Article IV, Section 2, Clause 1:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Whether free Black Americans were protected as citizens under the Privileges and Immunities Clause (and other constitutional protections) was a contentious issue before the Civil War.1 The unamended Constitution grants Congress power to “establish a uniform rule of naturalization” as to foreigners,2 but did not otherwise speak directly to who is a “citizen” of a state or of the United States.3 A common view at the time was that national citizenship was derivative of state citizenship, and that the latter could be conferred by birth within a jurisdiction, as under the English common law.4

Nonetheless, in the notorious Dred Scott case, the Supreme Court held that Black Americans, whether free or enslaved, could not be “citizens” under the Constitution.5 “Citizens of each State,” Chief Justice Roger Taney concluded, meant citizens of the United States as understood when the Constitution was adopted; descendants of African slaves were not then regarded as capable of citizenship in Taney’s view.6 Citing the Privileges and Immunities Clause, Chief Justice Taney argued that if free Black Americans could be made citizens of one state, the Constitution would grant them

Such an outcome, Chief Justice Taney maintained, “the great men of the slaveholding States, who took so large a share in framing the Constitution” would not have permitted.8 Because Dred Scott was not a “citizen” under this reasoning, the Court held that federal courts lacked jurisdiction over his suit for freedom because there was no diversity of state citizenship under Article III, Section 2.9

In dissent, Justice Benjamin Robbins Curtis denied the Chief Justice’s historically dubious assertion that there were no free Black Americans who were state citizens when the Constitution was ratified.10 Justice Curtis further argued that the states retained the right to extend citizenship to classes of persons born within their borders, and that a person upon whom state citizenship was conferred became a citizen of that state and the United States under the Constitution.11

Dred Scott's holding was superseded by the first section of the Fourteenth Amendment, which declares: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” 12 Thus, after 1868, the “citizens of each State” under the Privileges and Immunities Clause include at least all persons born in the United States, or naturalized U.S. citizens, who reside in that state.

Footnotes

1

See Ryan C. Williams, Originalism and the Other Desegregation Decision, 99 Va. L. Rev. 493, 505–20 (2013) (summarizing the debates over the citizenship status of free Black Americans prior to the Dred Scott decision).

2

U.S. Const. art. I, § 8, cl. 4; see also ArtI.S8.C4.1.1 Overview of Naturalization Clause.

3

The Constitution uses the phrase “citizen of the United States” in several places, including the qualifications for Members of Congress, see U.S. Const. art. I, § 2, cl. 2; § 3, cl. 3, and for the Presidency (which additionally requires the person to be a “natural born” citizen), see U.S. Const. art. II, § 1, cl. 5. State citizenship is referenced in the Privileges and Immunities Clause and Article III’s provisions for federal jurisdiction, see U.S. Const. art. III, § 2, cl. 1.

4

Williams, supra note 1, at 507 (citing James H. Kettner, The Development of American Citizenship, 1608–1870, at 287 (1978)).

5

Scott v. Sandford, 60 U.S. (19 How.) 393, 403–27 (1857) (Taney, C.J.), superseded by constitutional amendment, U.S. Const. amend. XIV, § 1.

6

Id. at 402–05.

7

Id. at 417.

8

Id.

9

Id. at 427.

10

Id. at 573–76 (Curtis, J., dissenting). On the contrary, Justice Curtis asserted that there was “no doubt” that free native-born Black residents were citizens of states such as New Hampshire, Massachusetts, New York, North Carolina, and New Jersey, and had the right to vote in some of them. Id.

11

Id. at 576–90.

12

U.S. Const. amend. XIV, § 1.