The Declaration of Independence and the Force of Law

July 5th, 2011

At PrawfsBlawg, Eric Johnson writes that the Declaration of Independence ought to have the force of law. In at least one important ways, it does.

In order to be a Representative, or Senator, a person needs to be a “Citizen of the United States” for 7 years, and 9 years respectively.  Who was a “Citizen of the United States” for 9 years  in 1789 when the First Congress met? How did one constitutionally become a “citizen of the United States” prior to the ratification of the Constitution on June 21, 1788? For purposes of citizenship, and the Constitution, when did the United States of America begin? The answer to these questions begins in the year 1776.

In Original Citizenship, published in PENNumbra earlier this year, I looked at how the Declaration of Independence, and various theories of citizenship through consent that prevailed during the revolutionary era, might provide an answer to the constitutional requirements of Representatives and Senators.

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 theUnited States at the moment of independence and separation from Great Britain, a person automatically became a citizen, regardless ofwhether that person was a Yankee or a dissenting loyalist. The second theory contended that citizenship and allegiances could not be imposedon anyone, because to do so would be contrary to the spirit ofthe 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.

Additionally, I consider how these theories impacted early notions of citizenship of the United States at three critical junctures: 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 combatant, a court needed to determine if the accused was a U.S. citizen. Second, because “[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members,”19 early records of contested elections in the House and Senate help explicate the contours of the original understanding of U.S. citizenship for House qualifications. Third, in cases interpreting Jay’s Treaty,20 the courts needed to establish whether a claimant was a citizen at the time of the Revolution in order to determine if certain barriers to recovery existed.

This dynamic  is not limited to the qualifications of Representatives and Senators 200 years ago. This early understanding of citizenship, and the legal authority of the Continental Congress to act as a sovereign over the colonies/states and new citizens, has direct implications on many aspects of modern constitutional jurisprudence–including the 9th, 10th, 11th, and 14th Amendments.

The Declaration of Indepedence, at least in this limited context, is a legal document, that has the force of law.

Cross-Posted at