Article I, Section 2 of the Constitution provides:
No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.
Article I, Section 3 of the Constitution provides:
No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.
The First Congress met from March 4, 1789 to March 3, 1791. Who among the representatives and senators in the First Congress were citizens of the United States for Seven Years or Nine Years? If none of them had obtained these minimum qualifications, was the First Congress unconstitutional?
In other words, what is the starting point to count to 7 or 9 years? The Constitution? The Articles of Confederation? The Declaration of Independence?
Article VII provides that 9 states need to ratify the Constitution before it becomes effective. New Hampshire, the 9th state to ratify, did so on June 21, 1788. If that is the starting point, no one would have been a citizen for much more than a year. Even so the Constitution, prior to the 14th Amendment, provides no positive grant of citizenship, either through birthright or through some grandfather clause. Who was a citizen at all if you resided in the United States prior to the ratification of the Constitution?
The Naturalization Act of 1790 provided that an alien could petition for citizenship after residing for 2 years in the United States, and one year in the state of residence. But that comes after the Constitution. What about people who already resided in the United States?
What about the Articles of Confederation? The Constitutional Convention, after all, was called with the intent of amending the Articles. Perhaps that is the relevant starting point. The Articles of Confederation were ratified on March 1, 1781. So a representative could have been a citizen for seven years in 1789, but it would have been impossible for a senator to have been a citizen for 9 years in 1789. And like the original Constitution, the Articles of Confederation, as far as I can tell, did not include a positive grant of citizenship. Perhaps the Congress under the Articles passed some statute granting citizenship. I am not sure.
Perhaps the relevant starting point is July 4, 1776, when Independence was declared from Great Britain? The Declaration is not really a charter of Government, and the Supreme Court has repeatedly said that the Declaration has no impact on our present system of government. But at least the numbers work out, as it would cover senators and congressmen.
But would that cover the Presidential qualifications? Article II provides:
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.
First note that Article II requires that the President merely be a resident within the United States, while Article I requires citizenship for representatives and senators. There must be a distinction between the two terms.
Assuming the United States was created on July 4, 1776, as prior to that date the United States could not exist as it was a British colony, George Washington would only have been a resident within the United States for 14 years on July 4, 1790. But George Washington was inaugurated on April 30, 1789. Was George Washington ineligible to be President? Where is Orly Taitz when you need her?
I realize the absurdity of these arguments, but I query whether anyone at the time considered these questions. The Framers added the residency/citizenship requirements for a reason. Perhaps they thought that by virtue of being an American at the time of the Founding, however broadly defined, citizenship was implied. Or perhaps, they thought it just wouldn’t matter for the first few Congresses, and eventually everything would work out. I don’t know. But this is something that could have some effects on notions of citizenship.
Update: A related thought. Assuming citizenship goes back to the Declaration, that would mean the Declaration conferred rights of citizenship. If the Declaration conferred a right of citizenship, what other legally cognizable rights did it confer? And if the Constitution recognizes the Declaration’s right of citizenship, should it recognize other rights? Cf Scalia’s dissent in Troxel v. Granville.