Abstract

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.

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 and therefore to be hospitable to them, the Framers 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 carried 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.

There is no further mention of citizenship in the Constitution prior to 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.

No wonder, then, that citizenship was nowhere defined in the original Constitution. It was not important. 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 explicit 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 by certain standards of conduct in its relations with people and persons, not with some legal construct called citizen.

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