163. “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.”453 The phrase “subject to the jurisdiction thereof” excludes “children of ministers, consuls, and citizens or subjects of foreign states born within the United States.”454 The supreme law clearly recognizes and establishes a distinction between United States citizenship and State citizenship. To be a citizen of a State, a person must reside within that State, but to be a citizen of the United States, it is necessary only that he or she be born or naturalized within the jurisdiction of the United States. Thus American citizenship, like the operation of American constitutional law in all its aspects, is a matter of jurisdiction, or sovereignty.

In America there are two citizenships, distinct from each other, and depending upon different characteristics and circumstances, and the essential difference is caused by a difference of jurisdiction. In strict conformity to this distinction, the Constitution prohibits a State from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States.”455 The limitation is not as to laws affecting the privileges and immunities of citizens of the several States; equality of citizens of States is secured by another provision.456

The privileges and immunities of the citizen of one State removing to another State are the same, no more, no less, than the privileges and immunities of the citizens of the State into which he or she removed.457 The privileges and immunities of citizens of the several States rest for security and protection with the States themselves,—where they rested before the Constitution was made. These privileges and immunities are not placed under the care of the United States except so far as the Constitution declares that, “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” These privileges and immunities of citizens of the several States are fundamental,458 and are commonly set forth in Bills of Rights found in the State constitutions. The sole purpose of the Fourteenth Amendment is to declare to the several States that

whatever those rights,—as you grant or establish them to your own citizens, or as you limit, or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.459

164. What then are the privileges and immunities of citizens of the United States? They are the privileges and immunities secured to them by the Constitution. Among them are

to come to the seat of government to assert any claim he may have upon that government; to transact any business he may have with it; to share its offices; to engage in administering its functions; the right of free access to its seaports, through which all operations of foreign commerce are conducted; to the subtreasuries, land offices, and courts of justice in the several States460; “to demand the care and protection of the federal government over his life, liberty, and property when on the high seas, or within the jurisdiction of a foreign government; to peaceably assemble and petition for redress of grievances; the privilege of habeas corpus; to use the navigable waters of the United States however they may penetrate the territory of the several States; all rights secured to (American) citizens by treaties with foreign nations”; the right, on his own volition to become a citizen of any State of the United States by a bona fide residence therein, with the same rights as other citizens of that State.461

Thus it appears that the rights of a citizen—his “privileges and immunities”—are measurable by the jurisdiction of the sovereignty to which he owes allegiance. Between allegiance and protection as between citizenship and sovereignty there is a reciprocal relation.

165. The Fourteenth Amendment did not add to the privileges and immunities of a citizen.462 It simply furnished an additional guaranty to the protection of such as he already had. It did not add the right of suffrage to these privileges and immunities as they existed at the time of the adoption of the Constitution. The United States guarantees to every State in the Union a republican form of government,463 but this is not a guarantee to any citizen of the right to vote, nor does the Constitution confer that right on any person.464 That right (or privilege, as it is in strict contemplation of law) was not the same among the original States, the qualifications for voting differing widely among them, and also in the same State at different times.465 When the Constitution confers citizenship it does not confer the right to vote.

There is, however, a right to vote possessed by certain citizens of the United States, namely they who vote for members of Congress and Senators of the United States, and (by implication) electors of President and Vice-President. The Constitution defines electors of Congressmen and Senators as the same persons who are entitled in the several States to vote for the most numerous branch of the State Legislature.466 The United States thus

adopts the qualification thus furnished as the qualification of its own electors of Congress. It is not true, therefore, that electors for members of Congress owe their right to vote to the State law in any sense which makes the exercise of the right depend exclusively on the law of the State.467

The United States has sovereign power to prescribe electoral qualifications for its own citizens; it has chosen to adopt State qualifications. The non-exercise of the power does not work denial of its existence. The principle involved is one of sovereignty, that non-user of a sovereign right cannot invalidate the right.

166. While the Fourteenth Amendment added nothing to the rights and privileges of citizens, for “the equality of the rights of citizens is a principle of republicanism,”468 it guaranteed those rights; but “the power of the national government is limited to the enforcement of the guaranty.”469 The Amendment does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action “which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to them the equal protection of the laws.”470 Congress is empowered by the Amendment “to adopt appropriate legislation for correcting the effects of such prohibited State laws and State acts, and thus to render them effectually null, void, and innocuous.”471

The essential matter here involved is sovereignty.

The true doctrine is, that whilst the States are really sovereign as to all matters which have not been granted to the jurisdiction and control of the United States, the Constitution and constitutional laws of the latter are the supreme law of the land; and when they conflict with the laws of the States, they are of paramount authority and obligation. This is the fundamental principle on which the authority of the Constitution is based; and unless it be conceded in practice, as well as theory, the fabric of our institutions, as it was contemplated by its founders, cannot stand. The questions involved have respect not more to the autonomy and existence of the States, than to the continued existence of the United States as a government to which every American citizen may look for security and protection in every part of the land.472

Thus, in application of this principle, the law of a State discriminating against persons of color by eliminating them to serve as jurors is unconstitutional.473 So too is an act of Congress unconstitutional, that operates as, or creates, a municipal law for the regulation of private rights, and that places Congress in the stead, or office of the State legislatures, so that the federal Legislature, instead of enacting laws corrective of prohibited State laws, or counteracting such laws, assumes the office of the State legislatures in their general legislation. Such Congressional legislation “steps into the domain of local jurisprudence.”474

167. Such unconstitutional legislation by Congress was the Civil Rights Bill of 1866, which declared that all persons within the jurisdiction of the United States should be entitled

to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable to citizens of every race and color, regardless of any previous condition of servitude.475

Here again the essential matter is one of jurisdiction, or sovereignty. The several States have jurisdiction over the matters comprised within the so-called Civil Rights Bill. Inn-keepers, public carriers, owners or managers of theaters and public halls are bound, to the extent of their facilities, to furnish proper accommodations to all unobjectionable persons who in good faith apply for them. No race or class is a special favorite of the laws, and the enjoyment of accommodations in inns, public conveyances, and places of amusement, is not a “privilege or immunity” of a citizen, in the sense that he or she possesses a civil or legal right to such enjoyment. The act, or decision, of a mere individual,—the owner of an inn, or of a public conveyance, or place of amusement, refusing such accommodation, is not the imposition of a badge of slavery or involuntary servitude upon the applicant; neither does such act or decision inflict a civil injury, unless the law of the State makes such act or decision an injury.476

The principle here involved is illustrated by a law of California, held to be constitutional by the Supreme Court of the United States, that “due process of law” is not denied to a person who, in that State, by its law, was “prosecuted by information,” and (as was claimed) was “tried and illegally found guilty of (murder) without any presentment or indictment of any grand or other jury.”477

The Court sustained the State law as securing due process of law in principle,—that “prosecution by information” instead of “indictment of a jury” is not a violation of the principle but merely a variation of the form of due process of law.478 In other words, the California law in no way disparaged or abridged the privileges or immunities of the citizen.479

168. The principle regulating the definition of United States citizenship is that principle of the common law which recognizes “the ancient rule of citizenship by birth within the dominion.”480

Naturalization is an artificial birth made possible by the will of sovereignty. It is effected by the operation of law,—and in America, by operation of statutory law only. Congress has not the exclusive power to pass naturalization laws, but it has the exclusive power “to establish a uniform rule of naturalization.”481 The power exercised here is suggested in the word “uniform.”482 Congress has seen fit to vest the exercise of this power in certain courts of law. Strictly speaking, the exercise of the function, in any of its aspects, is not essentially judicial. Courts of law have no functions, can exercise no functions, and no functions can be imposed upon them except those of a judicial nature.483 If the courts are willing to exercise a ministerial function and are empowered to exercise it by Congress, as in the naturalization of aliens, that exercise cannot be questioned as being unconstitutional.

169. The test here is jurisdiction. A person may by voluntary expatriation become allegiant to another jurisdiction or sovereignty, but he cannot escape allegiance to some one jurisdiction. He must be citizen or subject of a sovereignty. As all property capable of ownership must have an owner, so must every person be citizen or subject of some sovereignty. A vessel, wherever it may be, is part of the territory of the country to which it belongs.484 By parity of reasoning a person is deemed allegiant to some jurisdiction or sovereignty. A vessel owning no jurisdiction is a pirate.

170. The Fifteenth Amendment declares that the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. This Amendment

does not take away from the State governments in a general sense the power over suffrage which has belonged to those governments from the beginning, and without the provision of which power the whole fabric upon which the division of State and national authority under the Constitution and the organization of both governments rest would be without support and both the authority of the nation and of the State would fall to the ground. In fact, the very command of the Amendment recognizes the possession of the general power by the States since the Amendment seeks to regulate its exercise as to the particular subject with which it deals.485 The Amendment does not change, modify, or deprive the States of their full power as to suffrage, except of course as to the subject with which the Amendment deals, and to the extent that obedience to its command is necessary. Thus the authority over the suffrage which the States possess, and the limitations which the Amendment imposes, are co-ordinate, and one may not destroy the other without bringing about the destruction of both.486

But while the Amendment “gives no right of suffrage”

... the result might arise that as a consequence of the striking down of a discriminating clause, a right of suffrage would be enjoyed by reason of the generic character of the provision which would remain after the discrimination was stricken out.487

171. Both the States and the United States are forbidden by the Constitution to enact ex post facto laws. The prohibition affects every citizen as securing him from the peril of legislation of the kind forbidden. It is a sweeping limitation of power for his or her benefit, and operates for all citizens of whatever age, condition, or circumstance. An ex post facto law is one that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes that action; that aggravates a crime, or makes it greater than it was when committed; that changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; that alters the legal rules of evidence, and receives less or different testimony than the law required, at the time of the commission of the offense, in order to convict the offender. But no law is ex post facto within the constitutional prohibition that “mollifies the rigor of the criminal law.” Only those laws are ex post facto which “create, or aggravate the crime, or increase the punishment, or change the rules of evidence, for the purpose of conviction.”488

172. But he who, under State law, voluntarily waived his right of trial by jury and elected to be tried by the court and by it was adjudged guilty and was condemned to be hanged, was not deprived of any right, privilege, or immunity for his protection by the Fourteenth Amendment, but was tried and condemned in strict accordance with the forms prescribed by the constitution and laws of the State, and with special regard to the rights of accused persons under its jurisdiction.489 A person may waive a fundamental right490 but neither the State nor the United States can lawfully invade the indefeasible right of a person to personal security491; such invasion constitutes an “unwarrantable search and seizure.” The service of a lawful warrant operates practically as a waiver of right by the person searched or seized; but were a person to waive his right, say of trial by jury, such waiver would not confer power on any court or jury to try him. “Consent can never confer jurisdiction.”492

173. Am act of Congress that no person shall be excused from attending and testifying, or from producing books, papers, tariffs, contracts, agreements, and documents before the Interstate Commerce Commission, or in obedience to its subpœna, on the ground that he might thus be compelled to be a witness against himself and so become subject to penalty is constitutional because its additional provision immuning him from future prosecution by reason of his evidence thus given sufficiently satisfies the constitutional guarantee of protection.493

So too the stenographic report of testimony given in court, supported by the oath of the stenographer that it is a correct transcript of his notes and of the testimony of a deceased witness is competent evidence, is admissible, and does not conflict with the provision of the Constitution that an accused person shall have the right “to be confronted with the witnesses against him.”494 The principle here is essentially one of sovereignty,—the court declaring: “the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.”495 The sovereign right of a State, or of the United States with respect to citizenship, is sufficient, in either, to effect the purposes for which either exists; but in the American dual system of government, citizenship has fundamental rights, which are guaranteed, and political privileges, which are conferred and protected.

174. Civil rights and their guarantees, both in the States and in the United States, are formulated as limitations on government,—as fundamentals reserved “and above any constitutional sanction.” These rights include those of religious liberty, personal security, security of dwellings, papers, and property, personal freedom, due process of law, jury trial, and equal protection of the laws. The line of demarcation between these fundamental rights is not easily drawn, nor even drawn with precision. These rights, being fundamental rights, exist independent of the government which the people of a State, or the people of the United States ordain and establish. That sovereignty—the people themselves—has power to alter, to modify, or even to destroy these rights, or any of them, must be admitted, but that sovereignty ever, under a republican form of government, will alter, modify, or destroy these rights, may with equal assurance be denied.

175. The political privileges of citizenship rest on a different conception of government. Political privileges—of which the most important are the right to vote and the right to be voted for, and to execute an office because of election to office—are not fundamental, that is, they are not civil rights. The State, or the United States, has the right to prescribe qualifications for an elector, or for candidacy for any office. Usually these qualifications are of age, residence, sex, and tax-paying,—the people of the United States having also declared that the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude. This inhibition does not make the fact of race, or color, or previous condition of servitude a fundamental civil right guaranteed by the United States under the Constitution. In no sense does the Fourteenth Amendment confuse civil and political rights. No person can vote unless he or she has complied with the requirements (qualifications) for voting, prescribed by the State in which he or she resides. No person acquires civil rights by a similar compliance. By birth or naturalization (and naturalization is a sort of legal birth by the will of the sovereign), a person possesses civil rights, but no person possesses the privilege of voting either by birth or by naturalization. The privilege of voting may be lost by removing from a polling district; by neglect to register; by neglect to pay a tax,—in brief, by failure to comply with any electoral law of the State; but no person forfeits his or her civil rights by mere neglect. Infants, minors, adults, men, women, and children possess equal civil rights. Impairment, suspension, forfeiture of civil rights is effected only by commission of crime, that is, by a voluntary act, inimical to sovereignty itself. Such an act also cuts off the privilege of voting, or of being voted for with effect of induction into office, because the person who imperils sovereignty by commission of a crime would, in all probability, imperil sovereignty by voting. The exercise of the suffrage has long continued in America, and, both in laws and in constitutions, is commonly referred to as a “right.” The tendency of privileges is to become rights. In America, however, the republican form of government exists both in the States and in the United States. Practically, civil rights and political privileges are determined by the will of the people.