To determine, then, who were the citizens of the United States before the adoption of the [Fourteenth] amendment it is necessary to ascertain what persons originally associated themselves together to form the nation, and what were afterward admitted to membership.
The effect of this decision, and of the Fourteenth Amendment whose meaning it declared, was to determine definitively that National Citizenship is paramount to State Citizenship. But it did not entirely absorb the latter into the former. In the famous “Slaughter House Cases”[36] the Supreme Court three years before had held that there might be citizens of the United States who were not citizens of any state, and that the Fourteenth Amendment applied particularly, if not solely, to the privileges and immunities of citizens of the United States, as such, and did not necessarily limit the right of a state to inflict disabilities upon its own citizens.
The distinction between the two citizenships was thus stated in the Slaughter House cases:[37]
The distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union. It is quite clear, then, 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.
It is therefore decided that while a State may no longer decide the question of who shall be or become its citizens, the citizen of the United States must, before becoming a citizen of a State, take up his residence within the State. The term of residence is nowhere fixed, but a permanent residence or domicile is understood, “with intent that it shall continue until subsequent removal with the intent of abandoning such residence and acquiring another.”
These momentous adjudications did not, however, address themselves to the matter of political participation. Although a state might not determine who should constitute its citizen body, there was no curtailment of its full authority to determine what political privileges should exist, or who should enjoy them. Neither Federal nor state citizenship, per se, entitles a man or woman to vote or to hold office; these are matters of state legislation and a number of states have accorded, and two still accord, to aliens who have merely declared their intention to seek citizenship, the right to vote. Moreover, respected authorities[38] hold the opinion that, while no state can prevent a citizen of the United States from becoming a citizen of the state, a state may grant its own citizenship to one who is not—perhaps to one who cannot become—a citizen of the United States.[39] But the Act of Congress, May 6, 1882, expressly prohibits the naturalization of any Chinese person.
The courts from the beginning have recognized the existence of two concurrent, if not more or less separable, citizenships. In the Cruikshank case in 1875,[40] the Supreme Court said:
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 different jurisdictions. Together they make one whole, and furnish the people of the United States with one 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.... 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 penalty which each exacts for disobedience to its laws. In return he can demand protection from each within its own jurisdiction.
There is still another jurisdiction to which citizens must give attention, and to the foreigner it is an added perplexity in the understanding of our system: the purely local laws, ordinances, and rulings of city, health, police; of country, town, and village; and sometimes these seem to run counter to one another, and leave him in a maze of fear and uncertainty—to say nothing of those mysterious exceptions, exemptions, and immunities which seem to be accorded for the benefit of those who, by political loyalty or subserviency, favoritism—and even cash payments upon occasion—have got themselves “in right,” as the saying goes.
The problems of national solidarity and loyalty raised so acutely all over the country by the exigencies and conflicts of the war have made the mass of the people of the United States keen as never before about the standards and technical tests of citizenship. The tendency, very marked now, is to establish and uphold the uniformity of conditions which beyond a doubt shall represent the spirit, if not the letter, of the law. We are now to consider the machinery and the process which the aspirant for citizenship confronts as he knocks at our wicket.