Original Citizenship to be Published in University of Pennsylvania Law Review PENNumbra

August 6th, 2010

I am proud to announce that I will be publishing “Original Citizenship” in PENNumbra, the online supplement to the University of Pennsylvania Law Review. The essay will be published in December.

Here is the abstract:

The word “citizen” is used in the original Constitution in three different locations. It is used to set the qualifications for serving in the House of Representatives, the Senate, and the Presidency. Second, it is used in Article III to spell out the requirements for diversity jurisdiction. Third, Article IV limits the entitlement of “all Privileges and Immunities” to citizens. While the Article III and Article IV referents to citizenship relate to state citizenship—which was defined in many cases by state law—Article I and Article II invoke citizenship “of the United States,” a term heretofore that lacked a meaning.

An obvious question arises. Who was a “citizen” of the United States in 1789 when the Constitution was ratified? How was citizenship of the United States determined in 1789? When did United States citizenship begin? These are questions that modern scholars seemed to have entirely overlooked. Yet, these are a question that the Framers of our Constitution, early members of Congress, and the United States Supreme Court confronted. Viewing these questions through a semantic originalism lens reveals that the understanding of citizenship in those early years possessed a meaning that has seemingly been lost to the ages.

There are a few possible candidates to mark the beginning of United States citizenship: July 4, 1776, when the Declaration of Independence was signed; March 1, 1781 when the Articles of Confederation were ratified; September 3, 1783 when the Treaty of Paris was signed; January 14, 1784, when the Treaty of Paris was ratified by the Congress of the Confederation; September 17, 1787, when the delegates to the Constitutional Convention signed the Constitution; and June 21, 1788, when New Hampshire became the ninth, and final state needed in order to ratify the Constitution.

The First Congress held its initial meeting on March 4, 1789 at Federal Hall in New York City. Assuming that members of the Senate met the requisite citizenship requirement—although there was a prominent challenge to the qualifications of one member of the House—simple arithmetic seems to rule out all but one of these possibilities. If a Senator would have needed to have “been nine Years a Citizen of the United States” on March 4, 1789, that would require that the Senator would have needed to be a Citizen of the United States on March 4, 1780. This date precedes all of the relevant dates, other that the Declaration of Independence. Fortunately for lawyers—who are notoriously poor at math—we are left with a historical record that helps to resolve this inquiry much more decisively.

The evidence for this historical enigma is to be found in four different historical fonts. First, Enlightenment era philosophies, as well as state laws on notions of citizenship help to fill in the gaps in our understanding of original citizenship. Second, though opaque, remarks made during the Constitutional Convention intimate and sketch a portrait of how the Framers treated Citizenship of the United States. Third, because the House is the “Judge of the Elections, Returns, and Qualifications of its own Members,” early records of contested elections in the House help to explicate the contours of the original understanding of America citizenship. Fourth, in several early Supreme Court cases, the Justices considered this question to determine when citizenship should have begun. From this record, a picture emerges—as originally understood, American citizenship began not with the ratification of the Constitution, not with the ratification of the Articles of Confederation, not with the signing of the Treaty of Paris, but in Philadelphia on July 4, 1776 with the signing of the Declaration of Independence. The Declaration of Independence conferred citizenship—a positive political right—and the founding generation seemed to understand this concept.

Does the Declaration of Independence carry the force of law? The conventional answer is clearly no. For over a Century, the Supreme Court has held that while the Declaration of Independence “may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty . . . it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence.” Justice Kagan reaffirmed this reasoning during her confirmation hearing in an exchange with Senator Coburn, remarking that the Declaration of Independence lacks the force of law. So does July 4, 1776 and the Declaration of Independence have the force of law? Yes—at least with respect to notions of “citizenship.”

With this observation, over a century of Supreme Court jurisprudence finding that the Declaration of Independence has no force of law seems doubtful, at least with respect to citizenship. Additionally, if the Declaration of Independence was understood to confer the right of Citizenship, what other rights did it give to “We the People?” Based on this refined understanding, this article will further explore abolitionist thought—from Frederick Douglass and Lysander Spooner among others—that relied on the Declaration of Independence to promote a promise of equality of citizenship for all.

Though the answers to these queries has been lost to the sands of time, and stare decisis likely precludes any meaningful change in our laws, this article aims to answer whether the Declaration of Independence, as understood at the time of the framing of the Constitution, had the force of law.