CHAPTER XII
THE LAW OF CITIZENSHIP
163. “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.”[453] The phrase “subject to the jurisdiction thereof” excludes “children of ministers, consuls, and citizens or subjects of foreign states born within the United States.”[454] The supreme law clearly recognizes and establishes a distinction between United States citizenship and State citizenship. To be a citizen of a State, a person must reside within that State, but to be a citizen of the United States, it is necessary only that he or she be born or naturalized within the jurisdiction of the United States. Thus American citizenship, like the operation of American constitutional law in all its aspects, is a matter of jurisdiction, or sovereignty.
In America there are two citizenships, distinct from each other, and depending upon different characteristics and circumstances, and the essential difference is caused by a difference of jurisdiction. In strict conformity to this distinction, the Constitution prohibits a State from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States.”[455] The limitation is not as to laws affecting the privileges and immunities of citizens of the several States; equality of citizens of States is secured by another provision.[456]
The privileges and immunities of the citizen of one State removing to another State are the same, no more, no less, than the privileges and immunities of the citizens of the State into which he or she removed.[457] The privileges and immunities of citizens of the several States rest for security and protection with the States themselves,—where they rested before the Constitution was made. These privileges and immunities are not placed under the care of the United States except so far as the Constitution declares that, “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” These privileges and immunities of citizens of the several States are fundamental,[458] and are commonly set forth in Bills of Rights found in the State constitutions. The sole purpose of the Fourteenth Amendment is 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 the rights of citizens of other States within your jurisdiction.[459]
164. What then are the privileges and immunities of citizens of the United States? They are the privileges and immunities secured to them by the Constitution. Among them are
to come to the seat of government to assert any claim he may have upon that government; to transact any business he may have with it; to share its offices; to engage in administering its functions; the right of free access to its seaports, through which all operations of foreign commerce are conducted; to the subtreasuries, land offices, and courts of justice in the several States[460]; “to demand the care and protection of the federal government over his life, liberty, and property when on the high seas, or within the jurisdiction of a foreign government; to peaceably assemble and petition for redress of grievances; the privilege of habeas corpus; to use the navigable waters of the United States however they may penetrate the territory of the several States; all rights secured to (American) citizens by treaties with foreign nations”; the right, on his own volition to become a citizen of any State of the United States by a bona fide residence therein, with the same rights as other citizens of that State.[461]
Thus it appears that the rights of a citizen—his “privileges and immunities”—are measurable by the jurisdiction of the sovereignty to which he owes allegiance. Between allegiance and protection as between citizenship and sovereignty there is a reciprocal relation.
165. The Fourteenth Amendment did not add to the privileges and immunities of a citizen.[462] It simply furnished an additional guaranty to the protection of such as he already had. It did not add the right of suffrage to these privileges and immunities as they existed at the time of the adoption of the Constitution. The United States guarantees to every State in the Union a republican form of government,[463] but this is not a guarantee to any citizen of the right to vote, nor does the Constitution confer that right on any person.[464] That right (or privilege, as it is in strict contemplation of law) was not the same among the original States, the qualifications for voting differing widely among them, and also in the same State at different times.[465] When the Constitution confers citizenship it does not confer the right to vote.