§ 130. The Fourteenth Amendment.

In 1868 was adopted the Fourteenth Amendment which provides 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."

The two main purposes of this declaration undoubtedly were: (1) The assertion that national citizenship is primary and paramount to state citizenship; and (2) the granting of both national and state citizenship to the negro. That national citizenship was to be paramount is shown not only in the words just quoted, but in the further provision of the amendment that "no State shall make or enforce any law which shall abridge the privileges and 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."

In the Slaughter House Cases, as we have already learned,1o the Supreme Court held, in effect, that this amendment did not have the effect of absorbing state citizenship and its appurtenant rights into the national citizenship, but that the two remain as distinct as before. Upon this point the court declare: "It [the clause defining citizenship] declares that persons may be citizens of the United States without regard to the citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.11 The next observation is more important. It is, that the dis

10 Ante, § 86.

11 This interpretation of the phrase "subject to its jurisdiction" was a mere dictum of the court, the point not being involved in the suit at bar. Moreover it was an incorrect dictum so far as regards persons born within the United States of parents who are aliens. U. S. v. Wong Kim Ark, 169 C. S. 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890.

tinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from cach other, and which depend upon different characteristics or circumstances in the individual."

In the above it will be noticed that the court declare that an additional element is necessary to convert a federal citizen into a state citizen. This additional element, furthermore, is one the giving or refusing of which is not within the control of the State. By the mere act of taking up residence within a State, which the State cannot prevent, a federal citizen, ipso facto, becomes a citizen of the State. The State thus no longer has any power to determine who shall be or become its own citizens. The federal Constitution fixes that once for all.

But though the States may not determine who shall constitute its citizen body, they still retain, as the decision in the Slaughter House Cases goes on to declare, a full authority, free from federal supervision and control, to decide what political privileges as, for instance, the right to vote, or to hold office shall exist, and who shall be entitled to enjoy them. Thus, upon the one hand, federal and state citizenship does not entitle one, of right, to the suffrage or qualify him for public office. Upon the other hand, the States may grant, and in a number of cases have granted, these privileges to aliens who, though not naturalized, have declared their intention, according to the requirements of the national law regulating naturalization, of becoming United States citizens.

Since the adoption of the Fourteenth Amendment there has been no question but that all persons, including negroes, born or naturalized in the United States become by mere residence in a

State citizens of the State. Furthermore, there is, and has been, no question but that, as Taney says in his opinion in the Dred Scott case, a State cannot, by granting its citizenship to an alien, create such a one a federal citizen or endow him with any of the privilege appertaining to that status, for the right of naturalization is, as we shall see, exclusively vested in the Federal Gov

ernment.

But though it has never been authoritatively so decided by the Supreme Court of the United States, it would seem that while a State cannot prevent a federal citizen from becoming one of its own citizens, it may grant its own citizenship to one not a federal citizen, and even to one, as for instance a Mongolian, who, according to existing federal law, cannot become a federal citiThis position is taken by the state court of Wisconsin in Re Wehlitz.12

zen.

In a line of decisions it has been held that a person may by residence abroad lose his state citizenship within the meaning of the constitutional provision which opens the federal courts to suits between citizens of different States, without losing his federal citizenship.13

Whether or not a State may make an alien one of its own citizens is quite largely an academic question; for, as already said, it can, without making him such, endow him with all the privileges of citizenship, and even give him the franchise. In Arkansas, Indiana, Kansas, Missouri, Nebraska, South Dakota, Texas, Oregon, and Wisconsin, the alien can, according to existing (1909) law, vote at all elections, if he has declared his intention to become a citizen of the United States. It may be added, also, that in a number of States, the alien who has made this declaration is given certain privileges which are denied to other aliens; for example, to hold real estate, and to be employed on public works. By federal law, also, he may preëmpt and acquire public lands: 14 and, if he dies before becoming actually natural

12 16 Wis. 443. See also Desbois' Case, 2 Martin, 185. Contra, Lanz v. Randall, 4 Dill. 428.

13 Prentiss v. Brennan, 2 Blatchf. 162; Picquet v. Swan, 5 Mason, 35. 14 Rev. Stats., Secs. 2259, 2289.

ized, his inchoate right to citizenship descends to his widow and children who may be naturalized without themselves making the declaration.15 He is, on the other hand, liable to certain obligations not required of other aliens; for example, the performance of military service.16

§ 131. District of Columbia and Territories.

Inhabitants of the District of Columbia and of a Territory are not citizens of a State within the meaning of the Constitution. They are, however, of course, citizens of the United States."7

§ 132. Boyd v. Nebraska Criticized.

In Boyd v. Nebraska, 18 decided in 1892, the Supreme Court took the extreme view, that, in the case of a state law or constitution which demanded as one of the qualifications for office, that the incumbent should have been for two years next preceding his election a citizen of the United States, it did not lie with the tribunals of that State finally to determine in any given case when such citizenship existed; and, in the case at bar, which was a proceeding in quo warranto, the federal court declared entitled to the office of governor of the State one who the court of that State had declared ineligible because, as it held, he was not a citizen of the United States. In other words, the federal Supreme Court substituted its judgment for that of the State's supreme tribunal as to the existence of a qualification for a state office prescribed by the Constitution of that State. In so doing, to the author's mind, the court exceeded its proper powers. Had there been involved the exercise of a right, or the recognition of a privilege or immunity attached by the federal Constitution or laws. to federal citizenship, there can be no question but that the state 15 Rev. Stat., Sec. 2168; and Act June 29, 1906. Cf. Boyd v. Nebraska, 143 U. S. 135; 12 Sup. Ct. Rep. 375; 36 L. ed. 103.

16 Act March 3, 1863.

17 Hepburn v. Ellzey, 2 Cr. 445; 2 L. ed. 332; Reilly v. Lamar, 2 Cr. 344; 2 L. ed. 300; Barney v. Baltimore City, 6 Wall. 280; 18 L. ed. 825; New Orleans v. Winter, 1 Wh. 91; 4 L. ed. 44; American Insurance Co. v. Canter, 1 Pet. 511; 7 L. ed. 242.

18 143 U. S. 135; 12 Sup. Ct. Rep. 375; 36 L. ed. 103.

tribunals should not have been given final authority to determine as to the existence of this federal citizenship, any more than they are permitted in the case of a state law alleged to impair the obligation of a contract to determine whether a contract exists to be impaired, or, if it exists, whether it has in fact been impaired. But in Boyd v. Nebraska the real question was as to the existence of a qualification for a state office the qualifications for which, it was undisputed, the State might determine as it should see fit. The reasoning of Justice Field in his dissenting opinion upon this point seems incontrovertible.19

$132. Wong Kim Ark Case.

In the case of United States v. Wong Kim Ark,20 decided in 1898, the Supreme Court was called upon to determine whether, under the terms of the Fourteenth Amendment, persons born in the United States of alien parents, are citizens of the United States. In this case the question was as to the citizenship of a child of Chinese parents who not only were not citizens of the United States, but could not, under the existing laws, become such by naturalization. In sustaining Ark's citizenship the court held that the clause of the Amendment declaring that "ail persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States," is but declaratory of the common law principle unreservedly accepted in England since Calvin's case (the case of Postnati, decided in 1608) and in the United States since the Declaration of Independence, that all persons, irrespective of the nationality of their parents born within the territorial limits of a State, are ipso facto, citizens of that State. The court admitted that the principle of the Roman law according to which the citizenship of the child follows that of the parent, irrespective of the place of birth, had been accepted by certain of the European nations, but denied that this principle had become a true and universal rule of inter

19 See ante, § 83.

20 169 U. S. 649; 18 Sup. Ct. Rep. 456; 42 L. ed. 890.