Citizenship in 1789 and the Force of Law of the Declaration of Independence

July 3rd, 2010

While the Declaration of Independence turns 234 this July 4th, its monumental significance is more important than ever. Nonetheless, the Supreme Court has held for quite some time that the Declaration of Independence has no force of law in our Republic. Or does it?

In Cotting v. Godard, 183 U.S. 79 (1901), the Court stated:

The first official action of this nation declared the foundation of government in these words: “We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness. “While such declaration of principles may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, and while in all cases reference must be had to the organic law of the nation for such limits, yet the latter is but the body and the letter of which the former is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government.”

Elena Kagan said as much during this exchange with Senator Coburn:

COBURN: So — so you wouldn’t embrace what the Declaration of Independence says, that we have certain God-given, inalienable rights that aren’t given in the Constitution, that they’re ours, ours alone, and that the government doesn’t give those to us?
KAGAN: Senator Coburn, I believe that the Constitution is an extraordinary document, and I’m not saying I do not believe that there are rights pre-existing the Constitution and the laws, but my job as a justice is to enforce the Constitution and the laws.
COBURN: Well, I understand that. Well, I’m not talking about as a justice. I’m talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?
KAGAN: Senator Coburn, I — I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief, if I had one or…
COBURN: I — I would want you to always act on the basis of a belief of what our Declaration of Independence says.
KAGAN: I — I think you should want me to act on the basis of law, and — and that is what I have upheld to do, if I’m fortunate enough to be concerned — to be confirmed, is to act on the basis of law, which is the Constitutions and the statutes of the United States.

According to Kagan, our law is merely the Constitution and the statutes of the United States, and does not include the Declaration, or any principles of natural rights or higher law.

Does July 4, 1776 and the Declaration of Independence have the force of law? With respect to notions of “citizenship,” I think the answer is yes.

The word “citizen” is used in our original Constitution in 3 different locations (I am intentionally omitting the 3/5 clause. I will get to this in due time after some more research).

Lots more after the jump.

First, it is used to set the qualifications for elected office for Representative and Senator.

Article I, Section 2: “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: “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.”

Second, it is used in Article III to spell out the diversity requirements.

Article III, Section 2: The judicial Power shall extend … to Controversies between two or more States;–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 a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Third, it is used to in the Article IV Privileges and Immunities Clause.

Article IV, Section 2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

Who was a citizen in 1787? Who was eligible to run for office in 1788? How was citizenship defined? Who could sue in federal courts using diversity jurisdiction following the judiciary act of 1789? Who could claim the protections of the privileges and immunities clause?

I have considered some of these questions before, and queried whether July, 4 1776 and the Declaration were relevant to this inquiry.

Needless to say, many members of the first Congress were immigrants, in the sense that they came to the United States after their birth–but before the American Revolution. According to Akhil Amar’s America’s Constitution:

In the first congressional election cycle . . . the American people . . . sen[t] nine naturalized citizens to the House and Senate. Four of the nine had been among the document’s signers at Philadelphia. FN34

FN 34- In the first Congress, the nine immigrant Americans were Representative Aedanus Burke, Thomas Fitzsimons [arrived in 1750s], James Jackson [arrived in 1772], John Laurance [arrived in 1767], and Thomas Tudor Tucker, and Senators Pierce Butler [arrived in 1758], Samuel Johnston [arrived in 1736], Robert Morris [arrived in 1747], and William Patterson [arrived in 1747]. The four signers in this group were Fitzsimmons, Butler, Morris, and Paterson.

Were these representatives citizens for 7 and 9 years respectively? All of them had immigrated to the United States prior to 1776, and most of them served in the Continental Army.

But not all immigrants who ran for office were seated without contest.

In 1789, during the first session, the Congress considered the contested election of David Ramsay v. William Smith of South Carolina. The House voted to seat him.

Smith was born in South Carolina before the revolutionary war, and was sent to Europe in 1774 until the termination of the revolutionary war. He returned in 1783 and in 1788 was elected to represent South Carolina. His seat was contested on the grounds that he had not yet been “seven year a citizen of the United States.” After debate, it was held that he was entitled to take the seat. While the contest largely turned on the understanding of South Carolina law, there were some memorable passages regarding the Declaration.

From Representative James Madison (probably a good guide to the meaning of the Constitution):

“… the conclusion I Have drawn is, that Mr. Smith was, on the declaration of independence, a citizen of the United States.”

Note, that Madison ascribed him citizenship of the United States, even though the Articles of Confederation were not created until 1777 and ratified in 1781, and the Constitution was not created until 1787 and ratified in 1789.

From Representative Smith, a lovely, glowing passage:

The declaration of independence affected him as much, though at Geneva, as it did those in Carolina; his happiness, that of his dearest connexions [sic], his property, were deeply interested in it: his fate was so closely connected with that of Carolina, that any revolution in Carolina was a revolution to him. Though a minor, as soon as he heard of the independence of America, he considered himself an American Citizen.

Beyond the contested elections in the House, there are many Supreme Court opinions from the Early 19th Century that consider this question–though in slightly different context. For example, in contests of wills and inheritances, devises of property, and collection of debts, the question of citizenship before and after 7/4/1776 was propounded by some of our greatest jurists, including Marshall and Story.

I am not prepared to post any of this research yet, (there’s a lot), but here is a snippet from an excellent case Inglis v. Trustees of Sailor’s Snug Harbor (which oddly enough originated in my home of Staten Island):

The rule as to the point of time at which the American ante nati ceased to be British subjects, differs in this country and in England, as established by the courts of justice in the respective countries. The English rule is to take the date of the treaty of peace in 1783. Our rule is to take the date of the declaration of independence. And in the application of the rule to different cases, some difference in opinion may arise. The settled doctrine of this country is, that a person born here, who left the country before the declaration of independence, and never returned here, became thereby an alien, and incapable of taking lands subsequently by descent in this country.

The 4th of July does have some actual legal meaning. And the Declaration, in at least the context of citizenship, does have the force of law.

Happy 4th of July everyone.

Hopefully, by this time next year this post will have blossomed into something a bit more substantive.