Immigrants and the Right to Petition - NYU Law Review

Imaged with the Permission of N.Y.U. School of Law
NEW YORK UNIVERSITY LAW REVIEW
[Vol. 78:667
1. Revolution and Confederation
If the colonial experience had unsettled the English notion of
subjectship, the colonists' declaration of independence from Britain
further destabilized the concept. The emerging trend toward a citizenship
status based on consent continued through the revolutionary and
Founding periods, but uncertainties over the meaning of state and national
citizenship-and an unwillingness to confront the citizenship
status of Native Americans and blacks-ensured that the term "citizen"
lacked settled meaning in the early United States. 137
Under the Articles of Confederation, naturalization rules were
determined by each state, 138 leading to nonuniform standards 139 and
the result that, throughout the 1780s, there was no common national
understanding of the term "citizenship." At the Constitutional Convention
in 1787, there was widespread frustration with divergent state
naturalization rules, and Federalists and Anti-Federalists agreed that,
under the new Constitution, naturalization should be uniform and the
exclusive responsibility of the federal government. 40 The participants
in the convention were not explicit, however, as to what the contents
of the new naturalization rules should be. Nor was there agreement
on other manifestations of citizenship. 141
The lack of a common understanding of "citizenship" had no apparent
effect on petitioning, however, since petitioning had never depended
on citizenship status. In the early postcolonial period,
petitioning remained a vital mode of political participation 142 and its
exercise was not limited to citizens. The Articles of Confederation did
not expressly codify the right to petition, 4 3 but a broad Privileges and
137 See Kettner, supra note 95, at 9-10; Smith, supra note 135, at 116 ("Issues of state
versus national identity and slavery, especially, were so explosive that the framers avoided
raising them whenever possible and left them largely unresolved.").
138 Articles of Confederation art. IV (1781).
139 See Michael T. Herz, Limits to the Naturalization Power, 64 Geo. L.J. 1007, 1009
(1976) (discussing criticism of divergent state naturalization rules during Confederation).
140 See Michael J. Wishnie, Laboratories of Bigotry Devolution of the Immigration
Power, Equal Protection, and Federalism, 76 N.Y.U. L. Rev. 493, 534 & n.223 ("At the
Constitutional Convention and during the ratification period . . . even Anti-Federalists
seemed to agree that in this area a unitary national rule had to prevail.").
141 See Neuman, supra note 73, at 64 ("In the immediate post-Revolutionary period,
citizenship in an individual state was the dominant concept. The 1787 Constitution added a
concept of national citizenship ... but did not specify the intended relationship between
citizenship in a state and in the nation."); Smith, supra note 135, at 116 (noting Constitution
left ambiguities in meaning of citizenship).
142 8 Documentary History, supra note 104, at xi ("[P]etitioning became-after elections-the
primary mechanism for popular participation in the political process.").
143 The only express reference to petitioning is in Article IX, which authorized petitions
"between two or more States concerning boundary, jurisdiction or any other cause
whatever." Articles of Confederation, art. IX (1781).