Article 1, Section 8, Clause 4 (Citizenship)
William Rawle, A View of the Constitution of the United States 84--101 1829 (2d ed.)
The power to establish an uniform system of naturalization is also an exclusive one.
In the second section of the fourth article it is provided that the citizens of each state, shall be entitled to all privileges and immunities of citizens in the several states, and the same rule had been ambiguously laid down in the articles of confederation. If this clause is retained, and its utility and propriety cannot be questioned, the consequence would be, that if each state retained the power of naturalization, it might impose on all the other states, such citizens as it might think proper. In one state, residence for a short time, with a slight declaration of allegiance, as was the case under the former constitution of Pennsylvania, might confer the rights of citizenship: in another, qualifications of greater importance might be required: an alien, desirous of eluding the latter, might by complying with the requisites of the former, become a citizen of a state in opposition to its own regulations, and thus in fact, the laws of one state become paramount to that of another. The evil could not be better remedied than by vesting the exclusive power in congress.
It cannot escape notice, that no definition of the nature and rights of citizens appears in the Constitution. The descriptive term is used, with a plain indication that its meaning is understood by all, and this indeed is the general character of the whole instrument. Except in one instance, it gives no definitions, but it acts in all its parts, on qualities and relations supposed to be already known. Thus it declares, that no person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of president--that no person shall be a senator who shall not have been nine years a citizen of the United States, nor a representative who has not been such a citizen seven years, and it will therefore be not inconsistent with the scope and tendency of the present essay, to enter shortly into the nature of citizenship.
In a republic the sovereignty resides essentially, and entirely in the people. Those only who compose the people, and partake of this sovereignty are citizens, they alone can elect, and are capable of being elected to public offices, and of course they alone can exercise authority within the community: they possess an unqualified right to the enjoyment of property and personal immunity, they are bound to adhere to it in peace, to defend it in war, and to postpone the interests of all other countries to the affection which they ought to bear for their own.
The citizens of each state constituted the citizens of the United States when the Constitution was adopted. The rights which appertained to them as citizens of those respective commonwealths, accompanied them in the formation of the great, compound commonwealth which ensued. They became citizens of the latter, without ceasing to be citizens of the former, and he who was subsequently born a citizen of a state, became at the moment of his birth a citizen of the United States. Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity. It is an error to suppose, as some (and even so great a mind as Locke) have done, that a child is born a citizen of no country and subject of no government, and that he so continues till the age of discretion, when he is at liberty to put himself under what government he pleases. How far the adult possesses this power will hereafter be considered, but surely it would be unjust both to the state and to the infant, to withhold the quality of the citizen until those years of discretion were attained. Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.
The mode by which an alien may become a citizen, has a specific appellation which refers to the same principle. It is descriptive of the operation of law as analogous to birth, and the alien, received into the community by naturalization, enjoys all the benefits which birth has conferred on the other class.
Until these rights are attained, the alien resident is under some disadvantages which are not exactly the same throughout the Union. The United States do not intermeddle with the local regulations of the states in those respects. Thus an alien may be admitted to hold lands in some states, and be incapable of doing so in others. On the other hand, there are certain incidents to the character of a citizen of the United States, with which the separate states cannot interfere. The nature, extent, and duration of the allegiance due to the United States, the right to the general protection and to commercial benefits at home and abroad, derived either from treaties or from the acts of congress, are beyond the control of the states, nor can they increase or diminish the disadvantages to which aliens may, by such measures on the part of the general government, be subjected.
Thus if war should break out between the United States and the country of which the alien resident among us is a citizen or subject, he becomes on general principles an alien enemy, and is liable to be sent out of the country at the pleasure of the general government, or laid under reasonable restraints within it, and in these respects no state can interfere to protect him.
The duration of the quality of citizen, both in the native and in him who is naturalized, is a subject of considerable interest.
The doctrine of indefeasible allegiance has a deeper root in England than in any other country in Europe: the term is indeed almost peculiar to the English law, and in discussing the extent to which they carry it, we shall find it useful to ascend to the source of their government, and the foundation on which this doctrine is placed.
Whatever repugnance may occasionally be felt at the avowal, the present government of England must be considered as founded on conquest, and perhaps it is justly observed by some of their historians, that in scarcely any instance has conquest by foreign arms been pushed to a greater extent than with them.
The reluctance with which a brave and generous nation submitted to the yoke, increased the exasperation, and the tyranny of their conqueror. Their property was almost completely transferred to his military followers, their ancient laws were soon disregarded, although sometimes promised to be restored, and the pure feudal system of tenure was substituted to the ancient allodial estates, or perhaps the imperfect feuds of the Saxons.
With this system the Norman doctrine of allegiance is considered by some to have been introduced, although others trace it up to antecedent periods, but whether the solemn declaration of allegiance was practised in the time of Arthur or of Alfred, whether it were the custom of the Britons or the Angles, the Saxons or the Danes, we have sufficient ground for believing that after the conquest, it was understood to be due only to the king or the ruling chieftain, and not to the nation.
In the conflicts by which the country was distracted after the departure of the Romans, each successful competitor exacted from those he had subdued, an oath of fidelity and submission.
From this practice the usage arose of requiring a similar engagement from their own followers, as they subsequently dispersed themselves through the country and when Harold was overthrown by the Bastard of Normandy, the necessity of exacting it became more obvious, not only from the discontent which his severities excited, but from the impression which the illegitimacy of his birth might make on his subjects.
The oath of fealty and homage necessarily accompanied the numerous grants of land, wrested from its original owners, and bestowed upon his adherents; the oath of allegiance was incorporated with the oath of fealty, and whoever will reflect on the condition of the times will be satisfied that allegiance was not sworn to the nation, but to the individual whose victorious arms had rendered him the ruler of the nation.
Hence certain consequences were understood to flow; the allegiance thus solemnly pledged could not be withdrawn, unless the protection which was implied in return, should be withheld or become impracticable.
If the monarch was driven out by a successful competitor, who took possession of the throne, the allegiance was considered as transferred to him, and the subject who disobeyed the reigning sovereign, was held to violate his oath.
But from this allegiance, either original or transferred, he could not withdraw himself; he was supposed never to cease being the subject of the reigning sovereign. Allegiance equally permanent was held to result from birth. The king could see none but his own subjects within his own domain. Bound as he alleged to protect all, all were bound to be faithful to him. But allegiance sprung from the birth of those only who were born under his dominion. It is observed by Coke, that if enemies were to obtain possession of a town or fort, and have issue there, that issue would not be subjects of the king of England, for they would have no claim to his protection.
If this view of the subject be correct; if allegiance, at least since the Norman Conquest, is to be considered as proceeding from force and not from contract; if it is legally due to the king and not to the society which he governs, we can remain under no difficulty in respect to its inalienable quality according to their laws.
The rights or expectations of the people were seldom taken into account; the king might, by treaty with a foreign power, alienate an entire territory; and its inhabitants, without their previous knowledge or consent, be compelled to serve another sovereign. Thus allegiance was rendered perpetual at the pleasure of the sovereign, not of the people; and the former, not the latter, possessed a sort of property in it; but with us its indefeasible nature rests on better grounds.
The instantaneous result on our political character, from the declaration of independence, was to convert allegiance from compulsion into compact, and while it still remained due to the sovereign, to see that sovereign only in the whole community.
In the native we have observed that it is coeval with life; in him who migrates from another country, it commences as a permanent duty with naturalization; in both it lasts till death, unless it is released by some procedure, mutual on the part of both the state and the individual.
Whether the individual alone may relinquish it, is a question which in this as well as other countries has been often discussed, and on which an opinion cannot be given without diffidence, since it has not yet received a decision in the highest tribunal of our country.
In the first place, we may dispose with little comparative difficulty of the case of the naturalized citizen. His accession is voluntary, and his engagement is neither in its terms nor in its nature limited to any time. He therefore binds himself by contract for his life, and the state,--which differently from the doctrine of the English and other monarchies, cannot afterwards deprive him of the quality thus acquired, which cannot again by its own act, convert him into an alien,--is equally bound for the same term.
This is well expressed by Locke in his treatise on civil government. "He that has once by actual agreement and express declaration given his consent to be of any commonweal, is perpetually and indispensably obliged to be and remain unalterably a subject of it, and can never be again in the liberty of a state of nature, unless by any calamity, the government he was under shall be dissolved, or by some public act it cuts him off from being a member of it."
Under our Constitution the last would be impossible without his own consent, and the citizen can no more dissolve this contract than he can any other of less moment without the consent of the opposite party.
But there are two other classes of citizens, and we must examine whether the same principle can be applied to them. It would, perhaps, be sufficient to say, that if the obligation, to which the naturalized citizen subjects himself, is clearly an obligation for life; that of the native cannot be for a shorter term. Naturalization is but a mode of acquiring the right, subject to the duties of a citizen; it is the factitious substitution of legal form for actual birth, and it can neither exceed nor fall short of the capacities and obligations which birth creates. It would be absurd indeed, if the foreigner was given to understand, that by naturalization he had become bound for life, in the midst of native citizens, none of whom were under the same obligation.
But we need not rest on this postulate. The compact created among the citizens, by the declaration of independence, was well understood by themselves at the moment, not to be of a temporary nature, and in the power of the individual at pleasure to dissolve. It was essential not only to the permanence, but to the formation of the new government, that every one either taking an active part in its establishment, or giving evidence of his consent by remaining within it, should be considered as bound to it, so long as it continued. Their situation at the moment was not that of aliens, who were held by a prior allegiance, while they undertook another. He who thus united himself with the newly-formed state, instantly ceased, in contemplation of our law, to be a subject of Great Britain. He could thereafter, justify no hostile measure against us by alleging his ancient allegiance. What he once owed to that power was now wholly transferred to the new state, with all its qualities and accompaniments, except one. The correlative of protection, could not, as before, be destroyed at pleasure by the receiver of the allegiance. The obligation was mutual and perpetual. If any qualification of it was intended, it would have been expressed, but we do not find in any of the state constitutions, or in that of the United States, the slightest suggestion that the allegiance to be paid to them, was less solemn, less entire, less permanent than that which was previously due to the monarch of Great Britain. Thus the question stands in respect to this class of citizens.
The next inquiry is, whether this contract was confined to the individual or extended also to his issue. So far as relates to the parent, an answer to this question may be found in the mere statement of it. No one can suppose that the parent intended, that while he was a permanent citizen of the state, his children should not partake of the same rights, enjoy the same liberty, and be protected by the same government. Nature itself impresses on the parental mind, a desire to promote the interests of children, and causes it to revolt at the idea of witholding from them what may not only be shared with them, but what also becomes more valuable by being so shared. The pleasing sensation in the parent, of passing from the condition of an oppressed subject, to that of a citizen of a free republic, would surely be impaired by a consideration that his offspring would acquire no birthright in the community of his choice. In respect to him, therefore, we cannot doubt the desire, and have only to examine the power, of fixing the political relations of his descendants. The principle which next presents itself is, that what all the members of the state must have thus understood, must also have been so understood by the state, which is only the collection of those members. The compact so far as relates to the state, of course extends to the individual and to all his descendants, and therefore, as the child is entitled to the benefit of being recognised as a citizen, the state is entitled in its turn, to view the child as under its allegiance. It may however be urged, that an infant cannot bind itself by contract, but if it is necessary to answer the objection, it is sufficient to say that an infant may expressly bind itself for necessaries, as food and raiment, that a contract is always implied where such articles are furnished, and that the reciprocal compact of protection and allegiance, must be ranked among considerations of the highest order and first necessity. The dignity of the subject is however somewhat affected by resting it on a ground so narrow; and when we consider all the obligations cast on a political society by the voluntary formation of it, we may discard the smaller rules of private contract, and more safely rely on the broad basis of the general good, inherent in its nature, and necessary to its self-preservation.
When the child has attained an age sufficiently mature, according to civil institutions, to enable it to determine the choice, it would seem, in consistency with the principles already laid down, that the individual must be allowed a reasonable time to enable him to select the country in which he will reside, and the society to which he will adhere. Of his willingness to continue, no public declaration seems to be requisite. His acts demonstrate his choice; but there would be a great difficulty in fixing the time in which a contrary determination ought to be formed and declared. The law has assigned twenty-one years as the age of discretion; but in whom is the judgment sufficiently ripened at so early a period, to enable him to determine on a subject so momentous, and how long after that period has been reached, shall be allowed for deliberation? These difficulties appear to be almost insuperable, and seem to render the principle itself inadmissible, unless it should be specially provided for by the legislature. But where the adult has for a sufficient length of time, by every external act, manifested his adhesion to the political society in which he was born, there can exist no right in him to shake off his allegiance without the consent of the state, and become a stranger, or in the course of events, an enemy to his country. By his acts he has bound himself as closely as the alien who, seeking to be naturalized, has taken an express oath. The obligations resulting from his birth are rivetted by his voluntary conduct afterwards, and he cannot dispute the indissoluble tie, of which he has thus doubled the effect.
To these positions some objections may be made, which it will be endeavoured to answer.
The leading one is the great act of July 4, 1776, by which two and a half millions of subjects threw off their allegiance to Great Britain, and it is argued that what might be done by them collectively, could be done by them individually; but an obvious fallacy appears in the very statement of this proposition.
When the protection of the crown was withdrawn; when the aspect and the arm of paternal power were converted into virtual exclusion from the pale of the British family; a right of collective resistance was created which, unless similar measures could be exerted against an individual, can never exist in an individual. Our case differed in form only from the cession of territories and their inhabitants already noticed. If either by cession to another or by unmerited severity to those who are nominally retained as subjects, the legitimate protection is thus wholly withdrawn; the dissolution of allegiance is the act of the sovereign, and if assented to by his subjects, is binding on both. It depends therefore upon facts to determine whether the cause of our separation was sufficient, and on these facts no American mind can hesitate.
The treaty of 1783 may be safely referred to in confirmation of this opinion. In recognising the independence of the United States, the right to declare it on the principles we asserted, may justly be considered as also recognized. Great Britain did not by professing to grant us independence, (a grant which would not have been accepted,) affect to release us from present allegiance; but on the contrary must be considered as retrospectively acknowledging that by her own act she had entitled us to discontinue it.
Another objection arises from the acknowledged right of emigration, of which, with us, no inhabitant is deprived, while, in many other governments, express permission is necessary; but the error of this consists in supposing that emigration implies the dissolution of allegiance.
Emigration in its general sense, merely signifies removal from one place to another; its strict and more appropriate meaning is the removal of a person, his effects and residence: but in no sense does it imply or require that it should take place with a view to become a subject or citizen of another country.
Motives of health or trade, convenience or pleasure, may lead to emigration; but if a deprivation of citizenship were the necessary and immediate consequence, (and unless it is, the argument is without weight,) emigration would often be a cause of terror and sometimes a punishment, instead of a benefit, in which sense the right is considered.
Those who contend for the affirmative of the proposition, must be able to prove that the quality of citizenship ceases at the moment of departure; that if the emigrant returns he cannot be restored to his former rank, without passing through the regular forms of naturalization; that if real estate had descended upon him during his absence, he could not inherit it without the aid of a law in favour of aliens, and that if the country to which he has removed, becomes engaged in war with us, and he did not choose to remain there, he would be liable on his return, to be treated as an alien enemy. In Virginia, what is termed expatriation is authorized by an act of assembly passed in 1792. This is a fair compact which an independent state has a right to make with its citizens, and amounts to a full release of all future claims against the emigrant who, if taken in war against the state, would not be liable to the charge of treason. But the release is effective only so far as relates to the state which grants it. It does not alter his relation to the United States, and it was questioned in the case of Talbot v. Janson how far such a law would be compatible with the Constitution of the United States.
The Virginia act makes no distinction between the time of peace and of war.
Whether the citizen, having formed the unnatural design of aiding the actual enemies of his country, could make use of its legal forms to enable him to commit such a crime with impunity, remains to be decided by the tribunals of that state.
A distinction certainly not unreasonable has been taken between citizenship and allegiance. Perpetual allegiance is a doctrine of less force and efficacy in some countries than in others. It depends on their respective systems of law.
The origin of allegiance in England has been already described. Its former extension through almost every part of this country is unquestionable, and in many states it continues unimpaired in its qualities and nature.
It is indirectly recognised in the Constitution of the United States, and by the acts of congress, which have been since passed. The indefeasible quality conceived to be incident to it has not yet been decided on by the Supreme Court of the United States; but in the Circuit Courts, Ellsworth, chief justice, declared, that a member of the community cannot dissolve the social compact so as to free himself from our laws, without the consent or the default of the community. And in another case, Washington, J. declared that no citizen can throw off his allegiance to his country without some law authorizing him to do so. But in those countries where the doctrine of allegiance, in the sense we affix to it, does not exist at all, or where it is a part of their law that it may be thrown off in certain cases, our positions do not apply.
It may still further be urged, that the renunciation of all foreign allegiance inserted in the oath of naturalization, implies a power to renounce what is due to us as well as what is due to a foreign state.
If this were found in the Constitution, it might occasion some difficulty; but it is the language of congress, on whom it does not rest to give a binding exposition of the Constitution. It was not required in the first act prescribing the mode of obtaining naturalization, and it was probably introduced from political jealousy, and by way of caution to the new citizen. The necessity of retaining it, is not very perceptible. If a naturalized citizen should commit treason against us, by uniting with a hostile country from which he had emigrated, he would not be more amenable to the law, because of his renunciation, nor less so, if it had never taken place; and it would have no effect in the country which he had left, either by way of aggravation or extenuation of any offence for which he might be responsible to them.
The temporary allegiance, which began with his residence among us, is rendered perpetual by his naturalization, and the renunciation is an useless adjunct.
The last objection which occurs to the author is, that independent of the oath of abjuration, the admission of a foreigner to naturalization among us implies that he may withdraw his allegiance from his native country, and that otherwise in case of war, he would be involved in the hardship of being obliged to commit treason against one or the other: but the satisfactory answer always given to this proposition is, that if the individual chooses to entangle himself in a double allegiance, it is his own voluntary act. He may reside among us without being naturalized, he may enjoy much of the protection, and some of the advantages of a citizen, yet retain, unimpaired even in sensation, his allegiance to his native country till the moment he chooses to leave us. If he determines completely to unite his character and his fortunes with ours, we receive him under the compact already explained, and his temporary allegiance becomes permanently binding.
Another point of considerable moment remains to be noticed. Having shown what a citizen, native or naturalized, may not do by way of withdrawing his allegiance, we will now proceed to show in what cases the state may not withdraw its protection.
Every person has a right to remain within a state as long as he pleases, except the alien enemy, the person charged with crimes in any of the other states, or in a foreign state with whom a treaty to that effect exists, and fugitives from service or labour in any of the states. To the two latter descriptions, no asylum can by the Constitution of the United States, be afforded.
The states are considered as a common family, whose harmony would be endangered, if they were to protect and detain such fugitives, when demanded in one case, by the executive authority of the state, or pursued in the other by the persons claiming an interest in their service.
In the case of alien enemies, the public good is consulted. The right of sending them away, is an incident to the right of carrying on public war. It is not mentioned in the Constitution, but it properly appertains to those who are to conduct the war.
Whoever visits or resides among us, comes under the knowledge that he is liable, by the law of nations, to be sent off, if war breaks out between his country and ours, before he is naturalized. So if there is any treaty in force, by which we are bound to deliver up a fugitive, charged by another nation with the commission of crimes within its territory, every one arriving among us is considered as having knowledge of such compact.
But whatever may be held by certain theoretical writers, there is no foundation for the opinion, that we are bound by the general law of nations, without such compact, to surrender a person charged with a crime in another nation.
The principles by which this conclusion is attained, are as follow. A criminal act, committed within the limits of a nation, is an offence against that nation, and not against any other. It is the duty of a nation to punish offences against itself, but not against others. If the offender escapes, it has no power to pursue him into the territories of another, nor any right, by the general rules of law, to require the other to deliver him up. The nation in which he seeks an asylum, may conscientiously retain and protect him. In legal acceptation, he has been received as an innocent man; he holds this character among us, till he forfeits it by the commission of a crime against us; he is then, on conviction, liable to punishment for such crime, but we cannot punish him for a crime committed in another country.
Nature gives to mankind the right of punishing only for their own defence and safety. Hence it follows, that he can only be punished by those he has offended.
To deliver the fugitive to the nation which claims, in order to punish him, is to assist the punishment, and therefore directly at variance with these principles.
Yet it is not to be inferred, that one state has a right to transfer its criminals to another, and that the latter is bound to receive them. It rests with every independent state to open its doors to the admission of foreigners on such terms only, as it may think proper.
During our colonial dependency, the mother country assumed a privilege of transporting certain classes of her convicted offenders to the provinces, and the want of labourers at first induced us to receive them without complaint.
But it was soon discovered to be an alarming evil, and many of the provinces took measures to oppose it. One of the last acts of the congress under the confederation, was to recommend to the several states to pass proper laws for preventing the transportation of convicted malefactors from foreign countries into the United States. Perhaps the power implied by the 9th section of the 2d article, might be usefully adapted to the regulation of this sort of political commerce, in which, at present, we cannot be gainers, for the United States have no constitutional power to export or banish offenders.
Rawle, William. A View of the Constitution of the United States of America. 2d ed. Philadelphia, 1829. Reprint. New York: Da Capo Press, 1970.
© 1987 by The University of Chicago