General Citizenship Rights.

• Author: Campbell, Jud

ARTICLE CONTENTS INTRODUCTION 613 I. THE ORIGINS OF GENERAL CITIZENSHIP 628 A. The Rights of Englishmen 629 B. The Articles of Confederation 632 C. The Constitution 638 D. Early Judicial Interpretations 642 II. THE ANTEBELLUM PERIOD 651 A. The Admission of Missouri 652 B. The Negro Seaman Acts 656 C. Fugitive Slave Debates 660 D. Dred Scott 663 III. THE RECONSTRUCTION ERA 671 A. The Civil Rights Act of 1866 674 B. John Bingham and the Fourteenth Amendment 678 C. Debating Civil Rights 684 D. The Slaughter-House Cases 686 IV. IMPLICATIONS 700 INTRODUCTION

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--it 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 state governments. (27) In other words, the existing literature does not identify or explore the distinctly federative character of general citizenship (28) or the general-law grounding of general citizenship rights (29)--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...