Part 17 (1/2)
That Const.i.tution was ordained and established by the people of the United States, through the action, in each State, of those persons who were qualified by its laws to act thereon, in behalf of themselves and all other citizens of that State. In some of the States, as we have seen, colored persons were among those qualified by law to act on this subject. These colored persons were not only included in the body of ”the people of the United States,” by whom the Const.i.tution was ordained and established, but in at least five of the States they had the power to act, and doubtless did act, by their suffrages, upon the question of its adoption. It would be strange, if we were to find in that instrument anything which deprived of their citizens.h.i.+p any part of the people of the United States who were among those by whom it was established.
I can find nothing in the Const.i.tution which, _proprio vigore_, deprives of their citizens.h.i.+p any cla.s.s of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption; nor any power enabling Congress to disfranchise persons born on the soil of any State, and ent.i.tled to citizens.h.i.+p of such State by its Const.i.tution and laws. And my opinion is, that, under the Const.i.tution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Const.i.tution or laws, is also a citizen of the United States.
I will proceed to state the grounds of that opinion.
The first section of the second article of the Const.i.tution uses the language, ”a natural-born citizen.” It thus a.s.sumes that citizens.h.i.+p may be acquired by birth. Undoubtedly, this language of the Const.i.tution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Const.i.tution, which referred citizens.h.i.+p to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been, in conformity with the common law, that free persons born within either of the colonies were subjects of the King; that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, and thus to continue British subjects (McIlvain _v._ c.o.xe's Lessee, 4 Cranch, 209; Inglis _v._ Sailors' Snug Harbor, 3 Peters, p. 99; Shanks _v._ Dupont, Ibid, p. 242.)
The Const.i.tution having recognised the rule that persons born within the several States are citizens of the United States, one of four things must be true:
_First._ That the Const.i.tution itself has described what native-born persons shall or shall not be citizens of the United States; or,
_Second._ That it has empowered Congress to do so; or,
_Third._ That all free persons, born within the several States, are citizens of the United States; or,
_Fourth._ That it is left to each State to determine what free persons, born within its limits, shall be citizens of such State, and _thereby_ be citizens of the United States.
If there be such a thing as citizens.h.i.+p of the United States acquired by birth within the States, which the Const.i.tution expressly recognises, and no one denies, then these four alternatives embrace the entire subject, and it only remains to select that one which is true.
That the Const.i.tution itself has defined citizens.h.i.+p of the United States by declaring what persons, born within the several States, shall or shall not be citizens of the United States, will not be pretended. It contains no such declaration. We may dismiss the first alternative, as without doubt unfounded.
Has it empowered Congress to enact what free persons, born within the several States, shall or shall not be citizens of the United States?
Before examining the various provisions of the Const.i.tution which may relate to this question, it is important to consider for a moment the substantial nature of this inquiry. It is, in effect, whether the Const.i.tution has empowered Congress to create privileged cla.s.ses within the States, who alone can be ent.i.tled to the franchises and powers of citizens.h.i.+p of the United States. If it be admitted that the Const.i.tution has enabled Congress to declare what free persons, born within the several States, shall be citizens of the United States, it must at the same time be admitted that it is an unlimited power. If this subject is within the control of Congress, it must depend wholly on its discretion. For, certainly, no limits of that discretion can be found in the Const.i.tution, which is wholly silent concerning it; and the necessary consequence is, that the Federal Government may select cla.s.ses of persons within the several States who alone can be ent.i.tled to the political privileges of citizens.h.i.+p of the United States. If this power exists, what persons born within the States may be President or Vice President of the United States, or members of either House of Congress, or hold any office or enjoy any privilege whereof citizens.h.i.+p of the United States is a necessary qualification, must depend solely on the will of Congress. By virtue of it, though Congress can grant no t.i.tle of n.o.bility, they may create an oligarchy, in whose hands would be concentrated the entire power of the Federal Government.
It is a substantive power, distinct in its nature from all others; capable of affecting not only the relations of the States to the General Government, but of controlling the political condition of the people of the United States. Certainly we ought to find this power granted by the Const.i.tution, at least by some necessary inference, before we can say it does not remain to the States or the people. I proceed therefore to examine all the provisions of the Const.i.tution which may have some bearing on this subject.
Among the powers expressly granted to Congress is ”the power to establish a uniform rule of naturalization.” It is not doubted that this is a power to prescribe a rule for the removal of the disabilities consequent on foreign birth. To hold that it extends further than this, would do violence to the meaning of the term naturalization, fixed in the common law, (Co. Lit., 8 a, 129 a; 2 Ves., sen., 286; 2 Bl. Com., 293,) and in the minds of those who concurred in framing and adopting the Const.i.tution. It was in this sense of conferring on an alien and his issue the rights and powers of a native-born citizen, that it was employed in the Declaration of Independence. It was in this sense it was expounded in the Federalist, (No. 42,) has been understood by Congress, by the Judiciary, (2 Wheat., 259, 269; 3 Wash. R., 313, 322; 12 Wheat., 277,) and by commentators on the Const.i.tution. (3 Story's Com. on Con., 1-3; 1 Rawle on Con., 84-88; 1 Tucker's Bl. Com. App., 255-259.)
It appears, then, that the only power expressly granted to Congress to legislate concerning citizens.h.i.+p, is confined to the removal of the disabilities of foreign birth.
Whether there be anything in the Const.i.tution from which a broader power may be implied, will best be seen when we come to examine the two other alternatives, which are, whether all free persons, born on the soil of the several States, or only such of them as may be citizens of each State, respectively, are thereby citizens of the United States. The last of these alternatives, in my judgment, contains the truth.
Undoubtedly, as has already been said, it is a principle of public law, recognised by the Const.i.tution itself, that birth on the soil of a country both creates the duties and confers the rights of citizens.h.i.+p. But it must be remembered, that though the Const.i.tution was to form a Government, and under it the United States of America were to be one united sovereign nation, to which loyalty and obedience on the one side, and from which protection and privileges on the other, would be due, yet the several sovereign States, whose people were then citizens, were not only to continue in existence, but with powers unimpaired, except so far as they were granted by the people to the National Government.
Among the powers unquestionably possessed by the several States, was that of determining what persons should and what persons should not be citizens. It was practicable to confer on the Government of the Union this entire power. It embraced what may, well enough for the purpose now in view, be divided into three parts. _First_: The power to remove the disabilities of alienage, either by special acts in reference to each individual case, or by establis.h.i.+ng a rule of naturalization to be administered and applied by the courts. _Second_: Determining what persons should enjoy the privileges of citizens.h.i.+p, in respect to the internal affairs of the several States. _Third_: What native-born persons should be citizens of the United States.
The first-named power, that of establis.h.i.+ng a uniform rule of naturalization, was granted; and here the grant, according to its terms, stopped. Construing a Const.i.tution containing only limited and defined powers of government, the argument derived from this definite and restricted power to establish a rule of naturalization, must be admitted to be exceedingly strong. I do not say it is necessarily decisive. It might be controlled by other parts of the Const.i.tution.
But when this particular subject of citizens.h.i.+p was under consideration, and, in the clause specially intended to define the extent of power concerning it, we find a particular part of this entire power separated from the residue, and conferred on the General Government, there arises a strong presumption that this is all which is granted, and that the residue is left to the States and to the people. And this presumption is, in my opinion, converted into a certainty, by an examination of all such other clauses of the Const.i.tution as touch this subject.
I will examine each which can have any possible bearing on this question.
The first clause of the second section of the third article of the Const.i.tution is, ”The judicial power shall extend to controversies between a State and citizens of another State; between citizens of different States; between citizens of the same State, claiming lands under grants of different States; and between States, or the citizens thereof, and foreign States, citizens, or subjects.” I do not think this clause has any considerable bearing upon the particular inquiry now under consideration. Its purpose was, to extend the judicial power to those controversies into which local feelings or interests might so enter as to disturb the course of justice, or give rise to suspicions that they had done so, and thus possibly give occasion to jealousy or ill will between different States, or a particular State and a foreign nation. At the same time, I would remark, in pa.s.sing, that it has never been held, I do not know that it has ever been supposed, that any citizen of a State could bring himself under this clause and the eleventh and twelfth sections of the judiciary act of 1789, pa.s.sed in pursuance of it, who was not a citizen of the United States. But I have referred to the clause, only because it is one of the places where citizens.h.i.+p is mentioned by the Const.i.tution. Whether it is ent.i.tled to any weight in this inquiry or not, it refers only to citizens.h.i.+p of the several States; it recognises that; but it does not recognise citizens.h.i.+p of the United States as something distinct therefrom.
As has been said, the purpose of this clause did not necessarily connect it with citizens.h.i.+p of the United States, even if that were something distinct from citizens.h.i.+p of the several States, in the contemplation of the Const.i.tution. This cannot be said of other clauses of the Const.i.tution, which I now proceed to refer to.
”The citizens of each State shall be ent.i.tled to all the privileges and immunities of citizens of the several States.” Nowhere else in the Const.i.tution is there anything concerning a general citizens.h.i.+p; but here, privileges and immunities to be enjoyed throughout the United States, under and by force of the national compact, are granted and secured. In selecting those who are to enjoy these national rights of citizens.h.i.+p, how are they described? As citizens of each State. It is to them these national rights are secured. The qualification for them is not to be looked for in any provision of the Const.i.tution or laws of the United States. They are to be citizens of the several States, and, as such, the privileges and immunities of general citizens.h.i.+p, derived from and guarantied by the Const.i.tution, are to be enjoyed by them. It would seem that if it had been intended to const.i.tute a cla.s.s of native-born persons within the States, who should derive their citizens.h.i.+p of the United States from the action of the Federal Government, this was an occasion for referring to them. It cannot be supposed that it was the purpose of this article to confer the privileges and immunities of citizens in all the States upon persons not citizens of the United States.
And if it was intended to secure these rights only to citizens of the United States, how has the Const.i.tution here described such persons?
Simply as citizens of each State.