A Treatise on Fourteenth Amendment Citizenship
by Phillip L. Shiver, sui juris
California state citizen
A "Person" is a Legal Entity
Legal history, from ancient times to the present, confirms that not all human beings
are "persons" before the law, and the "person" in one forum is not
necessarily the same "person" in another "lex loci." (1) "Homo
vocabulum est naturie; persona juris civilis" is a legal maxim which signifies that
"man is a term of nature: person of civil law."
In Roman law, the "person" was created to enable the law to cope with the multitude of castes in a highly stratified slave society:
"Whoever or whatever was capable of having and being subject to, rights was a persona. All men possessing a reasonable will would naturally be persona; but not all those who were, physically speaking, men, were persona. Slaves, for instance, were not in a position to exercise their reason and will, and the law, therefore, refused to treat them as persona. On the other hand, many persona had no physical existence." (2)
The "person," therefore, was an artificial conception created by the law to
satisfy the obligations of jurisdiction. It could not have been otherwise in a
cosmopolitan slave society, for if all human beings were citizens-- if all human beings
possessed rights by virtue of their nature-- the law would not have the means of
maintaining the distinctions between master and slave, citizen and foreigner. Hence, in
Roman society, it was necessary for the law to regard all individuals who entered that
society as rightless objects. Thereafter, the law ascribed to each a rank, class, peerage,
or caste, and each was sharply distinguished from the others by the privileges and duties
which attached, whether by virtue of the paterfamilias tradition, citizenship, or as a
result of legislative grant.
The influence of Roman authority in the British isles at the beginning of the millennium brought about an identity between the former's "person" and the English subject, in the development of the Common Law. All such persons came to hold their property, privileges, and immunities mediately or immediately of the king:
"A person is such, not because he is human, but because rights and duties are ascribed to him. The person is the legal subject or substance of which the rights and duties are attributes." (3)
By virtue of having his legal status "ascribed" to him, the English person is
born without inherent rights and, owing to the legacy of feudal society, has access only
to those privileges, under the King, which accord with his rank and station. He does not
have rights which are self-derived and self-asserted.
Before the American Revolution, the colonists were English subjects and their status
was unchanged from what it was before their departure from the homeland. Indeed, if one
reads the various entreaties to King George, resolutions, and communications with
Parliament which preceded the Declaration of Independence, the colonists saw themselves as
the King's loyal subjects and never raised a doubt about their allegiance.
However, with the publication of Thomas Paine's COMMON SENSE in February, 1776, and the adoption of the Declaration of Independence, with its premise that "all men are created equal," meaning that no difference existed between the station of King and American colonist/citizen, a profound legal revolution was impelled in tandem with the political one. The Revolution produced a citizenship that was unlike anything that was then known in law. State Citizenship became the highest legal order in society, and it was determined by the location of birth or by naturalization. In the words of Chief Justice John Jay, America became a land of "sovereigns without subjects... [who] have none to govern but themselves; the citizens of America are equal as fellow citizens and as joint tenants in the sovereignty." (4)
A Citizen is Not Necessarily a "Person"
The net result of this revolution in jurisprudence was to forever divorce the Citizen from the person in American law, to see the former as possessing inalienable, Creator-endowed rights, while the latter retained his position in the law as the bearer of privileges (never rights) whose source was the civil jurisdiction. Thus, while the Citizen was the sovereign, the "person" remained the catch-all legal entity for non-Citizen freemen, corporations, and other associations. This difference in elevation was not lost upon the Founding Father, for, as James Madison wrote:
"Nothing can be more chimerical than to imagine that in a trial of actual force victory may be calculated by the rules which prevail in a census of the inhabitants, or which determine the event of an election! May it not happen, in fine, that the minority of citizens may become a majority of persons, by the assession of alien residents, of a casual concourse of adventurers, or of those whom the constitution of the State has not admitted to the rights of suffrage?" (5)
The coexistence of the Citizen and the person in American law has long been a feature
of the legal landscape. As a result of slavery, the presence of indigenous and territorial
inhabitants, and migrants from other lands, state Citizenship was not a legal status
immediately available to every inhabitant of this continent. Furthermore, in the years
immediately following the "Civil War," the emancipation of former slaves, both Black and White, infused the legal system
with people who had no prior place in it. Obviously, they were not sovereign Citizens in
their states, possessing inalienable rights, for slaves could not attain that status
merely by virtue of becoming free. One was either born or naturalized into Citizenship.
When Congress enacted the Civil Rights Act of 1866, it clearly spoke to the distinction between the Citizen and the "person":
"[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude... shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefits of all laws and proceedings for the security of person and property, as is enjoyed by white citizens...." (6)
The Civil Rights Act created a verisimilitude of citizenship for these
"persons," for they were obviously not declared to be on an equal footing, in
all respects, as state Citizens, but merely granted certain parallel common-law
privileges. When Congress distinguished "citizens" from the word
"persons," it was recognizing that the state Citizen was not granted privileges
by civil law, but that in the law of nature, he derived inalienable sovereign rights of
life, liberty, and property from birth. It was not legally possible for Congress to
ascribe rights to the sovereign; it could only grant "civil rights" to those of
a lower status, namely "persons."
The California Court of Appeals put it well when it held that a civil right "is a right given and protected by law, and a person's enjoyment thereof is regulated entirely by the law that creates it." (7)
Fourteenth Amendment "Citizens" are Federal Subjects
Section 1 of the Fourteenth Amendment to the Constitution provides:
"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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Irrespective of the validity of its ratification, (8) the Fourteenth Amendment's avowed
purpose was to federally grant the newly freed slaves, or "persons," the same
access to the law as state Citizens. The California Supreme Court opined that the
"purpose of the Fourteenth Amendment to the Constitution of the United States was to
confer the status of citizenship upon a numerous class of persons domiciled within the
limits of the United States who could not be brought within the operation of
naturalization laws because native born, and whose birth, though native, had at the same
time, left them without the status of citizenship." (9)
Thus, the legal effect of the Fourteenth Amendment was to create a new status, a new
class of citizenship within this country-- one which was attached to the federal
jurisdiction instead of a state, possessing statutorily granted privileges instead of
rights, and vested with revocable legislative benefits (such as Social Security and the
driver's license which were later given as privileges) instead of inherent sovereign
The "United States" referred to in the Fourteenth Amendment was the federal government and not the Union of sovereign states. This is evident from the fact that the word "thereof" in the jurisdictional clause is singular and not plural and that dual citizenship was postulated-- that of the United States and that of the state within which the "person" resides. Since all jurisdiction is territorial, (10) this meant that all of these federal persons became territorial citizens, attached to and owing their allegiance to the seat of the United States government, the District of Columbia. (11) Like the Civil Rights Act of 1866, which preceded it, the Fourteenth Amendment required the states to extend due process and equal protection of the law to "persons," but it did not say that they were the same, in all respects, as state Citizens. Had that been the intent, then the Fourteenth Amendment would have simply referred to the Comity Clause of the United States Constitution:
"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." (12)
Arnold T. Guminski, in his exhaustive study of the origins of the privileges and
immunities clause of the Fourteenth Amendment, pointed out that the privileges and
immunities of United States citizens under the Fourteenth Amendment actually derived from
concepts of Congress' exhaustive territorial jurisdiction, rather than from the
Citizen-oriented Comity Clause. (13)
As adjudications under the Fourteenth Amendment were progressively resolved, it became apparent that United States citizenship was not under the same set of rules as state Citizenship:
"The Fourteenth Amendment creates and defines citizenship of the United States. It had long been contended, and had been held by many learned authorities, and had never been judicially decided to the contrary, that there was no such thing as a citizen of the United States, except by first becoming a citizen of some state.... The rights of citizens of the state, as such, are not under consideration in the Fourteenth Amendment. They stand as they did before the adoption of the Fourteenth Amendment and are fully guaranteed by other provisions." (14)
How did the state and federal courts regard the rights of state Citizens before the Fourteenth Amendment?
"The people of this State, as the successors of its former sovereigns, are entitled to all the rights which formerly belonged to the King by his prerogative." (15)
"The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole." (16)
Seventy-seven years later, the United States Supreme Court made it clear that the
federal United States citizen, the "person," did not stand in the same
relationship to constitutional guarantees as the state Citizen. Although they came to
different conclusions about the constitutionality of Utah's eight man juries in felony
cases, both the majority and dissenting opinions in Maxwell v. Dow (17) agreed that the
privileges and immunities of citizens of the United States did not necessarily include all
the rights protected by the first eight amendments of the federal Constitution.
In Twining v. New Jersey (18), the United States Supreme Court scoped and enumerated the rather limited privileges that were part of United States, rather than state, citizenship:
"Privileges and immunities of citizens of the United States, on the other hand, are only such as arise out of the nature and essential character of the national government, or are specifically granted or secured to all citizens or persons by the Constitution of the United States.... Thus, among the rights and privileges of national citizenship recognized by this court are the right to pass freely from state to state...; the right to petition Congress for a redress of grievances...; the right to vote for national affairs...; the right to be protected against violence while in the lawful custody of a United States marshall...; and the right to inform the United States authorities of violation of its laws..." [citations omitted] (19)
While the impact of the Civil Rights movement and the claims of other persons for equal standing before the law has led to growth in the protections afforded United States citizens, one essential fact is inescapable: The privileges and immunities of U.S. citizens, also called "civil rights," are the product of judicial decrees or legislation. They are not now and have never been construed to be the birthright of such persons. It is only state Citizens who claim and assert their inalienable sovereign status who can make that claim:
"The privileges and immunities protected by the Fourteenth Amendment... are not those fundamental privileges and immunities inherent in state citizenship but only those which owe their existence to the federal government, its national character, its Constitution, or its laws." (20)
State Citizens Are Not Subject to the Same Laws as U.S. Citizens
The distinction between these two classes of citizenship-- state and United States-- has been recognized in California, by both the judiciary and the legislature, throughout that state's history:
"By metaphysical refinement, in examining our form of government, it might be correctly said that there is no such thing as a citizen of the United States. But constant usage-- arising from convenience, and perhaps, necessity, and dating from the formation of the Confederacy-- has given substantial existence to the idea which the term conveys. A citizen of any one of the States of the Union, is held to be, and called a citizen of the United States, although technically and abstractly there is no such thing. To conceive a citizen of the United States who is not a citizen of some one of the states, is totally foreign to the idea, and inconsistent with the proper construction and common understanding of the expression as used in the Constitution, which must be deduced from its various other provisions. The object then to be obtained, by the exercise of the power of naturalization, was to make citizens of the respective states." (21)
While the Fourteenth Amendment, in 1868, purportedly reduced the abstraction of U.S. citizenship to a reality, this was never held in California to prejudice the inherent sovereignty of the state Citizen. The Supreme Court has also held that citizenship of the United States does not entitle one to the privileges and immunities of state Citizenship, since "the privileges and immunities of one are not the same as the other." (22) Suffrage under the California constitution of 1849 was limited to state Citizens:
"Every white male citizen of the United States, and every white male citizen of Mexico, who shall have elected to become a citizen of the United States... shall be entitled to vote at all elections which are now or hereafter may be authorized by law." (23)
Since there were no Fourteenth Amendment U.S. citizens in 1849, the California constitution was referring to state Citizens, as discussed in the Knowles case. But even in the statutes enacted for U.S. persons after the Fourteenth Amendment, California still distinguished her Citizens from those of other jurisdictions. The original Political Code of California retained this distinction:
"Persons in the state not its citizens are either:
(a) Citizens of other states; or
(b) Aliens." (24)
Clearly, California law saw federal citizens, not Citizens of other
states, as aliens.
Other statutory distinctions have been made in California between Citizens and persons. For example, in the recently repealed duelling provisions of the Penal Code, enacted in 1872, the penalties attaching to the two classes were different:
"In common usage, that term [person] does not include the sovereign, and statutes employing it will ordinarily not be construed to do so." (25)
1. "Lex loci" is Latin for "the law of the place."
2. Institutes of Justinian.
3. Pollack, First Treatise on Jurisprudence, quoted in Black's Law Dictionary (4th Rev. Ed., 1968), p. 1300.
4. Chisolm v. Georgia, 2 U.S. 419, 471-472, 1 L.Ed. 440, 463 (1793).
5. The Federalist, No. 43.
6. Civil Rights Act (1866), Chapter 31, 39 Stat. 27.
7. Nickell v. Rosenfield (1927), 82 Cal.App. 369, 375; 255 P. 760.
8. Reference: Dyett v. Turner (1968), 20 Utah 2d 403, 439 P.2d 266; article: "There is No 'Fourteenth Amendment'!", U.S. News and World Report, September 27, 1957.
9. Valkenburg v. Brown (1872), 43 Cal. 43, 47.
10. Reference: Sandberg v. McDonald, 248 U.S. 185, 195, 63 L.Ed. 200, 204.
11. Reference: 4 USCS 71-72.
12. U.S. Constitution, Article IV, Section 2.
13. Reference: Arnold T. Guminski, article: "The Rights, Privileges, and Immunities of the American People: A Disjunctive Theory of Selective Incorporation of the Bill of Rights," 7 Whittier Law Review (1985) 765, 767.
14. United States v. Susan B. Anthony (1873), 24 Fed. Cas. 829.
15. Lansing v. Smith (1829), 4 Wend. 9 (N.Y.).
16. Corfield v. Coryell (1823), 6 Fed. Cas. 546.
17. Maxwell v. Dow (1900), 176 U.S. 581, 44 L.Ed. 597.
18. Twining v. New Jersey (1908), 211 U.S. 78, 53 L.Ed. 97.
19. Ibid., supra, 97-98, 53 L.Ed. at 105.
20. Cleveland Raceways, Inc. v. Bowers (Ohio, 1958), 163 N.E.2d 73; see also Jones v. Temmer (D.C., Colo., 1993), 829 F.Supp. 1226.
21. Ex Parte Knowles (1855), 5 Cal. 300, 302.
22. K. Tashiro v. Jordan (1927), 201 Cal. 236, 246.
23. California Constitution (1849), Article II, Section 1.
24. Political Code of California, Section 57 (amended and now designated section 242 of the Government Code).
25. U.S. v. United Mine Workers (1946), 330 U.S. 258, 275, 91 L.Ed. 884, 903.
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