Possible Unifying Theme for Original Citizenship

September 23rd, 2010

In this post, I aim to put together, what I think, is a unifying theme for this topic. This is a little heavy on social contract theory, and there are still kinks to work out, but I’m close. I won’t rehash the problem stated in Original Citizenship. See all previous posts on this topic here.

It’s really long, so I’ll put it after the jump.

The preamble to the Constitution begins “We the People of the United States.” This is remarkable, in the sense that it notes that the “people of United States” presupposes the Constitution. It is unremarkable when you consider that this term had been used in all of our important founding documents. From the quill of Thomas Jefferson our Union began with “the Unanimous Declaration of the thirteen united States of America.”Our form of government evolved in March 17, 1981, in which Article I of the Articles of Confederation noted that the “Stile of this Confederacy shall by ‘The United States of America.’” September 3, 1783, John Adams, Benjamin Franklin, and John Jay affixed their signatures to the Treaty of Paris between “his Britannic Majesty and the United States of America.”

But, the United States of America did not mean the same thing back then as we commonly understand now. Today we would say that “the United States of America is . . .” In the late 18th and early 19th century, one would say “the United States of America are . . . ” It was not a singular noun–as in a single country–but a plural noun–as in a grouping of states.  This was true even under the Constitution, which eliminated the weak confederation of states that preceded the current form of our Republic. But in 1787, when the Constitution was drafted, and in 1788 right before the Constitution was ratified, this earlier understanding of “the United States of America” remained. The Northwest Ordinance says as much, as the Act required that a potential representative “shall have been a citizen of one of the United states [for three years].” Similarly, early drafts of Article I phrased the citizenship requirement as “Citizen in” and not of the United States.

I contend that when the framers wrote “citizen of the United States” they were referring to citizenship of one of the United States (e.g., a citizen of New York or Pennsylvania). This is buttressed by challenges to the qualifications in the House and Senate of William Smith and Albert Gallatin. I won’t go into specifics, but their qualifications were challenged because they had not yet been citizens of the United States for the requisite time. To resolve both of these inquiries, members of the first Congress, including James Madison, looked to South Carolina law to determine citizenship.

These state law determinations largely looked to the Declaration of Independence as the point of demarkation. I have a lot of early state cases on this topic, which I’ll discuss later.

That reconciles the primary problem that led to this inquiry. A person could have conceivably been a citizen of one of the states for 7 or 9 years if we start counting in 1776 (or possibly 1777, if the state did not establish a government until that time, but I’ll get to that later). That would explain why a dog did not bark during the ratification conventions on this point. All of the states had already determined their rules of citizenship and naturalization, and that would determine whether one was a citizen of the United States. It was totally possible for a Representative to have been a citizen for 9 years at that point.

So far, not too controversial, right? Right.  Now it gets fun.

So understood, the text of the Constitution makes zero references to citizenship of the United States as the federal government. There are references in Article IV privileges and immunities clause, that refers to state citizenship. There are references in Article III to diversity jurisdiction, but that is also based on state citizenship. If you accept my assumption (and please challenge it because I am not sure about this), the references to citizens of the United States in Article I also refer to state citizenship. But what about Article II you ask? Here is the fun part.

Article II, Section 1 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.

I, and many others, have previously queried why Article II was phrased differently, and included this funny language a citizen of the United States “at the time of the adoption of this Constitution.” This provision is a direct reference to the social compact theory of citizenship by election that predominated legal theory at the time in the 18th and 19th century, and lies at the center of resolving this riddle. According to this theory, one acquired citizenship upon election after the formation of the social compact.

A little history first. In the years following the American revolution, there were a number of cases involving charges of treason against loyalists who fought for the British during the war. The question presented in these cases was whether a person who remained in one of the colonies after the Declaration, and subsequently went to fight for the British was a citizen of the United States qua 13 colonies, or a citizen of Britannia. While there was no precise consensus in the law, the general theory at the time was based on social compact theory. The period preceding the Declaration was seen as a State of Nature. The Declaration of Independence was seen as a social compact, a new form of government. Under social compact theory (and there are so many strands from Locke to Hobbes to Rousseau), there are various ways in which the majority can bind the minority. It is impossible to obtain buy-in from 100% of a population in any agreement, especially something as significant as a new compact. Many of the courts settled on the “election” theory. That is, if you remained in the sovereign after the formation of the compact, and received its benefits, you constructively elected to become a citizen, subject to whatever laws or regulations proscribed. However, if you elected to stay after the compact, but left prior to the establishment of a civil government, you did not make an election, and you exercised your right of expatriation. Courts also gave a reasonable time to make the election choice, so one could linger a bit (how long is unclear) in an established government before casting a formal election. For example, the Declaration was ratified on 7/4/1776, but the government of Jersey didn’t get rolling till 1777. If a person remained in the garden state after 7/4/1776, but left before 1777, he was not considered a citizen of the United States, and could not be prosecuted for treason, for he was a British citizen.

Back to the 1787. The writing of the Constitution was viewed in much the same light as the drafting of the Declaration of Independence. The Declaration was self-executing on 7/4/1776, so to speak. In other words, it took effect immediately to create a new civil society. But it recognized that the states were the main players. Citizenship in those states began when the states had formally established a civil government. In 1787, the submission of the Constitution to the states did not effect a new civil society. Rather, as Article VII provides, the Constitution would only become effective upon the ratification of nine states (note that like in social compact theory, less than a majority was needed to bind the minority). Citizenship of the United States qua singular power could not have begun until the strictures of Article VII were completed. Once the final state ratified the Constitution in 1788, a new federal system was born–one in which the states and federal government worked in tandem. At this point, at the adoption of the Constitution, citizenship of the United States was born. At this point, the provision in Article II that refers to citizenship of the United States kicks in. At this point, the citizenship clock starts ticking.

In essence, citizenship of the United States began upon the ratification, or in the language of Article II, the “adoption of this Constitution.” A person would have been able to elect, or make an overt decision to remain under the sovereign of the United States upon the ratification. The person would retain the right recognized by the law of nations of expatriation–that is the ability to leave to go to another sovereign. But by remaining in the United States, an election was made.

The original public understanding of “citizen of the United States” by necessity transformed. Just like the notion of “the United States” meant different things in the Declaration, in the Articles of Confederation, and in the Treaty of Paris, this term took on a new meaning–one grounded in social compact theory and based on the new government established.

Now it gets more fun. Assume the same rules of election that existed after the revolutionary war existed in 1788 (they probably did based on the case law I’ve read). In 1788, the formal period to make a citizenship election (subject to the rules of naturalization Congress may proscribe under Article I, Section 8) has begun. After you linger for a bit, and decide to remain, you have effectively cast your ballot, and elected to be a citizen. If you had expatriated during this time, you were not a citizen of the United States.

Now it gets even more fun. The principle of receiving citizenship from one’s parent existed around the turn of the century. Assume that your father elected to be a citizen of the United States in 1788. You were born in 1789. You are a citizen of the United States by virtue of your parent’s citizenship. While at one point I thought that United States citizenship was not defined in any way until the 14th amendment for those born in the United States, this theory would seem to support a contrary conclusion. All of this preceded the first Naturalization Act of 1790. [I am not touching the 3/5 clause yet, but this will factor into my ultimate theory]

This theory has some interesting conclusions.  In 1787, citizenship of the United States qua single sovereign did not exist. What existed was citizenship of the United States qua citizenship of the individual states. In 1788 when the Constitution was ratified, and the first Congress met, a new citizenship was born–Citizenship of the United States qua single sovereign. But wait you ask, I thought you said in 1788 the House looked to state citizenship laws. Here’s where the social compact theory comes in. Unlike the break with the British, which started the social contract anew, the transformation from the governments under the Declaration to the governments under the Articles was in essence the same sovereign, it only changed form–from a loose confederation of states to a federation of states. There was continuity. Thus, it was still permissible for the House in 1788 to consider the state citizenship to meet the requirements of Article I. Moving forward, as time progressed, this no longer became necessary as representatives had been in the United States as we know it today for the requisite time. [I admit this part of the theory needs work. I’m getting there]

Does this make sense? Not sure. But this is the best I got so far.