Yesterday in Mises Wire I looked at how citizenship in the United States was originally determined by the member states themselves. There was no definition of citizenship in either the original US constitution (i.e., the Articles of Confederation) on in the later 1787 constitution. Thus, the way to “US citizenship,” to the degree that it existed at all, was to become a citizen of one of the US’s member states.
A problem with this situation quickly arose, however. The United States from the very beginning was an expansionist state, and according to the Treaty of Paris which ended the Revolutionary War, the new “United States” included vast territories west of the Appalachian mountains. These areas were, for all practical purposes, not part of any US state. Yes, state governments claimed to be the proper authority in much of this territory, but it was clear that the “far west” was de facto independent of any state or federal government entity.
With the Land Ordinance of 1784, Congress (which then functioned under the Articles of Confederation) the states agreed to allow the federal government to govern the areas north of the Ohio River and east of the Mississippi River. This meant that, for the first time, there were to be places in America (other than military forts) where there was no state government as an intermediary between the people and the federal government. In these new territories, Congress exercised direct rule.
This posed a problem for matters of naturalization and citizenship. Was it possible to naturalize the people in these places without the possibility of citizenship in a state? Everywhere else in America, the people—those who weren’t slaves, of course—became citizens of the United States be becoming citizens of their respective states. In the new territories, however, these people were potentially citizens of the federal government only. It is not clear that the authors of either of the US constitutions imagined there would be large numbers of “Americans” without citizenship in any state for a significant period of time.
This idea of open-ended federal citizenship was something new, and it reflected the growing power of the federal government. Many new Americans in the new territories now had a direct legal relationship with the federal state. Congress appointed new federal officials in the region and began to pass new laws designed to buttress federal authority across the new frontier.
The new reality of federal citizenship without state citizenship remained legally uncertain until the early nineteenth century. With US territorial expansion into the Louisiana territory and Florida, there was a question as to whether the federal government could collectively naturalize entire groups of people at once through legislation.
In American Insurance Co. v. 356 Bales of Cotton, the US Supreme Court ruled in 1828 that the US federal government could collectively naturalize all the (usually white-only) inhabitants of a new territory. This new federal power, of course, is not to be found anywhere among the enumerated powers of Congress. Then as now, however, the Supreme Court tended to side unreservedly with the federal government on matters of geopolitics.
Adding new territory and new populations to the United States, of course, was critical to converting the US into a regional power, and the Supreme Court was supportive.
The legal assumptions behind American Insurance Co. v. 356 Bales of Cotton became even more important as the century continued. The US added vast immense new territories with the Oregon Treaty of 1846 and the Treaty of Guadalupe Hidalgo in 1848.
In many of these cases, the residents of these territories were US citizens, but without any state citizenship, for decades. The territory that is now Utah, for example, was added to the United States in 1848, but Utah did not become a state until 1890. The American citizens native to New Mexico and Arizona were not citizens of any US state between 1848 and 1912.
Just as westward expansion grew federal power and undermined federalism in other ways throughout the nineteenth century, territorial expansionism also created the new legal theory that Americans were US citizens first and foremost. This would prove to have many repercussions during the secession crisis of the 1860s and the decades after.
To illustrate more concretely the political and legal importance of this change, let’s consider a hypothetical situation in which the European Union does something similar.
In the EU today, there is no “European citizenship” outside of citizenship within a member state. That is, EU citizenship is an extension of citizenship in France or Italy or some other EU state.
Now, imagine that a “EU Expeditionary Force” of French and German troops conquered European Turkey—that region of Turkey west of the Bosporus. The EU then declares this region to be part of the European Union, but without the area first becoming its own independent state. What is the citizenship of the residents there? From a realpolitik standpoint, the EU would want to grant European citizenship to the residents for the same reasons that Russia hands out Russian passports to residents of the Donbas. It helps consolidate the conqueror’s power in the area. To do this, the EU invents something new: “EU citizenship” that exists independent of any member state. The EU then grants this new kind of citizenship to all residents of “New Turkey.”
Obviously, this would be a revolutionary legal change with big ideological effects. It would change the idea that the EU exists only as a creature of the member states themselves. The change would forward the idea that the EU is a full-blown state in its own right and has its “own” citizens. This new type of citizenship would, in many ways, make the EU something altogether different—and more powerful.
This is similar to what happened in the United States when naturalization in the territories became an important aspect of westward expansion.
Image Credit: Public Domain via Wikimedia.
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