Citizenship meant much to first-generation Americans who had consciously cast off their identities as subjects of the British monarch and declared themselves members of a republic. This would, however, intersect with traditional notions of status that defined privileges and duties locally and hierarchically. Citizenship, with its suggestion of a national, egalitarian identity was thus a concept central to the Revolutionary enterprise yet often subjugated in the early Republic to local determinations of status that doled out privileges and duties unequally.
American colonists at the close of the Seven Years' War (1756-1763) thought of themselves as subjects of the British monarch. The legal doctrine of subject-ship had been articulated over a century earlier by English jurists. Only subjects of the king could own property and bring suits in the king's courts. Aliens may have owed temporarily allegiance by their residence in England, but they lacked the privileges of subjects unless Parliament naturalized them. All those born in the realm of England were natural-born subjects, immediately enjoying the protection of the monarch and owing allegiance in kind. This doctrine of allegiance was a reflection of divinely ordained hierarchies, similar to the filial bond of a child to a parent, and was as such natural and perpetual. Although allegiance involved reciprocal rights and duties, it was not a contractual bond. Neither subject nor monarch nor both together could, of his or her own volition, cast off the bond.
John Locke challenged this notion in his Two Treatises on Civil Government (1690). Rather than hierarchical inequality enshrined in feudal bonds of allegiance, Locke argued that the bond between governors and governed stemmed from man's perfect freedom in the state of nature and was thus a consensual bond. This implied that governors were limited in their power, which left to the governed the absolute rights to life, liberty, and property that they had not consented to turn over to the government. Independent of Locke's natural rights were the political rights of freeborn Englishmen, which included the right to petition the king with grievances, to hold free elections, to have recourse to the writ of habeas corpus, to receive a trial by jury, and to consent to taxation, along with a host of other privileges. These rights were repeatedly asserted during the seventeenth century and became a centerpiece of the constitutional settlement of the Glorious Revolution of 1688 in the English Bill of Rights.
Elements of both these theories worked their way into British law. William Blackstone separated the reciprocal rights and duties of subjects and monarch from the absolute rights of people in his Commentaries on the Laws of England (1765-1769). Absolute rights, however, did not govern the law of persons. More important in determining someone's status was the common law relations of husband and wife, master and servant, parent and child. Corresponding duties of protection and obedience marked each of these relationships, enforcing a patriarchic legal regime.
During the 1750s and 1760s, the question of subject ship in the British Empire arose. Notions of the rights of freeborn Englishmen collided with the ascendancy of the doctrine of parliamentary sovereignty and the reality of administering an empire, particularly during war with France. To deal with a rebellion in the Scottish Highlands, the British Parliament in the Militia Act of 1757 deprived all Scots of the right to raise and regulate a militia. The Stamp Act of 1765 established an internal tax on the colonists to which they had not directly consented. The Massachusetts Government Act—part of the Intolerable Acts of 1774—annulled its charter and put the colony under military rule. While these actions of Parliament engaged a number of complicated constitutional issues, they impacted broadly the question of what kinds of privileges and immunities were enjoyed by British subjects outside the realm of England.
The thirteen colonies responded in 1776 to the imperial crisis by withdrawing their allegiance and drawing up independent constitutions. This had the revolutionary effect of changing subjects into citizens by transforming allegiance from an incident of feudal relations to an expressly consensual bond. This doctrine of consent suffered practical difficulties with the large number of British Loyalists resident in every state who did not elect to join the new polity in wartime. The states responded by treating Loyalists as citizens or as conquered subjects. Eventually, however, every state adopted a legal doctrine of elective membership in the polity.
The U.S. Constitution made almost no mention of citizenship other than to guarantee that the "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States" (Article IV, section 2) and to require a uniform rule of naturalization. The First Congress moved quickly to provide this rule, passing a naturalization act in 1790 that set a minimal residency requirement of two years. Congress raised this to five years in 1795 and limited jurisdiction over naturalization to U.S. district and territorial courts. Heightened anxiety during the Quasi-War with France (1798-1800) prompted the Federalist Congress to pass a new naturalization act in 1798 that raised the waiting period to fourteen years.
In 1802 the Democratic Republican-controlled Congress repealed the 1798 act and restored both the five-year residency requirement and the jurisdiction of any common law court, state or federal, over the naturalization process. This was, however, a Democratic Republican triumph over Federalist centralization rather than a commitment to freer immigration and naturalization. It was the states, not the national government, that placed restrictions on immigrants crossing their borders. In 1787 Georgia prohibited the immigration of any convicted criminal from either a foreign country or another state, and many states passed similar laws. After 1820, Massachusetts required shipmasters to provide security for passengers that might become paupers, and most states passed quarantine or registration laws that allowed them to refuse entry to foreigners deemed undesirable.
U.S. law stipulated in every case that naturalization was open only to "any alien being a free white person," a condition that eliminated Native Americans from consideration. While many agreed that Native Americans did not qualify as citizens of the new Republic, no single reason was cited. Some considered Native Americans' tribal allegiance as a barrier while others argued that Indians would forever be dependent on the superior intelligence of white men for their protection. Still, several treaties with Native Americans contemplated the possibility of future Indian citizenship. None of these treaties, however, achieved this goal.
Federal courts and officers generally concurred that Native Americans could not be naturalized under normal circumstances. Chief Justice John Marshall declared in Cherokee Nation v. Georgia (1831) that Indian tribes were not foreign states in the sense meant by the Constitution. Instead, they were "domestic dependent nations," an ambiguous term suggesting that tribes were like wards and that the United States was their guardian.
The naturalization debate of the 1790s triggered anxieties about the nature of republican citizenship. Many congressmen argued that America needed to encourage immigration but some worried that an influx of European immigrants would undermine republican simplicity. James Madison argued as early as 1790 that it was not immigration that Congress needed to encourage, but attachment to the Republic. While everyone agreed with Madison in principle, there was little agreement about how to accomplish it.
The stakes were high. Republics rose and fell, Americans believed, based on the interplay between virtue and corruption. America's ability to survive would depend on the general intelligence, public virtue, and moral worth of its citizens. Religion, the traditional guardian of public morality, was fractured into many different churches. The push by dissenters for disestablishment further complicated the ability of religious institutions to communicate a common message.
To correct this, republicans stressed education as the means of securing the proper values in citizens. Noah Webster (1758-1843), Benjamin Rush (17451813), and Thomas Jefferson (1743-1826) all worked to establish elementary and higher education that would not only train people in the practical arts, but also prepare young people for the duties of civic membership in a republic. Education also promised a kind of equality based on independence and mobility. Educated citizens had the ability to improve themselves and this would, as Thomas Jefferson stressed, contribute to an equality of opportunity.
Women played a crucial role in education. Motherhood took on new meaning when it became infused with the duty of instilling the republican values of public virtue, integrity, and self-reliance—traits that women were now prompted to exhibit by example rather than just passively teach. This grafting of liberal civic duty onto traditional roles had revolutionary potential. Although they were duties exercised in the private home, they gave women new duties of citizenship. Still, women's status as citizens in the early Republic was unclear. Hampered by coverture, the legal doctrine that a woman's status was "covered" by her husband, married women had no independent legal identity and thus could not own property or bring suit in a court of law. In addition, most states barred women from officeholding, jury service, and voting regardless of their marital status.
While republic citizenship did redefine roles for men and women in the polity, loyalties throughout the Republic remained primarily local. Because the law defined people's rights and duties in terms of their membership in village, town, and state, United States' citizenship did not carry with it a host of privileges guaranteed by national law. Congressmen made clear during the naturalization debate that the Constitution's call for a uniform rule of naturalization did not grant uniform privileges. States separated civil protections, property holding, and suffrage and distributed these privileges to their residents at their own discretion.
Despite the absence of a national policy, patterns in the course of citizenship emerged during the early Republic. One was the democratic expansion of suffrage. Jefferson's optimism about the abilities of the common man challenged classical republicanism's insistence that only the propertied and wealthy exhibited the independence necessary to direct affairs of state. Classical republicans held that wage earners, artisans, and servants would be dependent upon their employers and easily corrupted or controlled. Hence, every state at the time of the Constitution's signing had some kind of property qualification for suffrage.
The Democratic Republican victory in the election of 1800 signaled the end of this regime. With Jefferson's support, Democratic Republicans in the states worked to repeal property requirements for suffrage. Maryland passed a universal white male suffrage bill in 1801 and other southern states quickly followed suit. After the admission to the Union in 1820 of Maine, with its constitution guaranteeing universal white male suffrage, Massachusetts and New York dropped their property qualifications. By 1829 only Virginia, South Carolina, Louisiana, Connecticut, and Rhode Island had not adopted universal white male suffrage.
Despite these liberal tendencies, the legal regime of the early Republic retained the status distinctions inherent in the common law. This meant that one's relative privileges, immunities, and duties flowed from the law of persons. In addition, states retained through their police power wide discretionary authority over their inhabitants, including the ability to adjudge status and apply relative rights and duties. For instance, many states passed vagrancy laws after the Revolution that allowed justices of the peace and town overseers summarily to commit people deemed common vagrants, drunkards, and prostitutes to workhouses without benefit of a formal judicial hearing. In these cases, local status trumped any notion of universal citizenship.
Liberal democratic expansion had its own limits as well. Women found any voting rights that they possessed extinguished by universal manhood suffrage, as when New Jersey took away the right of propertied, single women to vote in 1807. Most southern states had forbidden free blacks from voting and performing civic duties such as serving on juries. Those states that granted privileges to free blacks revoked many of them after 1800, as Maryland did when it disenfranchised free blacks in 1810. Tennessee and North Carolina would restrict their generous provisions for free blacks in 1834 and 1835, respectively. Conditions in the North were little better. Outside New England, most northern states denied free blacks the suffrage. New York's revised constitution of 1826 both eliminated property qualifications for whites and increased them for blacks. As a result, only sixteen African Americans of a free black population of nearly thirteen thousand qualified to vote.
African Americans, enslaved and free, faced other impediments. In the North, free blacks not only found their commercial and political rights diminished, but also had their access to education restricted. Most northern and western states segregated schools by law or custom, and many appropriated no money for black schools. Conditions in the South were worse. Missouri's state constitution of 1820 forbade the immigration of free blacks. North Carolina required free blacks to wear a patch reading "FREE" on one shoulder and also to register with authorities, a policy adopted by other southern states. Free blacks throughout the South were required to carry proof of their status; blacks without papers were presumed fugitives from slavery. Some states denied blacks any kind of citizenship out of hand. Georgia's superior court declared in Ex parte George (1806) that "free negroes, persons of colour, and slaves, can derive no benefit from [Georgia's] constitution." James Monroe's attorney general, William Wirt, concluded in an 1821 opinion that free blacks could not be citizens because no person could be considered "in the description of citizen of the United States who has not the full rights of a citizen in the State of his residence." Wirt's logic implied that neither women nor minors were citizens, although he did not intend to draw this conclusion. What his position revealed was not so much doctrinal inconsistency, but rather that a variety of statuses existed at the state level and that they, rather than appeals to universal citizenship, determined membership, rights, and duties.