Immigration Article of the Day: “Failures of Originalism: The Uncertain Meaning of ‘Citizen of the United States'” by SHELDON NOVICK

“Failures of Originalism: The Uncertain Meaning of ‘Citizen of the United States’” Vermont Law School Research Paper No. 11-12 SHELDON NOVICK, Vermont Law School.

ABSTRACT: Originalist interpretation seeks a definite “public understanding” of Constitutional language at the time of its adoption. The method fails when applied to language that cannot be understood in this way. In 1789, the word “citizen” as used in the Constitution, to take an important example, was a recent American coinage. English dictionaries of the time defined a citizen as a “townsman” or “tradesman;” the Constitution itself helped to give the word its new American sense, a person who had political rights, but this meaning was not well established until years later. At the time of ratification, “citizen” appears to have been understood by many of the Constitution’s draftsmen as signifying a narrow class of property-owning, white men, but the term was left to be further defined in each state, and understandings varied between town and country, slave state and free. Congress in its early years debated the nature and existence of national citizenship, without producing an authoritative definition. Taney’s originalist opinion in Dred Scott confirmed the narrow view of national citizenship originally held by some of the Framers. The Fourteenth Amendment reversed Dred Scott and created a new national citizenship, but the Supreme Court sharply limited the effect of the new language. The core of the Constitution, defining the class of persons who have rights and the rights that they hold, has been constructed piecemeal and continues to change. Originalism in this sphere died with Dred Scott.

KJ