Critique of Original Citizenship, and a Reply

December 7th, 2010

Patrick Charles has a review of Original Citizenship at his blog. Patrick writes:

Blackman is correct that the three most important documents in understanding the evolution of the legal concept of United States citizenship is [sic] the Declaration of Independence, the Articles of Confederation, and the Constitution. However, these documents by themselves do not answer the varying legal and public opinions on citizenship.  They do not examine the different laws of the States, and whether the States viewed their respective governments as the gatekeeper of United States citizenship.

Perhaps the largest historical concern with Original Citizenship is that it fails to highlight the differing opinions on the Declaration of Independence and what it was intended to accomplish.  Indeed, some viewed it as officially breaking ties with England, but circa 1776 most supported it for other reasons such as to expedite negotiations with Great Britain and gain the support of foreign powers.  Not to mention, one must take into account that most of its grievances were rebel propaganda, and from “one voice only.”

I agree that there were many different opinions that existed during the Revolutionary period. Indeed, the fact that there was massive disagreement over how citizenship of the United States should be determined contributed to the development of the doctrine of citizenship by election. If everyone agreed on how citizenship was to be allocated, then Americans could have entered into a Lockean social compact by unanimous consent. Of course, this is impossible. As a result, two major strands of citizenship theory developed to help deal with those who did not recognize the sovereignty of the new United States, and did not want to be citizens of the United States:

The citizenship of those who lived in the United States before the Declaration was primarily determined under two doctrines that derived from Lockean social compact theory.17 The first theory postulated that by virtue of residing in the United States at the moment of independence and separation from Great Britain, a person automatically became a citizen, regardless of whether that person was a Yankee or a dissenting loyalist. The second theory contended that citizenship and allegiances could not be imposed on anyone, because to do so would be contrary to the spirit of the Declaration. Rather, following independence, a person could choose or “elect” whether he wanted to become a U.S. citizen.18 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.

Patrick further writes:

Through the Treaty of Paris, and subsequent case-law, Blackman correctly points out that the Declaration was identified as the starting point.  However, a large portion of the people who lived during the American Revolution did not identify themselves as either loyalists or Americans.  Most sided with whoever was in control as a means of self-preservation.  Should these historical facts at all control our interpretation as to when United States citizenship began?

The entire premise of citizenship by election was the imposition of citizenship on loyalists and those who did not identify themselves as American. Whether this is imposition is proper is separate from the question of how early Americans considered it–and this is the relevant inquiry to determine original citizenship.

Patrick is correct to point out that I did not conduct a 13-state survey of all of the differing opinions. The limited length of this piece prohibited me from doing so. However, that is a task I hope to accomplish in future works.