Outpost of Freedom blog

Two classes of Citizen

Gary Hunt
Outpost of Freedom
April 2, 2009
Let’s begin by understanding what some words mean:

Definition of United States:

Blacks Law Dictionary, Fifth Edition

United States.  The term has several meanings.  It may be merely the name of the sovereign occupying the position analogous to that of other sovereigns in the family of nations, it may designate territory over which sovereignty of the United States extends, or it may be collective name of the states which are united by and under the Constitution.  [Hooven & Allison Co. v. Evatt, U.S.Ohio, 324 U.S. 652, 65 S.Ct. 870, 880, 89 L.eEd. 1252.]

So, we have:

a)     name of the sovereign occupying the position analogous to that of other sovereigns in the family of nations

b)    designate territory over which sovereignty of the United States extends

c)    collective name of the states which are united by and under the Constitution

So, when we look at Constitution, Art. II Sec. 1 Cl. 5, we will find:

“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President;”

We need to understand that at this point in our history, every citizen was a citizen of one of the States of the Union (definition “c”).  The Constitution granted Congress the power to “To establish an uniform Rule of Naturalization”, but made no other provision which would allow the United States to have its own citizens.  There would be no need for uniformity if the government were in charge of naturalization; rather, a uniform rule had to be established to apply to the Member States and their naturalization of citizens.  Basically, there was no ground (except the proposed ten miles square) which would constitute a place for citizens to exist, except in the respective states.

Further, Article III, Sec. 2 provides that the supreme Court has judicial power extending to all cases “… between a State and Citizens of another State;{9}–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

And, Article IV, Sec 2 provides that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States,” again, implying only that state Citizens exist.  Note that “of each State” is different, grammatically, than ‘in each state’.  The “of” denotes “that from which anything proceeds; indicating origin, source, [and] descent” [Black’s Law Dictionary, 5th Edition].

It wasn’t until the dilemma of what to do with the guests, recently freed by the Slavery Amendment occurred that a solution needed to be found.  The Fourteenth Amendment was ratified, under pressure to the Southern States, to create a class of citizen which would provide for those recently freed.

The Fourteenth Amendment reads, in part:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Interestingly, the Constitution first sets forth the concept of “subject to the jurisdiction of” in that Amendment.  Though I can’t find it, now, I read an assessment of that portion of the Fourteenth that seemed to support that those “orphans” of the war (the freed slaves) went from chattel to persons and, since the states did not allow them citizenship, they became ‘property” of the United States (subject to the jurisdiction of).  That aside, however, since I can’t find support for it, but offer it only as a consideration, along with the rest of what will be presented to demonstrate the point.

It also sets forth, for the first time, a concept of dual citizenship. “[C]itizens of the United States and of the State wherein they reside” clearly gives us two jurisdictions of which those affected by the Amendment are included.  The United States (probably “b”, though the cases I will cite are silent as to which it is) and the State (“c”).

So, for the first time in our history we have a citizen of the United States and a citizen of a State – dual citizenship.

This begs the question as to whether this imposition of dual citizenship applies to people who would otherwise be citizens – absent the Amendment.  Obviously, citizens of the States existed prior to the ratification, and, since the Amendment does not remove anything that previously existed (repeal an existing law), it would appear that those who were not within the described realm (subject to the jurisdiction thereof) are not subject to the imposition of the dual citizenship status.

It is also interesting to note that subsequent to the Fourteenth Amendment, there is no reference to state citizens, even though the Fourteenth had reaffirmed the existence of that entity.  Is it possible that the subsequent amendments do not apply to those who are state citizens?

Going back to the first cases decided based on citizenship and the Fourteenth Amendment, we find:

Slaughterhouse Cases, 16 Wall. 74 (1873).

“We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other.”

U S v. CRUIKSHANK, 92 U.S. 542 (1875)

Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights. In the formation of a government, the people may confer upon it such powers as they choose. The government, when so formed, may, and when called upon should, exercise all the powers it has for the protection of the rights of its citizens and the people within its jurisdiction; but it can exercise no other. The duty of a government to afford protection is limited always by the power it possesses for that purpose.

* * * * *

The people of the United States resident within any State are subject to two governments: one State, and the other National; but there need be no conflict between the two. The powers which one possesses, the other does not. They are established for different purposes, and have separate jurisdictions. Together they make one whole, and furnish the people of the United States with a complete government, ample for the protection of all their rights at home and abroad. True, it may sometimes happen that a person is amenable to both jurisdictions for one and the same act. Thus, if a marshal of the United States is unlawfully resisted while executing the process of the courts within a State, and the resistance is accompanied by an assault on the officer, the sovereignty of the United States is violated by the resistance, and that of the State by the breach of peace, in the assault. So, too, if one passes counterfeited coin of the United States within a State, it may be an offence against the United States and the State: the United States, because it discredits the coin; and the State, because of the fraud upon him to whom it is passed. This does not, however, necessarily imply that the two governments possess powers in common, or bring them into conflict with each other. It is the natural consequence of a citizenship which owes allegiance to two sovereignties, and claims protection from both. The citizen cannot complain, because he has voluntarily submitted himself to such a form of government. He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction.

Each within its own jurisdiction?  Interesting how the feds seem to have expanded their jurisdiction to wherever they want it to be.

This next case, in the United States supreme Court, deals with a person, over forty years after the ratification of the 14th Amendment, who was compelled to testify against himself in a New Jersey court.  He was convicted, and appealed to the New Jersey Supreme Court.  The conviction was upheld and the case then went to the United States supreme Court.

Though the court did not address the issue of state citizenship, directly, the jurisdiction of the New Jersey court where the trial was held had determined that, since the defendant was a state citizen, and not a federal citizen under the 14th Amendment, the extension of portions of the Constitutional requirements being imposed on the states by the 14th Amendment did not apply in this case.  This left the Defendant (petitioner) without the protection afforded by the 14th Amendment, and subject to the laws, as they existed in New Jersey, without regard to the 14th.  The supreme Court upheld the lower court.

I will include excerpts from the record which demonstrate the status of the defendant and the court’s indirect agreement to the absence of a nexus to the 14th Amendment. This is supported by both the Court’s opinion and the dissenting opinion – leaving no doubt that there are the two classes of citizen.

TWINING v. STATE OF NEW JERSEY, 211 U.S. 78 (1908)

Mr. Justice Moody, after making the foregoing statement, delivered the opinion of the court:

* * *

It was argued, inter alia, that the statute abridged the privileges and immunities of the plaintiffs in error as citizens of the United States, and the particular privilege which was alleged to be violated was that of pursuing freely their chosen trade, business, or calling. The majority of the court were not content with expressing the opinion that the act did not in fact deprive the plaintiffs in error of their right to exercise their trade (a proposition vigorously disputed by four dissenting justices), which would have disposed of the case, but preferred to rest the decision upon the broad ground that the right asserted in the case was not a privilege or immunity belonging to persons by virtue of their national citizenship, but, if existing at all, belonging to them only by virtue of their state citizenship. The 14th Amendment, it is observed by Mr. Justice Miller, delivering the opinion of the court, removed the doubt whether there could be a citizenship of the United States independent of citizenship of the state, by recognizing or creating and defining the former. ‘It is quite clear, then,’ he proceeds to say (p. 74), ‘that there is a citizenship of the United States and a citizenship of a state, which are distinct from each other and which depend upon different characteristics or circumstances in the individual.’ The description of the privileges and immunities of state citizenship, given by Mr. Justice Washington in Corfield v. Coryell, 4 Wash. C. C. 371, Fed. Cas. No. 3,230, is then quoted, approved, and said to include ‘those rights which are fundamental,’ to embrace ‘nearly every civil right for the establishment and protection of which organized government is instituted,’ and ‘to be the class of rights which the state governments were created to establish and secure.’ This part of the opinion then concludes with the holding that the rights relied upon in the case are those which belong to the citizens of states, as such, and are under the sole care and protection of the state governments. The conclusion is preceded by the important declaration that the civil rights theretofore appertaining to citizenship of the states and under the protection of the states were not given the security of national protection by this clause of the 14th Amendment.

* * *

… Due process requires that the court which assumes to determine the rights of parties shall have jurisdiction. [The New Jersey court, since the defendants were State Citizens]

* *

Much might be said in favor of the view that the privilege was guaranteed against state impairment as a privilege and immunity of national citizenship, but, as has been shown, the decisions of this court have foreclosed that view.

* *

We do not pass upon the conflict, because, for the reasons given, we think that the exemption from compulsory self-incrimination in the courts of the states [as a State Citizen] is not secured by any part of the Federal Constitution. [Final reason for the decision was an absence of jurisdiction, since the defendants did not come under the 14th Amendment]

* *

Mr. Justice Harlan, dissenting:

* *

That Amendment, it was long ago decided, operated as a restriction on the exercise of powers by the United States or by Federal tribunals and agencies, but did not impose any restraint upon a state or upon a state tribunal or agency. The original Amendments of the Constitution had their origin, as all know, in the belief of many patriotic statesmen in the states then composing the Union, that, under the Constitution, as originally submitted to the people for adoption or rejection, the national government might disregard the fundamental principles of Anglo-American liberty, for the maintenance of which our fathers took up arms against the mother country. [Harlan argues that the protection against self incrimination is inherent in the due process clause, and applies regardless of the 14th Amendment]

The matter of state citizenship has not been brought before the supreme Court, for many years. There are probably two reasons for this:
1) That, as stated above, “as has been shown, the decisions of this court have foreclosed that view”
2) That most subsequent cases (all that I have found) deal, specifically, with Amendments which were ratified after the Fourteenth, and deal with privileges granted to US citizens, such as suffrage, civil rights, etc.

Based upon the above, can there be any doubt that there are, in fact and in law, two classes of citizen in the United States; And, that one can be of one class, the other class, or both classes?