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Edward Ennis was, at this time, chairman of the [[American Civil Liberties Union]] (ACLU), and he had previously served as [[general counsel]] for the [[Immigration and Naturalization Service]] (INS). In his oral arguments supporting Afroyim, Ennis asserted that Congress lacked the power to prescribe forfeiture of U.S. citizenship, and he sharply criticized the "foreign relations" argument by which the Court (in the''Perez'' case) had upheld loss of citizenship for voting in a foreign election.<ref name=spiro_157 />
Edward Ennis was, at this time, chairman of the [[American Civil Liberties Union]] (ACLU), and he had previously served as [[general counsel]] for the [[Immigration and Naturalization Service]] (INS). In his oral arguments supporting Afroyim, Ennis asserted that Congress lacked the power to prescribe forfeiture of U.S. citizenship, and he sharply criticized the "foreign relations" argument by which the Court (in the''Perez'' case) had upheld loss of citizenship for voting in a foreign election.<ref name=spiro_157 />


[[File:HugoLaFayetteBlack.jpg| thumb | left | 120px | [[Hugo Black]] wrote the opinion of the Court in the ''Afroyim'' case.]]
[[File:HugoLaFayetteBlack.jpg| thumb | left | 150px | [[Hugo Black]] wrote the opinion of the Court in the ''Afroyim'' case.]]
Charles Gordon was the current general counsel for the INS in 1967. Despite his skill and experience in the field of immigration law, Gordon did not make a good showing in the ''Afroyim'' oral arguments; he mentioned Israeli elections in 1955 and 1959 in which Afroyim had voted—facts which had not been included in the written record of the case as presented to the Supreme Court—and much of the rest of the Court's questioning involved criticism of Gordon for introducing new material that were not originally part of the complaint.<ref name=spiro_157 />
Charles Gordon was the current general counsel for the INS in 1967. Despite his skill and experience in the field of immigration law, Gordon did not make a good showing in the ''Afroyim'' oral arguments; he mentioned Israeli elections in 1955 and 1959 in which Afroyim had voted—facts which had not been included in the written record of the case as presented to the Supreme Court—and much of the rest of the Court's questioning involved criticism of Gordon for introducing new material that were not originally part of the complaint.<ref name=spiro_157 />


Line 69: Line 69:


=== Dissent ===
=== Dissent ===
[[File:John Marshall Harlan II official.jpg| thumb | right | 120px | [[John Marshall Harlan II]] wrote the dissent in the ''Afroyim'' case.]]
[[File:John Marshall Harlan II official.jpg| thumb | right | 150px | [[John Marshall Harlan II]] wrote the dissent in the ''Afroyim'' case.]]
The minority argued, in a dissent written by Associate Justice [[John Marshall Harlan II]], that ''Perez v. Brownell'' had been correctly decided and should not be repudiated;<ref>''Afroyim'', 387 U.S. at 270. "[T]he available historical evidence is not only inadequate to support the Court's abandonment of ''Perez,'' but ... even seems to confirm ''Perez&#39;'' soundness."</ref> that nothing in the Constitution deprived Congress of the power to revoke a person's U.S. citizenship for good cause;<ref>''Afroyim'', 387 U.S. at 292. "To the contrary, [the 14th Amendment's citizenship clause] was expected, and should now be understood, to leave Congress at liberty to expatriate a citizen if the expatriation is an appropriate exercise of a power otherwise given to Congress by the Constitution, and if the methods and terms of expatriation adopted by Congress are consistent with the Constitution's other relevant commands."</ref><ref>{{cite news | title=U.S. Can't Lift Citizenship Without Consent, Court Finds | newspaper=Chicago Tribune | date=May 30, 1967 | quote=Harlan, in the dissenting opinion, said nothing in the Constitution suggests that Congress should be forbidden to withdraw the citizenship of an 'unwilling citizen.'}}</ref> and that Congress was within its rights to decide that allowing U.S. citizens to vote in foreign elections ran contrary to the foreign policy interests of the nation and ought to result in loss of citizenship.<ref>''Afroyim'', 387 U.S. at 270. "There is no need here to rehearse Mr. Justice Frankfurter's opinion for the Court in Perez; it then proved and still proves to [our] satisfaction that § 401(e) is within the power of Congress."</ref> Examining the materials cited in the opinion of the Court, the dissent argued that they were inconclusive and that some of them had been misread.<ref name=ABAJ_Aug67 /> Harlan predicted that "Until the Court indicates with greater precision what it means by 'assent', today's opinion will surely cause still greater confusion in this area of the law."<ref>Spiro (2005), p. 159.</ref><ref>''Afroyim'', 387 U.S. at 269 n.1.</ref>
The minority argued, in a dissent written by Associate Justice [[John Marshall Harlan II]], that ''Perez v. Brownell'' had been correctly decided and should not be repudiated;<ref>''Afroyim'', 387 U.S. at 270. "[T]he available historical evidence is not only inadequate to support the Court's abandonment of ''Perez,'' but ... even seems to confirm ''Perez&#39;'' soundness."</ref> that nothing in the Constitution deprived Congress of the power to revoke a person's U.S. citizenship for good cause;<ref>''Afroyim'', 387 U.S. at 292. "To the contrary, [the 14th Amendment's citizenship clause] was expected, and should now be understood, to leave Congress at liberty to expatriate a citizen if the expatriation is an appropriate exercise of a power otherwise given to Congress by the Constitution, and if the methods and terms of expatriation adopted by Congress are consistent with the Constitution's other relevant commands."</ref><ref>{{cite news | title=U.S. Can't Lift Citizenship Without Consent, Court Finds | newspaper=Chicago Tribune | date=May 30, 1967 | quote=Harlan, in the dissenting opinion, said nothing in the Constitution suggests that Congress should be forbidden to withdraw the citizenship of an 'unwilling citizen.'}}</ref> and that Congress was within its rights to decide that allowing U.S. citizens to vote in foreign elections ran contrary to the foreign policy interests of the nation and ought to result in loss of citizenship.<ref>''Afroyim'', 387 U.S. at 270. "There is no need here to rehearse Mr. Justice Frankfurter's opinion for the Court in Perez; it then proved and still proves to [our] satisfaction that § 401(e) is within the power of Congress."</ref> Examining the materials cited in the opinion of the Court, the dissent argued that they were inconclusive and that some of them had been misread.<ref name=ABAJ_Aug67 /> Harlan predicted that "Until the Court indicates with greater precision what it means by 'assent', today's opinion will surely cause still greater confusion in this area of the law."<ref>Spiro (2005), p. 159.</ref><ref>''Afroyim'', 387 U.S. at 269 n.1.</ref>


Revision as of 03:25, 22 November 2012

Afroyim v. Rusk
Supreme Court of the United States
Argued February 20, 1967
Decided May 29, 1967
Full case nameBeys Afroyim v. Dean Rusk, Secretary of State
Citations387 U.S. 253 (more)
87 S.Ct. 1660; 18 L.Ed.2d 757
Case history
PriorCertiorari to the United States Court of Appeals for the Second Circuit; 361 F.2d 102
Holding
Congress has no power under the Constitution to revoke a person's U.S. citizenship unless he voluntarily renounces it. In particular, citizenship may not be revoked as a consequence of voting in a foreign election.
Court membership
Chief Justice
Earl Warren
Associate Justices
Hugo Black · William O. Douglas
Tom C. Clark · John M. Harlan II
William J. Brennan Jr. · Potter Stewart
Byron White · Abe Fortas
Case opinions
MajorityBlack, joined by Warren, Douglas, Brennan, Fortas
DissentHarlan, joined by Clark, Stewart, White
Laws applied
Nationality Act of 1940; U.S. Const. amends. V, XIV

Afroyim v. Rusk, 387 U.S. 253 (1967), is a United States Supreme Court case in which the Court held that citizens of the United States cannot be deprived of their citizenship involuntarily.[1][2] The U.S. government had attempted to revoke the citizenship of Beys Afroyim, a man who had voted in a foreign election after becoming a naturalized U.S. citizen, but the Supreme Court ruled that Afroyim's right to keep his citizenship was guaranteed by the Citizenship Clause of the Fourteenth Amendment to the Constitution. In so doing, the Court overruled one of its own precedents, Perez v. Brownell (1958), in which it had upheld loss of citizenship under similar circumstances less than a decade earlier.

The Afroyim decision opened the way for a wider acceptance of multiple citizenship in United States law.[3] A series of treaties in place between the United States and other nations (the Bancroft Treaties), which had sought to limit dual citizenship following naturalization, were eventually abandoned after the U.S. government concluded Afroyim had rendered them unenforceable. Although some attempts have been made in Congress to lessen the effect of Afroyim and later Supreme Court decisions and State Department policy changes, these efforts have not succeeded.

The impact of Afroyim v. Rusk was narrowed by a later case, Rogers v. Bellei (1971), in which the Court held that the citizenship status of a person born abroad to an American parent was distinguished from that of a person born or naturalized in the United States, and that Congress did have the authority to revoke citizenship in such cases. The specific statute at issue in Rogers v. Bellei—a requirement for a minimum period of U.S. residence which Bellei had failed to satisfy—was repealed by Congress in 1978.

Background

Early history of United States citizenship law

Main article: United States nationality law

Citizenship in the United States has historically been acquired in one of three ways: by birth in the United States (jus soli, "right of the soil");[4] by birth outside the United States to an American parent (jus sanguinis, "right of the blood");[5] or by immigration to the United States followed by naturalization.[6]

Citizenship clause of the Fourteenth Amendment

Main articles: Citizenship Clause and Fourteenth Amendment to the United States Constitution

Shortly before the Civil War, the Supreme Court held in Dred Scott v. Sandford[7] that African slaves, former slaves, and their descendants were not eligible to be citizens.[8] After the Civil War and the resulting abolition of slavery in the United States, steps were taken to grant citizenship to the freed slaves. Congress first enacted the Civil Rights Act of 1866, which included a clause declaring "all persons born in the United States and not subject to any foreign power" to be citizens.[9] Concerns were soon raised, though, that this provision might be repealed by a later Congress[10] or struck down as unconstitutional by the courts.[11] As a result, when Congress shortly thereafter drafted the Fourteenth Amendment to the Constitution, one of the amendment's many provisions was the Citizenship Clause, which would entrench in the Constitution (and thereby set beyond the future reach of Congress or the courts) a guarantee of citizenship stating that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States".[12] The Fourteenth Amendment—including the Citizenship Clause—was ratified by state legislatures and became a part of the Constitution in 1868.[13]

Loss of United States citizenship

The Constitution does not specifically deal with loss of citizenship. A proposed amendment—the Titles of Nobility Amendment of 1810—would, if ratified, have provided that any citizen who accepted any "present, pension, office or emolument" from a foreign country, without the consent of Congress, would "cease to be a citizen of the United States"; however, this amendment was never ratified by a sufficient number of state legislatures and, as a result, never became a part of the Constitution.[14]

A 1961 letter from the U.S. Immigration and Naturalization Service reporting Beys Afroyim's loss of citizenship

Ever since the affirmation by Congress, in the Expatriation Act of 1868, that individuals had an inherent right to expatriation (giving up of citizenship),[15] it has historically been accepted that certain actions could result in loss of citizenship. This possibility was noted by the Supreme Court in United States v. Wong Kim Ark, an 1898 case involving a man born in the United States to Chinese parents. After ruling in this case that Wong was born a U.S. citizen despite his Chinese ancestry, the Court went on to state that his birthright citizenship "[had] not been lost or taken away by anything happening since his birth."[16]

The Bancroft Treaties were a series of agreements made between the United States and other countries in the late 19th and early 20th centuries, by which the signatories recognized the right of their citizens to adopt a new citizenship by naturalization, and thereby automatically lose their old citizenship. The Bancroft Treaties also provided that a naturalized citizen who returned to live in his country of origin would be deemed to have lost his new citizenship and would automatically reobtain his original citizenship.[17][18]

The Expatriation Act of 1907 provided for loss of U.S. citizenship as a result of naturalization in a foreign country, the taking of an oath of allegiance to a foreign state, marriage of an American woman to a foreigner, or return by a naturalized U.S. citizen to live in his country of origin for more than two years.[19][20] Portions of this statute were upheld by the Supreme Court in a 1915 case, Mackenzie v. Hare—in which the Court noted that the petitioner's marriage to a British subject was "a condition voluntarily entered into, with notice of the consequences"[21]—as well as in a 1950 case, Savorgnan v. United States, involving an American woman who had become an Italian citizen and moved to Italy with her Italian husband.[22][23] The loss-of-citizenship provision affecting naturalized citizens moving abroad, however, was overturned in a 1964 Supreme Court case, Schneider v. Rusk.[24] Attempts were also made to void the citizenship of U.S.-born children who had grown up outside the United States after being taken abroad by their parents, but such efforts were invalidated by Supreme Court rulings in 1939 (Perkins v. Elg)[25] and 1952 (Mandoli v. Acheson).[26]

The Nationality Act of 1940[27] provided for loss of U.S. citizenship based on foreign military or government service, when coupled with citizenship in that foreign country. This statute also mandated loss of citizenship for desertion from the U.S. armed forces, remaining outside the United States in order to evade military service during wartime, or voting in a foreign election.[28] The provision calling for loss of citizenship for foreign military service was held by the Supreme Court not to be enforceable without proof that said service had been voluntary, in a 1958 case (Nishikawa v. Dulles),[29] and revocation of citizenship as a punishment for desertion was struck down in another 1958 case (Trop v. Dulles).[30] However, the provision revoking the citizenship of any American who had voted in an election in a foreign country was affirmed by the Supreme Court in a 1958 case, Perez v. Brownell,[31] as a legitimate exercise by Congress (under the Constitution's Necessary and Proper Clause) of its right to regulate foreign affairs and avoid potentially embarrassing diplomatic situations.[32]

Beys Afroyim

A 1947 photo of Beys Afroyim and his infant son Amos

Beys Afroyim (born Ephraim Bernstein, 1893?–1984) was a painter. Various sources state he was born in 1892, 1893, or 1898, and in either Ryki, Poland or Riga, Latvia (then part of the Russian Empire).[33][34][35]

In 1912, Afroyim immigrated to the United States, and on June 14, 1926 he was naturalized as a U.S. citizen.[35][36] In 1950, he moved to Israel[37] and presumably became a citizen of that country.[38] In 1960, following the breakdown of his marriage to Austrian painter Soshana Afroyim, Afroyim decided to return to the United States,[39] but the State Department refused to renew his U.S. passport, ruling that because Afroyim had voted in an Israeli election in 1951, he had lost his U.S. citizenship under section 401(e) of the Nationality Act of 1940 (which mandated revocation of U.S. citizenship for voting "in a political election in a foreign state").[40] A letter certifying Afroyim's loss of citizenship was issued by the Immigration and Naturalization Service on January 13, 1961.[35]

Afroyim challenged the revocation of his U.S. citizenship. Initially, he claimed that he had not in fact voted in Israel's 1951 election, but had entered the polling place solely in order to draw sketches of voters casting their ballots. Afroyim's challenge was rejected in administrative proceedings in 1965. He then sued in a federal district court, with his lawyer agreeing to a stipulation that Afroyim had in fact voted in Israel, but arguing that the statute under which this action had resulted in his losing U.S. citizenship was unconstitutional.[39][41] The lower courts rejected Afroyim's claims, ruling that the question of the statute's validity had been settled by the Supreme Court's 1958 Perez v. Brownell decision.[42]

After losing his case in the federal Court of Appeals for the Second Circuit,[43][44] Afroyim asked the Supreme Court to overrule the precedent established in Perez v. Brownell, strike down the foreign voting provision of the Nationality Act as unconstitutional, and decide that he was still a United States citizen. Afroyim's counsel argued that since "neither the Fourteenth Amendment nor any other provision of the Constitution expressly grants Congress the power to take away that citizenship once it has been acquired . . . the only way he could lose his citizenship was by his own voluntary renunciation of it."[36] The Supreme Court agreed to consider Afroyim's case[45] and held oral arguments on February 20, 1967.[42]

The respondent in Afroyim's case—representing the U.S. government—was Dean Rusk,[46] the Secretary of State during the Kennedy and Johnson administrations (1961–1969). The oral arguments before the Supreme Court were presented by Edward Ennis (for Afroyim) and Charles Gordon (for the government).[47]

Opinion of the Court

Edward Ennis was, at this time, chairman of the American Civil Liberties Union (ACLU), and he had previously served as general counsel for the Immigration and Naturalization Service (INS). In his oral arguments supporting Afroyim, Ennis asserted that Congress lacked the power to prescribe forfeiture of U.S. citizenship, and he sharply criticized the "foreign relations" argument by which the Court (in thePerez case) had upheld loss of citizenship for voting in a foreign election.[47]

Hugo Black wrote the opinion of the Court in the Afroyim case.

Charles Gordon was the current general counsel for the INS in 1967. Despite his skill and experience in the field of immigration law, Gordon did not make a good showing in the Afroyim oral arguments; he mentioned Israeli elections in 1955 and 1959 in which Afroyim had voted—facts which had not been included in the written record of the case as presented to the Supreme Court—and much of the rest of the Court's questioning involved criticism of Gordon for introducing new material that were not originally part of the complaint.[47]

The Supreme Court ruled in Afroyim's favor in a 5-4 decision issued on May 29, 1967. The opinion of the Court, written by Associate Justice Hugo Black, was a revival of Chief Justice Earl Warren's dissent nine years earlier in Perez v. Brownell.[48] Although Afroyim's legal team had been careful to confine their arguments to the specific issue of voting in foreign elections,[49] the Court went further, holding that "Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof."[50] Specifically discarding the precedent set in the 1958 Perez v. Brownell case,[51][52] the Court rejected the claim that Congress had power to revoke citizenship and said that "no such power can be sustained as an implied attribute of sovereignty". Instead, the justices held that the Fourteenth Amendment to the Constitution defined "a citizenship which a citizen keeps unless he voluntarily relinquishes it" and which, once acquired, "was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit."[53][54]

The Court found support for their view in the history of the proposed Titles of Nobility Amendment, which had sought to revoke the citizenship of any U.S. citizen who accepted a gift or honor from a foreign government (but which was never ratified by the states and never became part of the Constitution).[14] The fact that this 1810 proposal was framed as a constitutional amendment, rather than an ordinary act of Congress, was seen by the Court as showing that, even before the passage of the Fourteenth Amendment, Congress did not believe that it had the power to strip U.S. citizenship from anyone.[55] The Court further noted that a proposed 1818 act of Congress would have provided a means of voluntary relinquishment of citizenship, but opponents had argued at the time that Congress had no authority to provide for expatriation.[56]

Dissent

John Marshall Harlan II wrote the dissent in the Afroyim case.

The minority argued, in a dissent written by Associate Justice John Marshall Harlan II, that Perez v. Brownell had been correctly decided and should not be repudiated;[57] that nothing in the Constitution deprived Congress of the power to revoke a person's U.S. citizenship for good cause;[58][59] and that Congress was within its rights to decide that allowing U.S. citizens to vote in foreign elections ran contrary to the foreign policy interests of the nation and ought to result in loss of citizenship.[60] Examining the materials cited in the opinion of the Court, the dissent argued that they were inconclusive and that some of them had been misread.[56] Harlan predicted that "Until the Court indicates with greater precision what it means by 'assent', today's opinion will surely cause still greater confusion in this area of the law."[61][62]

Subsequent developments

The statute calling for loss of U.S. citizenship for voting in a foreign election, which the Supreme Court invalidated in Afroyim v. Rusk, was eventually repealed by Congress in 1978.[63] In 1980, the administration of President Jimmy Carter concluded that the Bancroft Treaties (which provided, among other things, for automatic loss of U.S. citizenship upon foreign naturalization of a U.S. citizen) were no longer enforceable in light of Afroyim (as well as the earlier Schneider v. Rusk decision) and gave notice terminating these treaties.[64]

The Afroyim decision stated that no one with United States citizenship could lose that citizenship without his consent.[65][66] Nevertheless, the Court held in a 1971 case, Rogers v. Bellei,[67] that a person who had acquired U.S. citizenship via jus sanguinis, through birth outside the United States to an American parent or parents, could still risk loss of citizenship in various ways, since their citizenship was the result of federal statutes rather than the Citizenship Clause of the Fourteenth Amendment.[68][69][70] The statutory provision whereby Bellei lost his U.S. citizenship—a U.S. residency requirement which Bellei had failed to satisfy[71]—was repealed in 1978, as part of the same bill that eliminated the foreign voting provision struck down in Afroyim.[63]

Additionally, even after Afroyim, people found to have committed fraud in the naturalization process (for example, by lying about themselves to U.S. immigration officials) could still have their naturalization voided on the grounds that they had never truly been naturalized as U.S. citizens in the first place.[72] As one example among many, the naturalization of John Demjanjuk was revoked amid allegations that he had concealed his involvement with Nazi extermination camps in the course of applying for immigration to the United States after World War II.[73]

Official record of Beys Afroyim's U.S. naturalization in 1926

Although the Afroyim decision appeared to rule out any revocation of a person's U.S. citizenship against his will, it would take more than twenty years for this principle to become fully established; the U.S. government continued for the most part to pursue loss-of-citizenship cases based on an individual's conduct alone, especially when foreign naturalization was involved.[74] A 1969 statement by Attorney General Ramsey Clark took the position that "voluntary relinquishment" of U.S. citizenship could be inferred as a result of an individual's having performed certain specified actions, such as foreign naturalization, a foreign oath of allegiance, or foreign government or military service—though the assumption could still be countered by suitable evidence that the person had not in fact intended to give up citizenship.[75] In a 1980 case, however—Vance v. Terrazas[76]—the Supreme Court ruled that intent to relinquish citizenship needed to be proved by itself, and not simply inferred from an individual's having voluntarily performed an action designated by Congress as being incompatible with an intent to keep one's citizenship.[77][78] The Court held, however, that such a determination could be made upon the preponderance of the evidence and did not need to be based on overwhelming evidence.[65] Changes along the lines prescribed in Vance v. Terrazas were made to the citizenship law by Congress in 1986.[79]

In 1990, the State Department adopted new guidelines for evaluating potential loss-of-citizenship cases.[80] Under these new rules, the government assumes in almost all situations that an American who performs a potentially expatriating act did not in fact intend to give up his U.S. citizenship, unless he explicitly indicates to U.S. officials that this was his intention.[81] Exceptions to the presumption of intent to keep U.S. citizenship are limited to extreme cases such as treason, high-level employment in a foreign government, or formal renunciation of citizenship before U.S. consular officials.[82]

The concept of dual citizenship, which previously had been strongly opposed by the U.S. government, has become more accepted in the years since Afroyim.[3] State Department policy since 1990 has gone beyond the demands of the Afroyim and Terrazas decisions in allowing freedom to U.S. citizens to take advantage of multiple citizenships. In the words of Peter J. Spiro, a law professor at Temple University and a former law clerk to Supreme Court Associate Justice David Souter,[83] "In the long run, Afroyim's vision of an absolute right to retain citizenship has been largely, if quietly, vindicated. As a matter of practice, it is now virtually impossible to lose American citizenship without formally and expressly renouncing it."[82]

Opposition to dual citizenship has continued in some circles,[84][85][86][87] and in 2005, an immigration-related bill — H.R. 3938, the "Enforcement First Immigration Reform Act of 2005" — was introduced in the 109th Congress by Representative J. D. Hayworth of Arizona. Had this bill been enacted into law, it would (among other things) have repudiated the State Department's current permissive policy toward the use of foreign citizenship after U.S. naturalization[88] by making it a felony for a naturalized U.S. citizen to vote in an election in, or use a passport from, his former country.[89] H.R. 3938 would also have reversed the State Department's 1990 liberalization of its policy toward dual citizenship.[90] This bill was never brought to a vote and died when the 109th Congress adjourned on January 3, 2007.[91]

After his Supreme Court victory, Afroyim divided his time between West Brighton (Staten Island, New York) and Safed, Israel until his death on May 19, 1984 in West Brighton.[37]

See also

Notes

  1. ^ "Ruling Protects Citizenship Right". New York Times. May 30, 1967. The Supreme Court ruled today that Congress lacks the constitutional authority to pass laws that strip American citizens of their nationality without their consent.
  2. ^ Dionisopoulos, P. Allan (1970–1971). "Afroyim v. Rusk: The Evolution, Uncertainty and Implications of a Constitutional Principle". Minnesota Law Review. 55: 235. In [Afroyim v. Rusk] the Court declared that American citizenship is an absolute constitutional right. Therefore, the Government of the United States may not forcibly deprive an American of his nationality.
  3. ^ a b Spiro (2005), p. 147. "Plural citizenship ... may come to be the mark of globalization, as state-based allegiances today diminish in importance relative to other affiliations. The Supreme Court's 1967 decision in Afroyim v. Rusk supplies an early glimpse of the transition.... Afroyim opened the door to the maintenance of multiple active national ties. It is to Afroyim that one can trace the genesis of the late modern edition of American citizenship, a version less jealous of alternative attachments."
  4. ^ "Acquisition of U.S. Citizenship by Birth in the United States". Foreign Affairs Manual, vol. 7 (7 FAM), sec. 1111(a). United States Department of State. August 21, 2009.
  5. ^ U.S. citizenship via jus sanguinis was confirmed by Congress in the Naturalization Act of 1790—"An Act to establish an [sic] uniform Rule of Naturalization", 1st Cong., Sess. II, Chap. 3; 1 Stat. 103; March 26, 1790.
  6. ^ The Naturalization Act of 1790 provided that "any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof".
  7. ^ Dred Scott v. Sandford, 60 U.S. 393 (1857).
  8. ^ Schwarz, Frederic D. (February/March 2007). "The Dred Scott Decision". American Heritage. 58 (1). Rockville, MD: American Heritage Publishing. Retrieved August 29, 2011. {{cite journal}}: Check date values in: |year= (help)
  9. ^ "Civil Rights Act of 1866". Retrieved January 2, 2012.
  10. ^ United States v. Wong Kim Ark, 169 U.S. 649, 675 (1898). "The same Congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent Congress, framed the Fourteenth Amendment of the Constitution...."
  11. ^ Epps, Garrett (2007). Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America. Holt Paperbacks. p. 174. ISBN 978-0-8050-8663-8. The opposition made several arguments. The citizenship provision was unconstitutional, they contended....
  12. ^ Stimson, Frederic Jesup (2004). The Law of the Federal and State Constitutions of the United States. Clark, NJ: The Lawbook Exchange. p. 76. ISBN 978-1-58477-369-6. Retrieved November 21, 2012.
  13. ^ "Law Library of Congress: Fourteenth Amendment and Citizenship". Library of Congress. Retrieved January 2, 2012. However, because there were concerns that the Civil Rights Act might be subsequently repealed or limited the Congress took steps to include similar language when it considered the draft of the Fourteenth Amendment.
  14. ^ a b Silversmith, Jol A. (April 1999), "The "Missing Thirteenth Amendment": Constitutional Nonsense and Titles of Nobility", Southern California Interdisciplinary Law Journal, 8: 577, Only one court ever has examined the substance of TONA [the Titles of Nobility Amendment], and even then only tangentially. In Afroyim v. Rusk, the Supreme Court briefly examined the circumstances surrounding the proposal of TONA in order to determine if they provided any guidance as to whether Congress could enact a law stripping an American of his citizenship without a voluntary renunciation.
  15. ^ Act of July 27, 1868, ch. 249, 15 Stat. 223. "... That any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government."
  16. ^ Wong Kim Ark, 169 U.S. at 704.
  17. ^ Cordova, Roberto (1954). "Nationality Including Statelessness: Report on Multiple Nationality" (PDF). Yearbook of the International Law Commission. II. New York: United Nations: 44.
  18. ^ Jonas, Manfred (1985). The United States and Germany: A Diplomatic History. Cornell University Press. pp. 25–26. ISBN 0-8014-9890-2. Retrieved November 21, 2012.
  19. ^ Act of March 2, 1907, ch. 2534; 34 Stat. 2534.
  20. ^ Spiro (2005), pp. 148–149.
  21. ^ Mackenzie v. Hare, 239 U.S. 299, 312 (1915).
  22. ^ Savorgnan v. United States, 338 U.S. 491 (1950).
  23. ^ Spiro (2005), p. 149.
  24. ^ Schneider v. Rusk, 377 U.S. 163 (1964).
  25. ^ Perkins v. Elg, 307 U.S. 325 (1939).
  26. ^ Mandoli v. Acheson, 344 U.S. 133 (1952).
  27. ^ Nationality Act of 1940, Public Law 76-853, 54 Stat. 1137. [1]
  28. ^ Spiro (2005), p. 150.
  29. ^ Nishikawa v. Dulles, 356 U.S. 129 (1958).
  30. ^ Trop v. Dulles, 356 U.S. 86 (1958).
  31. ^ Perez v. Brownell, 356 U.S. 44 (1958).
  32. ^ Spiro (2005), p. 151.
  33. ^ "Metropolis Movement," painting by Beys Afroyim, exhibited at the Museum of the City of New York. This source says Afroyim was born in 1893, in Riki [sic], Poland. It also states that Afroyim's court case "hinged on his ability to convince the Court that he had never voted in Israel", a claim contradicted by the facts as laid out in the Supreme Court's opinion in Afroyim v. Rusk.
  34. ^ Social Security Death Index (via Ancestry.com). This source says Afroyim was born on January 24, 1892, and died in May 1984.
  35. ^ a b c Naturalization record of Ephraim Bernstein, also known as Beys Afroyim (via Ancestry.com). This source says Afroyim was born on March 15, 1898, in Riga, Russia, and became a U.S. citizen on June 14, 1926. A copy of a letter confirming Afroyim's loss of U.S. citizenship, dated January 13, 1961, accompanies the naturalization record.
  36. ^ a b Afroyim v. Rusk, 387 U.S. 253 (254).
  37. ^ a b Obituary of Beys Afroyim. Staten Island Advance. May 20, 1984.
  38. ^ Afroyim, 387 U.S. at 270 n.2/2. "Petitioner emigrated from the United States to Israel in 1950, and, although the issue was not argued at any stage of these proceedings, it was assumed by the District Court that he 'has acquired Israeli citizenship.'"
  39. ^ a b Spiro (2005), p. 154.
  40. ^ Afroyim, 387 U.S. at 254. "In 1960, when [Afroyim] applied for renewal of his United States passport, the Department of State refused to grant it on the sole ground that he had lost his American citizenship by virtue of § 401(e) of the Nationality Act of 1940, which provides that a United States citizen shall 'lose' his citizenship if he votes 'in a political election in a foreign state.'"
  41. ^ Afroyim v. Rusk, 250 F. Supp. 686 (S.D.N.Y. 1966).
  42. ^ a b Afroyim, 387 U.S. at 253 .
  43. ^ Spiro (2005), p. 155.
  44. ^ Afroyim v. Rusk, 361 F.2d 102 (2nd Cir. 1966)
  45. ^ "High Court to Review U.S. Citizenship Law". Los Angeles Times. November 16, 1966.
  46. ^ "Afroyim v. Rusk". The Oyez Project at IIT Chicago–Kent College of Law. Retrieved November 21, 2012.
  47. ^ a b c Spiro (2005), pp. 157–158.
  48. ^ "Always a Citizen". New York Times. June 1, 1967. Chief Justice Warren's magisterial dissent in the Perez v. Brownell denationalization case in 1958 is one of his most impressive opinions in his service on the Supreme Court. That opinion has now nine years later achieved vindication in the Court's ruling this week in the case of Afroyim v. Rusk.
  49. ^ Spiro (2005), p. 158.
  50. ^ Dasgupta, Riddhi (2005). Changing Face of the Law: A Global Perspective. iUniverse. p. 108. Retrieved November 21, 2012.
  51. ^ "The Right of Citizenship". Washington Post. May 30, 1967. Despite the sharp division in the Supreme Court, we are glad that it has finally stricken from the Nationality Act of 1940 the provision depriving Americans of their citizenship for voting in a foreign land. In doing so the Court flatly overruled its own 1957 [sic] decision in the Perez case.
  52. ^ Zaibert, L. (2008). "Uprootedness as (Cruel and Unusual) Punishment". New Criminal Law Review. 11 (3): 384, 388. [L]ess than a decade later ... the Supreme Court overturned Perez v. Brownell, in the no less famous Afroyim v. Rusk.
  53. ^ Afroyim, 387 U.S. at 262.
  54. ^ "U.S. May Not Revoke Citizenship, Court Says". Los Angeles Times. May 30, 1967. Reversing those judgments [against Afroyim in the lower courts] the Supreme Court said: 'Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a free citizen in a free country unless he voluntarily relinquishes that citizenship.'
  55. ^ Afroyim, 387 U.S. at 259.
  56. ^ a b "Citizenship ... expatriation". ABA Journal. 53: 752. August 1967.
  57. ^ Afroyim, 387 U.S. at 270. "[T]he available historical evidence is not only inadequate to support the Court's abandonment of Perez, but ... even seems to confirm Perez' soundness."
  58. ^ Afroyim, 387 U.S. at 292. "To the contrary, [the 14th Amendment's citizenship clause] was expected, and should now be understood, to leave Congress at liberty to expatriate a citizen if the expatriation is an appropriate exercise of a power otherwise given to Congress by the Constitution, and if the methods and terms of expatriation adopted by Congress are consistent with the Constitution's other relevant commands."
  59. ^ "U.S. Can't Lift Citizenship Without Consent, Court Finds". Chicago Tribune. May 30, 1967. Harlan, in the dissenting opinion, said nothing in the Constitution suggests that Congress should be forbidden to withdraw the citizenship of an 'unwilling citizen.'
  60. ^ Afroyim, 387 U.S. at 270. "There is no need here to rehearse Mr. Justice Frankfurter's opinion for the Court in Perez; it then proved and still proves to [our] satisfaction that § 401(e) is within the power of Congress."
  61. ^ Spiro (2005), p. 159.
  62. ^ Afroyim, 387 U.S. at 269 n.1.
  63. ^ a b A bill to repeal certain sections of title III of the Immigration and Nationality Act, and for other purposes. Public Law 95-432; 92 Stat. 1046. October 10, 1978.
  64. ^ Department of State Bulletin, v. 80, no. 2045, October 1980, pp. 78-80; and v. 81, no. 2046, January 1981, pp. 39-40.
  65. ^ a b "Supreme Court Report". ABA Journal: 374. March 1980.
  66. ^ Schoenblum, Jeffrey A. (2009). Multistate and Multinational Estate Planning. Vol. 1. CCH. pp. 9–78.
  67. ^ Rogers v. Bellei, 401 U.S. 815 (1971).
  68. ^ Kearney, Kevin M. (Winter 1987). "Comment: Private Citizens in Foreign Affairs: A Constitutional Analysis". Emory Law Journal. 36: 285, 324 (note 245). Later court decisions have cut into the protections afforded by Afroyim. Rogers v. Bellei ... upheld a federal statute revoking the citizenship of children of American citizens born abroad in the event that they failed to reside in the United States for five consecutive years between the ages of 14 and 28.... The court proceeded on the theory that this type of citizenship, granted by statute, was not protected by the fourteenth amendment.
  69. ^ "Citizenship in Peril". New York Times. April 9, 1971. The Court [in Rogers v. Bellei] has not reversed Afroyim but has distinguished it on the ground that a citizen born abroad whose birth has been registered with an American consulate is not entitled to the same 14th Amendment protection as a citizen naturalized in court in the United States.
  70. ^ Matteo, Henry S. (1997). Denationalization v. 'the Right to Have Rights': The Standard of Intent in Citizenship Loss. University Press of America. p. 44. ISBN 0-7618-0781-0. The Court took a step back in 1971, when in Rogers v. Bellei it undercut Afroyim by holding that Congress had the power to denationalize children born abroad of an American parent. Such children, the Court concluded, were not Fourteenth Amendment citizens....
  71. ^ Yarbrough, Tinsley E. (1992). John Marshall Harlan: Great Dissenter of the Warren Court. Oxford University Press. p. 378. ISBN 0-19-506090-3. Despite his regard for precedent, during his last term [Harlan] also joined a new majority in Rogers v. Bellei, ... which qualified the Court's ruling in the Afroyim case and upheld a regulation providing that persons born outside the United States of a citizen and an alien must satisfy a residency requirement in order to retain their U.S. citizenship.
  72. ^ "Denaturalization: Revoking Your US Citizenship," lawyers.com (LexisNexis).
  73. ^ "Judge Orders Accused Camp Guard Deported". New York Times. December 29, 2005. Mr. Demjanjuk lost his United States citizenship in 2002 after a judge ruled that documents from World War II proved he was a Nazi guard at various death or forced labor camps.
  74. ^ Spiro (2005), pp. 159–160.
  75. ^ Spiro (2005), p. 160.
  76. ^ Vance v. Terrazas, 444 U.S. 252 (1980)
  77. ^ Spiro (2005), pp. 161–162.
  78. ^ Immigration and Nationality Act, sec. 349; 8 U.S.C. sec. 1481. The phrase "voluntarily performing any of the following acts with the intention of relinquishing United States nationality" was added in 1986, and various other changes have been made over time to the list of expatriating acts; see notes.
  79. ^ Immigration and Nationality Act Amendments of 1986. Pub.L. 99-653; 100 Stat. 3655. November 14, 1986.
  80. ^ 67 Interpreter Releases 799 (July 23, 1990); 67 Interpreter Releases 1092 (October 1, 1990).
  81. ^ "Advice about Possible Loss of U.S. Citizenship and Dual Nationality". U.S. Department of State. When ... it comes to the attention of a U.S. consular officer that a U.S. citizen has performed an act made potentially expatriating ... the consular officer will simply ask the applicant if there was intent to relinquish U.S. citizenship when performing the act. If the answer is no, the consular officer will certify that it was not the person's intent to relinquish U.S. citizenship and, consequently, find that the person has retained U.S. citizenship.
  82. ^ a b Spiro (2005), p. 163.
  83. ^ Resume of Peter J. Spiro. Retrieved May 8, 2012.
  84. ^ "Number of dual citizens in U.S. soaring," Pittsburgh Post-Gazette, May 15, 2002.
  85. ^ Geyer, Georgie Anne (October 25, 2000). "Dubious bypass for dual citizenship". Washington Times. The permissive enforcement of American law started with a little-noticed Supreme Court decision of 1967, Afroyim vs. Rusk, which overturned a government attempt to revoke the citizenship of American Jews who served in the Israeli Army and thus became Israeli citizens.
  86. ^ Renshon, Stanley A. "Reforming Dual Citizenship: Integrating Immigrants into the American National Community," testimony before the House Subcommittee on Immigration, Border Security & Claims, September 29, 2005.
  87. ^ Buchanan, Patrick J. (2006). State of Emergency: The Third World Invasion and Conquest of America. Thomas Dunne Books. pp. 263–264. ISBN 978-0-312-37436-5. America's tolerance of dual citizenship may be traced to the Warren Court and its 1967 decision in Afroyim v. Rusk.... 40 million U.S. citizens may now be able to claim dual citizenship.... If the oath of allegiance is to mean what it says, Congress should enact a law declaring that anyone who votes in a foreign election commits a crime.... 'Citizenship without emotional attachment ... is the civic equivalent of a one-night stand.'
  88. ^ "Dual Nationality" (PDF). U.S. Department of State. ... a person naturalized as a U.S. citizen may not lose the citizenship of the country of birth. U.S. law does not mention dual nationality or require a person to choose one citizenship or another.... Dual nationals may also be required by the foreign country to use its passport to enter and leave that country. Use of the foreign passport does not endanger U.S. citizenship.
  89. ^ Enforcement First Immigration Reform Act of 2005, H.R. 3938, 109th Cong. September 29, 2005. Sec. 702. "... each of the following acts performed by a naturalized citizen of the United States is deemed a violation of the Oath of Renunciation and Allegiance that was taken voluntarily by the citizen and are subject to a fine of $10,000, imprisonment for one year, or both: (1) Voting in an election of the foreign state in which the persons were previously a subject or citizen. (2) Running for elective office of the foreign state in which the persons were previously a subject or citizen. (3) Serving in any government body (executive, legislative, or judicial, national, provincial, or local) of the foreign state in which the persons were previously a subject or citizen. (4) Using the passport of the foreign state in which the persons were previously a subject or citizen. (5) Taking an oath of allegiance to the foreign state in which the persons were previously a subject or citizen. (6) Serving in the armed forces of the foreign state in which the persons were previously a subject or citizen."
  90. ^ Enforcement First Immigration Reform Act of 2005, sec. 703. "The Secretary of State shall revise the 1990 memoranda and directives on dual citizenship and dual nationality and return to the traditional policy of the Department of State of viewing dual/multiple citizenship as problematic and as something to be discouraged not encouraged."
  91. ^ "All Congressional actions for H.R. 3938 (109th Congress)". THOMAS. Retrieved November 21, 2012.

References

  • Spiro, Peter J. (2005). "Afroyim: Vaunting Citizenship, Presaging Transnationality". In Martin, David A.; Schuck, Peter H. (2005). Immigration Stories]. Foundation Press. pp. 147–168.

Cases

United States Supreme Court

United States Circuit Courts

  • Afroyim v. Rusk, 361 F.2d 102 (2nd Cir. 1966)

United States District Courts

  • Afroyim v. Rusk, 250 F. Supp. 686 (S.D.N.Y. 1966)
Wikisource has original text related to this article:
  • Text of Afroyim v. Rusk, 387 U.S. 253 (1967) is available from: Findlaw  Justia 
  • Summaries of the case at Oyez, Lawnix
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