The basis of individual rights CHAPTER XIV THE CITIZEN AND HIS RIGHTS The governments of both state and nation rest directly upon individuals and have as their chief object the regulation of the dealings of these individuals one with another. Neither state nor national government, however, has been endowed with unrestricted power over individual interests and actions. Both are agents to which the people have entrusted large authority; yet both are precluded from exercising many forms of control which governments in other times and places have wielded freely. In other words, the people have large liberties which they have reserved to themselves as against one or both of the governments under which they live. Contrary, furthermore, to the situation in England, where the government can itself amend the constitution, alter its own powers, and make any changes whatsoever in the status of the individual, the liberties of the individual in the United States are protected from governmental interference by enumeration in fundamental laws which national and state governments have no power to modify. The first eight amendments to the national constitution form, in effect, a bill of rights, and a number of other clauses have a similar bearing; while practically every state constitution contains a formal enumeration of rights, or articles tantamount thereto. Before turning to an analysis of the national and state governments it is desirable, therefore, to look somewhat closely into the question of where the individual man and woman stands in relation to these governments-to inquire what rights he or she has, what privileges, and what correlative duties and obligations. The proposition does not require argument that in the final analysis the most important aspect of any government is, not the form or the method of it, but the position which the merchant, the farmer, the artisan occupies under it. The inhabitants of the United States fall into two classes, namely, citizens and aliens. We are mainly concerned with the 1 See p. 76. XIV of aliens status of citizens; so that only a word on the position of the alien CHAP. is necessary. As a matter of fact, there is no great difference between the relation of citizens and of aliens to the national and state The status governments so long as the question of protection abroad does not enter in. By international law and by the public law of all civilized states, the legal jurisdiction of a state (using the term in the general sense) extends over all persons who are for the time being within the districts under its actual control.1 Therefore the unnaturalized German or Italian domiciled in New York must obey the laws both of the United States and of New York; he must pay the taxes which are paid by citizens; and while, by international custom, he may not be required to serve in the army or to render other services which can appropriately be required only of citizens, he may be called upon to do militia or police duty in defense of the local laws which protect his life and property. These obligations are compensated by rights which international custom has also created. An alien is no less entitled to protection in life and property than a citizen; when injured, he has the same avenues of redress that are open to citizens; he may be denied the opportunity to acquire land, and the ballot is usually withheld from him, but he cannot be discriminated against in any way which international practice stamps as unreasonable; and by complying with certain legal requirements he may himself become a citizen. citizens? When one turns to the main subject before us, namely, the Who are rights and privileges of citizens, the first question that arises is, Who are citizens? Curiously enough, this was long a matter of doubt. The constitution, as originally adopted, used the term not fewer than seven times, but nowhere defined it. It mentioned both citizens of states and citizens of the United States, thereby conveying the impression that there were two citizenships rather than one, yet without explaining which was anterior to the other, or which was the more fundamental. For some decades this lack of definiteness caused no great amount of trouble. It was commonly considered that the two citizenships were reciprocal; that is, by residence in a state a federal citizen was ipso facto a citizen of that state, and a state citizen was ipso facto a federal citizen. 1W. W. Willoughby, Constitutional Law in the U. S., I, 244. "Citizens in each state shall be entitled to all the privileges and immunities of citizens in the several states" (Art. IV, § 2); "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" (Art. II, § 1, cl. 4). CHAP. The state rights view Definition in the Amend nent The state-rights school, however, gradually developed the view that the two citizenships were separable, that state citizenship was the more fundamental, that federal citizenship was but the consequence of citizenship in some state, and that not every citizen of a state became ipso facto a citizen of the United States. This doctrine was upheld by the Supreme Court in the Dred Scott case in 1857, in which the question was whether a state could make a negro one of its citizens and, if so, whether a person thus endowed thereby necessarily became a citizen of the United States, entitled to bring a suit in a federal court. The majority decision was that, although a state might confer on a negro all of the rights and privileges of its own citizenship, this did not make him a citizen of the United States. Indeed, the court went so far as to say, in effect, that negroes, though living in the United States and subject to its jurisdiction, were not, and could not be made, by either state or federal action, citizens of the United States within the meaning of the constitution.1 The bitter controversies over the status of the freedmen at the Fourteenth close of the Civil War led Congress first to give the term "citizen" a statutory definition, and later to take steps to incorporate the definition in the constitution itself. The Civil Rights Act of 1866 recognized as citizens "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed"; and the Fourteenth Amendment, adopted in 1868, provides, more comprehensively, that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." This definition, it will be noted, retains the idea of two citizenships, and the Supreme Court has held that the two remain as distinct as before. To be a citizen of the United States, it is necessary only to have been born or naturalized in the country and to be subject to its jurisdiction; there is no requirement of residence. To be a citizen of a state, it is necessary to be a resident of that state; it is not necessary to be a citizen of the United States: all United States citizens residing in a state are, by constitutional provision, citizens of that state, but the state may confer its own citizenship on other persons than United States citizens, and in a number of cases this has been done. Federal and state citizenship, therefore, are not identical. There are United States citizens, e.g., citizens Scott v. Sanford, 19 Howard, 393 (1857). 2 Slaughter House Cases, 16 Wallace, 36 (1873). XIV resident abroad, who are not state citizens; conversely there are CHAP. state citizens upon whom national citizenship has not been conferred. importance National citizenship, however, is now primary, state citizenship Declining secondary. The state has only very limited power to determine of state citizenship who shall be, or become, its citizens; it must accept as its own citizens any federal citizen who chooses to take up his residence within its boundaries, and the Fourteenth Amendment forbids it to "make or enforce any law which shall abridge the privileges and immunities of citizens of the United States." Furthermore, in relations with foreign powers it is only United States citizenship that counts. When the citizen goes abroad he carries the same form of passport and is entitled to the same protection, whether he lives in New York, Ohio, or California. Since 1868, therefore, the distinction between state citizenship and national citizenship has been of steadily decreasing importance. For all practical purposes, it would be accurate, as it would be decidedly less confusing, to speak of citizens of the United States, but only of residents or inhabitants of the states.1 The student of comparative government comes upon many Citizenship different modes of acquiring citizenship. Thus in Norway aliens appointed to positions in the civil service automatically become citizens; in various Latin American states the purchase of real estate has a similar effect; marriage, adoption, and even prolonged residence, lead in certain countries to the same end. Far the greater portion of citizens in all lands become such, however, either by birth or by a formal process known as naturalization. Historically, the acquisition of citizenship by birth has been determined according to two different principles, both of which find recognition in the present practice of the United States. One of these principles is the jus sanguinis, under which the nationality of the child is con- 1. Jus strued to be the same as that of the parents or one of them, regardless of the place of birth. The other is the jus soli, according to which nationality is determined by the place of birth, irrespective of the citizenship of the parents. The jus sanguinis, which was commonly followed in antiquity, passed into the Roman law and also the law of the early Germans. Under the influence of feudal ideas, which stressed the relation of the individual to land, the jus soli for a time supplanted the rule of blood-relationship. But the revival of Roman law in the later Middle Ages brought the 1C. A. Beard, American Government and Politics (rev. ed.), 160. sanguinis CHAP. 2. Jus soli Both prin ciples fol lowed to some ex tent in the United States latter again into general favor; and jus sanguinis is today the principle according to which citizenship is determined in practically all of continental Europe, and also throughout Latin America. 1 On the other hand, the jus soli, first introduced in England at the time of the Norman Conquest, has continued to prevail there; and from England it was brought, as a part of the common law, to English-speaking America. The Supreme Court early declared that citizenship by birth was to be determined according to this principle; 1 and by stipulating that all persons born in the United States and subject to the jurisdiction thereof should be considered citizens, the Fourteenth Amendment re-enacted the common-law rule and incorporated it in the constitution. The rule has been held to be no less applicable to children born of alien parents who are ineligible for naturalization than to the offspring of parents who are eligible. Thus in the case of United States v. Wong Kim Ark,2 decided in 1898, the Supreme Court declared that a child born of Chinese parents in the United States is a citizen, notwithstanding that Chinese, under United States laws, are incapable of being naturalized. The doctrine of jus soli is, however, not followed completely or exclusively. In the first place, the phrase "and subject to the jurisdiction thereof" sets up a qualification. Thus, children born to foreign diplomatic representatives in the United States are not citizens, because even though born on American soil they are considered to be subject to the jurisdiction of the state which the minister or ambassador represents, and not to the jurisdiction of the United States. But children born in the United States to foreign consuls or to other foreign citizens or subjects residing or temporarily sojourning here are held to be natural-born citizens, for the reason that, being covered by no diplomatic immunity, they are subject to American jurisdiction. In the second place, an Indian whose parents at the time of his birth were subject to the jurisdiction of their tribe is not a citizen, and he can become such only by naturalization, even though he was born within the limits. of the United States. Finally, the United States applies the rule of jus sanguinis, rather than that of jus soli, in the case of children born abroad to any and all persons who are themselves American citizens. An act of Congress passed in 1855 provides that any 3 1 Alexander Murray v. Schooner Charming Betsy, 2 Cranch, 64 (1804). |