CHAPTER V

THE RIGHTS AND IMMUNITIES OF CITIZENSHIP

20. CITIZENSHIP IN THE UNITED STATES.

When the Federal Constitution was drawn up no clear definition of United States citizenship was made. Citizenship in some one of the States, of course, antedated citizenship in the United States and it was uncertain to which authority the citizen owed primary allegiance, the State or the United States. This remained the situation until the adoption of the fourteenth amendment. The effect of this amendment upon citizenship in the United States is explained in the following paragraph by Mr. Wm. L. Scruggs:

Our first attempt at a constitutional definition of the phrase "Citizen of the United States," was made after a somewhat stormy experience of about eighty years. I allude, of course, to the Joint Resolution of the 39th Congress, of June 16th, 1866, proposing what is now known as the Fourteenth Amendment. It was subsequently ratified by the requisite number of States; and, on the 21st July, 1868, was officially proclaimed as an integral part of our fundamental law. The first section of that Amendment declares, 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." And, in due course, each of the particular States, conforming to this definition, so amended their codes as to declare, in substance, that "all citizens of the United States, residing in the State, are citizens of the State," thus excluding, by plain implication, all who are not citizens of the United States.

This has been characterized as "a revolution in our form of government." It was not quite that. But it was a turn

ing point in our constitutional and political history, and marked the advent of a new era in the evolution of American citizenship. Up to that time, we searched in vain for some clear and authentic definition of the familiar but doubtful phrase, "Citizenship of the United States." It could be found neither in our fundamental or statutory law, nor in any of the decisions of our Supreme Court. Nor could it be derived from the concurrent actions or ruling of any two of the co-ordinate departments of the Government. In its elements and its details, citizenship of the United States was as little understood, and as much open to speculative criticism, in 1861, as it was in 1787. For more than three-quarters of a century, it had been an adjourned question whether a person could be a citizen of the United States at all except as he was such incidentally, and then only in a limited or qualified sense, by reason of his being a citizen of one of the particular States. It was, therefore, an open question whether the ultimate allegiance of the citizen was due to the State or to the general government. Indeed, Mr. Calhoun and other exponents of the so-called "Jeffersonian" theory of the Constitution, had gone so far as to contend that there was "no such thing as citizenship of the United States per se”; that a person born and living in the District of Columbia or other Territory of the Union, although in the United States and subject to its jurisdiction, was not, in reality, a citizen of the United States! And, absurd as this proposition now seems, it had never been fairly met by any adverse decision of our Supreme Court.

The Fourteenth Amendment settled, as it was intended to settle, this vexed question at once and forever. It established a citizenship of the United States that is wholly independent of State lines. It thus created a central authority commanding the common obedience of its individual members, and, for the first time, made us a nation in fact as well as in name. A person may now be a citizen of the United States without being a citizen of any one particular State; but by no conceivable combination of circumstances, can he be a citizen

of one of the particular States till he is first a citizen of the United States.

21. RIGHTS AND IMMUNITIES OF CITIZENSHIP.

The subject of rights of citizenship in the United States is complicated by the fact that these rights have their source in and depend for their guarantee upon two governments, the State and the Federal. The following selection from Mr. J. S. Wise will help to make clear the development of these rights and the relation of the two sources from which they are drawn:

When we come to a study of the Declaration of Independence itself we find a reassertion of principles concerning the equality of men, their unalienable rights, that government is instituted to secure those rights, that it derives its just powers from the consent of the governed, and the right of the people, when it becomes destructive of those ends, to alter or abolish it and institute a new government.

After declaring that long established governments should not be changed for light and transient causes, it proceeds to arraign the British government for a long train of abuses and usurpations. We may gather, from the enumeration of those abuses, the following claims made by the revolutionists concerning the rights, privileges, and immunities of citizens.

1. The right of representation in the legislature, a right inestiImable to them.

2. The right to have representative bodies assembled at usual and comfortable places convenient to the depository of their public records.

3. The right to have frequent sessions of the legislature.

4. The right to have a system of naturalization laws.

5. The right to have an independent judiciary.

6. The right to oppose a multitude of offices.

7. The right to oppose standing armies in time of peace.

8. The right to have the civil power superior to the military

power.

9. The right to resist quartering of armed troops among them, 10. The right to trade with the outside world.

11. The right to a voice in taxation.

12. The right to trial by a jury of the vicinage. 13. The right of local self-government.

Let us first examine the rights of citizens as citizens of the States; for these clearly antedate whatever rights they possess as citizens of the United States, by a period equal to that which elapsed between the acknowledgment of the independence of the thirteen independent colonies by Great Britain, and the formation of the Union by the States themselves. No State in the Union has ever sought to embody in one written chart a full expression of all the rights, privileges, and immunities of its citizens. Nor will the attempt now be made. On this subject we shall content ourselves with the language of Mr. Justice Washington, construing Section 2 of Article IV, of the Constitution of the United States, which provides: "Citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." He said:

"The inquiry is, What are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental, which belong of right to the citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole."

Mr. Justice Miller, in the Slaughter-House Cases, said, with reference to this observation of Mr. Justice Washington:

"The description, when taken to include others not named, but which are of the same general character, embraces nearly every civil right for the establishment and protection of which organized government is instituted."

We have already seen that during the period in which the

States co-operated under articles of confederation, the rights, privileges, and immunities of their citizens were derived exclusively from their respective States, and that the power of the United States did not extend to the control of the individual, save in a few limited and specified cases; and that as then constituted the United States did not attempt to grant or guarantee to the individual citizen any rights, privileges. or immunities, save to citizens of one State in another State. When, upon the adoption of the Federal Constitution, Federal power operated directly upon individual citizens of the United States, the number of Federal guarantees of their rights was extended also. These guarantees were the necessary correlatives of the specific powers granted to the Federal government, and are the supreme law of the land on the subjects to which they refer.

But it by no means follows from this that the Federal government is supreme concerning all the rights, privileges, and immunities of the citizen. On the contrary, while it is supreme in its sphere and possesses ample authority to enforce the powers expressly delegated to it by the Constitution, it is only a government of delegated and limited powers, and the States, in forming it, expressly retained and reserved in themselves the absolute control, direction, and sovereignty over their citizens concerning a vast residuum of rights, privileges, and immunities which, prior to the adoption of the Constitution, they had regulated exclusively. For instance, it has never been contended that the Constitution, as originally framed, created in the Federal government any power to establish any code of municipal law applicable to the States composing it, regulative of all private rights between man and man in society, or that Congress may usurp the powers of State legislatures concerning such legislation. The Supreme Court of the United States has repeatedly taken occasion to point out that no such power exists, either under the original Constitution or by virtue of any of the amendments. As we shall see later, a vast amount of litigation which has arisen under the constitutional amendments has