Susan Burt-Collins, University of Pennsylvania

This was Susan’s final paper for a course in The Literature of the American Political History and Political Culture, taught by Professor Richard Beeman, and her Capstone project.

download this essay (43pp): burt-collins_citizenship

Along the east bank of the Schuylkill river on Kelly Drive there is a group of statuary that is part of the Ellen Phillips Samuel Memorial. It is entitled “A History of the American People.” This statuary extols America as a place of energy and possibility. It was created seventy years after the Statue of Liberty’s passionate call to immigrants, “”give me your hungry, your tired…….those yearning to breather free” ,America is the place of possibility, the future and freedom. By including immigrants and a slave in the tableau it echoes the theme of America as a place where all are welcome to join in this American future. Yet, the immigrants and slave are denoted as different: inelegant, rough, not the same as the Americans within the twin arcs of the composition.

Looking at the tableau one sees the forward thrusting shape in the center, grasping and almost becoming one with an eagle. He is an athlete: strong and always in forward motion. It is made of bronze. It is smooth and unblemished. It is entitled Enterprise and beneath it are words of Theodore Roosevelt extolling the youth and energy of the American spirit. “Our nation, glorious in youth and strength, looks into the future with fearless and eager eyes, as vigorous as a young man to run a race.” Within the twin arcs of the plaza are additional bronze figures. In the northern arc are figures of two young men, very athletic, with aquiline noses and even features. These figures convey strength and the promise of youth. The words inscribed around the circle by William Cullen Bryant, suggest the opportunity of America. “Here the free spirit of mankind at length throws its first fetters off and who shall place a limit to the giant’s unchained strength, or curb his swiftness in the forward race.”[1] In the opposite arc to the south is a couple beside a large wheel, all done in bronze. The woman wears a bonnet and full skirt common to frontier women. The man is in boots, hat, pants, his shirt sleeves rolled up suggesting he is hard at work.

The contrast with these handsome, strong figures is immediately obvious when you step out of the arcs and look at the figures atop each pillar leading into the arcs. Each figure is done in limestone, not bronze. Each figure is crouching (the slave) or bent by burdens (the immigrant his sack, the miner his ax, the ploughman his bundle of tools). Finally, none of the four figures has the smooth, even features of the people depicted in bronze. Instead the slave has exaggerated lips and nose with an overhanging forehead giving him a decidedly simian appearance, the immigrant, miner and ploughman all have heavy, harsh features and downcast eyes.

Do these contrasts suggest that the arguments of nineteenth century phrenologists still had currency in the mid-twentieth century? Is there a hierarchy of Americans, some being more able, more suited to America than others? Becuase these figures are perched at the entrances to the arcs, is there a suggestion in their appearance and placement that they are not fully American and not fully a part of the American community?

This memorial, depicting the history of the American people, was erected in 1957. It was three years after Brown v. Board, seven years before the Civil Rights Act of 1964, but almost one hundred years after the passage of the 14^th Amendment that permanently removed race as a barrier to citizenship. By the mid-twentieth century America was the great melting pot, the country where the promise of freedom and inclusion was to be realized without regard to race, creed or national origin. Yet, is this placement and depiction of the immigrants and slave an indication that, at least in 1957, the question of who was and who was not a true American was still contested? And if the answer is yes, then how was that possible in a nation with such strong statements of political equality?

As one looks from today’s vantage point at the development of American citizenship, one is tempted to echo the sanguine, laudatory view of American history expressed by the Samuel Memorial. America is the place where the future lives, where youth is the engine of success and where the limitations of the old order are escaped. From here it appears that the ideals of equality and representative democracy espoused by the revolutionary generation guaranteed that all would be welcome to fully join the American experience. This result was slow in coming, but the ending was never in doubt: all would be welcome and all would be included.

It is the thesis of this paper that the outcome we see today of broad citizenship with extensive civil and political rights guaranteed to the individual was not inevitable. The expansion of citizenship in this country was not a natural, continuous evolution arising from the fundamental principles of American political theory. Instead citizenship was an area of intense political contest between the various groups and regions in the country. The result was a race-based definition, leaving behind natural rights theories espoused during the Revolutionary era. Furthermore, although American citizenship has been expanded by executive and legislative fiat, the question of who is an American has remained contested in the social and cultural arena. This battle has from the beginning referred to intangibles of character, culture and immutable facts like place of origin and lineage. It is in this broader formulation of citizenship, that of peoplehood or nationality, that the rifts and inequities in America are allowed to fester. It is because our idea of citizenship is both political and legal but also intangible or “ascriptive” as described by Roger Smith in Civic Values[2] that a tableaux like the one beside the Schuykill River can proudly claim America as the place of inclusion yet clearly differentiate between those inside the circle and those outside, those cast in bronze and those done in limestone.

In America community has been narrower than citizenship. Definitions of who is within the civic community have informed theories of citizenship, but the two ideas have not been conterminous. The dichotomy was an American creation caused by the collision between ideology and political reality. If the ideals of equality and participatory democracy were all that was at work, then there would have been a steady progression from narrow access to citizenship to broader access as the concepts were fleshed out. However that is not what occurred. There is much evidence that in many places a broad citizenship occurred almost simultaneously with the Revolution. The Articles of Confederation included all “free inhabitants” within the scope of its protection, Virginia granted suffrage to all men having a “sufficient interest” in the community. Many other states had similarly wide access to political membership. Yet this view did not hold. As America entered the nineteenth century and began to work under the Constitution, citizenship narrowed, looking to race and sometimes religion as a means of restricting full political membership in America. This did not occur by chance but was the result of political and economic decisions made by the founding generation. These decisions later came to be justified with science and prejudice, but they were always political choices. The principles of equality and inclusion so boldly expressed by some during the revolutionary era would give way to expediency and survival of the nation.

It was around this central theme of citizenship that the struggle between a homogeneous America and a politically open and culturally varied society based upon natural rights was debated. In one form or another the question was who could become an American and under what conditions? Beneath this question, forever unsatisfied, was the more slippery one of what was an American. With the definition of citizen not fixed from the outset it would be subject to the tug of politics and social views. If citizenship was a legal construct based on abstract principles, then how can questions of blood, place or condition of birth have any bearing upon the question? Yet, as the differences between the bronze, upright statues and the crouched, concrete figures suggest, ambiguity has continued to trouble definitions of the “American people.” It is in that contest that the nation has refined, defined and at times changed what is meant by ‘American citizen.’ It has not been a static concept, but one that has changed with political, cultural and economic forces.

Theories of Citizenship

To consider this topic it is necessary first to understand the idea of citizenship as it evolved from Greece to Rome to England for these were the concepts relevant and available to the founding generation. The definition of citizen has varied with time and place. “Citizenship laws- laws designating the criteria for membership in a political community and the key prerogatives that constitute membership-are among the most fundamental of political creations. They distribute power, assign status and define political purposes….”[3] In ancient Greece the citizens were those people who ruled: it was an elite group of men whose primary task was their citizenship. “To Aristotle and many others, politics (the activity of ruling and being ruled) is a good in itself…the public good or res publica correctly defined. What matters is the freedom to take part in public decisions, not the content of the decisions taken.”[4] Citizenship according to this definition was not part of the personal and material aspects of life but instead above that, part of “the polis, the ideal superstructure in which one took actions which were not means to ends but ends in themselves.”[5] According to this concept of citizenship slaves could never be free because they were “instruments, things managed by others; women would never escape from the oikos [personal] because they were destined to remain managers of the slaves and other things.” [6] An central aspect of this definition is the freedom of the persons who are citizens; freedom from the mundane chores of living and working, freedom to control their destiny and that of their community. “Citizenship is not just a means of being free; it is the way of being free itself.”[7]. It was a freedom available to very few adult males. It is from this perspective that the connection between citizenship and freedom is seen. If freedom and citizenship are essentially linked, can one who was once a slave but now free become a citizen, or is that person forever burdened by the realities of the material world such that he is incapable of real freedom and thus incapable of citizenship? According to J.A. Pocock the “citizen and the freedman find it difficult to become equals.”[8]

A competing concept is the Roman approach to citizenship. It was much less theoretical and lofty but more workable. Law, not philosophy was the touchstone for determining one’s place in the society. (Obscured by this statement is the reality of political power: those who make and apply the law would get to choose who would be free.) The “citizen as a legal being, existing in a world of persons, actions and things regulated by law…defined and represented through his actions upon things…[T]he human individual came to be by nature a proprietor or possessor of things.”[9] Unlike the Greek citizen, for the Romans the relationship of the person to the world of property and work became the focal point and purpose of citizenship. Those in the society who owned property and had freedom in their work were citizens. “A ‘citizen’ came to mean someone free to act by law, free to ask the law’s protection.”[10] According to this formulation the ‘citizen’ was also the subject, as he was bound to follow the laws of his community. Citizenship involved recognizing and obeying lawful authority. The citizen was defined by his relationship to others in his society, thus the citizen is by definition a social being. “These citizens are able to make claims upon others and upon the civic process itself …claims…reducible to the language of rights. Citizenship therefore becomes a practice of rights… within the legal, political, social and even cultural ” communities.[11] With the rise of nation states came the concept of citizenship as the “legal recognition…that a person is a member of …a state.”[12] It is in this Roman concept of citizenship that we find the starting for understanding the American concept of citizen. Being a citizen involves rights and privileges. Nonetheless, despite this legal, obligation based theory of citizenship, the Greek ideal remained important in American ideology about citizenship. As the country battled with the problem of slavery and equality, the concept of the citizen as a free person, practicing his freedom by the exercise of citizenship, became a useful rationale for explaining how a slave, or one who had been a slave, could not be entitled to all the benefits of citizenship.

England and Subjects

As described by David Ramsay a delegate to the first Continental Congress from South Carolina, writing of citizenship in A Dissertation on the Manner of Acquiring the Characteristics of a Citizen of the United States.

Citizenship is the effect of compact; allegiance is the offspring of power and necessity. Citizenship is a political tie; allegiance is a territorial tenure. Citizenship is the character of equality; allegiance is a badge of inferiority. Citizenship is constitutional; allegiance is personal. Citizenship is freedom; allegiance is servitude. Citizenship is communicable; allegiance is repulsive. Citizenship can be relinquished; allegiance is perpetual. [13]

Directly relevant to America is the meaning of citizenship in England before the American Revolution for it was English ideas and obligations that defined the colonists’ view of themselves and their relationship to the English king. In eighteenth century England the status of citizen was “meaningless in law, completely subsumed by the fundamental status of all members of the British Empire as ‘subjects’.”[14] Citizenship was an insignificant status that referred to being a member of a corporate municipality. As defined in 1761 in the Royal English Dictionary a citizen was a “person who is free of a city, one who carries on a trade in a city, as opposed to a gentleman, or soldier.”[15]

Subjectship was the key term of belonging to the nation that English settlers brought with them to America. The whole system of subjects and sovereigns was hierarchical, allowing gradations of duties and privileges. Inequality among subjects was presumed. English common law terms still in use in American law today, like master/servant and owner/tenant were based upon these hierarchies. As conquest brought in new lands with new population, the central question was who was a subject. Being a subject was highly valued as it not only entitled one so designated to privileges, but it also identified them as belonging to a people.

The seminal case defining ‘subject’ was Calvin’s Case, reported in 1608. The matter involved a boy born in Scotland after the ascension of James VI of Scotland to the English throne as James I. The question presented was whether or not he was entitled to claim lands in England under English laws of inheritance. Was he entitled to the benefits and rights of Englishmen or was he outside the scope of their protections? Place of birth was critical to the analysis. The claimant was born after James ascended to the English throne, thus the reasoning was that as he was postnati he was entitled to the benefits of English inheritance laws. Being born in Scotland after a Scottish king had ascended to the throne of England a relationship of allegiance and protection ran between the king and this Scottish young man. This is a natural relationship arising from time and place of birth, thus the important distinction of antenati and postnati. Although like a contract it has reciprocity, it is not a voluntary association It is not an agreement made between two equal parties. It is reciprocal: the king owes protection to his subjects, (thus his laws will protect this young man’s rights of inheritance) and the subject owes allegiance to the sovereign. It is the essence of subjectship: it is involuntary and mostly immutable. Like the parent-child relationship subjectship arises naturally upon birth. “The object of natural allegiance was the sovereign who protects a person at the time of his birth. Protection, like allegiance, was a natural obligation, owed by the superior to the inferior, by the sovereign to the subject.” [16] Persons born outside the English realm, places not under the control of the English King, were aliens.

The population was thus divided by their origins. There were subjects, those born within the king’s realm, denizens; those who were born elsewhere but lived in the domain and were granted limited rights by the king; naturalized subjects, those born outside the realm but by an act of Parliament admitted to the status of subject; and aliens, those with no legal rights within the country. Denization, the simplest thing for a foreigner to achieve as it only involved the king’s assent, allowed purchase of land, but not the passing on of land or his status as a denizen to his children. Naturalized subjects had full legal rights, thus allowing them to pass on land to their heirs. The significance of naturalization was that under the English theory of virtual representation, (legislators acting on behalf of and for the benefit of the people of the realm), Parliament’s assent to one’s naturalization meant that the English people had accepted the person into the political community.[17] The naturalized subject was no longer an outsider. As naturalization was a legal fiction, Parliament retained the power to strip a naturalized subject of his status if he was disloyal. Unlike one born a subject for whom allegiance is natural and inalienable, the allegiance of a naturalized subject was always suspect because of his foreign birth.[18]

Calvin’s Case was significant for nation building because it established the principle that one born beyond the borders of England, but within a place subject to the king’s power could be a subject of the king. An English king could expand his territorial jurisdiction by conquest or exploration and thus extend the political community that owed him allegiance. Not resolved, however, was the question of loyalty. If place of birth was critical to “the primal obligations of allegiance and protection”[19] how could one born outside of England ever have true allegiance to the sovereign and nation? If subjectship is an intangible attachment to one’s place of birth (and likely, the culture of that land) and not a legal construct based on voluntariness, how could a nation be formed from persons born with allegiances to different sovereigns? This would be a question that would grow increasingly important as the American nation took shape. Was it British, was it essentially British with some additions from similar cultures like Germans and Dutch? Or was it an entirely new concept based on the political theory of natural rights: citizenship?

This question was more than theoretical as the various European powers worked to claim dominance and control of the new lands. Contrary to the image common in stories of the founding of America of a vast uncharted wilderness, the new lands were “intensely contested…[t]he New World was a further arena of struggle among the great powers of Europe, especially Spain and France and Britain.”[20] The need to populate and claim territory and make it productive was of paramount concern to the countries with a stake in the continent. For Britain from the 1680’s until 1763 (the Treaty of Paris) the wars with French, Spanish and Indians over land in the Americas and the corollary European wars, exposed a divergence of interests between the colonists and the Crown.

There was not always agreement between the mother country and her colonists’ on issues of land development and exploration, conquest and trade relations. The Indians were viewed by the British as subjects because they were within conquered territory.(The British allowed that the Indians also owed double allegiance to their own nation and the English sovereign.) Britain and the colonial companies that had charters from the crown needed labor in order to make the colonial endeavor profitable and alliances with the Indians to keep other European powers out. To gain these benefits the Crown treated these peoples as British subjects, allowing the naturalization of Indians and free blacks. Further proof of the intense competition between the European powers for control of the new lands was the fact Britain did not allow persons from other European countries to be naturalized as British subjects. With a loyalty to a different European nation, these people would be working on behalf of their native lands, not working for the benefit of England.[21] For the mother country race was not the issue in deciding who was a subject. What mattered was territory: if you lived within the Crown’s territory, you were obligated to be a subject. Nothing about this status was voluntary.

The colonial response to the issue of who could join their community would be completely opposite. In contrast the colonists saw the Indians as competitors. To justify treating them differently than the British they were described by colonists as “not civil, not Christian, perhaps not quite human…”[22] For the colonists, intent on developing the lands for themselves and committed to staying in the new place, widening the base of the population by including natives and free blacks as British subjects simply because they were on British lands increased competition. Admitting new people as naturalized subjects meant these subjects could own land and enter into contracts. As it was the land itself, not what it could produce for export that was valuable to the colonists who would remain in North America, expanding the pool of eligible property owners was contrary to the settlers’ interest. This “impelled colonial elites to craft senses of common identity incorporating religious, ethnic and racial components….” with other Europeans to achieve some common ground. The elites kept control of their colonies by limiting the rights of suffrage to those with whom they shared common cultural or religious ground. “Virginia was the most openly exclusionary of the colonies. Its 1762 statute …denied suffrage to free blacks, mulattos, Native American…..women and all non-Protestants with Catholics expressly banned….Only British subjects with certain ethnic, religious and class traits were entitled to exercise political privileges.”[23] In this way a political community was established based upon blood and heritage. Control by the dominant group of settlers was maintained as they incorporated other Europeans with similar backgrounds and beliefs into their community. Those inside the community were the citizens. The basis of belonging was the common reference point of Europe as a place of origin, not the American experience. This process was at its root a political endeavor aimed at establishing control of the new land.

The argument could be made that this affinity was cultural and automatic, however the colonies were not comprised of a single, homogeneous people.[24] The colonies were ethnically diverse. Class differences existed among the settlers. Even where they were all English, the settlement experience varied from place to place producing “not one, but many Americas and the passage of time threatened to drive them farther apart not closer together. Most of what they retained in common- language, Protestantism, acquisitiveness, basic political institutions – derived from their shared English heritage and not from encounters in the continent of North America.”[25] Furthermore, England was not the only place settlers came from. There were settlers from countries such as the Netherlands and Germany. Also, Protestantism was not the only religion: there were Quakers in Pennsylvania, Catholics in Maryland and several different versions of Protestants in many of the colonies. With all these variations, a single, American people was unlikely to occur without effort. American national identity was therefore a creation of political necessity. It was “an impromptu, artificial and therefore extremely fragile creation of the Revolution.”[26]

Independence and Citizenship

Independence from England involved a rejection of subjectship. It was in evolving from the concepts of subjectship- allegiance, obligation and dependence- that the American idea of citizenship was created. Central to the American definition of citizen as described by David Ramsay, is the idea that citizens are “a unit of a mass of free people who collectively possess sovereignty” whereas subjects are “under the power of another.”[27] This could be described as the political and territorial definition of the people, “the idea of the nation as a community based on shared political institutions and values, with membership open to all who reside within its territory.” Douglas Bradburn notes that it was rural farmers in Massachusetts, Irish dissenters, seafaring workers, freed slaves and artisans who promoted this natural rights theory of political membership. Not everyone in the new nation favored this broad definition of the people.[28]

Often ignored in considerations of the transition from subject to citizen is the critical question of who were “the people.” Importantly, although American citizenship was a new creation, the notion of a people connected by bonds of culture, affinity and lineage that all were a part of being a subject were never fully rejected. In this regard the basis of membership was ethnic nationalism, “the nation as a community of descent based on shared ethnic and linguistic heritage.”[29] It is ethnic nationalism that allows citizenship to take on Smith’s “ascriptive and inegalitarian” features. It is peoplehood and is not dependent upon agreement or institutional connections.

Because citizenship laws work to “create a collective civic identity” they become very important as a new political entity comes into being. Once the colonies were independent they no longer had the easy identification as British subjects by simply occupying soil formerly claimed by Britain. The question of who was part of the nation and who was not became more difficult to resolve. The centrifugal forces present in the newly confederated states posed a continuous threat to the existence of this new political entity. By declaring independence the colonists “jeopardized what they had in common”- being subjects of the King- “while stressing what made them different from one another.”[30] “Controversy over the character of the American regime was embedded within a broader debate over who was qualified to be an American.”[31] In the early republic an identity as a nation was essential if the country was to survive intact. This identity, a muscular concept of “we,” was necessary to the survival and entrenchment of the nation as a political entity. It is here that the idea of ethnic nationalism becomes important.

This concept is denominated a myth by Smith because it relies on intangible criteria such as values, traditions and descent. “A civic myth is a myth used to explain why persons form a people, usually indicating how a political community originated, who is eligible for membership, who is not and why, and what the community’s values and aims are[32].” The definitions that are supported by such myths are softer, more malleable then political theories of membership. The civic myth is capable of being used to exclude people based upon immutable things like color or lineage. The argument of Smith in Civic Values, is that in America it is “ideologies of ascriptive Americanism,” things like character, blood, values, that have functioned as our civic myths and that these myths

“… have always done some of the work that civic myths do more effectively than liberalism or democratic republicanism…”[33]

It is in this dimension of citizenship that place of birth can be seen as an element in the evolving theory of citizenship in America. The colonists would come to argue that their English blood carried with it “affinities for political liberty…due to nature, history, and divine providence.”[34] Mixed with lawyerly claims for English liberties was the argument that God had favored these people with this land. These views were employed in the argument for independence but they would also form the basis of the cultural or “ascriptive and inegalitarian” aspects of American citizenship. Those who were not Christians or were Catholics (thus, the argument was, not well-versed in freedoms) or had no heritage from Europe (slaves and natives) were not as capable of civic participation.

These attitudes echoed the Puritan view that America and everything in it was theirs to cultivate, tame and re-create into their vision of God’s country because they had true religion. The Mayflower Compact, written as a response to the claims for land against the “strangers among them” with whom the Puritans had come to America, was an agreement between “[w]e whose names are underwritten, the loyal subjects of our dread sovereign lord King James…of Great Britain, France and Ireland…” [35] An essential assumption was that the “we” referred to in the Compact all shared the same goals and religious beliefs. It was assumed and insisted upon that there would be “unity of spirit, faith and ordinances; to be all like minded…and by no means to permit heresies or erroneous opinions.”[36] The Puritans believed that they were favored by God “in respect of that sweet peace which he hath taken away from so many nations…”[37]

This was essentially a monolithic group with shared culture and beliefs. According to this view, their beliefs and way of life entitled them to settle and cultivate the new land. This rhetoric of right beliefs and right living metamorphosized into a civic religion of “human perfectibility, technological progress, democracy…. the American Way- in the mold of a sacred teleology” that justified the growth and dominance of America.[38] Like all religions this civic one would have members and outsiders. Those who diverged from the orthodox views or who did not have the experience of freedom that English blood carried within it were destined to be outside the American political community. Citizenship would be entangled with beliefs, birth and heritage. It was with this reasoning that America would come to justify a race based citizenship.

The Legal Documents

The Articles of Confederation addressed the issue of citizenship in a very minimal fashion, but did indicate who was exempted from the scope of legal protections conferred by the Confederation. “The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States;” [39] By excluding paupers and vagabonds the focus for citizenship was on one’s stake in and contribution to the society, one’s willingness to work, not where they were born or some intangible trait of character. The full definition of citizen was left to the states. Also left to the states was the power to naturalize persons as citizens. Once naturalized the citizen was entitled to be accorded such status in all the states.

The Constitution was silent in defining citizens, although it was clear through the Article IV, Section 2, that only “citizens of each state shall be entitled to all Privileges and Immunities”. In the same section, the language of the fugitive slave clause regarding a “Person held to service or Labour” suggested that ‘citizen’ was a limited group. This was further made clear by the provisions of Article III that provided ‘citizens’ access to Federal courts in certain limited circumstances. Three separate populations were identified in the document: Indians, “treated as members of their own tribal sovereignties and not, therefore, part of the American body politic; other persons- that is slaves; and ‘the people.’[40] It is notable that the Indians, although within the physical boundaries of the states were not counted in determining a state’s representation in Congress. Article I, Section 2, provided “free Persons … and … other persons” [slaves] were counted for purposes of determining representation in Congress. The Constitution, although silent on whom the people were, was clear that this was a narrow category. It was left to the states to define how narrow it was.

As immigration was an issue in the new nation some insight into the attitude towards immigrants can be found in the following remarks of John Jay and George Washington. The view of John Jay laid out in the Federalist #2 that, “Providence has been pleased to give this one connected country to one united people-a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government …America and Americans seem to have been made for each other,” was not unusual.[41] This is also suggested by Washington in his Farewell Address in 1797, “Americans had same religion, manners, beliefs and political principles” with “but slight shades of difference.” [42] Homogeneity was presumed to exist and was seen as a positive good for the country.

The question of how and if immigrants could attain citizenship by naturalization was placed within control of the national government. In the debates during the Constitutional Convention the length of time one needed to live in the United States before applying for citizenship varied from one year to seven. Power was granted to Congress to pass legislation controlling naturalization. The first such act was in 1790 which provided that “free, white, adult alien, male or female, who had resided within the limits and jurisdiction of the United States for a period of 2 years was eligible for citizenship.” Here it is plain that persons who are not white need not apply. (Blacks would not be eligible to become naturalized citizens until 1870 by an act of Congress. Chinese waited until 1940.)

By 1795 there were concerns about the ease of gaining citizenship. It was argued that this short amount of time was not enough to deter persons who were not of the proper character from being admitted to the American people.[43] There was also a fear that the country would be swamped with newcomers who could displace the ‘real Americans’ and take the country in directions that were contrary to its founding principles. Alexander Hamilton said that though foreigners were desirable as workers, they might “prove a Grecian horse” if they were admitted to citizenship too quickly.[44] The act of January 29, 1795 (1 Stat. 414) increased the period of residence required for citizenship from 2 to 5 years. It also required applicants to declare publicly their intention to become citizens of the United States and to renounce any allegiance to a foreign prince, potentate, state, or sovereignty 3 years before admission as citizens. Immigrants who had “borne any hereditary title, or been of the order of nobility” were also required to renounce that status.[45]

Questions about the ascriptive aspects of citizenship- character, suitability, allegiance- were the focus of naturalization decisions. This thinking was most evident in the early years as the Federalists struggled to maintain control of the country against the rising Democrats. To resist the efforts of their opponents and exclude sympathizers with the French Revolution, the Federalists sought to narrow the definition of citizen by passing the Alien and Sedition Acts. Passed in 1798 and entitled An Act to Establish an Uniform Rule of Naturalization it extended the period before one could apply to be a citizen from five to fourteen years. The Republicans responded by branding the Federalists as foreigners who were acting under the direction of Britain. During these debates over naturalization and citizenship, Congressmen spoke of the need to protect “the character of Americans… from the discontented, the ambitious and avaricious” This was more than a comment on the political tenor of Europe at the time; it was about keeping American blood from “adulteration by foreign mixture.” Persons from different countries were viewed as from different ethnic groups and such ethnic affinities between new immigrants threatened to disturb the social order.[46] In 1802 with Jefferson having won the presidency and the fears of the country disintegrating into another French revolution, the Act was repealed. The term reverted to five years residence in the nation before applying for citizenship. The nativist sentiments expressed in this tumultuous period would never be fully put to rest in America, but would reappear at times of national stress and crisis.

Race

In considering how citizenship became race-based it is necessary to examine race in the context of the early Republic. Before the American Revolution “race” was understood to mean “tribe, nation or people regarded as common stock.”[47]According to the Oxford English Dictionary the modern definition of race appeared in 1774 as “one of the great divisions of mankind, having certain physical peculiarities in common.”[48] This is a critical shift in definition as it relies almost exclusively on physical characteristics. Instead of lineage and descent, something hard to see, appearance could now telegraph the facts of lineage.

Before this new idea of race was the accepted means of assigning characteristics to whole groups of people, there were the arguments based upon lineage and history. Jefferson in Notes on the State of Virginia, describes the population as “stock” and considers the effect of bringing in new “stock”, “the importation of foreigners” to increase the population more rapidly than by natural increase. He is against encouraging immigration, fearing that most immigrants will come from countries other than England, places where absolute monarchies exist. He argues that they will bring with them “the principles of the governments they leave, imbibed in their early youth; or if able to throw them off, it will be exchanged for an unbounded licentiousness….These principles, with their language, they will transmit to their children.”[49] For Jefferson the difference between people is not racial so much as a political character that is bred into one by being from a particular country. He asks what would happen to the kingdom of France “if 10 million republican Americans” were suddenly thrown into that country.[50] For Jefferson , writing in the 1780’s, the American was a new breed, one that was suited to self-government because of his Anglo-Saxon lineage. European blood was essential to being an American. St. Jean De Crevecoeur wrote in 1782, “What then is an American, this new man? He is a European, or the descendant of a European, hence that strange mixture of blood, which you will find in no other country….Here individuals of all nations are melted into a new race of men…”[51]

The above statement demonstrates that race in the nineteenth century took in place of origin and lineage. There was a common belief that the Anglo-Saxons “had the most perfect cerebral organization, putting them above all other white people.”[52] In 1789 the American geographer Jeddidiah Morse used the term Anglo-American, perhaps the first person to describe the people in the new country by this term. He asserted, “the greater part …are descended from the English; and, for the sake of distinction, are called Anglo-Americans.”[53] Later Emerson and others would argue that it was the Teutonic heritage from the Saxons that produced such a great people as the Anglo-Saxons. This line of reasoning also supported the argument that only Northern Europeans, those who presumably at some point had been influenced by or mingled with these Saxons, had such fine characters. This reasoning did not however save the poor Celts, who Emerson found to bear evidence of their “diminished brain” in their facial features, “the nose sunk, the gum exposed.” [54] By the middle of the nineteenth century the argument of Jefferson that political nature was determined by one’s country was elided with physical characteristics. English lineage was preferred because the practice of liberty was ingrained in them by birth and experience. Such character was desirable for citizens if the nation was to progress.

Racial arguments had been made about blacks well before Emerson’s discourses on the superiority of the Anglo-Saxons as a race. Jefferson in Notes on the State of Virginia, asserted that for whatever reason the difference between black and white people was “fixed in nature.[55]” He says that their “existence appears to participate more of sensation than reflection….that in memory they are equal to whites; in reason much inferior…”[56] St. George Tucker, a Virginian who supported abolition of slavery but not inclusion of blacks in American society, warned in 1796, “ If it is true …that the Africans are really an inferior race of mankind, will not sound policy advise their exclusion from a society in which they have not yet been admitted to participate in civil rights; and even guard against such admission …since it may eventually depreciate the whole national character?”[57] This view had a basis in the pseudo-science of racial classification that followed the new science of classification of species. The idea of separate races ran counter to the religious theory of monogenesis, that everyone was descended from the common ancestors of Adam and Eve. Nonetheless, these “scientists of race” argued that however it happened, either with multiple original ancestors or subsequent differentiation, the races had significant differences in abilities and character traits. “I am persuaded the black and white race have, … sprung from different-coloured first Parents,” concluded an English physician writing on the subject.[58] “Where shall we find, unless in the European, that nobly arched head, containing such a quantity of brain…Where the perpendicular face, the prominent nose and round projecting chin,”[59] argued the phrenologists, looking beyond color, to the bone structure of the head. The handsome bronze figures along the Schuykill seem properly identified by this language. Justifications like these for limiting the vote and many privileges of citizenship to European whites only grew as the country moved towards a more inclusive democracy through a broadened suffrage.

ELEMENTS OF CITIZENSHIP: Voting

An issue that is tied to citizenship is that of suffrage. In America it became a marker of citizenship. All voters are citizens but not all citizens are entitled to vote. Women in early America were not entitled to vote, yet they were full citizens of the nation. Rights of suffrage were and are political rights that are limited to certain persons within a polity. Civil rights, (in the Revolutionary era), the right to own property, enter into contracts sue and be sued belonged to all free members of society.[60] In examining how voting became inextricably linked with citizenship one must put aside the modern view of the right to vote as a signifier of legitimacy for both a nation and the individual. (Recall the display of purple thumbs in Iraq a few years ago and the hoopla that was made over this evidence that democracy had come to Iraq.) In the early Republic voting rights were one small piece of citizenship, note the sine qua non of it. “Despite the political sources of American nationhood, at no time were suffrage and citizenship one and the same.”[61] Yet, because representative democracy was such a prominent feature in the theory that supported the founding of America, the right to vote would be a key area of contest in the developing nation.

Property-based voting was inherited from England. Yet, it was subjectship, belonging, that mattered, not voting. Many subjects were ineligible to vote. Only adult men with land worth forty shillings in rental value or the legal equivalent of such value were entitled to cast a vote for members of the House of Commons.[62] A person so qualified was a “freeholder.” Because the person owned property, he paid taxes. Historically, these taxes paid for the wars waged on behalf of the king in the name of the nation. The reasoning was that if one paid taxes he had an interest in how the money was spent.[63] As Blackstone explained, property qualifications worked to “exclude such persons who are in so mean a situation as to be deemed to have no will of their own.”[64]

Initially, the colonies would rely on property ownership to determine the electorate. “In 1800 a majority of states (9 out of 16) still had property qualifications and 4 of the states limited voting to taxpayers. By 1830 only one third of the states still had property qualifications on the books…”[65] During this same period most states, North and South, were changing their constitutions to exclude free blacks from the franchise. Peter Onuf argues in Jefferson’s America that the centrality of voting as in issue in early America and the resolution in favor of broader access to the vote, is evidence of consent superseding descent.[66] Descent did not however disappear from issues of voting qualifications.

With the persistence and growth of slavery and with fully one-fifth of the population African or of African descent,[67] there was real danger to slavery if free blacks group gained any political muscle through voting. Although originating in the political calculation of the need to continue slavery, the justification for automatically excluding a person from the political process had to be based on some reason related to the function of citizenship itself if was to be widely accepted in the nation. It needed to be somehow based on ability, character and belonging not geography or place of birth. By looking to these ascriptive qualities, the right to vote became more than political, it became an “affirmation of belonging.” [68] What mattered was not the voting itself, “only the right…Without the right one was less than a citizen. Once the right was achieved it had fulfilled its function in distancing the citizen from his inferiors…”[69] By so defining voting rights the nettlesome issue of free blacks was also quited.

With the gradual elimination of property qualifications in favor of universal suffrage, America was consistent with the professed terms of the revolutionary struggle, that of self-rule for the American people. Self-rule was accomplished by a broad elective franchise. If freedom is self-rule, then one who could vote was free. As with the Greeks, the act of being a citizen, participating in ruling, was the hallmark of freedom. It was for the Americans, like the Greeks, a way of being free. Those who had once been property, part of the material aspects of the world, were forever unqualified for the freedom of self-rule, no matter that they were free or owned property. The ability to be free and to practice freedom was in one’s character, a birthright that not everyone had. It was based on character, not law. Freedom in its most stark sense, the contrast between having been born free and being born a slave, property, would be the divider between those who were citizens and those who were not. “By narrowing the gradations of freedom among the white population , the Revolution widened the gulf between free Americans and those who remained in slavery. Race… now emerged as a convenient justification for the existence of slavery in a land ideologically committed to freedom as a natural right. Since only blacks were slaves, it was color, a signifier of slavery in one’s blood, that would forever be a bar to citizenship.

While suffrage was narrowed for persons of color, America became more fully democratic as most states adopted universal manhood suffrage. As Eric Foner has noted in American Freedom, “The capacious nature of American freedom as citizens made it all the more imperative to identify ‘the people’ entitled to enjoy it.” [70] A similar observation was made at the time of the American Revolution by Edmund Burke, “[I]n Virginia and the Carolinas they have a multitude of slaves. Where this is the case in any part of the world, those who are free are by far the most jealous and proud of their freedom. Freedom is to them not only an enjoyment but a kind of rank and privilege..” [71] Because every white male was included regardless of religion, lineage or wealth, the promise of equality appeared to be realized. “Not the exercise, only the right signified deeply….Once the right was achieved it had fulfilled its function in distancing the citizen from his inferiors, especially slaves and women. By bringing every white male inside the circle of voting but forever excluding those who had been slaves, the lowliest worker was elevated the status of citizen.”[72] The exercise of this privilege became the hallmark of citizenship. De Toqueville, observing America in the 1830’s noted that “nationality grows by the exercise of civil rights, and in the end, it is confounded with the personal rights of the citizen.”[73] Being given the right to vote was joining the political community, an exercise of civil rights, but it was also the acknowledgment that the voter was part of the “people.”

The process of shifting from property qualifications to race can be seen when looking at state constitutions of the era. Since both the Articles of Confederation and later the Constitution allowed states to set suffrage requirements, it is in these state laws where the evolution towards universal adult white male suffrage is seen most clearly. The change in access to the vote, which by the time of Independence was an important marker of American citizenship, can be traced from laws written by the colonists pursuant to colonial charters, Revolutionary era state constitutions and subsequent state constitutions. Here is a sampling of such laws and successive changes to the laws.

In New Jersey, the Fundamental Constitutions for the Province of East New Jersey, of 1683, provided for participation in the governing of the colony by “persons qualified to be freemen…shall be every planter and inhabitant…who is in possession of fifty acres of ground, and hath cultivated ten acres of it; or in boroughs, who have three acres; or have a house and land only hired, if he can prove he have fifty pounds in stock of his own.”[74] Political rights are tied to property at this point. In 1776 the land requirement for voting rights was dropped in favor of a simple “fifty pounds proclamation money” and residence in the county for the preceding twelve months.[75] In New Jersey, so far as this author can find, race was never a qualification for voting.

New York’s Constitution of 1777 provided that eligibility for suffrage required owning land, worth at least twenty pounds or having rented land for at least forty shillings. Color was not mentioned as a qualification.[76] By 1821 requirements for voters varied according to color. For whites a land interest was no longer required, only the paying of a tax on real or personal property in the preceding year. For “persons of color” it was necessary that he resided in the state for three years (instead of one for whites) and that he possessed land worth two hundred and fifty dollars “over and above all debts and incumbrances charged thereon…” (In this manner making one who held land subject to a mortgage ineligible to vote.)[77] This limitation persisted through another state constitution in 1846. It was not until 1896 that a new constitution omitted the property requirement imposed on blacks.[78]

Ohio was admitted to the Union in 1802 with white only suffrage and a property requirement.[79] In 1851 a new constitution was passed with a pronouncement that all men are created free and equal, with all political power in the people. However, only white men were eligible to vote. Property ownership or money was no longer a requirement.[80]

The first North Carolina law describing voting privileges only requires that one be a “freeman, of the age of twenty-one years.” There is a hierarchical suffrage based upon the office being voted for, with the Senate requiring voters to own fifty acres of land; lower offices, such as the House of Commons or local offices, only require the voter to have paid taxes. (Presumably on land.) Color was not a bar to voting. The vote was not officially restricted in North Carolina until 1835, when the following limitations were added:

No free negro, free mulatto, or free person of mixed blood, descended from Negro ancestors, to the fourth generation inclusive, (though one ancestor of each generation may have been a white person.) [81]

In the Pennsylvania colony the 1696 description of those who could vote for their representatives required that the voters be “free denizens of this government …and have fifty acres of land, ten acres whereof being seated and cleared, or be otherwise worth fifty pounds, lawful money…”[82] In 1776 the constitution dropped the property requirement in favor of a voter being freeman and a taxpayer. Color of the voter was nowhere mentioned.[83] This was the law until 1838 when the qualifier of “white” was added to “freeman.”[84] This restriction remained in force until 1873 when a new constitution admitted all males twenty-one years of age to the elective franchise.

In Virginia in 1776 the right of suffrage was extended to “all men, having sufficient evidence of permanent common interest with and attachment to the community.”[85] To make more of point that Virginia did not consider race as a qualifier for citizenship is the repeal of a statue in 1783 limiting citizenship to whites and opening it to “all free persons born within the territory of the Commonwealth.” Thus in the early years of the nation, Virginia followed a citizenship based on natural rights of the people within the boundaries of the state. The existence of slavery in the state did not require a different result.

Northern colonies and states were not uniformly in favor of race neutral citizenship. Massachusetts in 1778 drafted a state constitution that excluded “Negroes, Indians and mulattoes” from the vote. This was not passed (for other reasons) and the one that finally did pass had no racial qualifications. Once slavery was abolished in Massachusetts declared that any free black who was not a citizen of the state needed to leave.[86] Connecticut in 1818 excluded suffrage to whites only.[87] And New York, as was seen above, imposed more stringent property requirements on blacks. The issue of race and voting was one that had no geographic limits in America.

The above evolution of voting restrictions in the states away from property towards race is some evidence that at the outset of the American nation, although black slaves were a staple of labor in the south, it was freedom, not color, that qualified one to vote. At the outset, “the people,” those who could vote and thus were undeniably citizens, were those who were free and had some stake in the society through their ownership of property and thus not “paupers or vagabonds”. The change from property to race had less to do with naked prejudice and more to do with the economic need of the South to maintain slavery in a country where freedom was a central value. By allowing this central aspect of political participation, the vote, to be controlled by the states instead of the national government, a race based citizenship was inevitable in those places where slavery was practiced and was likely to infect other states’ view of blacks as less than citizens as the culture of slavery and the assumptions that supported it were maintained. Southern states and many Northern ones and new states would exclude free blacks from suffrage because the interests of the potential voters, freedom for their fellows, conflicted with the goal of national unity by threatening slavery. By excluding free blacks from the vote, they were shut out of the political process. By leaving this question of voting rights to the individual states the new nation ceded power in a fundamental area that would have repercussions for the entire nation, at least, for two hundred years.

ELEMENTS OF CITIZENSHIP: Privileges and Immunities

Like access to voting, privileges and immunities is another guide to who is within the circle of citizens. It has been the subject of much circuitous reasoning over the years. Yet, like voting it has served as an essential marker of citizenship. Those who have privileges and immunities are citizens and those who don’t have them are not. This concept defines not the basis of connection (blood, place of birth or voluntary consent) but how the connection (being a subject or here, a citizen) operates. It establishes rights and duties of the government and the individual vis-à-vis one another. It is a term of art used in both the Articles of Confederation and the Constitution. The privileges and immunities are not defined at the outset, but grow or recede over time. It is, as academics say, a protean concept. The critical question for citizenship is not what the rights are, but who gets them.

Examples of these rights that have been found to come within the ambit of privileges and immunities are rights of contract, access to courts (an essential piece of the right of contract) testifying in court, marriage, speech, right to own property and guns, and procedural due process for the accused and when a right is abridged by the government. By and large, these rights are state controlled. Marriage, property, gun ownership, right to contract and access to the state courts (where the bulk of litigation occurred in nineteenth century America), were all regulated by state law.

It was by this negative definitional process that the bulk of restrictions by race, initially applied almost exclusively to blacks, created race-based citizenship in America. It was a process that allowed local prejudices, customs and the social norms of the era to essentially create legal rights or disabilities. There was no sweeping declaration by some representative elected body that gave or removed rights from people. It happened quietly and gradually. It was an incremental process. The accumulating restrictions were then evidence that citizenship was limited to whites. Court cases, administrative opinions and Congress would look to these restrictions to determine if citizenship was open to free blacks. It was a tautology that would require the thunder of the Civil War, the Reconstruction Amendments and a vigorous national government to overcome. And then over one hundred years of persistence, turmoil, litigation and finally more Federal power to fully change.

A striking example of this process concerned free black seamen or watermen. Beginning with a decision in 1821 by Attorney General William Wirt on the question of whether free blacks could work as ship captains was answered in the negative since federal law limited the command of vessels in coastal and foreign trade to citizens. The matter first arose in Virginia, when the state asked for an opinion on whether free blacks could command ships sailing out of Norfolk. Wirt looked to local laws that restricted blacks from everything, including self-defense, “except against a wanton assault” and concluded that free blacks were not citizens and so could not be ship captains.[88]

In 1822 South Carolina was worried about slave revolts and the dangers of free seamen in their ports. The state imposed a requirement that free black seamen in port be put in confinement with the cost of such confinement being paid by the ship’s captain. If this were not done, the free black seamen would be sold. Northern states and Britain sought relief from Congress, arguing that the rights of their citizens to travel and work were being violated. The House and the Attorney General agreed and suggested the rule be repealed. South Carolina stood firm and enforced their law. In 1831 the matter arose again on a protest from Britain. Attorney General Taney was called upon for an opinion. Looking to the general condition and treatment of blacks, free or slave, in the various states, Taney concluded that free blacks were not truly citizens anywhere in the United States, therefore the privileges and immunities accorded citizens did not apply to them. South Carolina was properly exercising their police power and not infringing on any rights of citizens. Taney’s language decisively resolved the question of black citizenship twenty years before Dred Scott. “The African race in the United States even when free are everywhere a degraded class, and exercise no political influence. The privileges they are allowed to enjoy, are accorded them as matter of kindness and benevolence rather than of right….And where they are nominally admitted by law to the privileges of citizenship, they have no effectual power to defend them, and are permitted to be citizens by the sufferance of the white population and hold whatever rights they enjoy at their mercy.”[89]

The premier battle on privileges and immunities in the early nineteenth century was over the admission of Missouri as a state. By seeking admission with a constitution that barred free blacks and mulattoes from entering the state the issue of freedom of travel was presented. If a free black was a citizen in one state but was not allowed to enter another state, then Article IV’s promise that full faith and credit would be accorded to the laws of one’s state by another state was violated. The right to freely move about the nation was certainly such a right. In debate in Congress on the admission of Missouri, Representative Charles Pinckney of South Carolina, who claimed that he wrote the privileges and immunities clause, said, “I perfectly knew that there did not then exist such a thing in the Union as a black or colored citizen, nor could I then have conceived it possible such a thing could ever have existed.”[90]

By locating the concept of citizenship in the rights one had, privileges and immunities, and then allowing those rights to be determined by the states instead of the national government, a race-based definition of citizenship was allowed to flourish. Because it was blacks that would most threaten the political compromises between North and South over slavery by seeking freedom for their enslaved brothers and sisters, their mothers and fathers, it was free blacks who had to be barred from political participation. Therefore, citizenship became defined by color with it being a ‘whites only’ club, with white becoming a freighted term of art.[91][sbc1] .

Conclusion

Citizenship and the pieces that went into it during the early Republic was a moving target, with no certain result predictable from the laws of the various states. Akhil Amar argues that the idea of race based citizenship was rejected under the Articles of Confederation and many contemporaneous state constitutions. At the outset freedom was the only requirement for citizenship. He points to an effort by South Carolina to add “white” to the scope of the Articles’ privileges and immunities clause that was rejected by eight of the eleven states that were part of the Confederation. In Virginia in 1783 a state law limiting citizenship to whites was repealed in favor of wider definition, “all free persons born within the territory of the Commonwealth.” The Articles language is clear that economic independence and freedom was the qualifier for access to these rights. Paupers and vagabonds, not free blacks were excluded. The determining factor was that paupers and vagabonds were presumed unwilling to work, and so would not be good citizens.[92]

Although the Articles contain a disturbing opening between “free inhabitants” and “free citizens” –if they were the same thing, why different terms?- it was not clear before the Constitution was passed that the interests of slave-holders would be paramount in the battle to define citizens. This evolution towards a race-based citizenship was promoted by decisions made in the drafting of the Constitution to leave the term citizen undefined, to include the three-fifths and the fugitive slave clause, to pointedly continue to allow the slave trade at least until 1809 and to have the federal treasury gain money from the tax imposed on imported slaves. Perhaps the clearest indication that the signatories had no intention of confronting the problem of slavery was the Fugitive Slave Clause, which was in “contravention of ignored choice-of-law rules and general principles of comity” by obliging a state that prohibited slavery to honor a slave state’s law and return any escaped slaves.[93] This diffidence in the face of the slave-holders was compounded when political muscle was ceded to the slave states by the three-fifths compromise and the design of state-based presidential elections. These two decisions practically guaranteed that the federal legislature and executive would be pro-slavery. As Akhil Amar argues in America’s Constitution, “such compromises made possible a continental union of North and South …But in the long run, the Founders’ failure to put slavery on a path to extinction would lead to massive military conflict on American soil…”[94] It also allowed the definition of citizenship to become clouded by race, thereby obscuring the very principles of liberty and freedom that were considered the touchstone of the Revolution.

Whatever else this question of who are the people may be, whether a source of prejudice or caused by prejudice, it is always a political question because it determines with whom power lies. The political nature of this question was starkly demonstrated during the 1790’s as the Federalists struggled for power against the Democratic-Republicans. The terms of the debate were effectively framed by the winners (the Republicans) as not just about principles or even power, but also about those ascriptive qualities of citizenship, character, blood, beliefs. In this way the civic myth of the ‘American people’ was used to secure a political result, the defeat of the Federalists. Yet by its use the idea of the American people as a specific people, endowed with certain qualities was promoted and gained strength. Peter Onuf argues that with the victory of the Republicans in 1800, “libertarianism and nationalism” were thereafter linked “defining and qualifying one another.”[95] Citizenship definitions were the battleground. Although the Republican’s notion of broad political membership for adult men based on natural rights theories would win and the suffrage expanded to include all white men, it also contained a less tangible piece, that of ethnic nationalism. It was at this point in our early history that Douglas Bradburn posits the end of the revolutionary potential of the natural rights theory that supported the Revolution.[96]

This shadowed reference to birth, character, ability to be free, would be included in the concept of American citizenship. The theory that all men are free and voluntary enter a political society would not be the full basis of American citizenship. It would be that other piece, ethnic nationalism, which would compromise the libertarian definition. The political price of a broad citizenship would come at the cost of inclusion for all men.

In looking at the statuary along the river and the obvious distinctions between the Americans and the newcomers or former slave, the question persists: in the realm of citizenship are some Americans perceived as more equal than others?

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