The Transformation of American Citizenship via the Crucible of War

ironclad oath

Citizenship in these United States has consistently been in a transformative mode. From early American settlers, through the colonial period to Statehood and nationhood, and through transition from territorial to Statehood status, citizenship was a phenomenon appreciated but not necessarily understood. It was loosely defined, but yet highly valued. This was tolerable within the framework of limited government and widely accepted comity among the States and the U.S. Government. But comity among the States and the U.S. Government and limited government have been displaced by something radically different.

What is citizenship? Properly understood, a citizen is “one of the sovereign people. A constituent member of the sovereignty, synonymous with the people.” However, a funny thing happened in the course of American political development. That funny (or not so funny thing) is that the notion of sovereignty has been swallowed up by the notion of allegiance. As a matter of fact, the use of the word “citizen” is delusive, the word “allegiant” factual.

The word “citizen” implies an exalted position of the individual in relation to his government. The word “allegiant” suggests the individual as a faithful and loyal follower of his government. And the allegiant’s debased position to his government is not necessarily consensual, but may be, if questioned, enforced by the coercive powers of the government.

Like it or not, citizenship in these United States mandates allegiance to one’s government. Principles such as individual sovereignty, the consent of the governed, and even the constitution rule of law become relatively meaningless in practical politics.

This may always have been the case. In discarded federative republic of these United States the ambiguity regarding citizen’s posture towards his government was masked. When the U.S. Government was relatively weak, citizenship was more of a visceral sentiment than an intellectual and/or legal determination.

All this changed after war erupted in 1861. During the war citizenship was placed in the crucible of red hot politics, with legalism serving as both the anvil and hammer. Legalism became the determining factor ipso facto; that is, the victors militarily, politically, and statutorily mandated that all citizens must affirm their allegiance towards the U.S. Government. The antebellum ambiguity was clarified.

Senator Howard’s questioning of Robert E. Lee, on February 17, 1866, provides a glimpse into the evolution of American citizenship during this transitional phase.

Senator Howard: And that the ordinance of secession, so-called, or those acts of the State which recognized a condition of war between the State and the general government, stood as their [the States of the Confederacy] justification for their bearing arms against the government of the United States?

General Lee: Yes, sir. I think they considered the act of the State as legitimate ; that they
were merely using the reserved right which they had a right to do.

Senator Howard: State, if you please, (and if you are disinclined to answer the question you need not do so, ) what your own personal views on that question were ?

General Lee: That was my view; that the act of Virginia, in withdrawing herself from the
United States, carried me along as a citizen of Virginia, and that her laws and her acts were binding on me.

Senator Howard: And that you felt that to be your justification in taking the course you did?

General Lee: Yes, sir.

This exchange between Howard and Lee manifests not merely the transition from a federative republic to a unitary nationalism, but also a unitary nationalism in which allegiance is to the U.S. Government and not the State in which one is domiciled. As a consequence of the war, allegiance to the U.S. Government defines what it means to be a citizen in these United States.

General Lee was a realist, which in large part explains his signing an oath of allegiance on October 2, 1865, in which he took an oath of allegiance to “henceforth faithfully protect and defend the Constitution of the United States, and the Union of the States thereunder.” But the operative phrase is “defend the Constitution” which is not necessarily the constitution we live under today. So theoretically, one could claim that under the U.S. Constitution properly understood, the thread of allegiance to the U.S. Government runs through the States. But neither case law, statutory law, nor for that matter public opinion treats the U.S Constitution with the deference it deserves.

The constitution under which we live today has made a mockery of federalism, States’ Rights, checks and balances, separation of powers, limited government, and a government based upon the consent of the governed.

So what does it mean to be a U.S. citizen today? For one thing, it means being a follower of a civil religion. This religion is not that of the Founding generation, but something quite different. I’m not merely talking about the de facto civil religion, as explained by Benjamin Wiker’s Worshipping the State: How Liberalism Became Our State Religion. I’m talking about a de jure civil religion joined at the hip with American citizenship.

In the words of one sociologist, Robert N. Bellah:

While some have argued that Christianity is the national faith . . . few have realized that there actually exists alongside of and rather clearly differentiated from the churches an elaborate and well-institutionalized civil religion in America. . . Though much is selectively derived from Christianity, this religion is clearly not itself Christianity.

Bellah was expressing a truism, as evidenced when President Clinton awarded the National Humanities Medal to Bellah “for his efforts to illuminate the importance of community in American society. [Because] he has raised our awareness of the values that are at the core of our democratic institutions and of the dangers of individualism unchecked by social responsibility.”

Unfortunately, as a U.S. citizen I find myself also a follower of this civil religion (or if you will, as a member of this civil church). This religion has its unique catechesis, engrained in Americans through the various agents of government socialization and affirmations, such as the Pledge of Allegiance.

This religion also has its prophets and sacred text. Bellah accurately points out that “Nowhere is it stated more vividly than in the Gettysburg Address, itself part of the Lincolnian “New Testament” among the civil scriptures.”

Membership in this religion is mostly compulsory (for individuals and States) and there are significant penalties for apostasy, or what the civil religion variously refers to treason, rebellion, insurrection, etc.

Reverse engineering may be the most effective method in discerning what it means to be a U.S. citizens in 2014, or more specifically a member/follower of this religion. I’ll use myself as the unit of analysis.

I am a U.S. citizens. Suppose, because the U.S. Government requires me to violate fundamental tenets of my faith, Roman Catholicism, and I decided to voluntarily renounce my citizenship. The procedure for doing so is covered by section 349(a)(5) of the 1961 Immigration and Nationality Act (INA) (8 U.S.C. 1481(a)(5)).

Four points of interest regarding the statutory requirements. First, the renunciation must be formally made. Second, the renunciation is irrevocable. Third, parents may not renounce the citizenship of their children. And, fourth, for all intents and purposes the States are non-existent in the process. By renouncing one’s U.S. citizenship, one by default loses any benefits, e.g., the graces, of citizenship, period.

The citizen qua allegiant loses all the rights and privileges formerly held, including those in his former State. He is, in short, condemned.

The U.S. Department of State cautions that “[r]enunciation is the most unequivocal way in which a person can manifest an intention to relinquish U.S. citizenship. Please consider the effects of renouncing U.S. citizenship, described above, before taking this serious and irrevocable action.”

Serious it is. I would find myself not only no longer a U.S. citizen, but also made aware that I would forfeit many benefits to being a domiciled resident (i.e., legal permanent resident) of Florida, because state citizenship does not exist. Moreover, the U.S. would have the primary claim to the citizenship status of any of my minor children. This reveals that U.S. Government is at root the Loco Parentis of every minor under its jurisdiction, thereby demanding the allegiance of children even against the wishes of parents.

It is important to note that the term “United States”, in a geographic sense, means the States and the District of Columbia. This effectually makes it impossible for a State to reassert State citizenship. The States have been essentially demoted to administrative units of the central government, due to their inhabitants’ allegiant status towards the U.S. Government.

What about State sovereignty, you may ask.

The short answer is that it does not exist. All Americans, in their respective States, by law owe allegiance to the U.S. Government. All State officials (elected and non-elected) are required to swear/affirm their allegiance to the Constitution, the civil religion, and laws of the U.S. States, with the U.S. Government being the arbiter, high priests, of both.

Okay, then what about secession, in the attempt to withdraw from the jurisdiction of the U.S. Government, including its Constitution and laws?

As allegiants to the U.S. Government, domiciled residents in the respective States have forfeited that option.

In antebellum America the citizen owed his allegiance to two governments, that of his State and the United States Government. In the order of things, allegiances is first owed to his State and only to the U.S. Government provided his State is a member of the Union of States.

The allegiance the citizen owes to his government (or governments) necessitates the duty of the citizen to obey the laws and commands of the government. In that capacity the citizen is a subject, obliged to obey with or without consenting to the laws and commands controlling him. In his capacity as an allegiant, the character of a sovereign citizen is marginalized if not displaced by the collective sovereignty of the society of which he is a member.

Allegiance (submission) to one’s government existed prior to the ratification of the U.S. Constitution. In the colonial era allegiance was to the Crown. In Revolutionary American it was to one’s State.

In the 1808 landmark case McIlvaine v. Coxe’s Lessee Justice Cushing delineated the complex dynamic of citizen qua allegiant under the Articles of Confederation.

On June 5, 1777, New Jersey passed a law asserting that all such persons were subjects of the State and owed their allegiance to the State. In other words, the sovereign State of New Jersey had the right to compel the allegiance of its inhabitants to the State. Justice Cushing reasoned that members of New Jersey society were entitled to the protection of the New Jersey government, and in exchange for that protection New Jersians were bound to that government “by the ties of allegiance.” Without the concurrence of New Jersey, allegiance was irrevocable. He wrote that the New Jersey legislature “by the most unequivocal declarations, asserted its right to the allegiance of such of its citizens as had left the state [New Jersey], and had attempted to return to their former [Great Britain] allegiance.”

Ratification of the U.S. Constitution did not explicitly shift allegiance from one’s State government to the U.S. Government. Neither did the 14th Amendment, at least not until the U. S. Supreme Court worked its magic.

Although the 14th Amendment stipulates 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.

Nevertheless, in 1874 Chief Justice Waite nationalized the 14th Amendment definition of citizenship. He wrote:

Before its adoption the Constitution of the United States did not in terms prescribe who should be citizens of the United States or of the several States, yet there were necessarily such citizens without such provision. There cannot be a nation without a people. The very idea of a political community, such as a nation, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of a 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 compensation for the other; allegiance for protection and protection for allegiance.. . . Whoever, then, was one of the people of either of these States when the Constitution of the United States was adopted, became ipso facto a citizen—a member of the nation created by its adoption.

The Chief Justice also opined that the words “subject,” “inhabitant,” and “citizen,” are interchangeable when “conveying the idea of membership of a nation.” The word “citizen” was adopted because it was “better suited to the description of one living under a republican government.” All three words, according to the Chief Justice, mean the same thing, i.e., the reciprocity of allegiance for protection/benefits.

The “reciprocity” between protection for allegiance has a feudal ring to it, a theme that is consistent over time. Consider the (Modus faciendi homagium et Fidelitatem/which was to be done) English 13th Century method of confirming contract and homage of the freeman to his Lord/Lords:

When a Freeman shall do fealty to his Lord, he shall hold his Right Hand upon a book, and shall say thus “Hear you my Lord R. that I, P. shall be to you both faithful and true, and shall owe my Fidelity unto you, for the Land (benefit) that I hold of you, and lawfully shall do such Customs and Services, as my Duty is to you, at the times assigned. So help me God and all his Saints.

Contrast that 13th Century loyalty oath with:

On May 5, 1789, the Senate passed its first bill — the Oath Act. That first oath, for members and civil servants, was very simple: “I do solemnly swear that I will support the Constitution of the United States.”

Or the Ironclad Oath:

“I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise the functions of any office whatever, under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power or constitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States, against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.”

Although in 1884 President Arthur signed the law repealing the remaining ironclad and jurors’ test-oath statutes, the force of the oath is alive and well.

For example, in Richardson v. Cole (1972), Justice Harlan opined that loyalty oaths are constitutional:

“I think it can be fairly said that subscribing to [a loyalty] oath subjected Mrs. Cole to no more than an amenity. No First Amendment considerations, in my view, are at all involved in these cases. This oath does not impinge on conscience or belief, except to the extent that oath taking as such may offend particular individuals. I also think it safe to say that the signing of this oath triggered no serious possibility of prosecution for either perjury or failure to perform the obligations of the oath. . . . .”

Perhaps submitting to the oath “triggered no serious possibility prosecution”, but acting contrary to the oath certainly does. The U. S. Code full of examples:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

section 2385 ADVOCATING OVERTHROW OF GOVERNEMNT
As used in this section, the terms “organizes” and “organize”, with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons.

section 2384 SEDITIOUS CONSPIRACY
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

section 2383 REBELLION OR INSURRECTION
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

The current statutory status of citizenship inverts the relationship between the government and the governed. Under current law U.S. citizenship requires allegiance to the U.S Government, even if in good conscience the citizen concludes allegiance is not merited. In order to withdraw allegiance, one must physically withdraw from the United
States, i.e., leave the national church. Moreover, the U.S. Government has claims on the citizen’s children that transcends the claims of parents.

Allegiance means obedience. Consider this hypothetical. If a majority within a State of could no longer affirm allegiance to and thereby refuse to obey the dictates of the U.S. Government, that State would either have to withdraw/secede from the United States or suffer the coercive consequences of non-compliance.

Government by coercion runs counter to the American political tradition on a fundamental level, that of government being based upon the consent of the governed.

If a citizen is one of the sovereign people and a constituent member of the sovereignty, synonymous with the people, it is fair to conclude that the laws, regulations, and public policies under which he lives are premised upon his consent. However, any laws, regulations, and public policies not premised upon his consent would be an affront to his status as a sovereign citizen if or when the connection between citizen control over the government is breached. This is precisely the effect of the War Between the States.

As government became more remote from the control of the governed, i.e., shifted from his State to the central government, and the latter’s laws more pervasive, the status of the citizen’s sovereignty became more precarious. As citizen consent is made more remote from the laws he is obliged to live under, he transitions into a subject in a real sense, obliged to conform to the laws, regulations, and public policies to which he had little influence in shaping.

So are Americans sovereign citizens or subjects to a higher authority, i.e., government, beyond their meaningful control? To answer to this question requires an understanding of the long-term effects of Lincoln’s war against American federalism.

One thing is clear, in the unitary nationalism under which we live, compliments of Mr. Lincoln, and the transnationalism into which we are headed, the individual’s right of election, i.e., choosing allegiance to one’s State, is not an option. It appears that the 18th Century British doctrine of perpetual allegiance against which the 1776 revolutionaries fought has taken firm root in these United States. The primary difference being that Americans may elect their masters, but masters they are and we their subjects.

For Further Reading:

Benjamin Wiker, Worshipping the State: How Liberalism Became Our State Religion

Robert N. Bellah, The Broken Covenant: American Civil Religion in Time of Trial

About Marshall DeRosa

Marshall DeRosa received his Ph.D. and M.A. from the University of Houston and his B. A. from West Virginia University, Magna Cum Laude. He has taught at Davis and Elkins College (1985-1988), Louisiana State University (1988-1990), and Florida Atlantic University (1990-Present). He is a Salvatori Fellow with the Heritage Foundation and full professor in the Department of Political Science. He has published articles and reviews in professional journals, book chapters, and three books. He resides in Wellington, FL, with his wife and four children. More from Marshall DeRosa

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