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77 ⡰ “The Great Field of Human Concerns” The States, the Union, and the Problem of Citizenship in the Era of the American Revolution d o u g l a s b r a d b u r n I n his 1833 decision in Barron v. City of Baltimore, Chief Justice John Marshall confirmed a fundamental aspect of the real meaning of citizenship in the American Union before the Civil War. The true character of the privileges, rights, immunities, and duties of the vast majority of the American citizenry remained, for nearly all important purposes, in the hands of the individual states. The famous Bill of Rights—the first ten amendments to the U.S. Constitution—were “intended solely as a limitation on the exercise of power by the government of the United States,” and were therefore “not applicable to the legislation of the states,” the “nationalist” John Marshall affirmed.¹ If the people of the states wanted to restrain their governments, they could amend their own constitutions. Marshall’s decision would be upheld in no less than nine subsequent decisions of the Court, even after the passage of the Fourteenth and Fifteenth amendments. As late as 1899 Marshall’s decision was defended in the Supreme Court. The states were left to do as they would to their citizens and the inhabitants of their territory, as long as they did not coin money, start their own wars, regulate interstate commerce, negotiate their own treaties, pass ex post facto laws, or refuse to uphold a proper federal statute. There was no potent articulation of national citizenship rights, only express denials of such a system of law. Even on questions relating to naturalization, the states would possess final regulation of the actual privileges of the aliens in their states. As one jurist in support of Marshall’s decision wrote, “[S]uch indeed was the only rational and intelligible interpretation which those amendments can bear.”² So the states defined the character of fundamental citizenship rights in the Union for much of the nineteenth century, which included the power to ignore Marshall’s decision entirely, as numerous state judges did.³ Thompson & Onuf final pages.indd 77 Thompson & Onuf final pages.indd 77 1/3/13 1:38 PM 1/3/13 1:38 PM 78 Douglas Bradburn For Thomas Jefferson, this was the way the Union was supposed to work. Reflecting on the policies and vision of the Federalists in his first message to Congress, he called upon his newly Republican Congress to break the consolidating tendencies of previous legislation, to limit offices and officers of the national government, and to restore to the states their rightful control over their own inhabitants. As he argued, “This Government is charged with the external and mutual relations only of these States;” and “the States themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns.”⁴ This system of federal authority, in which the bulk of the actual rights and privileges of the individual inhabitants, aliens, and citizens in the United States were controlled, contested, and adjudicated by local and state authorities must be fundamental to any history of governance in the first eighty years of American independence. It was a system which evolved through political conflict and through the rejection of alternatives . No one constitution, or statute, or law, or court decision created it. The outcome was not accidental or incidental to the process of state formation and Revolution. It was a vision of Union broken in the Civil War, of course, and never entirely recreated. The Thirteenth, Fourteenth, and Fifteenth amendments to the U.S. Constitution mark a drastic departure for the meaning of American citizenship and nationhood. Some recent scholars, as they reject enthusiastic and largely ahistorical arguments about the character of liberalism and the “myth” of the “weak state” in the nineteenth century, assert that this somewhat messy system of citizenship regulation is in fact evidence that citizenship as a concept in law or politics was relatively unimportant to the real experience of rights, duties, privileges, and immunities of Americans before the Civil War.⁵ Some authors and theorists insist that citizenship requires a nation-state with a centralizing uniformity . Instead of “modern citizenship”⁶ or any particular importance given to the status of “citizen,” Americans for most of the nineteenth century allowed their fundamental relations to remain stuck in the status categories inherited from the common law, or driven by the...

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