General Citizenship Rights
abstract. Current scholarship and case law assume that citizenship rights come in only two sets: state and national. This binary approach reflects broader contemporary attitudes about the positivist grounding of constitutional rights and the dualistic character of American sovereignty. From the Founding up until Reconstruction, however, many Americans took a different view. For those steeped in older ways of thinking, citizenship rights included not only local and national rights but also general citizenship rights. Premised on social-contractarian assumptions and a common jurisprudential heritage, general citizenship rights were fundamental rights that were putatively held by all American citizens. Moreover, these rights were secured across state lines through the conferral of general citizenship in Article IV, reflecting the interstate dimensions of federalism. Coming in three sets, not two, citizenship rights were thus based not only on the positively enacted law of particular sovereigns but also on general law, coupled with the notion that Americans belonged to a federative political family. Recovering these ideas of general citizenship rights and general citizenship enables new ways of seeing our constitutional past and can help to clarify or resolve long-running controversies about the Privileges and Immunities Clause in Article IV and the Privileges or Immunities Clause in the Fourteenth Amendment. This history also points toward a different way of framing those disputes, focused less on linguistic analysis of constitutional text and more on underlying conceptions of fundamental rights, federalism, and sovereignty.
author. Professor of Law, University of Richmond School of Law. The author thanks Greg Ablavsky, Jack Balkin, Will Baude, Curt Bradley, Sam Bray, Jonathan Gienapp, Mark Graber, Stephen Griffin, Tara Grove, John Harrison, Dan Hulsebosch, Rekha Kennedy, Sandy Levinson, Michael McConnell, Caleb Nelson, Cynthia Nicoletti, Bill Novak, Farah Peterson, Richard Re, Steve Sachs, David Sklansky, Kevin Walsh, Ryan Williams, Ilan Wurman, the editors of the Yale Law Journal, the participants in the Duke University School of Law Faculty Workshop, the Stanford Law School Faculty Workshop, the University of Chicago Law School Faculty Workshop, the University of San Diego Originalism Works-In-Progress Conference, the University of Texas School of Law Faculty Workshop, and the University of Virginia School of Law Faculty Workshop, and, especially, research assistant Nathaniel Obinwa.
Interest in the history of citizenship rights is off the charts,1 but there is little scholarly agreement about how Americans understood those rights or their relation to state and federal power. Debates are especially lively concerning the Privileges and Immunities Clause in Article IV and the Privileges or Immunities Clause in the Fourteenth Amendment. Some scholars interpret these clauses as securing only “relative” rights of nondiscrimination (interstate and intrastate, respectively),2 while others read them as guaranteeing “substantive” rights that states cannot abridge, even under nondiscriminatory laws.3 The scope of these rights is also hotly disputed, especially over the perennial issue of unenumerated rights.4 Meanwhile, some legal historians argue that any quest for original meaning on these matters is futile because of historical indeterminacy.5
This Article joins these conversations by introducing two concepts—general citizenship and general citizenship rights—at the heart of how many Americans thought about the privileges and immunities of citizenship. Today, the idea of general citizenship is nowhere to be found in the literature.6 The Constitution speaks only of citizens of states and citizens of the United States,7 so we have naturally assumed that citizenship rights came in only two bundles: state and national.8 In the nineteenth century, however, many jurists thought that citizenship rights came in three sets: local, national, and general. Local and national citizenship rights were those attached exclusively to one’s status as a citizen of a state and of the nation, respectively.9 General citizenship rights, by contrast, were often linked to more than one type of citizenship. But these rights were especially tied to a distinctive notion of general citizenship, grounded in the view that the United States was not merely a unitary nation but also a federation of states.10 In other words, the idea of general citizenship—a status conferring reciprocal protection of general citizenship rights across state lines—reflected a federative (or confederal) aspect of American federalism.11 My primary goals in this Article are to trace the concepts of general citizenship and general citizenship rights from the colonial period through Reconstruction and to examine how those concepts illuminate several historical debates about fundamental rights.
My other aims are to show how these different notions of citizenship were linked to underlying views about sovereignty and, in doing so, to suggest that originalists have often focused too narrowly on the text of the Fourteenth Amendment and not enough on antecedent, nontextual premises about the nature of the federal union.12 Over and over, historical conflicts over citizenship were less about the meaning of words and more about the nature and distribution of political authority.13 When recovering earlier views about citizenship rights, then, we cannot assume that those rights were textually derived or that debates about them turned on linguistic analysis. Appreciating this point can thus open new ways of seeing the historical terrain of constitutional debate.
The first step in broadening our range of vision is to recover the idea that Americans enjoyed, as Justice Joseph Story wrote in his Commentaries, “a general citizenship.”14 This concept was linked to the interstate dimensions of the Constitution. In a renowned attack on the constitutionality of the Fugitive Slave Act, for instance, future Chief Justice Salmon P. Chase explained that although the “leading object” of the Constitution “was to create a national government,” a “secondary object was to adjust and settle certain matters of right . . . between the citizens of different states, by permanent stipulations having the force and effect of a treaty.”15 Article IV, in other words, functioned essentially as a treaty among sovereign states, not as a national constitution. Thus, while state and national citizenship referred to membership in a sovereign polity, the idea of general citizenship was that Americans also belonged to a federative political family, whose members shared a common jurisprudential heritage and mutually secured fundamental rights—namely, the rights of general citizenship. These included axiomatic common-law and natural rights, like due process, habeas, speech, property, locomotion, and so on.16
Although their terminology often varied,17 jurists from the Founding through Reconstruction widely embraced this way of thinking. Consider, for instance, the two most well-known opinions in Dred Scott. The ternary theory of citizenship rights was featured not only in Justice Curtis’s classic dissent, which included seven explicit references to the rights of “general citizenship,” but also in Chief Justice Taney’s majority opinion. To be sure, Curtis and Taney disagreed about how the three notions of citizenship rights were linked and—most notoriously—who qualified for them. But both Justices agreed that citizenship rights came in three sets, not two.
The concept of general citizenship might seem strange today, with federalism debates now focused on vertical issues of state and national power. But this federative idea came naturally to those steeped in the legacies of British constitutionalism, the Articles of Confederation, and long-running debates over interstate relations and slavery. The concept of general citizenship rights also made intuitive sense for those who thought that fundamental rights were secured before constitutional ratification and who were acclimated to the idea of general law—that is, “rules that are not under the control of any single jurisdiction, but instead reflect principles or practices common to many different jurisdictions.”18 In sum, the ideas of general citizenship and general citizenship rights reflected a different constellation of ideas about federalism and fundamental law.
Given that general citizenship rights were features of the federal system and belonged to all American citizens, jurists frequently described them as rights of “citizens of the United States.”19 But that term came with latent ambiguity. As Representative Philemon Bliss of Ohio observed in 1858,
[T]he phrase “citizen of the United States” is no less loosely used than the term [citizenship] itself. It is not only employed to mean a person entitled to all the privileges of citizens in the several States—sometimes called a general citizen—but also to designate one as primarily a citizen of the Union as a single consolidated Government.20
For many Americans in the nineteenth century, general citizenship rights and national citizenship rights were distinct groups of rights, even though both sets were known as rights of “citizens of the United States.”
Perhaps because of this terminological slipperiness, the ternary theory of citizenship rights has been overlooked in the scholarly literature.21 For instance, in the leading history of American citizenship, James H. Kettner assumes a binary division between state and national citizenship.22 William M. Wiecek’s seminal work on anti-slavery constitutionalism does so too, misidentifying Story’s invocation of general citizenship as referring to “national citizenship.”23 Similarly, Don E. Fehrenbacher’s tome on Dred Scott uses a binary conception of citizenship, leading to consequential interpretive errors.24 And the list goes on.25 Some scholars have mentioned the term “general citizenship” in passing,26 but they have portrayed general citizenship rights simply as national rights against stategovernments.27 In other words, the existing literature does not identify or explore the distinctly federative character of general citizenship28 or the general-law grounding of general citizenship rights29—including the way that these rights were usually linked to multiple forms of citizenship.
But while many politicians and jurists embraced the ternary approach to citizenship, it was not universally accepted. Prior to the Civil War, Americans on opposite sides of the political landscape came to embrace competing binary conceptions of citizenship and citizenship rights. The competition between these approaches reflected larger struggles over federalism and sovereignty, shaped by long-running debates over the nature of the federal union.30
On one extreme, those who adopted a “compact theory” of the union wholly rejected the concept of national citizenship in the sense of membership in a sovereign national polity. Articulated most famously by John C. Calhoun of South Carolina, compact theory posited that the Constitution was merely an agreement among sovereign states, thus making all federal constitutional provisions confederal.31 From this perspective, Americans had only local and general citizenship rights, with both being ultimately derivative of state citizenship.32 Thus, although these figures did not oppose a federative notion of general citizenship, they firmly rejected the idea of national citizenship. As the Attorney General of South Carolina asserted in 1834: “There is no such being, then, under the Constitution of the U.S., as a citizen of all the States generally. A citizen of the U.S. is a citizen of one of the States of the confederacy.”33 After the Civil War, many Southern advocates of the “lost cause” held onto this view.34
On the other extreme, the “radical” anti-slavery activist Joel Tiffany defended another binary theory of citizenship.35 On his view, individuals held the essential rights of citizenship as members of the national body politic.36 These rights, Tiffany wrote, were “natural and inalienable rights which the Declaration of Independence asserted, the war of the Revolution maintained, and the adoption of the Federal Constitution secured.”37 Tiffany admitted that state governments were primarily responsible for securing these rights with respect to their own citizens. But on his view, states lacked authority to abridge these rights of national citizenship, and the federal government ultimately had the power and responsibility to enforce them.38 In essence, Tiffany treated general citizenship rights as national citizenship rights.39
After the Civil War, Republicans mostly abandoned or ignored a federative notion of general citizenship. They instead asserted that the people of the United States were one people whose common fundamental rights were grounded in that unitary account of sovereignty. “[T]he great central idea of the Republican party to day,” Senator Oliver Morton of Indiana explained, was “that the sovereignty does not reside in a State, but resides in this whole nation . . . . We are one great nation, and the States are but integral and subordinate parts of this great nation.”40 And with constitutional debates no longer focused on the legal treatment of fugitives from slavery, or on whether states had authority to grant citizenship to free Black persons, Republicans stopped promoting a federative understanding of Article IV.
But what would follow from the decline of general citizenship was not yet clear. Would its obsolescence lead to a parallel abandonment, or at least a broad rethinking, of general citizenship rights? Or would older patterns of thought linger, even as adjacent parts of the intellectual matrix were quickly changing?
As the terrain of constitutional debate shifted, Republicans widely retained an idea of general citizenship rights, but an intraparty split developed in their approach to these rights. So-called “Radical Republicans” typically came to see them as being grounded in a freestanding national social contract dating back to 1776, making general citizenship rights subject to direct congressional control and enforcement, even in cases involving private abridgment. In essence, these Republicans viewed general citizenship rights as a subset of national citizenship rights. As Ohio Representative Samuel Shellabarger observed, general citizenship rights “grow out of and belong to national citizenship and not out of State citizenship.”41 Some “moderate” Republicans, on the other hand, held onto more traditional ideas, viewing congressional authority as flowing from only the Constitution, not a freestanding national social contract.42 Although Republicans agreed that general citizenship rights were somehow tied to national citizenship, moderate Republicans did not view them as distinctively national objects.
By assuming a nationalistic account of federal constitutional rights, scholars have portrayed the Fourteenth Amendment’s Framers as having faced a choice about whether—and how—to “nationalize” citizenship rights.43 For instance, those who emphasize Justice Washington’s decision in Corfield v. Coryell44typically conclude that the Privileges or Immunities Clause “nationalized” rights previously secured under Article IV’s Privileges and Immunities Clause.45 Meanwhile, others argue that the Privileges or Immunities Clause embraced only a nondiscrimination rule,46 or that it “nationalized” only certain enumerated rights.47 Finally, some conclude that the Fourteenth Amendment simply reflected conflicting priorities.48 As framed in the current literature, Republicans could not have it both ways: they could not secure the rights mentioned in Corfield while also preserving the basic structure of American federalism.49
Although a nationalistic understanding of federal constitutional rights is unreflectively assumed today, it was hardly obvious in the 1860s. After all, Republican elites had grown up in an era when a federative view of general citizenship rights prevailed across the political spectrum.50 And with those older ideas still in mind, moderate Republicans did not need to choose between securing fundamental rights and preserving federalism. According to its leading framer, Ohio Representative John Bingham, the Fourteenth Amendment supplied federal power to enforce general citizenship rights in cases of state abridgment. Strictly speaking, however, the Amendment did not create new rights or withdraw any powers that states could rightfully exercise. Its novelty came from an explicit recognition that in-state citizens enjoyed these rights and from the conferral of a federal enforcement power. But on Bingham’s view, the Fourteenth Amendment preserved traditional federalism principles.51
Neither of these Republican perspectives aligned with the Supreme Court’s eventual evisceration of the Privileges or Immunities Clause in the Slaughter-House Cases.52 But critics of that decision have overlooked the way that Justice Miller’s majority opinion drew on both Republican positions while combining them in a way that gutted the Clause of its intended force. By embracing a nationalistic framing of the Privileges or Immunities Clause, Miller echoed the view of Radical Republicans. But he joined moderates in asserting that the regulation and enforcement of general citizenship rights was principally left to states. In merging these two positions, however, Miller rejected a crucial point of Republican consensus: the Clause protected general citizenship rights.
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This Article explores the intellectual history of general citizenship and general citizenship rights from the Founding through Reconstruction.53 My focus is on mapping out how these concepts were used and contested in constitutional discourse, particularly among legal and political elites.54 But caution is needed with respect to terminology. The term “general citizenship” often appeared in legal discourse,55 but Americans used other equivalent phrases, including most notably “United States citizenship” and the correlative idea of “privileges and immunities of citizens of the United States.”56 Yet, these labels sometimes referred to other concepts, too,57 raising the likelihood that historical figures were sometimes talking past each other. To provide clarity, this Article uses consistent terminology, but that rhetorical strategy is not meant to suggest that Americans had a unified or stable way of referring to the underlying concepts.
From a methodological standpoint, then, this Article tries to chart a tricky course. My aim is to recover lost concepts, so it is vital to explain those ideas clearly. But doing so requires precision that is not always present in the sources. This obscurity surely accounts for why such an important feature of rights discourse has been overlooked in prior scholarship.58 But it also calls for further explanation about the nature of my argument.
The Article proceeds on the routine assumption that intellectual historians can usefully explore—and clarify for modern readers—the implicit and undertheorized premises of constitutional discourse in earlier eras.59 In doing so, however, one must take care not to offer too much clarity by treating the underlying concepts as fully formed, timeless entities. As intellectual historians have shown time and again, ideas are socially constructed and contingent.60 That observation applies, of course, to ideas about American fundamental law.61 Consequently, although my hope is that readers will come away with a better understanding of the ideas of general citizenship and general citizenship rights, a parallel goal is to avoid suggesting that these concepts had precise, stable definitions. Indeed, one of my arguments is that they were transformed during Reconstruction.
Still, it can be immensely generative to dig beneath the discursive surface to reveal underlying premises that structured constitutional debate in earlier eras, and to explore how certain concepts were used and contested.62 Sometimes this type of project involves recovering ideas that speakers consciously had in view but often felt no need to express. But discourse is also shaped by an underlying matrix of ideas that includes implicit and inchoate concepts and relations, much like grammar subconsciously structures our uses of language.63 It seems likely that both modes—conscious and subconscious64—explain how the concepts of general citizenship and general citizenship rights influenced earlier debates. However, nothing in my argument turns on whether any particular speaker deliberately theorized about citizenship, so this Article makes no effort to distinguish the two situations. In other words, even among historical figures who did not consciously conceptualize a distinctive idea of general citizenship, they nonetheless often held views about related topics—like the general-law grounding of basic rights and the federative nature of Article IV—that conditioned them to think and argue about citizenship and citizenship rights in the ways identified in this Article.
For the most part, general citizenship and general citizenship rights remained in the background of political discourse because the concepts themselves were not in dispute. By and large, these concepts were embraced across the political spectrum. Thus, we can usually see them in action only by exploring other topics, like controversies over who was eligible for citizenship. That is not to say that studying these ideas is limited to examining the shadows they cast. Historical figures often discussed general citizenship and general citizenship rights explicitly, and they sometimes even used those labels.65 But we should not expect any comprehensive historical exposition of the ternary view of citizenship rights. That is not what the debate was about.66
It is worth clarifying one final point. General citizenship rights were always linked to some form of citizenship, and for the most part this Article emphasizes their connection to general citizenship. But these rights were not exclusively tied to that federative concept. For one thing, Americans widely thought that citizens enjoyed these rights in their own states by virtue of state citizenship.67 (To avoid confusion, this Article uses the term local citizenship rights in reference to rights based only on local state law, in contrast to general law.)68 Moreover, during Reconstruction, Republicans began to treat general citizenship rights as rights of national citizenship, thereby illustrating that it was possible to embrace a ternary view of citizenship rights alongside a binary account of citizenship.69 Indeed, some people might have thought along those lines prior to Reconstruction.70 These complicated ideas will be unpacked in the pages that follow. For now, the key point is that tracing the intellectual history of general citizenship and general citizenship rights requires attention not only to the traditional pairing of these concepts but also to their separability.
Part I begins by assessing the origins of general citizenship in British constitutionalism and its continuation under the Articles of Confederation and Federal Constitution. It also discusses the first judicial interpretations of the Privileges and Immunities Clause. The broader goals of this Part are to clarify the concepts of general citizenship and general citizenship rights and to show their links to a broader array of ideas about rights and sovereignty.
Part II then considers four episodes in which American politicians and jurists debated the relationship among state, national, and general citizenship: first, congressional debates over the Missouri Compromise; second, the furor over the Negro Seaman Acts; third, disputes over the constitutionality of the Fugitive Slave Act of 1793; and fourth, the Dred Scott controversy. Not coincidentally, each episode focused on issues of race and slavery, which fueled broader contests over federalism, sovereignty, and citizenship. These debates, this Part argues, display a considerable degree of stability in the underlying concepts of general citizenship and general citizenship rights, even as Americans vigorously disputed a range of closely related issues—like who could enjoy these rights, how the rights could be regulated, and how citizenship status was determined.
Part III examines how different notions of citizenship framed debates during Reconstruction. General citizenship rights were central to Republicans’ design of the Civil Rights Act of 1866 and the Fourteenth Amendment’s Privileges or Immunities Clause. Nonetheless, Republicans abandoned the federative grounding of general citizenship, thus giving rise to new conceptual problems and intraparty fractures over how to conceptualize general citizenship rights. After exploring debates in Congress, this Part addresses the Slaughter-House Cases, showing how the debate over general citizenship rights, along with the decline in general citizenship, framed the dispute.
Part IV then considers modern implications. My goal is not to advance a particular view of how history should inform present-day constitutional law.71 Instead, this Part focuses on broader lessons for our approach to constitutional interpretation. In particular, historical debates over citizenship rights illustrate a lost way of thinking about the nature and grounding of American fundamental law, thus exposing significant conceptual challenges for those seeking to use history as a modern guide.