History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2 / With Notices of Its Principle Framers

by George Ticknor Curtis

This part of the scheme consisted in the transfer of the power of naturalization to the general government; a power that was necessarily made exclusive, by being made a power to establish a uniform rule on the subject.

These provisions were not only necessary in the actual situation of the States, but they were also in harmony with the great purpose of the representative system that had been agreed upon as the basis of one branch of the legislative power. In that branch the people of each State were to be represented; but they were to remain the people of a distinct community, whose modes of exercising the right of self-government would be peculiar to themselves; and that would obviously be the most successful representation of such a people in a national assembly, which most conformed itself to their habits and customs in the organization of their own legislative bodies. Accordingly, although very strenuous efforts were made to introduce into the Constitution of the United States particular theories with regard to popular suffrage,—some of the members being in favor of one restriction and some of another,—the rule which referred the right in each State to its domestic law was sustained by a large majority of the Convention. But the power that was given, by unanimous consent, over the subject of naturalization, shows the strong purpose that was entertained of vesting in the national authority an efficient practical control over the States in respect to the political rights to be conceded to persons not natives of the country.[133]

As we have already seen, the committee of detail had been instructed to report qualifications of property and citizenship for the members of every department of the government. But they found the subject so embarrassing, that they contented themselves with providing that the legislature of the United States should have authority to establish such uniform qualifications for the members of each house, with regard to property, as they might deem expedient.[134] They introduced, however, into their draft of a Constitution, an express provision that every member of the House of Representatives should be of the age of twenty-five years at least, should have been a citizen of the United States for at least three years before his election, and should be, at the time of his election, a resident in the State in which he might be chosen.[135]

A property qualification for the members of the House of Representatives was a thing of far less consequence than the fact of citizenship. Indeed, there might well be a doubt, whether a requisition of this kind would not be in some degree inconsistent with the character that had already been impressed upon the government, by the compromise which had settled the nature of the representation in the popular branch. It was to be a representation of the people of the States; and as soon as it was determined that the right of suffrage in each State should be just as broad as the legislative authority of the State might see fit to make it, the basis of the representation became a democracy, without any restrictions save those which the people of each State might impose upon it for themselves. If then the Constitution were to refrain from imposing on the electors a property qualification, for the very purpose of including all to whom the States might concede the right of voting within their respective limits, thus excluding the idea of a special representation of property, it was certainly not necessary to require the possession of property by the representatives, or to clothe the national legislature with power to establish such a qualification. The clause reported by the committee of detail for this purpose was accordingly left out of the Constitution.[136]

But with respect to citizenship, as a requisite for the office of a representative or a senator, very different considerations applied. With whatever degree of safety the States might be permitted to determine who should vote for a representative in the national legislature, it was necessary that the Constitution itself should meet and decide the grave questions, whether persons of foreign birth should be eligible at all, and if so, at what period after they had acquired the general rights of citizens. It seems highly probable, from the known jealousies and fears that were entertained of foreign influence, that the eligibility to office would have been strictly confined to natives, but for a circumstance to which allusion has already been made. The presence of large numbers of persons of foreign birth, who had adopted, and been adopted by, some one of the States, who stood on a footing of equality with the native inhabitants, and some of whom had served the country of their adoption with great distinction and unsuspected fidelity, was the insuperable obstacle to such a provision. The objection arising from the impolicy of discouraging future immigration had its weight; but it had not the decisive influence which was conceded to the position of those foreigners already in the country and already enjoying the rights of citizenship under the laws and constitutions of the several States. That men should be perpetually ineligible to office under a constitution which they had assisted in making, could not be said to be demanded by the people of America.

The subject, therefore, was found of necessity to resolve itself into the question, what period of previous citizenship should be required. The committee of detail proposed three years. Other members desired a much longer period. Hamilton, on the other hand, supported by Madison, proposed that no definite time should be established by the Constitution, and that nothing more should be required than citizenship and inhabitancy. He thought that the discretionary power of determining the rule of naturalization would afford the necessary means of control over the whole subject. But this plan did not meet the assent of a majority of the States, and, after various periods had been successively rejected, the term of seven years' citizenship as a qualification of members of the House of Representatives was finally established.

But was this qualification to apply to those foreigners who were then citizens of the States, and who, as such, would have the right to vote on the acceptance of the Constitution? Were they to be told that, although they could ratify the Constitution, they could not be eligible to office under it, until they had enjoyed the privileges of citizenship for seven years? They had been invited hither by the liberal provisions of the State institutions; they had been made citizens by the laws of the State where they resided; the Articles of Confederation gave them the privileges of citizens in every other State; and thus the very communities by which this Convention had been instituted were said to have pledged their public faith to these persons, that they should stand upon an equality with all other citizens. It is a proof that their case was thought to be a strong one, and it is a striking evidence of the importance attached to the principles involved, that an effort was made to exempt them from the operation of the rule requiring a citizenship of seven years, and that it was unsuccessful.[137]

It is impossible now to determine how numerous this body of persons were, in whose favor the attempt was made to establish an exception to the rule; and their numbers constitute a fact that is now historically important only in its bearing upon a principle of the Constitution. From the arguments of those who sought to introduce the exception, it appears that fears were entertained that the retrospective operation of the rule would expose the acceptance of the Constitution to great hazards; for the States, it was said, would be reduced to the dilemma of rejecting it, or of violating the faith pledged to a part of their citizens. Accordingly, the implied obligation of the States to secure to their citizens of foreign birth the same privileges with natives was urged with great force, and it was inferred from the notorious inducements that had been held out to foreigners to emigrate to America, and to avail themselves of the easy privileges of citizenship. Whether the United States were in any way bound to redeem these alleged pledges of the States, was a nice question of casuistry, that was a good deal debated in the discussion. But in truth there was no obligation of public faith in the case, the disregard of which could be justly made a matter of complaint by anybody. When the States had made these persons citizens, and through the Articles of Confederation had conferred upon them the privileges of citizens in every State in the Union, they did not thereby declare that such adopted citizens should be immediately eligible to any or all of the offices under any new government which the American people might see fit to establish at any future time. To have said that they never should be eligible, would have been to establish a rule that would have excluded some of the most eminent statesmen in the country. But the period in their citizenship when they should be made eligible, was just as much an open question of public policy, as the period of life at which all native and all adopted citizens should be deemed fit to exercise the functions of legislators. If the citizen of foreign birth was disfranchised by the one requirement, the native citizen was equally disfranchised by the other, until the disability had ceased. The question was decided, therefore, and rightly so, upon large considerations of public policy; and the principal reasons that exercised a controlling influence upon the decision, and caused the refusal to establish any exception to the rule, afford an interesting proof of the national tone and spirit that were intended to be impressed upon the government at the beginning of its history.

It was quite possible, as all were ready to concede, that the time might arrive, when the qualification of so extended a period of citizenship as seven years might not be practically very important; since the people, after having been long accustomed to the duty of selecting their representatives, would not often be induced to confer their suffrages upon a foreigner recently admitted to the position of a citizen. The mischiefs, too, that might be apprehended from such appointments would be far less, after the policy of the government had been settled and the fundamental legislation necessary to put the Constitution into activity had been accomplished. But the first Congress that might be assembled under the Constitution would have a work of great magnitude and importance to perform. Indeed, the character which the government was to assume would depend upon the legislation of the few first years of its existence. Its commercial regulations would then be mainly determined. The relations of the country with foreign nations, its position towards Europe, its rights and duties of neutrality, its power to maintain a policy of its own, would all then be ascertained and settled. Nothing, therefore, could be more important, than to prevent persons having foreign attachments from insinuating themselves into the public councils; and with this great leading object in view, the Convention refused, though by a mere majority only of the States, to exempt from the rule those foreigners who had been made citizens under the naturalization laws of the States.[138]

Thus it appears that the Constitution of the United States discloses certain distinct purposes with reference to the participation of foreigners in the political concerns of the country. In the first place, it was clearly intended that there should be no real discouragement to immigration. The position and history of the country from its first settlement, its present and prospective need of labor and capital, its territorial extent, and the nature of its free institutions, were all inconsistent with any policy that would prevent the redundant population of Europe from finding in it an asylum. Accordingly, the emigrant from foreign lands was placed under no perpetual disqualifications. The power of naturalization that was conferred upon the general government, and the accompanying circumstances attending its transfer by the States, show an intention that some provision should be made for the admission of emigrants to the privileges of citizenship, and that in this respect the inducements to a particular residence should be precisely equal throughout the whole of the States. The power was not to remain dormant, under ordinary circumstances, although there might undoubtedly be occasions when its exercise should be suspended. The intention was, that the legislature of the United States should always exercise its discretion on the subject; but the existence of the power, and the reasons for which it was conferred, made it the duty of the legislature to exercise that discretion according to the wants of the country and the requirements of public policy.