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Citizenship and the Fourteenth Amendment

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Citizenship and the Fourteenth Amendment Citizenship and the Fourteenth Amendment DOUGLAS G. SMITH* I. INTRODUCTION . • . 682 II. THE DEFINITION OF "CITIZEN" . • . 691 A. Citizenship and Social Compact Theory . 696 1. John Locke . 704 2. Samuel Pufendorf..... 711 3. Jean Jacques Burlamaqui . 718 4. Emmerich de Vattel . 722 5. The Social Compact and the Establishment of Government . 723 6. Fundamental Law . 727 7. The Distinction Between Citizens and Aliens . 730 B. Citizenship and Roman Law . 734 1. Natural Law and Roman Law . 736 2. Roman Law in the United States . 738 3. Dred Scott v. Sandford: The Institution of Slavery in America . 743 4. Privileges and Immunities of Roman Citizenship . 747 a. Privileges . 752 b. Immunities . 754 5. Peonage . 756 III. DRED SCOIT V. SANDFORD: SOCIAL CO:r-.1PACT THEORY AND THE ROMAN MODEL OF CITIZENSHIP . 757 A. The Historical Evidence Concerning the Status of Free Blacks . 763 * Associate, Kirkland & Ellis, Chicago, IL. J.D., Northwestern University School of Law; B.S./B.A., State University of New York at Buffalo. I am grateful for comments on previous drafts of this Article from Akhil Amar, Steve Calabresi, Ken Katkin, Earl Maltz, and Michael Perry. All mistakes are attributable to the author. 681 B. The Power to Confer Citizenship: Implications of the Privileges and Immunities Clause ofArticle TV, Section 2 771 C. "General" Citizenship . 785 IV. IMPLICATIONS OF THE TANEY DECISION: A CONSTITUTIONALLY-MANDATED SYSTEM OF CASTE . 792 A. The Thirteenth Amendment . 793 B. The Civil Rights Act of 1866 . 795 V. SECTION 1 OF THE FOURTEENTH AMENDMENT . 797 A. The Primary Nature of United States Citizenship . 799 B. The Nature of the Protection Afforded Under Section 1: Substantive or Antidiscrimination? . 802 C. Incorporation of the Bill of Rights . 805 VI. CONCLUSION . 807 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. 1 I. INTRODUCTION Although legal scholars tend to focus on the second sentence of Section 1 of the Fourteenth Amendment in trying to determine the original meaning of the Amendment,2 the first sentence of the Amend­ ment is, arguably, equally important. As the majority of the Supreme Court in the Slaughter-House Cases noted, the first sentence of the Fourteenth Amendment provides a "definition of citizenship," a matter of great controversy prior to ratification of the Amendment.3 According 1. U.S. CONST. amend. XIV, § 1. 2. Much recent scholarship has focused on the Privileges or Immunities Clause of the Amendment. See, e.g., Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193, 1262-84 (1992) (proposing a method of "refined incorporation" for incorporating certain rights in the Bill of Rights through the Privileges or Immunities Clause); John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385, 1457-62 (1992) (proposing an interpretation of the Privileges or Immunities Clause as prohibiting "caste legislation" and providing "antidiscrimination" protection with respect to rights traditionally within the regulatory control of the state governments). 3. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 72 (1873). Justice Miller recounted the history of the controversy concerning the definition of "citizenship" and the relevance of the Supreme Court's opinion in Dred Scott v. Sandford. According to Justice Miller, "[n]o such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive departments, and in the public journals." Id. Miller stated that the Dred Scott decision, 682 [VOL. 34: 681, 1997] Citizenship SAN DIEGO LAW REVIEW to Justice Miller in his Slaughter-House majority opinion, controversy existed not only concerning whether individuals of African descent were citizens of the United States, but also concerning whether residents of the District of Columbia or of the territories were citizens of the United States, as they were not citizens of any state.4 The Amendment ended this controversy by providing a definition of "citizenship of the United States" as well as citizenship of a state. 5 However, technically, the language of the first sentence of Section 1 does not provide a true "definition" of the term "citizen," but rather a statement of the conditions sufficient for attaining the status of "citizen" of a state as well as of the United States. The meaning of the term "citizen," as used within the legal culture of the United States prior to ratification of the Amendment, involved something more than merely being a person "born or naturalized in the United States." Accompany­ ing the status of "citizen" were certain powers or capacities, privileges and immunities of citizenship.6 For example, Representative William Lawrence of Ohio stated: [T]here are certain absolute rights which pertain to every citizen, which are inherent, and of which a state cannot constitutionally deprive him. Every citizen, therefore, has the absolute right to live, the right of personal security, personal liberty, and the right to acquire and enjoy property. These are rights of citizenship. As necessary incidents of these absolute rights, there are others, as the right to make and enforce contracts, to purchase, hold, and while it met the condemnation of some of the ablest statesmen and constitu­ tional lawyers of the country, had never been overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen, were still, not only not citizens, but were incapable of becoming so by anything short of an amend­ ment to the Constitution. Id. (emphasis added). This was also the conclusion of Thomas Cooley, a contemporary constitutional scholar, who thought that the purpose of the first Clause was "to put at rest forever the question whether colored persons were to be recognized as citizens." 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 653 (Thomas M. Cooley ed., 4th ed. Little, Brown, and Co. 1873). 4. Slaughter-House Cases, 83 U.S. at 72-73. In 1805 Chief Justice Marshall concluded that citizens of the District of Columbia were not state citizens. Hepburn v. Ellzey, 6 U.S. (2 Cranch) 445, 453 (1805). 5. Slaughter-House Cases, 83 U.S. at 73. 6. As Justice Bradley stated in his Slaughter-House dissent, "[c]itizenship of the United States ought to be, and, according to the Constitution, is, a sure and undoubted title to equal rights in any and every State[ ] in this Union, subject to such regulations as the legislature may rightfully prescribe." Id. at 113. 683 enjoy property, and to share the benefit of laws for the security of person and property.7 Furthermore, both the majority and the dissenters in the Slaughter-House Cases believed there were certain rights inherent in citizenship, which were to be protected under Section 1 of the Amendment, although they disagreed concerning the nature of the privileges and immunities of "citizens of the United States" guaranteed under the Amendment.8 An understanding of the concept of citizenship and the privileges and immunities of citizens is crucial to a comprehension of the meaning of the Privileges or Immunities Clause of Section 1. The importance of the concept of citizenship was emphasized by Justice Bradley in his dissent in the Slaughter-House Cases. According to Justice Bradley: In this free country, the people of which inherited certain traditionary rights and privileges from their ancestors, citizenship means something. It has certain privileges and immunities attached to it which the government, whether restricted by express or implied limitations, cannot take away or impair. It may do so temporarily by force, but it cannot do so by right. And these privileges 7. CONG. GLOBE, 39th Cong., 1st Sess. 1833 (1866). Other members of Congress stated that the proposed Fourteenth Amendment was intended to protect those fundamental rights inherent in citizenship of the United States. For example, Representative Frederick E. Woodbridge of Vermont stated that the proposed amendment "merely gives the power to Congress to enact those laws which will give to a citizen of the United States the natural rights which necessarily pertain to citizenship." Id. at 1088. Representative William Lawrence of Ohio stated in the context of the debate over the Civil Rights Act that the rights of life and liberty were inherent and existed anterior to the establishment of government. According to Representative Lawrence: It has never been deemed necessary to enact in any constitution or law that citizens should have the right to life or liberty or the right to acquire property. These rights are recognized by the Constitution as existing anterior to and independently of all laws and constitutions. Without further authority I may assume, then, that there are certain absolute rights which pertain to every citizen, which are inherent, and of which a State cannot constitutionally deprive him. But not only are these rights inherent and indestructible, but the means whereby they may be possessed and enjoyed are equally so. Id. at 1833. Similarly, Representative Henry J. Raymond of New York, a member of the Joint Committee, stated that "the right of citizenship involves everything else. Make the colored man a citizen of the United States and he has every right which you or I have as citizens of the United States under the laws and constitution of the United States." Id. at 1266. 8. For example, the dissenters in the Slaughter-House Cases argued that the Privileges or Immunities Clause guaranteed certain "common rights" that were inherent in the concept of citizenship in the United States.
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