§ 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.

3

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 citi zenship. The only dispute has been as to the relation of the two. Prior to the argument of the Dred Scott case there was sur prisingly 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." 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 require ments 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 a 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 citi— zen. 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.

terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the sovereign people,' and every citizen is one of this people and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty. In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of a citizen, and to endow him with all its rights. But this character, of course, was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or anyone it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently no State, since the adoption of the Constitution, can, by naturalizing an alien, invest him with the rights and privileges

secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and immunities which the Constitution and laws of the State attached to that character."

There was no dissent on the part of any of the Justices of the Supreme Court from the doctrine declared by Taney that it did not lie within the power of the individual States to create federal citizens by admitting whomsoever they should see fit to their own citizenship. Justice Catron, however, argued that, under the pleadings, the plea in abatement, and, therefore, the question of citizenship, was not properly before the Supreme Court, and Justices McLean and Curtis in the particular case at bar argued that Scott by fact of birth within the United States was a citizen of the United States, and, by domicile, was a citizen of the State of Missouri. In his dissenting opinion, Justice McLean argued that under the demurrer which was filed to the plea in abatement, Scott was to be considered a free man, and that, as such, whether or not he was of negro descent and had been a slave, he was a citizen of the United States and of the State in which he was domiciled. "Being born under our Constitution and laws," he said, "no naturalization is required, as one of foreign birth, to make him a citizen. The most general and appropriate definition of the term 'citizen' is a freeman.' Being a freeman, and having a domicile in a State different from that of the defendant, he is a citizen within the act of Congress, and the courts of the Union are open to him."

Justice Curtis in his dissenting opinion, after declaring the principle that the Constitution must have recognized as citizens of the United States all those who were recognized by the States as citizens at the time the Constitution was adopted, took issue with Chief Justice Taney as to the statement that in 1789 free negroes were nowhere in America recognized as citizens. At that time, he alleged, not only were all free native-born inhabitants of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, including those descended from African slaves,