Yes there are two citizens in the nation
of the United States under international law
©2011 Dan Goodman
(with permission)
Before the Fourteenth Amendment, there was only a citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution of the United States of America. [Footnote 1] Such a citizen was also a citizen of the United States, under the law of nations (international law). [Footnote 2]
However, in the Slaughterhouse Cases (1873), the Supreme Court decided that because of the Fourteenth Amendment, citizenship of a State was to be separate and distinct from citizenship of the United States. A citizen of a State was to be considered as separate and distinct from a citizen of the United States.
“Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respective are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause (Section 1, Clause 2 of the Fourteenth Amendment) under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.” Slaughterhouse Cases: 83 U.S. (16 Wall.) 36, at 74 (1873).
https://books.google.com/books?id=DkgFAAAAYAAJ&pg=PA74#v=onepage&q&f=false
In addition:
“In the Slaughter-house cases, 16 Wall. 36, the subject of the privileges or immunities of citizens of the United States, as distinguished from those of a particular State, was treated by Mr. Justice Miller in delivering the opinion of the court. He stated . . . that it was only privileges and immunities of the citizen of the United States that were placed by the [Fourteenth] amendment under the protection of the Federal Constitution, and that the privileges and immunities of a citizen of a State, whatever they might be, were not intended to have any additional protection by the paragraph in question, but they must rest for their security and protection where they have heretofore rested.” Maxwell v. Dow: 176 U.S. 581, at 587 (1900).
https://books.google.com/books?id=8toGAAAAYAAJ&pg=PA587#v=onepage&q&f=false
And:
“. . . It is, then, to the Fourteenth Amendment that the advocates of the congressional act must resort to find authority for its enactment, and to the first section of that amendment, which is as follows: ‘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.’
In the first clause of this section, declaring who are citizens of the United States, there is nothing which touches the subject under consideration. The second clause, declaring that ‘no State shall make or enforce any law which will abridge the privileges or immunities of citizens of the United States,’ is limited, according to the decision of this court in Slaughter-House Cases, to such privileges and immunities as belong to citizens of the United States, as distinguished from those of citizens of the State.” Neal v. State of Delaware: 103 U.S. 370, at 406 (1880).
https://books.google.com/books?id=Y7wGAAAAYAAJ&pg=PA406#v=onepage&q&f=false
So now there is a citizen of a State and there is a citizen of the United States:
“ . . . There is no inherent right in a citizen to thus sell intoxicating liquors by retail. It is not a privilege of a citizen of the State or of a citizen of the United States.” Crowley v. Christensen: 137 U.S. 86, at 91 (1890).
https://books.google.com/books?id=htIGAAAAYAAJ&pg=PA91#v=onepage&q&f=false
“ . . . In the Constitution and laws of the United States, the word ‘citizen’ is generally, if not always, used in a political sense to designate one who has the rights and privileges of a citizen of a State or of the United States. Baldwin v. Franks: 120 U.S. 678, at 690 (1887).
https://books.google.com/books?id=c04GAAAAYAAJ&pg=PA690#v=onepage&q&f=false
A citizen of the United States can become also a citizen of a State, under Section 1, Clause 1 of the Fourteenth Amendment:
“The question is presented in this case, whether, since the adoption of the fourteenth amendment, a woman, who is a citizen of the United States AND the State of Missouri, is a voter in that State, notwithstanding the provision of the constitution and laws of the State, which confine the right of suffrage to men alone. . . .
There is no doubt that women may be citizens. They are persons, and by the fourteenth amendment ‘all persons born or naturalized in the United States and subject to the jurisdiction thereof ‘ are expressly declared to be ‘citizens of the United States and of the State wherein they reside.’ “ Minor v. Happersett: 88 U.S. (21 Wall.) 162, at 165 (1874).
https://books.google.com/books?id=IEsGAAAAYAAJ&pg=PA165#v=onepage&q&f=false
“The Fourteenth Amendment declares that citizens of the United States are citizens of the state within they reside; therefore the plaintiff was at the time of making her application, a citizen of the United States AND a citizen of the State of Illinois.
We do not here mean to say that there may not be a temporary residence in one State, with intent to return to another, which will not create citizenship in the former. But the plaintiff states nothing to take her case out of the definition of citizenship of a State as defined by the first section of the fourteenth amendment.” Bradwell v. the State of Illinois: 83 U.S. 130, at 138 (1873).
https://books.google.com/books?id=DkgFAAAAYAAJ&pg=PA138#v=onepage&q=&f=false
In such case then there would be a citizen of a State, under Article IV, Section 2, Clause 1 [Footnote 3] of the Constitution and also a citizen of the United States AND a citizen of a State, under Section 1 of the Fourteenth Amendment:
“The bill filed in the Circuit Court by the plaintiff, McQuesten, alleged her to be ‘a citizen of the United States AND of the State of Massachusetts, and residing at Turner Falls in said State,’ while the defendants Steigleder and wife were alleged to be ‘citizens of the State of Washington, and residing at the city of Seattle in said State.’ “ Statement of the Case, Steigledger v. McQuesten: 198 U.S. 141 (1905).
“The averment in the bill that the parties were citizens of different States was sufficient to make a prima facie case of jurisdiction so far as it depended on citizenship.” Opinion, Steigledger v. McQuesten: 198 U.S. 141, at 142 (1905).
https://books.google.com/books?id=ceIGAAAAYAAJ&pg=PA141#v=onepage&q&f=false
A citizen of the United States, under the Section 1 of the Fourteenth Amendment, is recognized as such under the law of nations. A citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, is not recognized as such under international law. However, a citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution, is entitled to privileges and immunities of a citizen of the several States [Footnote 4], and as such, is also a citizen of the several States [Footnote 5]; that is, a citizen of all the States, generally. Such citizenship is to be recognized as such, for purposes of international law:
“Referring to §1307 of Mr. Justice Story’s Commentaries on the Constitution, and the cases cited, to which he added Benton v. Burgot, 10 S. & R. 240, the learned judge inquired: ‘What, then, is the right of a state to exercise authority over the persons of those who belong to another jurisdiction, and who have perhaps not been out of the boundaries of it?’ (p. 450) and quoted from Vattel, Burge, and from Mr. Justice Story (Conflict of Laws, c. 14, §539), that ‘ “no sovereignty can extend its process beyond its own territorial limits to subject other persons or property to its judicial decisions. Every exertion of authority beyond these limits is a mere nullity, and incapable of binding such persons or property in other tribunals,” ’ and thus continued: ‘ “Such is the familiar, reasonable, and just principle of the law of nations; and it is scarce supposable that the framers of the Constitution designed to abrogate it between States which were to remain as independent of each other, for all but national purposes, as they were before the revolution. . . . . (page 296)
Publicists concur that domicile generally determines the particular territorial jurisprudence to which every individual is subjected. As correctly said by Mr. Wharton, the nationality of our citizens is that of the United States [Fn 6], and by the laws of the United States [Fn 6] they are bound in all matters in which the United States ARE [Footnote 6] sovereign; but in other matters, their domicile is in the particular State, and that determines the applicatory territorial jurisprudence. A foreign judgment is impeachable for want of personal service within the jurisdiction of the defendant, this being internationally essential to jurisdiction in all cases in which the defendant is not a subject of the State entering judgment; and it is competent for a defendant in an action on a judgment of a sister State, as in an action of a foreign judgment, to set up as a defense, want of jurisdiction, in that he was not an inhabitant of the State rendering the judgment and had not been served with process and did not enter his appearance. Whart. Conflict Laws, §§ 32, 654, 660; Story Conflict Laws, §§ 539, 540, 586.
John Benge was a citizen of Maryland when he executed this obligation. The subject-matter of the suit against him in Pennsylvania was merely the determination of his personal liability.” Grover & Baker Sewing Machine Company v. Radcliffe: 137 U.S. 287, at 296, 297 thru 298 (1890).
https://books.google.com/books?id=htIGAAAAYAAJ&pg=PA296#v=onepage&q&f=false
Therefore, the nationality of a citizen of a State, under Article IV, Section 2, Clause 1 of the Constitution of the United States of America is that of being a citizen of the several States. This is shown in Blake v. McClung (172 U.S. 239, 1898):
“. . . So, a State may, by rule uniform in its operation as to citizens of the several States, require residence within its limits for a given time before a citizen of another State who becomes a resident thereof shall exercise the right of suffrage or become eligible to office. It has never been supposed that regulations of that character materially interfered with the enjoyment by citizens of each State of the privileges and immunities secured by the Constitution TO CITIZENS OF THE SEVERAL STATES. The Constitution forbids only such legislation affecting citizens of the respective States as will substantially or practically put a citizen of one State in a condition of alienage when he is within or when he removes to another State, or when asserting in another State the rights that commonly appertain to those who are part of the political community known as the People of the United States, by and for whom the Government of the Union was ordained and established. Blake v. McClung: 172 US. 239, at 256 thru 257 (1898).
https://books.google.com/books?id=G2oUAAAAYAAJ&pg=PA256#v=onepage&q&f=false
Thus, there are two citizens in the nation of the United States, for purposes of international law, or the law of nations.
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Footnotes:
1. This article deals with citizenship under the Constitution of the United States of America, and not with naturalization under the Constitution. Naturalization is covered in the Constitution at Article 1, Section 8, Clause 4 (and recognized in Section 1, Clause 1 of the Fourteenth Amendment).
2. (Before the 14th Amendment)
“The intercourse of this country with foreign nations and its policy in regard to them, are placed by the Constitution of the United States in the hands of the government, and its decisions upon these subjects are obligatory upon every citizen of the Union. He is bound to be at war with the nation against which the war-making power has declared war, and equally bound to commit no act of hostility against a nation with which the government is in amity and friendship. This principle is universally acknowledged by the laws of nations. It lies at the foundation of all government, as there could be no social order or peaceful relations between the citizens of different countries without it. It is, however, more emphatically true in relation to citizens of the United States. For as the sovereignty resides in the people, every citizen is a portion of it, and is himself personally bound by the laws which the representatives of the sovereignty may pass, or the treaties into which they may enter, within the scope of their delegated authority. And when that authority has plighted its faith to another nation that there shall be peace and friendship between the citizens of the two countries, every citizen of the United States is equally and personally pledged. The compact is made by the department of the government upon which he himself has agreed to confer the power. It is his own personal compact as a portion of the sovereignty in whose behalf it is made. And he can do no act, nor enter into any agreement to promote or encourage revolt or hostilities against the territories of a country with which our government is pledged by treaty to be at peace, without a breach of his duty as a citizen and the breach of the faith pledged to the foreign nation.” Kennett v. Chambers: 55 U.S. 38, 49 thru 50 (1852).
https://books.google.com/books?id=LgAGAAAAYAAJ&pg=PA49#v=onepage&q&f=false
3. It is to be noted that privileges and immunities of a citizen of a State are in the constitution and laws of a particular State:
“. . . Whatever may be the scope of section 2 of article IV -- and we need not, in this case enter upon a consideration of the general question -- the Constitution of the United States does not make the privileges and immunities enjoyed by the citizens of one State under the constitution and laws of that State, the measure of the privileges and immunities to be enjoyed, as of right, by a citizen of another State under its constitution and laws.” McKane v. Durston: 153 U.S. 684, at 687 (1894).
https://books.google.com/books?id=mmkUAAAAYAAJ&pg=PA687#v=onepage&q=&f=false
4. “There can be no doubt that Balk, as a citizen of the State of North Carolina, had the right to sue Harris in Maryland to recover the debt which Harris owed him. Being a citizen of North Carolina, he was entitled to all the privileges and immunities of citizens of the several States, one of which is the right to institute actions in the courts of another State.” Harris v. Balk: 198 U.S. 215, at 223 (1905).
https://books.google.com/books?id=ceIGAAAAYAAJ&pg=PA223#v=onepage&q=&f=false
5. “The intention of section 2 of Article 4 was to confer on the citizens of the several States a general citizenship, and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances, and this includes the right to institute actions.” Cole v. Cunningham: 133 U.S. 107, at 113 thru 114 (1890).
https://books.google.com/books?id=oGYUAAAAYAAJ&pg=PA113#v=onepage&q=&f=false
“In speaking of the meaning of the phrase ‘privileges and immunities of citizens of the several States,’ under section second, article fourth, of the Constitution, it was said by the present Chief Justice, in Cole v. Cunningham, 133 U.S. 107, that the intention was ‘to confer on the citizens of the several States a general citizenship, and to communicate all the privileges and immunities which the citizens of the same State would be entitled to under the like circumstances, and this includes the right to institute actions.’ “ Maxwell v. Dow: 176 U.S. 581, at 592 (1900).
https://books.google.com/books?id=8toGAAAAYAAJ&pg=PA592#v=onepage&q&f=false
6. The term “the United States,” as used therein, refers to the several States united:
“At the time of the formation of the constitution, the States were members of the confederacy united under the style of ‘the United States of America,’ and upon the express condition that ‘each State retains its sovereignty, freedom, and independence.’ And the consideration that, under the confederation, ‘We, the people of the United States of America,’ indubitably signified the people of the several States of the Union, as free, independent and sovereign States, coupled with the fact that the constitution was a continuation of the same Union (“a more perfect Union”), and a mere revision or remodeling of the confederation, is absolutely conclusive that, by the term, ‘the United States’ is meant the several States united as independent and sovereign communities; and by the words, ‘We, the people of the United States,’ is meant the people of the several States as distinct and sovereign communities, and not the people of the whole United States collectively as a nation.” Stunt v. Steamboat Ohio: 4 Am. Law. Reg. 49, at 95 (1855), Dis. Ct., Hamilton County, Ohio; and (same wording) Piqua Bank v. Knoup, Treasurer: 6 Ohio 261, at 303 thru 304 (1856).
https://books.google.com/books?id=pWhKAAAAYAAJ&pg=PA95#v=onepage&q&f=false
https://books.google.com/books?id=UfADAAAAYAAJ&pg=PA303#v=onepage&q&f=false
This is also shown in the Constitution of the United States of America at Article III, Section 3, Clause 1, whereat it states:
“Treason against the United States, shall consist only in levying War against THEM.”
https://www.archives.gov/exhibits/charters/constitution_transcript.html
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