Tuesday, February 7, 2023

Campbell on "General Citizenship Rights"

Jud Campbell, University of Richmond School of Law, has posted General Citizenship Rights, which will appear in the Yale Law Journal:

Current scholarship and case law assume that citizenship rights come in only two sets: state and national. This binary approach reflects broader contemporary attitudes about the positivist grounding of constitutional rights and the dualistic character of American sovereignty. From the Founding up until Reconstruction, however, many Americans took a different view. For those steeped in older ways of thinking, citizenship rights included not only local and national rights but also general citizenship rights. Premised on social-contractarian assumptions and a common jurisprudential heritage, general citizenship rights were fundamental rights that were putatively held by all American citizens. Moreover, these rights were secured across state lines through the conferral of general citizenship in Article IV, reflecting the interstate dimensions of federalism. Coming in three sets, not two, citizenship rights were thus based not only on the positively enacted law of particular sovereigns but also on general law, coupled with the notion that Americans belonged to a federative political family. Recovering these ideas of general citizenship rights and general citizenship enables new ways of seeing our constitutional past and can help to clarify or resolve long-running controversies about the Privileges and Immunities Clause in Article IV and the Privileges or Immunities Clause in the Fourteenth Amendment. This history also points toward a different way of framing those disputes, focused less on linguistic analysis of constitutional text and more on underlying conceptions of fundamental rights, federalism, and sovereignty.

--Dan Ernst