John Bingham and Non-Citizens Voting in Federal Elections

        House Republicans just passed the Safeguard American Voter Eligability (SAVE) Act, requiring proof of citizenship when registering to vote.  As the topic is in the news again, it's worth revisiting the views of John A. Bingham, the man most responsible for Section One of the Fourteenth Amendment, on the subject of non-citizen voting. 

        His speech on the subject contains significant clues about Bingham's theory of citizen and non-citizen rights which he would add to Section One of the Fourteenth Amendment.

        In 1859, a few years before Bingham helped draft Section One of the Fourteenth Amendment, he spoke against the admission of the state of Oregon. There were two main reasons.  First, the proposed state Constitution contained a Black Code discriminating against black American citizens. Secondly, the state proposed allowing non-citizens to vote in state elections for federal offices. According to Bingham, this was an unacceptable violation of the rights of citizens to elect their government.

        In the passages below, Bingham not only explains his position, he distinguishes the rights of citizenship from the natural rights of all persons (regardless of citizenship)--an idea that he later places in the language of the Fourteenth Amendment. 

Here is Bingham:

            "What, sir, is a State, but a collection of citizens, each of whom is bound by the restrictions of the Federal Constitution and so continue to be collectively after their State, organizations, as they were individually before? This is an old idea. It was entertained by the fathers of the Republic, and by them incorporated in their early legislation for the government of the Territories and the organization and admission of new States. . . .

            The second section of the second article of the Oregon constitution contains these words:  “In all                 elections not otherwise provided for in this constitution,” * * * * “every white male of foreign birth, of the age of twenty-one years and upwards, who shall have resided in the United States one year, and shall have resided in this State during the six months immediately preceding such election, and shall have declared his intention to become a citizen of the United States one year preceding such election,” * * * * “shall be entitled to vote at all elections authorized by law.”

            Now, sir, this is simply a provision that aliens, upon one year’s residence, after a mere declaration of intention to become a citizen of the United States, may vote at all general elections, for all Federal and State officers; that aliens, by reason of one year’s residence after a declaration of intention, may elect your Representatives in Congress and select the State Legislature to choose your United States Senators, and elect presidential electors for the purpose of choosing a President and Vice President of the United States. I do not hesitate to say that this presents the question, whether a State may transfer the sovereignty of the ballot, which is the ultimate sovereignty of the country, to aliens, on one year’s residence, and a mere declaration of intention to become citizens of the United States when it suits them, and not before. 

            If there were no other objection to this constitution, I might surrender my individual judgment to bad precedents in the cases of the admission of Michigan, Wisconsin, and, more recently, of Minnesota. I think such concessions to new States most pernicious in policy and of doubtful constitutionality.

            By declaring his intention to become a citizen of the United States, an alien does not renounce his allegiance to the Government of his native country, nor does he acknowledge any allegiance to ours. He only gives notice that he may do so at his pleasure. He may never carry out his intention, and there is no law to compel him. . . .

        

            It has always been well understood amongst jurists in this country, that the citizens of each State constitute the body-politic of each community, called the people of the State; and that the citizens of each State in the Union are ipso facto citizens of the United States. (Story on the Constitution, vol. 3, p. 565.)

            Who are citizens of the United States? Sir, they are those, and those only, who owe allegiance to the Government of the United States; not the base allegiance imposed upon the Saxon by the Conqueror, which required him to meditate in solitude and darkness at the sound of the curfew; but the allegiance which required the citizen not only to obey, but to support and defend, if need be with his life, the Constitution of his country. All free persons born and domiciled within the jurisdiction of the United States, are citizens of the United States from birth; all aliens become citizens of the United States only by act of naturalization, under the laws of the United States. What I have said on this question of United States citizenship, and the words “the people,” as used in the Constitution of the United States, is sustained by jurists and the decisions of the courts, Federal and State. . . .

            The Congress of the United States should not consent that the sovereignty of the ballot, which is the sovereignty of America, should be transferred by its act to those who may use it to aid treason, and who may themselves levy war upon us, and give aid and comfort to the enemy without any legal responsibility for their acts. . . .

             If I am right in this, sir, then I submit that the elective franchise for the election of Federal officers, either directly or indirectly, should be confined to, and exercised exclusively by, citizens of the United States resident within the several States. That the several States have, by the terms of the Federal Constitution, the exclusive power to regulate and control the exercise of the elective franchise in all general elections, Federal and State, is conceded; but I do deny that any State can rightfully, under the Federal Constitution, transfer this great political privilege, in whole or in part, from the citizens of the United States, native and naturalized, to aliens, who owe no allegiance to our Constitution, who are not obliged to bear arms in defense of our country, and who cannot be held to answer for treason if they themselves levy war against us. If the States may transfer this right in part to aliens, they may give it exclusively to aliens! What is the elective franchise, which you propose to give to aliens? It is the sovereignty of America, secured by the Constitution to the people, the citizens of the United States resident within the several States, and by the exercise of which, directly or indirectly, the people appoint persons of their choice to fill the legislative, judicial, and executive departments of their own Government; make, interpret, and enforce their own treaties and laws, and do all other acts which a free and independent people may, of right, do. . . .

            Sir, what are the distinctive political rights of citizens of the United States? The great right to choose (under the laws of the States) severally, as I remarked before, either directly by ballot or indirectly through their duly-constituted agents, all the officers of the Federal Government, legislative, executive, and judicial, and through these to make all constitutional laws for their own government, and to interpret and enforce them; the right, also, to hold and exercise, upon election thereto, the several offices of honor, of power, and of trust, under the Constitution and Government of the United States. 

              It is worthy of remark that every political right guarantied by the Constitution of the United States is limited by the words people or citizen, or by official oath, to those who owe allegiance to the Constitution. The right to exercise the office of a Representative or Senator in Congress is a political right, and, by the terms of the Constitution, its exercise is limited to citizens of the United States, being inhabitants of the States in which, not by which, they are chosen. The reservation of political powers is a reservation to the States or the people – both of which terms import citizens of the United States – and limit the exercise of all reserved powers to the citizens of the United States, acting as such through their national or State organizations.

 

            And in further illustration of my position I invite attention to the significant fact that natural or inherent rights, which belong to all men irrespective of all conventional regulations, are by this constitution guarantied by the broad and comprehensive word “person,” as contradistinguished from the limited term citizen – as in the fifth article of amendments, guarding those sacred rights which are as universal and indestructible as the human race, that “no person shall be deprived of life, liberty, or property but by due process of law, nor shall private property be taken without just compensation.” And this guarantee applies to all citizens within the United States. That these wise and beneficent guarantees of political rights to the citizens of the United States, as such, and of natural rights to all persons, whether citizens or strangers, may not be infringed, it is further in this national Constitution provided:

            “That this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” – Article six of Amendments.

            There, sir, is the limitation upon State sovereignty – simple, clear, and strong. No State may rightfully, by constitution or statute law, impair any of these guarantied rights, either political or natural. They may not rightfully or lawfully declare that the strong citizens may deprive the weak citizens of their rights, natural or political; and if the State should do so by enacting statutes to that effect, there stands the limitation of the Constitution of the United States, sanctioned by the strong averment assented to and ratified by all the people and all the States[.]"

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            I included major portions of Bingham speech in volume one of my collection, "The Reconstruction Amendments: Essential Documents." His theory distinguishing the rights of national citizenship from the natural rights of all persons, regardless of citizenship, become a major structural feature of Section One of the Fourteenth Amendment--which Bingham drafted.