This is an excerpt from Alexander M. Bickel‘s classic book, The Morality of Consent. Bickel was a scholar at Yale Law School and is considered to be one of the chief advocates of conservative legal thought. I include it here with the specific idea of demonstrating where political conservatism should lead Republicans in the immigration debate. I also ask the reader to juxtapose in his/her mind these staunchly conservative ideas with what they hear from Republicans on the issue of immigration. I’ll transcribe the rest of the chapter as soon as I can, and then write about how this applies to immigration.
Chapter 2: Citizen or Person? What Is Not Granted Cannot Be Taken Away
In the view both of the ancients and of modern liberal political theorists, the relationship between the individual and the state is largely defined by the concept of citizenship. It is by virtue of his citizenship that the individual is a member of the political community, and by virtue of it that he has rights. Remarkably enough–and as I will suggest, happily–the concept of citizenship plays only the most minimal role in the American constitutional scheme.
Citizenship, Professor Michael Walzer has written, “itself has become a problem.” I’m not sure what that means and I’m not sure that I subscribe to its somewhat apocalyptic tone. Yet there is something in it. One remembers a time not long gone when patriotism was a word in common usage and of definite and widely accepted meaning. For many people it plainly is not today.
The patriot may be the exaggerated or emotional citizen, but the concept of citizenship, whatever the malaise that may now afflict it, has been central nonetheless to much of the ancient and modern political thought. A person’s relationship to the law and the duty to obey law, while not necessarily exhausted by the concept of citizenship, is surely tied to it. Aristotle asked, What is a state? And replied that it is the citizens who compose it. Who is a citizen, he said, will vary with the form of government, whether oligarchy or democracy—a tyranny presumably has no citizens. A citizen is not simply a resident. Aliens, though resident, are not citizens nor are slaves. “He who has the power to take part in the deliberative or judicial administration of any state is said by us to be a citizen of that state; and speaking generally, a state is a body of citizens sufficing for the purposes of life.” Modern thinkers, and particularly liberal ones, generally set no less store by the concept of citizenship. Lockean contractarian doctrine, proceeding as it does from natural rights, is not, as might appear, universalist; it is intended to support and justify the national, constitutional state. The notion of contract presupposes parties, and the parties are citizens.
There is a great deal to the Hobbesian notion that we are all really subjects held to obedience, if no longer by divine command then by a simple fear of our fellows. To the extent that this explanation does not fit our situation or ought not, to the extent that it is not the true or the good explanation, liberal as well as classic thought has considred us citizens who owe obedience, as we owe allegiance, chiefly because we are self-governing, and as self-governing because we are citizens. When they freed themselves from subjection, the makers of the French Revolution called each other citizens, denoting their participation in the state; so the communists later called each other comrade, denoting their common allegiance to an ideology, a movement.
Both classic and later liberal statements of the duty to obey law thus subsume the concept of citizenship, even though not as a wholly necessary or sufficient condition. Also subsumed are the clarity and economy of the law to be obeyed, and of the process by which that law is formed. The classic among classics is, of course, the statement of Socrates as reported in the Crito: “In war as in the court of justice, and everywhere, you must do whatever you state and your country tell you to do, or you must persuade them that their commands are unjust.” It is the citizen who has the standing to persuade his fellow citizens that what they are doing is unjust. Our own system does not resemble the one subsumed in the statement of Socrates in clarity or in economy of application, and not in the immediacy with which the citizen can affect the process of law-formation. That makes a difference; so, also, although less directly and certainly, does the striking ambivalence, the great ambiguity that has surrounded the concept of citizenship in our law and in our tradition.
The original Constitution, prior to Reconstruction, contained no definition of citizenship and precious few references to the concept altogether. The subject was not entirely ignored by the Framers. They empowered Congress to make a uniform rule of naturalization. But, wishing to attract immigrants, they rejected nativist suggestions for strict naturalization requirements, such as long residence. They plainly assumed that birth as well as naturalization would confer citizenship but they made nothing depend on it explicitly, aside from a few offices: president, congressman, senator, but notably not judge. State citizenship provided one, but only one of several, means of access to federal courts (under the diversity jurisdiction) and conferred the not unqualified right, under the privileges and immunities clause of article IV, section 2, to be treated generally by each state in the same fashion as its own citizens were treated. Discrimination on the sole ground of not holding citizenship in a given state is forbidden; discrimination on other and reasonable grounds is, however allowed. Discriminations on the basis of residence, which is different in concept from citizenship, are permitted; and where state citizenship is a reasonable requirement, as for officeholding, discrimination is not prohibited. But if no special reason restricts a privilege sensibly to the state’s own citizens, the state must extend it to the citizens of other states as well.
There is no further mention of citizenship in the Constitution before the Civil War amendments, even though there were plenty of occasions for making rights depend on it. The Preamble speaks of “We the people of the United States,” not, as it might have, of we the citizens of the United States at the time of the formation of this union. And the Bill of Rights throughout defines rights of people, not of citizens. In the First Amendment, it is “the right of the people peaceably to assemble,” in the Second, “the right of the people to keep and bear arms,” whatever that might mean. And so on. No wonder, then, that citizenship was nowhere defined in the original Constitution. It was not important. Under English law, to which the Framers were accustomed, citizenship was conferred automatically by birth, but the Framers undoubtedly assumed that citizenship did not necessarily run with the blood as it did in English law. And while under English law the status was indelible—once a subject, always a subject, and under rather heavy obligations—the men who made our revolution had broken away from that subjection: they did not believe, as they soon demonstrated, in the indelible, inalienable status of citizenship: and they were prepared to receive and naturalize immigrants similarly willing to shed previously inalienable status of subjection. To be sure, implicitly, the citizen had a right freely to enter the country, whereas the alien did not; and implicitly also the citizen, while abroad, could be held to an obligation of allegiance and might under very specific conditions be found guilty of the crime of treason for violating it, while the alien generally could not. But these were hardly critical points, as the Framers demonstrated by saying nothing explicitly about them. It remains true that the original Constitution presented the edifying picture of a government that bestowed rights on people and persons, and held itself out as bound be certain standards of conduct in its relations with people and persons, not with some legal construct called citizen. The idyllic state of affairs was rudely disturbed by the crisis of the 1850s. Like so much else, it foundered on the contradiction of slavery. A majority of the Supreme Court seized on the concept of citizenship in the Dred Scott case, in a futile and misguided effort, by way of a legalism and an unfounded legalism at that, to resolve the controversy over the spread of slavery.
Dred Scott, the slave of one John Sandford in Missouri, brought suit in the Circuit Court of the United States for his freedom. As the law of Missouri provided for trying questions of personal freedom, Sandford, in effect, was assumed to hold a piece of property, and Scott claimed that Sandford held it unlawfully because he, Scott, owned it. That is to say, Scott sued to recover himself. It was as if he were chattel somebody had wrongfully taken from him.—I, not this man who is holding me, own me. The ground on which Dred Scott claimed title to himself was this: A predecessor owner had taken Scott from Missouri to Illinois—a free state—and from there into the Upper Louisiana territory, north of the latitude 36 degrees and 30 minutes north—also free, under the Compromise of 1820. So Scott had lived in free territory and in a free state for some years before being returned to Missouri. Scott claimed that freedom is infectious, and that he had caught it. However, Scott could come into federal court only by claiming to be a citizen of Missouri; Sandford, who held Scott in Missouri, was himself a citizen of New York. Scott could not be a citizen of Missouri, Sandford said, because he was “a negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves.” If Scott was not a citizen of Missouri, there could be no federal jurisdiction, and that was an end of the matter. The significance of citizenship was in question. The lower court held that Scott could be a citizen, but that freedom was not infectious and that Scott had not caught it.
In the Supreme Court the majority opinion was written by Chief Justice Roger Taney, Marshall’s successor, a figure not without precedent in our history and not without successors. A line of Turgenev’s Fathers and Sons refers to a character as “at once progressive (in the political sense) and a despot, as often happens with Russians.” It happened in this country, and it happened with Taney, a political progressive—if that is a correct designation for a Jacksonian populist—an economic liberal, and a racist who persuaded himself by mid-life that slavery was not only a necessary evil, if that, but right as well. Taney combined personal kindness with public ferocity, he freed his own slaves and cared for them afterward, but he was opposed politically to any large-scare manumission. He was an able man, broken on the rack of slavery. Dred Scott, Taney held, could not be a citizen, not because he was a slave but because, even if he were a free man, he was “a negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves.” The words “people of the United States” and “citizens” are synonymous terms, he held, used interchangeably in the Constitution: “They both describe the political body who, according to our republican institutions, for the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the [single] ‘sovereign people’ and every citizen is one of this people, and a constituent member of this sovereignty.”
At the time of the framing of the Constitution Taney continued, even free Negroes were not viewed as being a portion of “this people,” the constituent membership of the sovereignty. They were not viewed as citizens or as entitled to any of the rights and privileges the Constitution held out to citizens. In this Taney was probably wrong, as the dissenters, I think, demonstrated. Taney’s Constitution held out rights and privileges to citizens, even though the document itself holds out few to citizens as such, does not bother to define the status of citizenship, and altogether appears to set very little store by it. Taney, by an ipse dixit, argued that when the Constitution says “people” it means the same thing as citizens. Yet the Constitution says citizens rarely, and people most of the time, and never the two interchangeably.
When the Constitution was formed, Taney said, Negroes were “considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no right or privileges but such as those who held the power and the Government might choose to grant them.” Now, this is a perversion of the complex, guilt-ridden, and highly ambivalent attitude of the Framers toward slavery, and of their vague, and possibly evasive and culpably less than candid expectation of some future evolution away from it. It is possible to have some compassion for the Framers in their travail over the contradiction of slavery. It is not possible to have compassion for Taney’s hardening of the Framers’ position, his stripping it of its original aspirations to decency as well as of its illusions, and his reattribution to the Framers of the position thus altered. He claimed “that unfortunate race” was “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; and that the negro might justly and lawfully be reduced to slavery for his benefit.” The Negro had no rights which the white man is bound to respect. This sentence became a political slogan of the abolitionists and the Republicans, and one can take some satisfaction in knowing that it shocked the conscience and the expectations of good majorities outside the South, and perhaps in the South itself. They thought it brutal and totally unacceptable. If the Negro, as Taney said, “was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it,” how, then, could he be a citizen? Well, no doubt the troubled men who wrote the Constitution tolerated the buying and selling of human beings, but it is not true that their thought was as consistent and brutal as Taney made it out to be. They expected, in some measure fatuously perhaps, to redeem themselves. “I tremble for my country,” said Jefferson, “when I think that God is just.” Yet Taney denied the possibility of any process of redemption under this Constitution, and appealed for good measure to an unjust God.
The original Constitution’s innocence of the concept of citizenship was thus violated in the Dred Scott case, in an encounter with the contradiction of slavery. A rape having occurred, innocence could never be restored. But remarkably enough, after a period of reaction to the trauma, we resumed behaving as if our virginity were intact and with a fair measure of credibility at that. Fewer than four months after the Thirteenth Amendment became law, in December 1865, Congress enacted the Civil Rights Act of 1866. With the express intention of overruling Dred Scott, the act declared that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” This was the first authoritative definition of citizenship in American law. It had become necessary to make clear that race and descent from slaves was no ground of exclusion. For the first time, and for the same reason, a set of rights depending on citizenship was incidental. A previous version of the statute referred to inhabitants in conferring these new rights, rather than to citizens. As it occurred to the draftsman that he had better make clear that Negroes could be citizens, it became a matter or ease in drafting also to define rights he was about to confer in terms of citizenship. The Dred Scott decision used the concept of citizenship negatively, as exclusionary. It indicated who was not under the umbrella of rights and privileges and status and thus entrenched the subjection of the Negro in the Constitution. The Civil Rights Act of 1866 was equally negative; Dred Scott had to be exorcised. In the process, as a matter of the flow of the pen, the concept of citizenship was revived.
When the same Congress that passed the 1866 Civil Rights Act wrote the Fourteenth Amendment, it forbade any state to “abridge the privileges or immunities of citizens of the United States.” The author of this phrase was John A. Bingham, a Representative from Ohio, a Republican of abolitionist antecedents. He was a type that frequently occurred in our political live, a man of enthusiastic rhetorical bent, on the whole of generous impulse, and of zero analytical inclination or capacity. A Republican colleague in the House recalling quite specifically the privileges and immunities clause, and that it came from Bingham, said: “Its euphony and indefiniteness of meaning were a charm to him.” The only explanation of this clause that was attempted in the long course of the congressional debate on the amendment came from Bingham, and it confirms his contemporaries’ estimate of him—it was highly confused. As an afterthought, by amendment in the Senate of the text passed in the House, a definition of citizenship modeled on the Civil Rights Act of 1866 was added: “All persons born or naturalized in the United States and subject to the jurisdiction thereof [which may exclude the children of foreign ambassadors, and means little, if anything more than that], are citizens of the United States and of the state wherein they reside.”
The Dred Scott decision had to be effectively, which is to say constitutionally, overruled by a definition of citizenship in which race played no part. So, in a fashion no one quite understood but everyone apparently found necessary, Dred Scott was exorcised. That having been done, the rest of section 1 of the Fourteenth Amendment made no further reference to citizens. And the distinction between citizens and persons did not go unnoticed. Senator Howard pointed out that the due process and equal protection clauses “disable a State from depriving not merely a citizen of the United States, but any person,… of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State.”
At this stage of our history we stood at a point where the status of citizenship might have become all-important, not because of a deliberate, reasoned decision, but owing to the particular dialectic of the Dred Scott case, which one may view as an accident, and of the natural reaction to it. Actually, the concept of citizenship, once inserted in the Fourteenth Amendment, survived as a drafting technique in the three later constitutional amendments which safeguarded the right to vote against particular infringements. But on the whole the development was away from this concept—owing to yet another accident.
This other accident was the decision in the Slaughter-House Cases of 1873, in which the Supreme Court for the first time construed the newly enacted Fourteenth Amendment. The first reading of the great Reconstruction amendment had nothing to do with Negroes, slaver, civil rights, or in any other way with the aftermath of the Civil War. The case arose instead out of a more than ordinarily corrupt enactment of the Louisiana legislature in 1869, which created a slaughtering monopoly in New Orleans. In retrospect, one never ceases to be astonished that the Fourteenth Amendment should have been regarded as relevant to a controversy about butchering in New Orleans. But it did occur to one of counsel for the butchers: John A. Campbell, a former justice of the Supreme Court of the United States and a member of the majority that decided the Dred Scott case, an opponent of secession on political grounds, who—alone among the Southern justices—had thought it his duty to resign when his state seceded. Campbell argued that the Fourteenth Amendment, “with an imperial authority,” had defined national citizenship and had made it primary. The privileges of a citizen of the United States must include the right “to cultivate the ground, or to purchase products, or to carry on trade, or to maintain himself and his family by free industry”. All this eloquence went for nought. Campbell’s clients lost. “The banded butchers are busted,” Matthew Hale Carpenter, counsel for the monopoly, wired his clients. The Fourteenth Amendment had wrought a “mighty revolution” in the Constitution, as Campbell had said; it had created “great endowments of privilege, immunity, of right,” as he claimed, but they were not to depend on citizenship.
The main purpose of the Fourteenth Amendment’s definition of citizenship, Justice Samuel F. Miller began for the Court, was to overrule the Dred Scott case and “to establish the citizenship of the negro.” In addition, the definition clarified what Miller thought was a previously open but hardly world-shaking question: whether a person born not in a state, but in a territory or in the District of Columbia, who was therefore not a citizen of any state, could be a citizen of the United States. He could be. The Fourteenth Amendment made sure there would be no limbo.
But what could be meant by privileges and immunities of citizens of the United States? The sole purpose of the privileges and immunities clause of the original Constitution, article IV, section 2, said Justice Miller, was “to declare to the several States, that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of rights of citizens of other States within your jurisdiction.” But the rights themselves did not depend on the federal government for their existence or protection. Their definition and their limitation lay within the power of the states.
Was the Fourteenth Amendment, by creating national citizenship, meant to work the radical change that Campbell had urged of making basic relationships between the individual and the state turn on federal law? If so, there had been a transfer from the state legislatures to Congress of the power to regulate economic and social conditions. For by secion 5 of the Fourteenth Amendment Congress was given enforcement power. It could, therefore legislate at will on virtually any such subject. What is more, power would be transferred not only to Congress but to the Supreme Court, which would be constituted “a perpetual censor upon all legislation of the states” dealing with social and economic affairs, “with authority to nullify [any regulation enacted by a state that the Supreme Court] did not approve.” With the experience of a hundred years, we must call Miller’s answer to Campbell’s conception of national citizenship a liberal, a progressive answer, favoring majoritarian political power to enact social and economic regulation. Miller answered for the majority with a vigorous negative. The purpose of the privileges and immunities clause was to define, secure, and protect the citizenship of the newly freed slaves, that and no more. It was a close decision; the Court divided 5 to 4.
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Nonviolent Migration 