Writing Citizenship into the Constitution

Sources

Search for Definition. The attempt to establish the meaning of American citizenship was central to constitutional development during the Civil War and Reconstruction era. Previous generations had not done much to clarify the concept. Neither judicial decisions nor legal commentators offered “a clear and satisfactory definition of the phrase citizen of the United States,” Attorney General Edward Bates observed in the middle of the war. He sighed that “eighty years of practical enjoyment of citizenship, under the Constitution, have not sufficed to teach us either the exact meaning of the word or the constituent elements of the thing we prize so highly.” The best-known analysis of American citizenship had emerged from the interpretation of Article IV, section 2 of the Constitution, which provides that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Supreme Court Justice Bushrod Washington, sitting on a lower federal court in Corfield v. Coryell (1823), declared that this clause barred states from discriminating against nonresidents in matters “which are in their nature fundamental; which belong of right to the citizens of all free Governments; and which have at all times been enjoyed by the citizens of the several States which compose this Union.” This statement identified three different sources of law to which Americans might look to determine the rights of citizenship: philosophical principles of natural law, the structure of republican government, and established customs. Washington thought that a list of all privileges and immunities protected by the clause would be “more tedious than difficult to enumerate,” but he noted that American citizenship included the right to acquire and possess property; the right to pass through or reside in any state; the privilege of habeas corpus; and the right to maintain lawsuits. The Corfield v. Coryell definition of citizenship was not only incomplete as a catalogue of rights but significantly limited in its application, for Article IV, section 2 applies only to state-to-state relations. The guarantee of equal treatment for out-of-state residents did not set limits on a state’s treatment of its own residents. Nor did the Bill of Rights protect a citizen in this situation, for the Supreme Court had ruled in Barron v. Baltimore (1835) that the Bill of Rights did not constrain state governments.

Dred Scott Decision. In DredScottv. Sandford (1857) the Supreme Court made the definition of federal citizenship a problem of critical importance in American law and politics. Before evaluating Scott’s claim to freedom, the Supreme Court asked whether Scott was a citizen within the meaning of Article III, section 2 of the Constitution, which authorizes federal courts to hear lawsuits “between Citizens of different States.” Chief Justice Roger B. Taney found for the Court that African Americans—whether free or slave—could not be citizens within the meaning of the Constitution, even if state governments regarded free blacks as citizens. Taney’s analysis invoked the sources of law identified by Bushrod Washington—natural law, republican theory, and custom—but his reasoning was skewed by racism. At the time the Constitution was framed, the chief justice argued, blacks “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.” In fact, the legal frameworks governing the status of free blacks varied widely in the years after African Americans fought in the Revolutionary War; in some states, blacks voted on the ratification of the Constitution. Taney’s invention of a federal citizenship restricted to whites plainly reflected his fear that the United States was developing into the sort of biracial society that might already be foreseen in his home state of Maryland, where the erosion of slavery had created the largest population of free African Americans in the nation.

Black Codes. After the war the definition of federal citizenship became intertwined with the question of what freedom would mean, beyond simply the absence of slavery. Provided by President Andrew Johnson with latitude to reshape their governments, Southern states quickly tried to establish that emancipation did not confer full rights of citizenship. The so-called black codes enacted immediately after the war acknowledged that slavery was illegal and extended basic rights to blacks, but only in severely limited and closely regulated ways. The laws permitted African Americans to make contracts and own property, but they barred blacks from working as physicians or merchants and required a license for freedmen who sought to become preachers; meanwhile, elaborate labor laws sought to reinstitute the antebellum organization of plantation work. The black codes recognized the right to travel, but controlled the movements of African Americans through vagrancy laws and a pass system reminiscent of slavery. Blacks could sue and be sued, but they were barred from serving on juries and could only testify in cases that involved blacks as parties. Former slaves could now marry, but interracial marriages were strictly forbidden. Blacks were also prohibited by the codes from voting, holding office, assembling, or owning guns. Altogether the black codes essentially sought to replace slavery with a legal caste system based on race.

HOOTED DOWN THE PAGE OF HISTORY

Debate in U.S. Senate, 23 February 1865, on a proposal to place a bust of late Chief Justice Roger B. Taney in the chamber of the United States Supreme Court:

Lyman Trumbull (Illinois): I trust that the bill will be taken up; that a person who has presided over the Supreme Court of the United States for more than a quarter of a century, and has added reputation to the character of the judiciary of the United States throughout the world is not to be hooted down by an exclamation that the country is to be emancipated. Suppose he did make a wrong decision. No man is infallible. He was a great and learned and an able man. I trust the Senate will take up the bill, and not only take it up, but pass it.

Charles Sumner (Massachusetts): The Senator from Illinois says that this idea of a bust is not to be hooted down. Let me tell that Senator that the name of Taney is to be hooted down the page of history. Judgment is beginning now; and an emancipated country will fasten upon him the stigma which he deserves. The Senator says that he for twenty-five years administered justice. He administered justice wickedly, and degraded the judiciary of the country, and degraded the age.

Reverdy Johnson (Maryland): I cannot fail to express my astonishment at the course of the honorable Senator from Massachusetts, which he thinks it, I suppose, his duty to pursue. Sir, if the times in which we are living are honestly and truly recorded by the historian, I think the honorable member from Massachusetts will be very happy if he stands as pure and as high upon the historic page as the learned judge who is now no more.

The honorable member seems to suppose that the decision in the Dred Scott case was a decision of the Chief Justice alone. It was not so. In that decision a majority of the court concurred. Whether that decision is right or not, permit me to say to the honorable member there are men belonging to the profession at least his equals, who think it to have been right; but whether right or wrong, those who knew the moral character of the Chief Justice as well as I did would blush to say that his name is to be execrated among men…, [Besides] it is a matter of history. Every judge who has been at the head of that tribunal has his bust placed in that court-room. Does the honorable member wish to have it unknown in future times that there was such a Chief Justice?…

Sumner:…. If a man has done evil during life he must not be complimented in marble…. I know that in the court-room there are busts of the other Chief Justices. Very well. So in the hall of the doges, at Venice, there are pictures of all who filled that high office in unbroken succession, with the exception of Marino Faliero, who, although as venerable from years as Taney, was deemed unworthy of a place in that line. Where his picture should have been there was a vacant space which testified always to the justice of the republic. Let such a vacant space in our court-room testify to the justice of our Republic. Let it speak in warning to all who would betray liberty.

Civil Rights Act of 1866. The general response of Southern lawmakers to emancipation was not very difficult to predict, and the Thirteenth Amendment—which Southern states were forced to ratify as they reorganized their governments—had not only declared that slavery was abolished but had authorized Congress to enact legislation necessary to enforce emancipation. When Congress assembled in December 1865 for the first time since the end of the war, it accordingly moved swiftly to counter the black codes with a statute defining the rights of American citizenship. The Civil Rights Act of 1866 provided that all persons born in the United States (except

Indians) were citizens entitled regardless of race to “full and equal benefit of all laws and proceedings for the security of person and property.” While Congress protected the basic economic power to make contracts and maintain lawsuits, it treated suffrage not as a right protected by the federal government but as a privilege extended by state governments. But although the Civil Rights Act of 1866 did not address all forms of inequality, it expressed an unprecedented approach to the role of the federal government in American life. “I admit that this species of legislation is absolutely revolutionary,” declared one Republican supporter. “But are we not in the midst of a revolution?”

The Fourteenth Amendment. At the same time that Congress introduced the idea of federal citizenship in the Civil Rights Act of 1866 to respond directly to the black codes, Republican lawmakers also began working to make the concept of American citizenship a new centerpiece of the U.S. Constitution. The resulting Fourteenth Amendment, adopted in 1868, created two sets of guarantees in its crucial first section. First, it provided that “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” defining citizens to include all persons born or naturalized in the United States. Second, it provided that no state could deprive any person, whether or not a citizen, of “life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws.” Because the Fourteenth Amendment became the core for much subsequent constitutional decision making, lawyers as well as historians have attempted to determine exactly what its framers meant by these phrases. Their research has often been unsatisfying, however, because many of the questions that later Americans asked—for example, whether federal law now barred the establishment of “separate but equal” public schools—were not addressed fully by the framers or were subject to contradictory interpretations by different supporters of the amendment. Rather than anticipating particular court cases, Congress sought to embed in the Constitution a general principle summarizing the meaning of the Civil War. As in the Thirteenth Amendment, Congress reserved for itself a leading role in elaborating this principle through a provision authorizing legislation to enforce the Fourteenth Amendment.

Enforcing Legislation. For contemporaries, the most important area of ambiguity in the Fourteenth Amendment was probably its impact on voting rights. The Fifteenth Amendment, ratified in 1870, clarified much of the confusion by prohibiting federal or state governments from abridging suffrage “on account of race, color, or previous condition of servitude.” Immediately after ratification of the Fifteenth Amendment, Congress passed the Civil Rights Act of 1870, which mostly provided penalties for state election officials or others who sought to interfere with blacks’ exercise of their right to vote. The crescendo of unpunished racial violence in the South led one year later to the passage of another Civil Rights Act, known as the Ku Klux Klan Act of 1871, which aimed to enforce the civil rights recognized by the Fourteenth Amendment as well as the voting rights recognized by the Fifteenth Amendment. The Ku Klux

Klan Act would become one of the most important laws ever passed by Congress for two reasons. First, its enforcement mechanisms not only provided federal officials with additional powers but also authorized private individuals to bring a lawsuit if they had been deprived of federal rights by someone acting “under color of state law.” This provision became the basis for a considerable percentage of all litigation in federal courts and a vital process through which Americans sought to defend their constitutional rights. Second, by striking at the Ku Klux Klan, Congress unequivocally turned its attention from the discriminatory acts of state governments that had been the focus of the Civil Rights Acts of 1866 and 1870, and addressed racial injustices perpetrated by private individuals. The direct federal intervention into relations between private individuals became the center of intense dispute. For example, Sen. Lyman Trumbull of Illinois, the sponsor of the Civil Rights Act of 1866, strenuously opposed the Civil Rights Act of 1871 because he believed that it violated the proper province of state government.

Institutional Change. Responsibility for enforcement of the new guarantees of citizenship transformed the federal legal apparatus, including attorneys for the United States government as well as the court system. The administrative duties of the attorney general had expanded considerably during the Civil War; only in 1861 had the attorney general begun to superintend the U.S. attorneys posted at the federal judicial districts around the country, who devoted most of their time to prosecuting the relatively few federal crimes such as counterfeiting or maritime infractions. Even so, in 1865 the staff of the attorney general consisted of eight persons. But the civil rights laws made attorneys for federal courts responsible for implementing a crucial aspect of national policy and for the first time required extensive cooperation between Washington officials and district attorneys. Congress recognized this new role in 1870 by creating the Department of Justice as a full-fledged unit of the federal bureaucracy. Attorney General Amos T. Akerman signaled the priority of the department by establishing its headquarters in the Freedmen’s Savings Bank building. Meanwhile, the jurisdiction of the federal court system was expanding rapidly. Before the Civil War, lower federal courts primarily heard cases between citizens of different states (“diversity” cases) and cases involving either the narrow range of federal crimes or a similarly small group of civil actions, most notably admiralty proceedings, reserved for federal administration. Only Supreme Court review ensured that the states did not undermine federal constitutional law. But the civil rights laws circumvented the state court system, authorizing individuals to file their claims in federal court and authorizing defendants to “remove” civil rights cases from state to federal court (but not vice versa). In 1875 Congress extended “federal question” jurisdiction to the limits prescribed by the Constitution, authorizing federal courts to hear not only claims under the civil rights acts but all cases arising under federal law.

Judicial Retreat. The Supreme Court decision in the Slaughterhouse cases (1873) sharply reversed the development of federal citizenship as a potential source of rights. These cases reviewed the lawsuits brought by a group of butchers excluded from a monopoly that the Louisiana legislature had chartered to regulate the meat-processing industry in New Orleans. The butchers claimed that by depriving them of their trade, the Louisiana legislature had violated the privileges and immunities of federal citizenship guaranteed by the Fourteenth Amendment. The question was essentially whether the Fourteenth Amendment not only promised racial equality but redefined the property rights of American citizens. Justice Samuel Miller’s opinion for the majority of the court concluded that the privileges-and-immunities clause did not protect the butchers. He argued that the Fourteenth Amendment did not bring into the Constitution a set of natural rights, as Bushrod Washington’s opinion in Cor-field v. Coryell had suggested in interpreting the privileges-and-immunities clause of Article IV of the Constitution. Instead, the Slaughterhouse cases ruled that the privileges and immunities clause of the Fourteenth Amendment protected only a few narrow activities peculiar to the federal system, such as ensuring that all citizens enjoyed access to Washington, D.C., and to the seaports and navigable waters of the United States. As a result, the privileges-and-immunities clause essentially ceased to be a dynamic part of the Constitution. The idea that the Fourteenth Amendment recognized new categories of fundamental but unenumerated rights—vigorously argued by the dissenting justices in the Slaughterhouse cases—would instead come to be developed primarily through the Fourteenth Amendment guarantee of due process of law.

Civil Rights Act of 1875. Congress enacted the last civil rights law of Reconstruction in large part as a tribute to Charles Sumner of Massachusetts, the Senate champion of racial equality who died in March 1874. For the previous several years, Sumner had advocated a bill that would outlaw racial discrimination in schools, churches, hotels, theaters, railroads, and other public facilities. Congress dropped the provisions regulating churches and public schools, but the rest of the legislation nevertheless represented a remarkable expansion of federal authority over the conduct of private individuals. The expansion was too much for the Supreme Court, which invalidated the mandate for integration of public accommodations in the decisions known as the Civil Rights cases (1883). The Court ruled that the guarantees of the Fourteenth Amendment applied only to “state action,” or discriminatory measures by state governments. When Congress returned to the issue of racial equality in public accommodations—almost a full century later—the legislation would be framed not as an enforcement of the Fourteenth Amendment but as a regulation of interstate commerce.

Sources

Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876 (Dobbs Ferry, N.Y.: Oceana, 1985);

James H. Kettner, The Development of American Citizenship, 1808–1870 (Chapel Hill: University of North Carolina Press, 1978);

William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, Mass.: Harvard University Press, 1988).