Document Type

Article

Publication Date

2018

Disciplines

Constitutional Law | Fourteenth Amendment | Law

Abstract

According to conventional wisdom, state citizenship emerged out of the localism of early America and gave way to national citizenship with the ratification of the Fourteenth Amendment. This Article offers a different account of state citizenship and, with it, new resources for analyzing the Constitution. It argues that far from a primordial category that receded into irrelevance, state citizenship provided a crucial strategic tool in America’s antislavery movement, as abolitionist lawyers used the label of state citizenship to build a coalition with white elites by reframing the issue of slavery from the rights of a black person to the sovereignty of a state.

In particular, beginning in the mid-1830s, abolitionist lawyers in Boston who confronted the limits of inherited arguments based on national citizenship turned to the Constitution’s clause guaranteeing the privileges and immunities of state citizenship. By pairing this Article IV clause with the then-prevailing norm of a state’s sovereign duty to protect its citizens, these lawyers argued that failure on the part of Massachusetts to intervene in the police laws of the southern coastal states targeting free blacks would imperil the state’s beleaguered standing. These arguments in turn became the basis for the country’s first challenge to the laws of the southern states that stripped black men of their liberty without due process, as lawmakers in Boston organized an Article IV lawsuit with the aim of vindicating the state’s coequal sovereign status. Propelled by this convergence of interests, state citizenship remained a distinct status for the drafters of the Fourteenth Amendment who envisioned that states would continue to play a role in the protection of individual rights.

By excavating this neglected history, this Article reveals a constitutional terrain defined not by a feuding North and South, but by an ever-shifting number of jurisdictions, bound in a domestic economy rooted in race-based slavery. At the same time, this Article unearths a robust precedent for current state initiatives to extend protections to individuals denied national citizenship. In doing so, it offers a more expansive definition of state sovereignty: one premised not simply on a state’s autonomy from the national government, but also on a state’s duty to protect its citizens.

Comments

Originally appearing in the University of Chicago Law Review, 85 U. Chi. L. Rev. 865. Reprinted with permission from the University of Chicago Law School.

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