Kurt Lash: The State Citizenship Clause [Updated with a Comment from Andrew Hyman]Michael Ramsey

Kurt T. Lash (University of Richmond School of Law) has posted The State Citizenship Clause (49 pages) on SSRN.  Here is the abstract:

The first sentence of the Fourteenth Amendment contains not one, but two citizenship clauses. The first defines national citizenship and the second defines state citizenship. Although a significant body of scholarship exists regarding the history and meaning of the former, no prior work has investigated the origins and original understanding of the latter.

Unlike the National Citizenship Clause, the State Citizenship Clause had no analogue in the 1866 Civil Rights Act. The unique language of State Citizenship Clause emerged out of a private Republican Senate Caucus which met to address concerns about the Joint Committee’s proposed Fourteenth Amendment. Post-passage criticism of the 1866 Civil Rights Act had revealed a major flaw in the Act: The statute failed to secure the status of state citizenship and potentially left open a loophole through which states might continue to deny Black Americans equal civil rights. The State Citizenship Clause closed this loophole by securing the status of local citizenship for every resident American citizen, regardless of race. Any state law that denied a local civil right on the basis of race by definition denied that resident their status of equal state citizenship. Throughout the ratification period, proponents of the Fourteenth Amendment repeatedly insisted that the final language of Section One prohibited states from denying equal civil rights to any resident American citizen. This prohibition on racial discrimination was not limited to certain “fundamental” civil rights. It applied to all state level civil rights, no matter how trivial. This history suggests that the original understanding of the Fourteenth Amendment supports decisions like Brown v. Board of Education but does so on the basis of the original understanding of the State Citizenship Clause.

UPDATE:  Andrew Hyman comments:

Professor Lash writes, “The Supreme Court has occasionally recognized this basic principle of equal state citizenship rights, though without recognizing its textual roots in the State Citizenship Clause. See, e.g., The Slaughterhouse Cases, 16 Wall. 36, 80 (1872) (Miller, J.).”  Miller was certainly referring there to the State Citizenship Clause (emphasis added): “One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.”  Miller was saying that the State Citizenship Clause implied nondiscrimination based on whether a citizen was born in a state or instead immigrated to the state, and Miller did not suggest a broader form of equality resulting from the State Citizenship Clause. Indeed, a broader form of equality is difficult to infer from that Clause’s text, beyond entitling more people to Comity Clause rights.

Fortunately, the 14th Amendment also includes the Equal Protection (EP) Clause, but Professor Lash writes that it was only meant to protect “life, liberty and property….[which] would not have been understood as involving emerging public benefits like public schooling.”  Lash acknowledges that that limitation of the EP Clause regarding “life, liberty, and property” was removed from the initial draft of Section One; even if it somehow remained implicit in the EP Clause (I doubt it), “liberty” arguably included freedom to attend public schools especially when education became so much more important in the economy of the twentieth century.  But was there really an EP limitation to “life, liberty, and property”?  Professor Lash quotes Senator Allen Thurman to that effect, but the Thurman quote is from 1875 which was seven years after ratification (and perhaps not coincidentally Thurman was a segregationist and white supremacist).  The word “protection” often had a broader meaning in the period 1866-1868, for example in an 1867 speech by James Brisbin quoted later that year on the Senate floor by Senator Charles Sumner: “As we claim allegiance from the blacks, we are bound to accord them full protection in all their rights as citizens, both civil and political.” Other speakers limited “protection” to civil but not political rights, but even then the scope would be broader than only rights of “life, liberty, and property.” As Professor Lash writes, “Americans in 1866 understood ‘civil rights’ to include any benefit conferred upon state residents on the basis of their local citizenship.”