The meaning of citizenship in the United States has undergone significant changes throughout its history, and recent debates about who is and who isn’t a citizen and what rights citizens are entitled to demonstrate how citizenship remains contested today. Some of the most profound changes in U.S. citizenship took place in the years immediately before and after the American Civil War. For a long time my understanding of these changes was marked by the U.S. Supreme Court’s 1857 decision in the Dred Scott case and subsequent actions after the war by Congress through the Civil Rights Act of 1866 and the 14th Amendment to the Constitution that overturned the Dred Scott decision.
Dred Scott was a St. Louis slave whose master, Dr. John Emerson, had taken him into free soil for four years while serving as a U.S. Army doctor. Upon returning to St. Louis in 1843 and attempting to buy his freedom without success, Scott sued for his freedom in 1846. The case had many twists, turns, and appeals on its way to the Supreme Court, where Chief Justice Roger Taney declared that Scott was not entitled to his freedom and that “colored men,” whether free or slave, “had no rights which the white man was bound to respect.” People of color were not citizens of the United States and had no right to use the courts for legal recourse, according to Taney. The Civil Rights Act of 1866 departed from Taney’s premise by stating that all people born in the United States were entitled to be citizens “without regard to race, color, or previous condition of slavery or involuntary servitude” and that all citizens were entitled to equal protection of all laws. The text from the citizenship clause of the Civil Rights Act was later copied into the 14th Amendment before its passage in 1868.
These changes in U.S. citizenship during the Civil War era are important and worth noting, but after reading William A. Blair’s With Malice Toward Some: Treason and Loyalty in the Civil War Era a few weeks ago I learned about another significant document published in 1862 on the question of citizenship: Attorney General Edward Bates’s legal opinion on citizenship.
A conservative Missourian who helped write the state’s pro-slavery Constitution in 1821 and served as a state legislator and U.S. Congressman during a lengthy career in politics, Bates unsuccessfully ran for the Republican nomination for President in 1860. President-elect Abraham Lincoln appointed Bates as Attorney General shortly after that year’s election, however, giving Bates immense power to write legal opinions on American law and governance as the Civil War broke out in 1861. One such issue arose in 1862 when a ship run by David M. Selsey, a free African American who served as master of the Elizabeth & Margaret, was detained off a New Jersey coast for a routine inspection for contraband goods. U.S. law at the time stipulated that ship masters must be U.S. citizens, but whether or not Selsey was considered a U.S. citizen as a free person of color was open for legal debate. U.S. Treasury Secretary Salmon Chase requested that Bates write a legal opinion in response to the question, “are colored men Citizens of the United States?” Bates’s response provides us a unique opportunity to study how a leading legal thinker grappled with the ambiguities of the U.S. constitution on the question of citizenship prior to the passage of the 14th amendment in 1868.
Bates began his opinion by pointing out that there existed no clear definition of citizenship in the United States:
Who is a citizen? What constitutes a citizen of the United States? I have often been pained by the fruitless search in our law books and the records of our courts for a clear and satisfactory definition of the phrase citizen of the United States. I find no such definition, no authoritative establishment of the meaning of the phrase, neither by a course of judicial decision in our courts nor by the continued and consentaneous action of the different branches of our political government. For aught I see to the contrary, the subject is now as little understood in its details and elements, and the question as open to argument and to speculative criticism, as it was at the beginning of the government. Eighty years of practical enjoyment of citizenship, under the Constitution, have not sufficed to teach us either the exact meaning of the word or the constituent elements of the thing we prize so highly.
Further complicating these efforts in the eyes of Bates were legal experts at the time who focused on the characteristics of who was entitled to citizenship without sufficiently exploring what rights constituted U.S. citizenship. Bates believed the constitution defined citizenship simply as an individual who was a part of the body politic. As a member of the body politic, citizens were obligated to pledge allegiance to the state in return for the state’s protection of the citizen’s well-being. Allegiance and protection: nothing more, nothing less. Moreover, Bates argued that citizenship did not guarantee voting rights, which were determined on a state-by-state basis prior to the war. Children, women, poor whites, and criminals in states throughout the country did not posses voting rights but were still considered citizens by the U.S. government. “Once a citizen, always a citizen,” argued Bates, “unless changed by the volition and act of the individual. Neither infancy nor madness nor crime can take away from the subject the quality of a citizen.” And although voting rights were determined on the state level, Bates proclaimed that citizenship rights were national. Citizens in one state could not suddenly lose their citizenship while in another one.
Bates did have opinions about who was entitled to citizenship, however. Citing Ancient, British, and French law in a partial rebuttal of Chief Justice Taney’s opinion in the Dred Scott case, Bates asserted that “whatever may have been said in the opinions of judges and lawyers, and in State statues about negroes, mulattoes, and persons of color, the Constitution is wholly silent upon that subject. The Constitution does not make the citizens (it is, in fact, made by them). It only intends and recognizes such of them as are natural [born citizens].” In other words, people born in the United States–regardless of their status in life–were automatically citizens who had earned the right to state protection according to the Constitution.
Although Bates contradicted himself by refraining from defining whether or not slaves could be considered U.S. citizens, he again criticized Justice Taney for assuming that free people could be considered as having no citizenship simply because of their skin color. To wit:
It is strenuously insisted by some that ‘persons of color,’ though born in the country, are not capable of being citizens of the United States. As far as the Constitution is concerned, this is a naked assumption; for the Constitution contains not one word upon the subject. The exclusion, if it exists, must then rest upon some fundamental fact which, in the reason and nature of things, is so inconsistent with citizenship that the two cannot coexist in the same person. Is mere color such a fact? Let those who assert it prove that it is so. It has never been so understood nor put into practice in the nation from which we derive our language, laws, and institutions, and our very morals and modes of thought; and, as far as I know, there is not a single nation in Christendom which does not regard the new-found idea with incredulity, if not disgust. What can there be in the mere color of a man . . . to disqualify him for bearing true and faithful allegiance to his native country, and for demanding the protection of that country? And these two, allegiance and protection, constitute the sum of the duties and rights of a ‘natural born citizen of the United States.’
In concluding his opinion on citizenship, Bates dismissed all judicial authority of the Dred Scott case. Since the defendant in the case made an abatement plea (an objection to a plaintiff’s claims because of a procedural error, in this case the error being that Dred Scott was not a citizen and therefore unable to file suit in court), the Supreme Court had no jurisdiction in the case and Taney’s opinion had no legal standing. Therefore, although Bates hesitated to comment on whether slaves had citizenship rights, he believed he had the legal standing to comment on the citizenship status of David Selsey and, by extension, free blacks. Having assessed legal precedents from past Western governments and the Constitution itself, Bates believed Selsey deserved state protection: “I give it as my opinion that the free man of color…if born in the United States, is a citizen of the United States, and, if otherwise qualified, is competent, according to the acts of Congress, to be master of a vessel engaged in the coasting trade.” Free blacks were citizens of the United States according to Bates.
In our post-Civil War world birthright citizenship rights are often taken for granted and assumed to have existed since the Constitution’s creation in 1787. But the nature of citizenship was ill-defined by the Constitution before the Civil War, so much so that the nation’s Attorney General could not rely solely on his nation’s founding document and law books to guide his interpretation of citizenship. Edward Bates’s legal opinion provides important context and insight for understanding the evolving nature of debates about citizenship throughout American history.