked to as bearing directly on the question what
persons are citizens under that Constitution; and as being decisive,
to this extent, that all such persons as are allowed by the
Constitution to exercise the elective franchise, and thus to
participate in the Government of the United States, must be deemed
citizens of the United States.
Here, again, the consideration presses itself upon us, that if there
was designed to be a particular class of native-born persons within
the States, deriving their citizenship from the Constitution and laws
of the United States, they should at least have been referred to as
those by whom the President and House of Representatives were to be
elected, and to whom they should be responsible.
Instead of that, we again find this subject referred to the laws of
the several States. The electors of President are to be appointed in
such manner as the Legislature of each State may direct, and the
qualifications of electors of members of the House of Representatives
shall be the same as for electors of the most numerous branch of the
State Legislature.
Laying aside, then, the case of aliens, concerning which the
Constitution of the United States has provided, and confining our view
to free persons born within the several States, we find that the
Constitution has recognised the general principle of public law, that
allegiance and citizenship depend on the place of birth; that it has
not attempted practically to apply this principle by designating the
particular classes of persons who should or should not come under it;
that when we turn to the Constitution for an answer to the question,
what free persons, born within the several States, are citizens of the
United States, the only answer we can receive from any of its express
provisions is, the citizens of the several States are to enjoy the
privileges and immunities of citizens in every State, and their
franchise as electors under the Constitution depends on their
citizenship in the several States. Add to this, that the Constitution
was ordained by the citizens of the several States; that they were
"the people of the United States," for whom and whose posterity the
Government was declared in the preamble of the Constitution to be
made; that each of them was "a citizen of the United States at the
time of the adoption of the Constitution," within the meaning of those
words in that instrument; that by them the Government was to be and
was in fact organized; and that no power is conferred on the
Government of the Union to discriminate between them, or to
disfranchise any of them--the necessary conclusion is, that those
persons born within the several States, who, by force of their
respective Constitutions and laws, are citizens of the State, are
thereby citizens of the United States.
It may be proper here to notice some supposed objections to this view
of the subject.
It has been often asserted that the Constitution was made exclusively
by and for the white race. It has already been shown that in five of
the thirteen original States, colored persons then possessed the
elective franchise, and were among those by whom the Constitution was
ordained and established. If so, it is not true, in point of fact,
that the Constitution was made exclusively by the white race. And that
it was made exclusively for the white race is, in my opinion, not only
an assumption not warranted by anything in the Constitution, but
contradicted by its opening declaration, that it was ordained and
established, by the people of the United States, for themselves and
their posterity. And as free colored persons were then citizens of at
least five States, and so in every sense part of the people of the
United States, they were among those for whom and whose posterity the
Constitution was ordained and established.
Again, it has been objected, that if the Constitution has left to the
several States the rightful power to determine who of their
inhabitants shall be citizens of the United States, the States may
make aliens citizens.
The answer is obvious. The Constitution has left to the States the
determination what persons, born within their respective limits, shall
acquire by birth citizenship of the United States; it has not left to
them any power to prescribe any rule for the removal of the
disabilities of alienage. This power is exclusively in Congress.
It has been further objected, that if free colored persons, born
within a particular State, and made citizens of that State by its
Constitution and laws, are thereby made citizens of the United States,
then, under the second section of the fourth article of the
Constitution, such persons would be entitled to all the privileges and
immunities of citizens in the several States; and if so, then colored
persons could vote, and be eligible to not only Federal offices, but
offices even in those States whose Constitutions and laws disqualify
colored persons from voting or being elected to office.
But this position rests upon an assumption which I deem untenable. Its
basis is, that no one can be deemed a citizen of the United States who
is not entitled to enjoy all the privileges and franchises which are
conferred on any citizen. (See 1 Lit. Kentucky R., 326.) That this is
not true, under the Constitution of the United States, seems to me
clear.
A naturalized citizen cannot be President of the United States, nor a
Senator till after the lapse of nine years, nor a Representative till
after the lapse of seven years, from his naturalization. Yet, as soon
as naturalized, he is certainly a citizen of the United States. Nor is
any inhabitant of the District of Columbia, or of either of the
Territories, eligible to the office of Senator or Representative in
Congress, though they may be citizens of the United States. So, in all
the States, numerous persons, though citizens, cannot vote, or cannot
hold office, either on account of their age, or sex, or the want of
the necessary legal qualifications. The truth is, that citizenship,
under the Constitution of the United States, is not dependent on the
possession of any particular political or even of all civil rights;
and any attempt so to define it must lead to error. To what citizens
the elective franchise shall be confided, is a question to be
determined by each State, in accordance with its own views of the
necessities or expediencies of its condition. What civil rights shall
be enjoyed by its citizens, and whether all shall enjoy the same, or
how they may be gained or lost, are to be determined in the same way.