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CHAPTER XVII.

AMERICAN CITIZENSHIP.

§ 127. Citizenship Defined.

From the consideration of the status of aliens, we turn to an examination of the status of citizens or subjects.

The citizen or subject body of a State, regarded from the viewpoint of other States, that is, from the viewpoint of International Law, constitutes one homogeneous body, all the members of which have the same status, the same rights and duties. Considered, however, from the viewpoint of the constitutional or municipal law of the State in question, they may be grouped into distinct classes, with differing public and private rights. Thus it is that in the constitutional jurisprudence of the United States we have at present not only a distinction between federal and state citizenship, but, within the class of federal citizens, as including all those persons subject to the full sovereignty of the United States, a distinction between those who are "citizens of the United States " according to the meaning of that phrase as used in the Constitution of the United States, and those who, though subjects of the United States, are not citizens within this narrower constitutional

sense.

In Minor v. Happersett,1 decided in 1875, the definition of citizenship, its essential character, and the privileges necessarily attached to its possession, were examined in passing upon the claim made that a woman, as a citizen of the United States, might not, simply because of her sex, be denied by a State the right of suffrage. In denying this claim, Chief Justice Waite, who rendered the unanimous opinion of the court, declared: "There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the per121 Wall. 162; 22 L. ed. 627.

sons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance. For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words 'subject, inhabitant,' and 'citizen' have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizen is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterward adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership of a nation, and nothing more.'

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2 See, holding that the elective franchise is not a necessary incident of citizenship: 1. As to negroes - - Smith v. Moody, 1866 (26 Ind. 299); United States v. Crosby, 1871 (1 Hughes, 448); Anthony v. Holderman, 1871 (7 Kans. 50); Van Valkenburg v. Brown, 1872 (43 Cal. 42); United States v. St. Petersburg (3 Hughes, 493); United States v. Reese, 1875 (92 U. S. 214; 23 L. ed. 563); and see Opinions of Justices, 1857 (44 Me. 507). 2. As to women Spencer v. Board, 1873 (8 D. C. 169); United States v. Anthony, 1873 (11 Blatchf. 200); Minor v. Happersett, 1874 (21 Wall. 162; 22 L. ed. 627); Dorsey v. Brigham (177 Ill. 250); Gougar v. Timberlake, 1896 (148 Ind. 38); and see also People v. Oldtown, 1878 (88 Ill. 202); also Ware v. Wisner, 1883 (50 Fed. 310) holding that women are citizens. 3. As to minors-Lyons v. Cunningham, 1884 (66 Cal. 42); and see People v. Oldtown, supra. 4. As to Indians, holding that though they may have voted, this did not make them citizens-Laurent v. State, 1863 (1 Kans. 313). 5. As to aliens -Spragins v. Houghton, 1840 (2 Scam. 3 Ill. 377); In re Wehlitz, 1863 (16 Wis. 443) United States v. Hirschfield, 1876 (13 Blatchf. 330); Lanz v. Randall, 1876 (4 Dill. 425); City of Minneapolis v. Reum, 1893 (56 Fed. 576). An averment in pleading that one was "a citizen and resident" was held not equivalent to a specific charge that he was an "elector"- Blanck v. Pausch, 1885 (113 Ill. 60). That the elective franchise is not a right of citizenship is shown also by the fact that the ecurts have repeatedly sustained legislation which provides for a certain prior residence before voting in the county, town, and precinct. See Anthony v.

§ 128. State and Federal Citizenship Distinguished.

As adopted, the federal Constitution contained no definition of citizenship. Impliedly, however, it recognized a state citizenship in that clause which provides that "citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." It would also seem to have recognized a federal citizenship in the clauses providing that the President shall be "a natural born citizen, or a citizen of the United States at the time of the adoption of the Constitution;" that Senators and Representatives shall have been nine and seven years respectively citizens" of the United States;" and that Congress shall have the power to pass laws regulating the naturalization of aliens.

The relationship between these two citizenships, state and national, however, the Constitution did not expressly determine.

There has never been any question as to the existence under the Constitution of a distinction between state and federal citizenship. The only dispute has been as to the relation of the two.

Prior to the argument of the Dred Scott case there was surprisingly little discussion of this point. The opinion generally held seems, however, to have been that every citizen of a State was a citizen of the United States. This was the view declared by Rawle in his work on the Constitution and by Story in his Commentaries. Story says: "Every citizen of a State is ipso facto a citizen of the United States."4 But it would appear that Story did not hold that the federal citizen body is made up exclusively of state citizens, for in the next section he adds: "And

Holderman, 1871 (7 Kans. 50). And for the imposition of other requirements for voting see Anderson v. Baker, 1865 (23 Md. 531); People v. De La Guerra, 1870 (40 Cal. 311).

This note is taken from the Report on Citizenship, 1906. H. R. Doc. No. 326, 59th Cong., 2d Session, p. 46.

3 See, for instance, the early case of Talbot v. Janson (3 Dall. 133), decided in 1795, in which the renunciation of state citizenship, for which provision was made by the state Constitution, was held not to operate as a renunciation of allegiance to the United States. Of course, state citizenship may be lost by residence outside of the State without national citizenship being affected. (Prentiss v. Brennan, 2 Blatchf. 162.)

4 § 1687.

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a person who is a naturalized citizen of the United States, by a like residence in any State of the Union becomes ipso facto citizen of that State. So a citizen of a territory of the Union by a like residence acquires the character of the State where he resides." In support of this last statement, Story refers to the case of Gassies v. Ballon. In that case, decided in 1832, it was held that the allegation that the defendant had been naturalized as an American citizen and was residing in Louisiana was equivalent to an averment that he was a citizen of that State. "A citizen of the United States," Marshall declared without argument, residing in any State of the Union, is a citizen of that State." From the foregoing it appears that it was held that there was a reciprocal relationship between federal and state citizenship. By residence in a State a federal citizen became ipso facto a citizen of that State; and a state citizen was ipso facto a federal citizen. This doctrine did not, it is evident, decide the question as to which of the two citizenships was the more fundamental. Calhoun and others of his school have, by some writers, been credited with the doctrine that there was no federal citizenship apart from the state citizenship that one could become a federal citizen only by first becoming a citizen of one of the States.* Calhoun did not, however, take exactly this position. In a speech delivered in the United States Senate in 1833 upon the then pending Force Bill, he declared: "If by a citizen of the United States he [Senator Clayton] means a citizen at large, one whose citizenship extends to the entire geographical limits of the country without having a local citizenship in some State or Territory, a sort of citizen of the world, all I have to say is that such a citizen would be a perfect nondescript; that not a single individual of this description can be found in the entire mass of the population.

Every citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution, is entitled to all the privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States."

56 Pet. 761; 8 L. ed. 573.

For example, see Brannon, The Fourteenth Amendment, p. 17.

From this it will be seen that Calhoun recognized not only a state citizenship but a territorial citizenship, which latter, of course, could be derived only from a federal source. What he and others of the States' Rights school held was that as between state citizenship and federal citizenship, the former was the more fundamental; that, in other words, the latter, except as to citizens in the Territories, was derived from the former. The fact of the federal control of naturalization Calhoun explained by alleging that that power was one which enabled Congress simply to remove the disabilities of foreign birth, the several States being left free to decide whether or not, when such disabilities had been removed from aliens resident within their borders, they should be accepted by them as citizens.

§ 129. The Dred Scott Case.

The whole question of the relation between state and federal citizenship came up for discussion and decision in the Dred Scott case decided in 1856. Two of the questions involved in this case were: Whether a State might make a negro one of its citizens; and, if so, whether such a one thereby necessarily became a citizen of the United States and as such entitled to the special privileges and immunities created by the Constitution, among which privileges was the right to bring a suit in a federal court under that clause of the Constitution which gives to the federal judiciary the power to hear and determine suits between "citizens of different States."

The plaintiff in this case was a negro of African descent, whose ancestors were of pure African blood, and who had been brought into this country and sold as slaves. The plea in abatement set up that, whether free or not, and whether by the laws of Missouri a citizen of that State or not, Scott was not, and could not by the action of a State be made a "citizen " in the strict sense of that word as used in Article III of the Constitution. In sustaining this plea, Chief Justice Taney in his opinion said: "The words 'people of the United States' and 'citizens' are synonymous

7 Scott v. Sanford, 19 How. 393; 15 L. ed. 691.

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