The State Citizenship Clause

Prof. Kurt Lash has a very important forthcoming article on the State Citizenship Clause. Here is his Introduction:

I. Introduction

The first sentence of the Fourteenth Amendment declares: “All persons born or naturalized in the United States and subject to the jurisdiction thereof is a citizen of the United States and of the State wherein they reside.” This opening sentence contains not one, but two citizenship clauses. The first defines national citizenship. The second defines state citizenship. Although significant historical scholarship exists regarding the other provisions in Section One of the Fourteenth Amendment, the State Citizenship Clause has been unstudied, unapplied and, quite often, unrecognized.

A close look at the history of the State Citizenship Clause, however, reveals its key purpose in the overall structure of Section One of the Fourteenth Amendment. Although today courts emphasize the “all persons” clauses (due process and equal protection), the majority of Section One addresses the status and rights of citizens. The National citizenship clause echoes the opening sentence of the 1866 Civil Rights Act and formally overrules the Supreme Court’s decision in Dred Scott. The State citizenship clause goes further and addresses a critical omission in the 1866 Civil Rights Act. That Act defined national citizenship but left the status of state citizenship undefined and unprotected. The second citizenship clause remedies this omission and prohibits states from establishing a tiered system of citizenship where black Americans are treated as second class state citizens and denied the same civil rights granted to white state citizens.

Recognizing the role played by the State Citizenship Clause in securing the equal status of state citizens helps resolve a number of textual historical conundrums regarding the full meaning and structure of Section One of the Fourteenth Amendment. For example, recent scholarship suggests that the original understanding of the Equal Protection Clause guaranteed nothing more than the equal application of laws protecting a person’s life, liberty or property. It appears this Clause did not prohibit states from discriminating on the basis of race in regard to the broader category of citizens civil rights. If so, then this means the original scope of the Equal Protection Clause was far narrower than the Supreme Court’s current interpretation and would not support the Court’s ruling in canonical cases like Brown v. Board of Education and Loving v. Virginia. The original understanding of the State Citizenship Clause, on the other hand, prohibits states from establishing a two-tiered system of state citizenship whereby civil rights and benefits are distributed differently on the basis of race.

The history of the State Citizenship Clause also sheds important light on the original understanding of the Fourteenth Amendment’s Privileges or Immunities Clause. The citizenship clauses define the status of national and state citizenship: Any person born in the United States is a citizen of the United States, and any United States citizen residing in a state is also a citizen of that state. The Privileges or Immunities Clause then declares that no state shall abridge the privileges or immunities of these citizens. These privileges include the rights secured by the status of national citizenship (for example, those enumerated in the Bill of Rights) and those rights secured by the status of state citizenship (local civil rights). Although whole forests have been felled in the effort to define the “fundamental” rights protected by the Privileges or Immunities Clause, the meaning of the Clause is both simple and easily enforceable. States cannot deny national citizens those rights secured by national law (including rights listed in the national Constitution) and states must extend local civil rights equally to all its citizens, regardless of race. The latter include all civil rights (not just “fundamental” rights), from the right to educational benefits to the right to skip down a public sidewalk.

 

This helps clarify a lot of issues we will be discussing.