the attempted classification, and is not a mere arbitrary selection."48 "Clear and hostile discriminations against particular persons and classes, especially such as are of unusual character, unknown to the practice of our governments, might be obnoxious to the constitutional prohibition."

7749

Under this clause of this amendment it has been held to be a deprivation of the equal protection of the laws to prohibit colored citizens of the State from serving on juries.50

In determining whether or not there has been a deprivation of the equal protection of the laws, the court will look at the spirit. and effect of the law, rather than merely at its letter. Thus a law, which on its face purports to apply to all equally, may have the effect of depriving certain classes of the inhabitants of the State of the equal protection of the laws when it is evident that the effect of the law will fall upon these classes above.51

This clause of the Constitution protects not only natural persons, but also corporations.52

Violations of this clause of the amendment which take the form of commercial discriminations have been discussed in the previous chapter.

§ 274. Apportionment of Representatives. The second section of the fourteenth amendment is for the reduction of the representation of any State in the lower house of Congress which denies the right of suffrage to any male citizen of the State twenty-one years of age or upwards. This provision was inserted to secure the ballot to the negro, but the prohibition is general against all restrictions; it applies as much to educational or property restrictions as to restrictions intended to act wholly against the negro. This provision has never been put in operation against any State.53

§ 275. The power of Congress to enforce this amendment by legislation.-Part of the provisions in this article are not

48

Gulf, etc., Railway v. Ellis, 165 U. S. 150.

40 Bells Gat Railroad v. Pennsylvania, 134 U. S. 232, 237.

50 Strauder v. West Virginia, 100

U. S. 303.

51 Yick Wo v. Hopkins, 118 U. S. 356.

52 Smith v. Ames, 169 U. S. 466.

63 See Chapter VII.

self-executory and require legislation by Congress to give them .effect. The “Civil Rights Bill" was passed under the provisions of this amendment but was held unconstitutional.** Legislation by Congress was required to remove from office those persons in office at the time of the adoption of the amendment who were prohibited from holding office by the third section of this amendment. This amendment does not give to Congress the power to enact laws for the suppression of crime within a state."

56

§ 276. Citizenship. The question as to what citizen ship is has been answered by the Supreme Court as follows:

"There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connection, reciprocal obligations. The one is a compensation for the other; allegiance for protection and protection for allegiance.

"For convenience it has been found necessary to give a name to this membership. The object is to designate by a title the person and the relation he bears to the nation. For this purpose the words 'subject,' 'inhabitant' and 'citizen' have been used, and the choice between them is sometimes made to depend upon the form of the government. Citizens is now more commonly employed, however, and as it has been considered better suited to the description of one living under a republican government, it was adopted by nearly all of the States upon their separation from Great Britain, and was afterwards adopted in the Articles of Confederation and in the Constitution of the United States. When used in this sense it is understood as conveying the idea of membership in a nation, and nothing

"In this respect, as in other respects, it (i. e., the Constitution) must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution."58

Prior to the adoption of the Declaration of Independence, the inhabitants of the various colonies, except those owing allegiance to some foreign country, were British citizens. Immediately upon the adoption of this declaration the inhabitants of each colony became citizens of the new State. There was no United States citizenship at this time, nor was such citizenship created or recognized by the Articles of Confederation. State citizenship is therefore the older of the dual citizenships now existing in this country.

National citizenship was first created by the adoption of the Constitution. "Every person, and every class and description of persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States became also citizens of this new political body."

The original draft of the Constitution does not designate who shall be citizens of the United States, but this is done by the fourteenth amendment, which provides that: "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." This provision, in slightly different words, is inserted in the Statutes of the United States: "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States."

2760

Citizenship in the United States can thus be acquired either by birth or naturalization. All persons born in the United States (this does not include territory belonging to the United States), except Indians and the children of foreign ambassadors, can claim citizenship in the United States. Persons born in this country of foreign parents can, if they choose, 59 Scott v. Sandford, 19 Howard, 406.

Miner v. Happersett, 21 Wal

lace, 162.

United States v. Wong Kim

Ark, 169 U. S. 649, 654.

Revised Statutes, section 1992.

claim citizenship of the country of which their fathers are citizens; and so, likewise, a child born in another country whose father is a citizen of the United States, is himself a citizen of this country if he claims the right.

The right of citizenship belongs to those born in this country (with the exceptions already stated), even although their parents not only were not citizens of the United States, but were even prohibited from becoming citizens. For example, it has been decided that a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.61

In cases of citizenship created by birth, the rights and obligations annexed thereto attach without act of the individual. A formal compact is not necessary to create allegiance.

64

62

"Naturalization is the act of adopting a foreigner, and clothing him with the privileges of a native citizen."63 Congress is given the power to pass uniform laws on the subject of naturalization. In the exercise of this power Congress has enacted general laws under which individuals may be naturalized, and has also on many occasions provided for collective naturalization by treaty or by statute.65 Congress may exclude such foreigners as it deems proper from this benefit of its naturalization laws.66 At the present time only members of the White or Negro races are permitted to become citizens by this method.

In the case of the Chinese not only are they excluded from citizenship, but a long series of acts passed from May 6, 1882. to April 2, 1902, prohibit them, with certain specified exceptions. from entering the country. These acts have been held consti

tutional by the Supreme Court." "It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In the United States this power is vested in the national government, to which the Constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the government and may be exercised either through treaties made by the President and Senate, or through statutes enacted by Congress."68

The government of the United States not only provides for the naturalization of citizens of foreign countries, but also recognizes the right of expatriation on the part of its own citizens.69

The dual citizenship, that of the United States, and of a particular State, has already been referred to. Each of these citizenships involves an allegiance and duties to the government involved, and confers rights upon the individual. The fourteenth amendment only protects the rights which come to a person as a citizen of the United States.

"The first section of the fourteenth article, to which our attention is more especially invited, opens with a definition of citizenship, not only citizenship of the United States, but also of citizenship of the States. No such definition was previously found in the Constitution nor had any attempt been made to define it by Act of Congress. It has been the occasion of much discussion in the courts, by the executive departments and in the public journals. It had been said by eminent judges that no man was a citizen of the United States except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were

67 Id.

es Nishimura Ekiu V. United States, 142 U. S. 651, 659.

69 Revised Statutes, Section 1999. Requignot v. Detroit, 16 Fed. Rep.

214.