Original Citizenship

October 18th, 2010

I just submitted my draft of Original Citizenship to the Penn Law Review for my forthcoming piece in PENNumbra. I am very excited about this article. It is probably my favorite topic yet. I hope you enjoy it. Please let me know if you have any feedback. either through comments or through e-mail.

Here is the introduction:

The phrase “citizen of the United States” is used in our Constitution in three different locations to set the qualifications for Representatives,[1] Senators,[2] and the President.[3] If these sections—the oft-dubbed “bright-line” constitutional rules—are to have any meaning, the United States of America, and citizenship therein, must have predated our Constitution. This raises two seemingly obvious, yet largely unanswered questions. First, how did one constitutionally become a “citizen of the United States” prior to the ratification of the Constitution in 1789? Second, for purposes of citizenship, and the Constitution, when did the United States of America begin?

The answer to the second question seems simple. The likely starting points are finite: the Declaration of Independence was signed on July 4, 1776, the Articles of Confederation were ratified on 3/1/1781, the Treaty of Paris was signed on 9/3/1784, the delegates to the Constitutional Convention signed the Constitution on 9/17/1787, and the Constitution was ratified on 6/21/1788. The First Congress held its initial meeting on March 4, 1789 at Federal Hall in New York City. If a Senator needed to have “been nine Years a citizen of the United States” on March 4, 1789, the Senator would have needed to be a citizen of the United States on March 4, 1780. This date precedes all of the possible candidates—other than July 4, 1776. Assuming that members of the first Senate met the requisite citizenship qualifications,[4] simple arithmetic suggests that the United States could only have started with the Declaration of Independence.

While Americans are fond of celebrating the birthday of the United States every year on July 4th, today this date, as well as the Declaration, has no constitutional significance.[5] Fireworks and barbeques aside, for legal purposes the practical starting date of the United States is 1789, when President Washington was inaugurated and the First Congress met. Our Courts do not take cognizance of the Declaration of Independence. Yet to a member of the First Congress or a Federal Judge in 1789, the United States of America was not an infant, but was an old, familiar friend, in which he had been a citizen for quite some time. The Constitution merely represented a new form of government for a preexisting Country. Article VII concludes that this Constitution was submitted to the states in the year “of the Independence of the United States of America the Twelfth.”[6] The Constitution included a direct textual, and historical link with the Declaration of Independence and 1776.

The answer to the first question—how did one constitutionally become a “citizen of the United States” prior to 1789—is to be found by studying these preceding years of Independence. While in many cases the record and views on citizenship conflict, inevitably a single theory emerges—our traditional view of citizenship cannot be correct. Scholars seemed to have entirely overlooked this issue, and likely assumed that the absence of any discussion of citizenship in the Constitution indicated that this topic was intentionally disregarded. Alexander Bickel wrote, “the concept of citizenship plays only the most minimal role in the American constitutional scheme.”[7] Citizenship, although not addressed, was not ignored. We just were not looking in the right places to find the answer. Tragically, the promise of citizenship for all people was not realized until the ratification of the 14th amendment. Yet, by fully appreciating the status of the first thirteen years of our Republic, and the constitutional and legal issues our nascent government faced, the riddle of original citizenship, as well as the validity of the abolitionist’s reliance on the Declaration, is unraveled.

Part I traces the birth of the “United States of America” from our “unanimous Declaration,” to the “Confederation and perpetual Union,” to our “more perfect Union.” The continuity of the style reflected the permanence of the sovereignty of this country, despite changes in the form of governance. Throughout the early years of our Republic, a national community was formed—the United States of America—and in this national community resided “citizens of the United States.”

Part II discusses the legal and theoretical doctrines of citizenship as articulated by Lord Coke in Calvin’s Case and John Locke in his Second Treatise on Government. These theories provided the jurisprudential framework that influenced citizenship in the early years of America. Part III explorers how our early Republic and the states under the Continental Congress defined citizenship. Immigrants who arrived in the United States after the Declaration of Independence—the antenati—received citizenship in accordance with the naturalization policies of the states, as this role was reserved to the states under the Continental Congress. The citizenship of those who lived in the United States prior to the Declaration of Independence—the postnati—was determined under two primary doctrines, both based on a Lockean social compact theory. The first theory postulated that by virtue of residing in the United States at the moment of Independence and separation with Britain, a person became automatically became citizen—regardless of whether he was a Yankee or a dissenting loyalist. The second theory contended that citizenship and allegiances could not be imposed on anyone—to do so would be contrary to the spirit of the Declaration of Independence. Rather, following Independence a person could choose, or “elect” whether he wanted to become a citizen of the United States. Alternatively, he could exercise his right of expatriation within a reasonable period of time, and thereby decline citizenship. For the most part, all states adopted a naturalization policy that mirrored one of these strands.

Part IV analyzes how these doctrines were applied before the ratification of the Constitution, during the First Congress, and following the First Congress. First, in treason cases, in order to distinguish between a disloyal citizen and a foreign alien, the court needed to determine if the accused was a citizen of the United States. Second, because “[e]ach House shall be the Judge of the Elections, Returns, and Qualifications of its own Members,”[8] early records of contested elections in the House and Senate help to explicate the contours of the original understanding of America citizenship for House qualifications. Third, in cases that interpreted Jay’s Treaty, the courts needed to determine whether a claimant was a citizen at the time of the Revolution in order to determine whether certain barriers to recovery existed.

Despite the absence of any debates on this topic, the Constitution implicitly adopted these theories of citizenship, as applied by the states, in order to define citizenship of the United States. By doing so, the ratifying states recognized that American citizenship began not with the ratification of the Constitution on June 21, 1788, not with the signing of the Treaty of Paris on September 3, 1783, not with the ratification of the Articles of Confederation on March 1, 1781, but in Philadelphia on July 4, 1776 with the signing of the Declaration of Independence.

[1] U.S. Const. art. I, § 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.”)(emphasis added).

[2] U.S. Const. art. I, § 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.”)(emphasis added).

[3] U.S. Const. art. II, § 1 (“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”)(emphasis added).

[4] There was a prominent challenge to the qualifications of one member of the House in 1789. See infra XX; M. St. Clair Clarke & David A. Hall, Cases of Contested Elections in Congress 23 (1834) (discussing the case of David Ramsay v. William Smith of South Carolina).

[5] See e.g., Cotting v. Godard, 183 U.S. 79 (1901).

[6] U.S. Const. art. VII

[7] Alexander Bickel, The Morality of Consent 33-36 (1977).

[8] U.S. Const. art. I, § 5.