It seems Lysander Spooner disagreed with me about when United States citizenship began. From his classic, the Unconstitutionality of Slavery, Spooner writes that citizenship of the United States began with the adoption of the Constitution. To prove this, he relies on the Article II qualifications clause for the presidency:
Now there clearly could have been no “citizens of the United States, at the time of the adoption of the constitution,” unless they were made so by the constitution itself; for there were no “citizens of the United States” before the adoption of the constitution. The confederation had no citizens. It [*101] was a mere league between the State governments. The separate States belonging to the confederacy had each their own citizens respectively. But the confederation itself, as such, had no citizens. There were, therefore, no “citizens of the United States,” (but only citizens of the respective States,) before the adoption of the constitution. Yet this clause asserts that immediately on the adoption, or “at the time of the adoption of this constitution,” there were “citizens of the United States.” Those, then, who were “citizens of the United States at the time of the adoption of the constitution,” were necessarily those, and only those, who had been made so by the adoption of the constitution; because they could have become citizens at that precise “time” in no other way. If, then, any persons were made citizens by the adoption of the constitution, who were the individuals that were thus made citizens? They were “the people of the United States,” of course ‑‑ as the preamble to the constitution virtually asserts. And if “the people of the United States” were made citizens by the adoption of the constitution, then all “the people of the United States” were necessarily made citizens by it ‑‑ for no discrimination is made by the constitution between different individuals. “people of the United States ” ‑‑ and there is therefore no means of determining who were made citizens by the adoption of the constitution, unless all “the people of the United States” were so made.
As much as I agree with most of Spooner’s writings, his argument here disregards the fact that in order to be a Representative or Senator in 1789 when the first Congress met, one would have had to be a citizen for 7 or 9 years respectively. Citizenship could not have began upon the adoption of the Constitution. Oddly enough, Spooner ignored the Declaration of Independence–a document he revered–in this context. The Declaration, and the laws passed under it by the nascent states, provides a much stronger argument for original citizenship. My piece on Original Citizenship in PENNumbra is coming along quite nicely. I can’t wait to share it. I also received another publication offer for my Pierson v. Post article, which I will announce shortly.