Citizenship (Historical Development)

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CITIZENSHIP (Historical Development)

The concept of citizenship articulated during the american revolution and adjusted to the special circumstances of an ethnically diverse federal republic in the nineteenth century developed from English theories of allegiance and of the subject's status. Enunciated most authoritatively by Sir edward coke in calvin ' scase (1608), English law held that natural subject status involved a perpetual, immutable relationship of allegiance and protection between subject and king analogous to the bond between parent and child. All persons born within the king's allegiance gained this status by birth. Conquest or naturalization by Parliament could extend the status to the foreign-born, but subjects adopted in such a manner were by legal fiction considered bound by the same perpetual allegiance as the native-born. The doctrine "once a subject, always a subject" reflected Coke's emphasis on the natural origins of the subject-king relationship and militated against the emergence of concepts of voluntary membership and expatriation.

The appearance of new social compact ideas modified but did not entirely supersede traditional concepts. By the mid-eighteenth century, Lockean theorists derived subject status from the individual's consent to leave the state of nature and join with others to form a society. To such theorists the individual subject was bound by the majority and owed allegiance to the government established by that majority. Barring the dissolution of society itself or the consent of the majority, expressed through Parliament, individual subjects were still held to a perpetual allegiance.

Colonial conditions eroded these ideas. Colonial naturalization policies especially contributed to a subtle transformation of inherited attitudes. Provincial governments welcomed foreign-born settlers in order to promote population growth vital to physical security and economic prosperity. Offering political and economic rights in exchange for the alien's contribution to the general welfare of the community, the colonists underscored the contractual, consent-based aspects of membership that had been subordinated in English law to older notions of perpetual allegiance. Imperial administrators, concerned to protect England's monopoly of colonial trade, declared in 1700 that colonial naturalization could confer subject status only within the confines of the admitting colony; although a parliamentary statute of 1740 established administrative procedures whereby a colonial court could vest an alien with a subject status valid throughout the empire, such actions merely reinforced the conclusion that the origins, extent, and effects of subject status were determined not by nature but by political and legal compacts.

When Americans declared independence in 1776 they initially relied on the traditional linkage of allegiance and protection to define citizenship in the new republican states. Congress's resolution of June 24, 1776, declared that all persons then resident in the colonies and deriving protection from the laws were members of and owed allegiance to those colonies. Lockean theory was also useful, for if each colony were considered a separate society merely changing its form of government, then loyalist minorities could still be considered subject to the will of patriot majorities. Yet forced allegiance clashed with the idea that all legitimate government required the free consent of the governed. Wartime treason prosecutions contributed to a gradual reformulation of the theory of citizenship that stressed the volitional character of allegiance. Employing a doctrine stated most clearly in the Pennsylvania case of Respublica v. Chapman (1781), American courts came to hold that citizenship must originate in an act of individual consent.

Republican citizenship required the consent of the community as well as of the individual, and legislators concerned with establishing naturalization policies concentrated on defining the proper qualifications for membership. This preoccupation obscured the ill-defined nature of the status itself. The Revolution had created a sense of community that transcended state boundaries; the articles of confederation implied that state citizenship carried with it rights in other states as well (Article IV). Framers of the United States Constitution perpetuated this ambiguity: section 2 of Article IV provided that "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Questions concerning the nature and relationship of state and national citizenship would not be resolved until the civil war.

The Revolutionary idea that citizenship began with the individual's consent extended logically to the idea of expatriation. Although some states acknowledged this principle, it raised delicate questions of federal relations after 1789. The problem appeared as early as 1795 in Talbot v. Janson, when the United States Supreme Court wrestled with the question whether a Virginia expatriation procedure could release a citizen from national as well as state allegiance. Unwilling to resolve that issue, the Court looked to Congress to provide a general policy of expatriation. Although the propriety of such a measure was discussed a number of times during the antebellum period, congressional action foundered on the same issue of federal relations. As long as the question of the primacy of state or United States citizenship remained open, the idea that citizenship rested on individual choice would be more valid for aliens seeking naturalization than for persons whose citizenship derived from birth.

The problematic character of dual state and national citizenship appeared in its most intractable form in disputes over the status of free blacks. Many northern states acknowledged free blacks as birthright citizens, though often at the cost of conceding that important political rights were not necessarily attached to that status. From the 1820s on, slave states increasingly resisted the contention that such citizenship carried constitutional guarantees of "privileges and immunities" in their own jurisdictions. roger b. taney's opinion in dred scott v. sandford (1857) that national citizenship was restricted to white state citizens of 1789, persons naturalized by Congress, and their descendants alone marked the final effort, short of secession, to restrict the scope of citizenship.

The fourteenth amendment finally defined national citizenship as the product of naturalization or birth within the jurisdiction of the United States, leaving state citizenship dependent upon residency. On July 27, 1868, Congress declared that the right of expatriation was a fundamental principle of American government, thus allowing persons born to citizenship the same right as aliens to choose their ultimate allegiance.

James H. Kettner
(1986)