The descendants of the original citizenry received citizenship as a matter of course.41 The new comers to America, the immigrants who came in after the founding generation, themselves gained citizenship, by means of naturalization under laws enacted by Congress. Children born to them after they became citizens gained citizenship at birth, again as a matter of course. But what about children born to these naturalized citizens before they became citizens, while they were yet aliens?
Here, the answer was provided, clearly and positively, by Congress, as in its first session it enacted the immigration and naturalization “Act of 1790”.42 Immigration and naturalization, as Rep. James Madison then put it, was not a right but rather a “privilege”. In context, “privilege” denoted that Congress might properly limit immigration and naturalization to persons of commitment, to one who “really meant to incorporate himself into our society” and of a character sufficient to add to the “wealth and strength of community”.43 Character as thus stated included republican virtues as opposed to the servile, class-ordered mentalities—the “sensations, impregnated with prejudices of education acquired under monarchical and aristocratical Governments”—then associated with the old world.44
Upon showing character and commitment, by compliance with the terms of naturalization, immigrants became citizens. And so did children born to them before they were naturalized. The 1790 Act provided that upon naturalization all of their children “dwelling within the United States shall also be considered as citizens of the United States.” Notice, these children are not made citizens by means of jus soli: It mattered not whether these children had been born in the United States or abroad. Rather, citizenship was attuned to jus sanguines. It turned on the connection of their parents to the United States, that they had become United States citizens.
____________________________________________________________
41 As explained in a thoughtful opinion:
Whoever, then, was one of the people of either of these States when the Constitution . . . was adopted, became ipso facto a citizen-a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was, consequently, one of its original citizens. Minor v. Happensett, 88 U.S. 162, 167 (1874).
42 Act of March 26, 1790, entitled An act to establish an uniform rule of naturalization, 1 Stat. 103.
43 I Annals of Cong. 1150 (Joseph Gales ed., 1834).
44 Id. at1156 (Rep. Sedgwick). Sedgwick later defined republican virtue as “habits of temperate discussion, patient reasoning, and a capacity of enduring contradiction.” 2 Annals at 571. Sedgwick also would exclude exploiters, those seeking short term gain without long-term commitment. Id. The whole debate was consistent with modern notions about political communities. As explained by Michael Walzer, “Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination. Without them, there could not be . . . historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common life. Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality 61 (1983).
Excellent find!