The principle here involved is illustrated by a law of California, held to be constitutional by the Supreme Court of the United States, that “due process of law” is not denied to a person who, in that State, by its law, was “prosecuted by information,” and (as was claimed) was “tried and illegally found guilty of (murder) without any presentment or indictment of any grand or other jury.”[477]
The Court sustained the State law as securing due process of law in principle,—that “prosecution by information” instead of “indictment of a jury” is not a violation of the principle but merely a variation of the form of due process of law.[478] In other words, the California law in no way disparaged or abridged the privileges or immunities of the citizen.[479]
168. The principle regulating the definition of United States citizenship is that principle of the common law which recognizes “the ancient rule of citizenship by birth within the dominion.”[480]
Naturalization is an artificial birth made possible by the will of sovereignty. It is effected by the operation of law,—and in America, by operation of statutory law only. Congress has not the exclusive power to pass naturalization laws, but it has the exclusive power “to establish a uniform rule of naturalization.”[481] The power exercised here is suggested in the word “uniform.”[482] Congress has seen fit to vest the exercise of this power in certain courts of law. Strictly speaking, the exercise of the function, in any of its aspects, is not essentially judicial. Courts of law have no functions, can exercise no functions, and no functions can be imposed upon them except those of a judicial nature.[483] If the courts are willing to exercise a ministerial function and are empowered to exercise it by Congress, as in the naturalization of aliens, that exercise cannot be questioned as being unconstitutional.
169. The test here is jurisdiction. A person may by voluntary expatriation become allegiant to another jurisdiction or sovereignty, but he cannot escape allegiance to some one jurisdiction. He must be citizen or subject of a sovereignty. As all property capable of ownership must have an owner, so must every person be citizen or subject of some sovereignty. A vessel, wherever it may be, is part of the territory of the country to which it belongs.[484] By parity of reasoning a person is deemed allegiant to some jurisdiction or sovereignty. A vessel owning no jurisdiction is a pirate.
170. The Fifteenth Amendment declares that the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. This Amendment
does not take away from the State governments in a general sense the power over suffrage which has belonged to those governments from the beginning, and without the provision of which power the whole fabric upon which the division of State and national authority under the Constitution and the organization of both governments rest would be without support and both the authority of the nation and of the State would fall to the ground. In fact, the very command of the Amendment recognizes the possession of the general power by the States since the Amendment seeks to regulate its exercise as to the particular subject with which it deals.[485] The Amendment does not change, modify, or deprive the States of their full power as to suffrage, except of course as to the subject with which the Amendment deals, and to the extent that obedience to its command is necessary. Thus the authority over the suffrage which the States possess, and the limitations which the Amendment imposes, are co-ordinate, and one may not destroy the other without bringing about the destruction of both.[486]
But while the Amendment “gives no right of suffrage”
... the result might arise that as a consequence of the striking down of a discriminating clause, a right of suffrage would be enjoyed by reason of the generic character of the provision which would remain after the discrimination was stricken out.[487]
171. Both the States and the United States are forbidden by the Constitution to enact ex post facto laws. The prohibition affects every citizen as securing him from the peril of legislation of the kind forbidden. It is a sweeping limitation of power for his or her benefit, and operates for all citizens of whatever age, condition, or circumstance. An ex post facto law is one that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes that action; that aggravates a crime, or makes it greater than it was when committed; that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; that alters the legal rules of evidence, and receives less or different testimony than the law required, at the time of the commission of the offense, in order to convict the offender. But no law is ex post facto within the constitutional prohibition that “mollifies the rigor of the criminal law.” Only those laws are ex post facto which “create, or aggravate the crime, or increase the punishment, or change the rules of evidence, for the purpose of conviction.”[488]