Taney began with a proposition on which he and the anti-slavery lawyers agreed: “The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing.”109 But slaves and their descendants could not possibly be “people of the United States,” he continued, because at the time of the Constitution’s ratification they were “considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race.”110 Taney did not take the extreme route that had led Calhoun to deny the existence of an American nation, but he ruled that “no State can, by any act or law of its own . . . introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own.”111 Slaves and their descendants could become citizens only if a federal act gave them that opportunity.
It was at this point that Taney introduced his infamous language that at the time America declared independence, black men and women were considered “unfit to associate with the white race,” and were “so far inferior, that they had no rights which the white man was bound to respect.”112 Since the Founders believed in black inferiority, he claimed, they could not possibly have meant to include slaves or freedmen as members of the American political community. Taney was inverting the anti-slavery argument: where Tiffany and Spooner had used federal supremacy to argue that slavery was unconstitutional, Taney was arguing that, on the contrary, federal supremacy protected slavery throughout the land.
Taney’s proof that the Declaration of Independence applied exclusively to whites was startlingly weak.113 Indeed, he provided only one relevant piece of evidence: the fact that the men who signed the Declaration and the Constitution, and who owned slaves, failed to free them at that time. Of course, each slave owner had his own reasons, hypocrisy being just one of them, for failing to abide by the principles of equality and liberty for which he pledged his life, fortune, and sacred honor. But this fact, in addition to the Three-Fifths Clause and the clause temporarily protecting the slave trade, persuaded Taney that neither slaves nor their descendants were among the “people of the United States” who had ordained and established the Constitution. In the years since ratification, Congress had never asserted authority to make blacks citizens. The naturalization laws it had enacted allowed only free white foreigners to become citizens—a statutory distinction that “followed out the line of division which the Constitution has drawn between the citizen race, who formed and held the Government, and the African race, which they held in subjection and slavery, and governed at their own pleasure.”114 Since Dred Scott was not, and could not be, a citizen, he had no power to file a lawsuit in federal court.
Justice Curtis objected. The Constitution had made any person who was a citizen of a state in 1787 into a citizen of the United States, he argued, and according to the laws of New Hampshire, Massachusetts, New York, New Jersey, and even North Carolina, that included all free persons, regardless of color.115 Indeed, although South Carolina had once tried under the Articles of Confederation to confine American citizenship solely to white persons, that proposition had been rejected. This made it clear that in at least some states, free blacks could qualify for citizenship at the time of ratification, and thereby become American citizens; in some states, they had even been allowed to vote on whether to ratify the Constitution! It was therefore “not true, in point of fact, that the Constitution was made exclusively by the white race.”116
But just as Taney had not fully adopted Calhoun’s extreme pro-slavery theory, neither did Curtis endorse the entire position of the anti-slavery constitutionalists. Instead, he believed that citizenship was determined solely by state law. Since the Articles of Confederation had given this power to states, and no provision of the Constitution overrode that grant, they must still have that power. Pointing to Article IV, he observed that the Constitution guaranteed the enjoyment of certain “privileges and immunities . . . throughout the United States,” but did so on the condition that the person was a citizen of a state. This complicated paragraph of his opinion would have lasting consequences:
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 citizenship, 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 Constitution or laws of the United States. They are to be citizens of the several States, and, as such, the privileges and immunities of general citizenship, derived from and guarantied [sic] by the Constitution, are to be enjoyed by them.117
In other words, Article IV’s Privileges and Immunities Clause specified only the category of rights that were guaranteed nationwide—not the category of persons who held those rights. On the contrary, state governments held the exclusive power to determine who qualified as citizens. Once a state made a person a citizen, that person was entitled by the federal constitution to the “privileges or immunities of citizens of the several states.” The word “several” here is significant—it means “discrete,” or “considered separately,” or “respectively.” When the Fourteenth Amendment was written, it would employ a more unitary, nationalistic phrase: “the privileges or immunities of citizens of the United States.” Its protections would not depend on state authority at all, but would shift the responsibility for citizenship and security to the nation instead.
Bingham on the Oregon Bill
Dred Scott did not resolve the controversy, as Taney had hoped, not even temporarily. Only a few days later, justices on the Maine Supreme Court issued an opinion rejecting it, holding 7-1 that blacks could be citizens of Maine and therefore of the United States.118 New York’s highest court followed with a decision in Lemmon v. People, emphatically rejecting Dred Scott and holding that a slave brought into New York was automatically freed.119
Two years after Dred Scott, Ohio Congressman John Bingham delivered a clever and important speech on the nature of federal citizenship. He did not begin with an attack on racial discrimination; rather, he opposed the admission of Oregon to the union because its proposed state constitution expanded civil rights too broadly. Specifically, Oregon’s draft constitution extended voting rights both to citizens and to foreigners who pledged that they intended to become American citizens. This, Bingham argued, was unconstitutional; states could not grant federal citizenship rights to aliens, let alone those who simply claimed that they would become citizens at some future date. The right to vote “is the sovereignty of America,” and was not susceptible of transfer to noncitizens. To extend the federal franchise to aliens was, in effect, to recognize state power to override federal naturalization laws.
But in the process of making this argument, Bingham reiterated his belief that states could not deny citizenship to those who were entitled to it: “All free persons born and domiciled within the jurisdiction of the United States, are citizens of the United States from birth” regardless of race.120 The proposed Oregon Constitution, like Missouri’s decades earlier, also allowed the state to exclude nonwhite Americans. But citizens of the United States included “all persons born and domiciled within the United States—not all free white persons, but all free persons.”121 Reiterating the points made by the Dred Scott dissenters, Bingham pointed out that blacks were citizens of several states at the time the Constitution was adopted, and had even fought in the Revolutionary army. No subsequent law deprived them of the citizenship they had gained, and thus four years after the Revolutionary War ended, when the Constitution invoked the “People of the United States,” it must have meant eligible people of both races. And this meant that federal citizenship could not be confined to whites. “This government rests upon the absolute equality of natural rights amongst men.”122
For states to exclude nonwhite citizens would violate the Privileges and Immunities Clause, Bingham continued. Th
is clause guaranteed a panoply of rights that were federal in nature: it did not protect those rights “which result exclusively from State authority or State legislation,” but it did protect the rights “of citizens of the United States in the several States.” There was “an ellipsis in the language employed in the Constitution,” he said, “but its meaning is self-evident that it is ‘the privileges and immunities of citizens of the United States in the several States’ that it guaranties [sic].”123 The dual character of American citizenship limited state sovereignty and overrode state laws that infringed on the rights guaranteed to all Americans.
Thus Congressman Bingham and Justice Curtis, like their more extreme allies Spooner and Tiffany, formulated a model of dual citizenship grounded in the Founding Fathers’ design of dual sovereignty. Federal citizenship and federal authority were independent of, and superior to, the states’ power to define citizenship or govern individuals—and the federal realm was ultimately incompatible with slavery, because it rested on the inalienable rights articulated in the Declaration of Independence. This was enough to rebut the states’ rights theory, which could not account either for the fact that nonwhites were admitted as citizens at the time of ratification, or for the Constitution’s clear language of supremacy. In response, some Southerners had gone to the untenable extreme of arguing that there was no such thing as an American nation in the first place. The anti-slavery view—that there was an American citizenship independent of state citizenship, which brought with it a category of rights protected against state governments—was a critical insight. But as historian Jacobus tenBroek observed, this doctrine of paramount national citizenship “could not simply be read into the Constitution; it had to be written into it.”124
Paramount National Citizenship and the Privileges or Immunities Clause
By the time the Civil War ended, Roger Taney was dead; he was succeeded by anti-slavery Chief Justice Salmon Chase. Slavery had been dealt a practical death blow by the Emancipation Proclamation and the collapse of the slave power. Congress quickly followed by writing the Thirteenth Amendment to prohibit slavery. Elated, Lincoln signed that amendment upon its passage, even though presidents are not required to sign constitutional amendments to make them valid.125
But freeing the slaves was not enough. Dred Scott, after all, had declared not only slaves, but all persons of “the African race” ineligible for federal citizenship. Some Radical Republicans argued that the Thirteenth Amendment automatically made the former slaves citizens under federal law—“no longer a slave, he is a common part of the Republic, owing to it patriotic allegiance in return for the protection of equal laws,”126 said Charles Sumner—but most Republican leaders believed a new amendment was needed to provide stronger, more explicit security for individual freedom and equal treatment. Thus, in 1868, they ratified the Fourteenth Amendment to constitutionalize the principles of paramount national citizenship and federal protection for natural and common law rights, thereby resetting the constitutional priorities in accordance with the Declaration of Independence.127 By establishing the primacy of federal citizenship and federal sovereignty, the amendment overthrew the states’ rights vision of proud, autonomous states, and replaced it with a system in which people are American citizens first, and citizens of states only derivatively, and in which their rights are protected by federal law.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof,” declares the Fourteenth Amendment, “are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The structure of the amendment’s first section makes its intent clear. The first clause defines federal citizenship, making it primary, with state citizenship secondary and derivative.128 Indeed, it deprives states of power to determine who their own citizens are, the most basic power of any true sovereign. The next sentence then asserts that states shall not make or enforce laws that abridge the rights all American citizens enjoy. And the final two clauses assure all people that they will not be deprived of life, liberty, or property without due process of law, or denied the equal protection of the laws. The amendment echoes the Declaration of Independence in both its wording and its argument. Where the Declaration announced that people are born free, and can choose to create a government to protect their rights—thereby becoming “one people”—the new amendment, too, is grounded on a national body politic, which prioritizes individual rights over government power. All Americans are entitled to security for the rights that belong to the citizens of all free governments—and that security is valid against the state governments as well.
Republicans did not think of this as altering the Constitution so much as rescuing it from the perversions of the states’ rights theorists and the Taney Court. The 1787 Constitution, Sumner argued, had been written “to remove difficulties arising from State Rights.”129 From its inception, it had recognized only one sovereignty: that of the nation. States retained “special local control which is essential to the convenience and business of life,” but the United States “as Plural Unit” possessed “that commanding sovereignty which embraces and holds the whole country within its perpetual and irreversible jurisdiction.”130 State authority was subordinate “[c]onstantly, and in everything.”131 This predominant federal sovereignty brought with it the power to protect the rights of federal citizens.132 Bingham also saw the amendment less as an innovation than as a recommitment to an old promise. A decade earlier, he had explained that the rights of citizens were based in national, not state citizenship.133 States had no authority, he said, to “restrict the humblest citizen of the United States in the free exercise of any one of his natural rights; those rights common to all men, and to protect which, not to confer, all good governments are instituted.”134 Indeed, if states did violate these rights, the people would have “sufficient cause” for the “reconstruction of the political fabric on a juster basis, and with surer safeguards.”135 Now, he and his friends would make good that reconstruction, adding surer federal safeguards for the natural and common law rights to which all Americans were entitled by virtue of their membership in the national body politic.
But what were these rights? Anti-slavery thinkers answered by pointing to the Declaration of Independence.136 That document had inextricably connected the doctrine of natural liberty with the basis of citizenship. Since the Declaration premised government’s legitimacy on its protections for individual rights, the questions of who citizens were, and what rights they were entitled to, could not be regarded separately. Rather, the principles of equality, liberty, and consent were the basis of both political authority and citizenship. Sovereignty was not a basic right to rule, combined with some discretionary benefits handed down to the subject: it was the product of an agreement that the government would respect and protect each person’s fundamental right to freedom. Citizenship was not a system of subordination and obedience, as the slaveholders had claimed, but a reciprocal, contractual relationship in which the citizen yielded loyalty in exchange for protection for his rights. Allegiance could not be separated from the truthfulness of the Declaration’s claims about rights, any more than one could consider oneself a Christian while denying the doctrines of Jesus, or a Republican while rejecting the party platform. “By incorporation within the body-politic,” said Sumner, the former slave “becomes a partner in that transcendent unity. . . . Our rights are his rights; our equality is his equality; our privileges and immunities are his great freehold.”137 Americans became “one people” by subscribing to its propositions about rights and the source of political authority. To now add the former slaves to that people meant signing them on to those fundamental principles.
The Fourteenth Amendment’s authors
frequently defined privileges or immunities as referring to natural rights, and cited the 1823 decision in Corfield v. Coryell, in which Supreme Court Justice Bushrod Washington defined the privileges and immunities of Americans as the “fundamental” rights “which belong, of right, to the citizens of all free governments.”138 Washington specified the right to travel from state to state for work, the right of habeas corpus, the rights to sue, to dispose of property, and to vote in compliance with state law. But privileges and immunities also included “[p]rotection 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.”139
More than four decades later, as Republicans sought to clarify the contours of federal citizenship, they adopted that decision’s catalogue of the rights to which citizens of any free state are entitled, and used it to describe the rights that in their view belonged to citizens of a free nation. Senator Jacob Howard quoted from Coryell when he explained that the amendment’s new Privileges or Immunities Clause would provide for “‘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’” as well as “the personal rights guarantied and secured by the first eight amendments of the Constitution.”140 Senator John Sherman, too, explained that the new clause would protect the “privileges, immunities, and rights (because I do not distinguish between them, and cannot do it,) of citizens of the United States, such as are recognized by the common law, such as are ingrafted [sic] in the great charters of England, some of them ingrafted [sic] in the Constitution of the United States, some of them in the constitutions of the different States, and some of them in the Declaration of Independence.” Courts applying the clause would “look first at the Constitution,” and “[i]f that does not define the right they will look for the unenumerated powers [sic] to the Declaration of American Independence, to every scrap of American history, to the history of England, to the common law of England,” where they would find “the fountain and reservoir of the rights of American as well as of English citizens.”141 The new amendment would nationalize Coryell.
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