Tax Deposition Questions: Section 14, Citizenship
Revised Statutes at Large for
1868, Section 1999: Establishes right of expatriation (322 Kbytes)
Black's Law Dictionary, Sixth Edition, p. 576:
expatriation. The voluntary act of abandoning or renouncing one's country, and becoming the citizen or subject of another. [NOTE: Compare with the definition of "naturalization"]
[Black's Law Dictionary, Sixth Edition, p. 576]
8 U.S.C. Chapter 12, Subchapter III, Part III: Loss of nationality
Department of State Information on
Certificates of Loss of Nationality, Form FS-348
Department of State Foreign Affairs
Manual, Volume 7, section 1220 (7 FAM 1220): Preparation of Certificate
of Loss of Nationality
Survey of the Law of Expatriation-U.S.
Dept. of Justice
Possible Loss of U.S. Citizenship and Dual Nationality-U.S. Dept of State
Kawakita v. United States, 343 US 717 (1952)
Tomoya Kawakita v. United States, 190 F.2d 506 (1951):
"Expatriation is the voluntary renunciation or abandonment of nationality and allegiance." Perkins v. Elg., 1939, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320. In order to be relieved of the duties of allegiance, consent of the sovereign is required. Mackenzi v. Hare, 1915, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297. Congress has provided that the right of expatriation is a natural and inherent right of all people, and has further made a legislative declaration as to what acts shall amount to an exercise of such right. The enumerated methods set out in the chapter are expressly made the sole means of expatriation."
"...municipal law determines how citizenship may be acquired..."
"The renunciations not being given a result of free and intelligent choice, but rather because of mental fear, intimidation and coercion, they were held void and of no effect."
[Tomoya Kawakita v. United States, 190 F.2d 506 (1951)]
Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed 1320 (1939):
"Expatriation is the voluntary renunciation or abandonment of nationality and allegiance."
[Perkins v. Elg, 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed 1320 (1939)]
M'Illvane v. Coxe's Lessee, 8 U.S. 279 (1804):
"From the time they took possession of the city in 1777, he has never resided in anyplace within the jurisdiction of the United States, but has resided in places under the actual jurisdiction and government of the King of Great Britain..." p 280.
"...and state that, "he then was and from his birth ever had been, a subject of the King of Great Britain, and under the allegiance of the said king."" p. 280.
"...the right of expatriation...is denied by the constitution of no state, nor the United States."
"It is positively affirmed by the constitutions of some of the states, viz., Pennsylvania, Kentucky and Vermont, and by an act of assembly in Virginia." p. 281.
"The independence of America was a national act. The avowed object was to throw off the power of a distant country; to destroy the political subjection; to elevate ourselves from a provincial to an equal state in the great community of nations.
"It was, therefore, a political revolution, involving in the change all the inhabitants of America; Rendering them all members of the new society [not NATION, but SOCIETY], citizens of the new states."
"The declaration of independence was not a unanimous act. It was the act of a majority. But the general sentiment of the day was, that it bound the minority. They were all equally considered as citizens of the United States."
"The political connection between the people of America and the state of Great Britain was dissolved;..." p. 283.
"The first of the two oaths, required by that act, is in these words: "I, A.B., do sincerely profess and swear, that I do not hold myself bound to bear allegiance to the King of Great Britain. So help me God." The second oath is, "I, A.B., do sincerely profess and swear that I do and will bear true faith and allegiance to the government established in this state, under the authority of the people. So help me God."" p. 284.
"Birth is but evidence of allegiance." p. 285.
"Our opponents have piled together a confused and shapeless mass of evidence on which this court cannot act." p. 286.
"Of the 17 United States, one only (Virginia) has recognized or provided for it by law." p. 286
"...it is a recognized principle that a man may owe allegiance to two countries at the same time, and therefore, may lawfully have the intention of owing allegiance to both Great Britain and New Jersey." p. 286.
"All the American constitutions which have been referred to, speak only of emigration. Virginia alone has provided by law for the case of expatriation; but that law cannot affect lands in New Jersey." p. 287.
"That the place of birth should determine the condition of the subject, is both reasonable and natural." p. 288.
"We are not a confederated republic. Our general government is composed of a number of distinct and independent states, uniting under one head by mutual consent for common benefit." p. 289.
"Taking the word emigration, then in its most extensive sense, is the right of expatriation, as has been represented, the mere whim of modern, fanciful, theoretical writer? I say it is as the ancient as society of man.
"It is only by establishing the converse of the proposition, the common law idea that the natural born subject of on prince cannot, by swearing allegiance to another, or by any other act, discharge himself from his allegiance to the former, that the principle of emigration can be made a matter of doubt. 1 Tuck. Bl. part 2, App. p. 90. I deny that this common law principle is founded in, or consonant to, the divine law, the law of nature, the law of nations, or the constitution of the state of New Jersey. The Bible is the most venerable book of antiquity; there we find expatriation practiced, approved, and never restrained. The family of Jacob became subjects to the Egyptian monarch. Moses abandoned Egypt, his native land, and David left Saul, his prince.
"The law of nature, abstractly considered, knows neither prince nor subject. From this source, therefore, the common law principle cannot be derived.
"Particular nations have prohibited their people from migrating to another country, but the prohibition did not arise from the practice of nations towards each other. At Athens, after a man examined the laws of the republic, if he did not approve of them, he was at liberty to quit the country with his effects. By the constitution of the Roman commonwealth, no citizen could be forced to leave it, or not to leave it, when made a member of another which he preferred. Even under the emperors, as long as any remains of liberty continued, it was a rule that each one might choose the state of which he wished to be a subject or citizen. Where did the Romans get their laws? From the Grecians. Where did the Grecians get their laws? From the Eastern nations--the aborigines of the earth. The right of expatriation, therefore, as far as we can trace it, has been recognized in the most remote antiquity. Among modern nations the practice is various; the Muscovites forbid it; in Switzerland it is permitted; some princes consider their subjects as riches, as flocks and herds, and their edicts correspond to these false notions. Vattel, b. 1, d. 19, s. 225. Consult jurists, Grotius, Puffendorf, Burlamaqui, Vattel; they are of opinion, that every man has a natural right, to migrate unless restrained by laws, and that these cannot restrain the right but under special circumstances, and to a limited degree."
"Lastly, the Constitution of New Jersey is founded on sentiments which repel the idea of perpetual allegiance, and imply and include the right of expatriation."
"Whatever diversity there may have been in the sentiments of writers, and in the laws and practices of states on the subject of emigration in general, there never has been a doubt in this country, but that when a civil war takes place each member of the society has a right to choose his side." pp. 293-294.
"...cannot be naturalized without the consent of the legislature of the state in which such persons were proscribed. All the courts of the United States, therefore, could not naturalize Daniel Coxe, without the consent of the states of New Jersey and Pennsylvania, in both of which he has been proscribed." p. 295.
"Let it be recollected that Congress, on the 27th of November, 1777, earnestly recommended it to the several states to confiscate and make sale of all the real and personal estate of such of their inhabitants, and other persons, as had forfeited the same." p. 296.
"...considered as citizens of the United States,..." p. 296
U.S. v. Wong Kim Ark, 169 U.S. 649 (1898):
The power of naturalization, vested in congress by the constitution, is a power to confer citizenship, not a power to take it away. 'A naturalized citizen,' said Chief Justice Marshall, 'becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize congress to enlarge or abridge those rights. The simple power of the national legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the courts of the United States, precisely under the same circumstances under which a native might sue.' Osborn v. Bank, 9 Wheat. 738, 827. Congress having no power to abridge the rights conferred by the constitution upon those who have become naturalized citizens by virtue of acts of congress, a fortiori no act or omission of congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the constitution itself, without any aid of legislation. The fourteenth amendment, while it leaves the power, where it was before, in congress, to regulate naturalization, has conferred no authority upon congress to restrict the effect of birth, declared by the constitution to constitute a sufficient and complete right to citizenship.
[...]
But from the Declaration of Independence to this day, the United States have rejected the doctrine of indissoluble allegiance, and maintained the general right of expatriation, to be exercised in subordination to the public interests, and subject to regulation.
As early as the act of January 29, 1795 (1 Stat. 414, c. 20), applicants for naturalization were required to take, not simply an oath to support the constitution of the United States, but of absolute renunciation and abjuration of all allegiance and fidelity to every foreign prince or state, and particularly to the prince or state of which they were before the citizens or subjects.
St. 3 Jac. I. c. 4, provided that promising obedience [169 U.S. 649, 712] to any other prince, state, or potentate subjected the person so doing to be adjudged a traitor, and to suffer the penalty of high treason; and in respect of the act of 1795 Lord Grenville wrote to our minister, Rufus King: 'No British subject can, by such a form of renunciation as that which is prescribed in the American law of naturalization, devest himself of his allegiance to his sovereign. Such a declaration of renunciation made by any of the king's subjects would, instead of operating as a protection to them, be considered an act highly criminal on their part.' 2 Am. St. Papers, 149. And see Fitch v. Wee r, 6 Hare, 51.
Nevertheless, congress has persisted from 1795 in rejecting the English rule, and in requiring the alien, who would become a citizen of the United States, in taking on himself the ties binding him to our government, to affirmatively sever the ties that bound him to any other.
The subject was examined at length in 1856, in an opinion given the secretary of state by Atty. Gen. Cushing (8 Ops. Attys. Gen. 139), where the views of the writers on international law and those expressed in cases in the federal and state courts are largely set forth, and the attorney general says: 'The doctrine of absolute and perpetual allegiance, the root of the denial of the right of any emigration, is inadmissible in the United States. It was a matter involved in, and settled for us by, the Revolution, which founded the American Union.
'Moreover, the right of expatriation, under fixed circumstances of time and of manner, being expressly asserted in the legislatures of several of our states, and affirmed by decisions of their courts, must be considered as thus made a part of the fundamental law of the United States.'
Expatriation included not simply the leaving of one's native country, but the becoming naturalized in the country adopted as a future residence. The emigration which the United States encouraged was that of those who could become incorporate with its people, make its flag their own, and aid in the accomplishment of a common destiny; and it was obstruction to such emigration that made one of the charges against the crown in the Declaration. [169 U.S. 649, 713] Ainslie v. Martin (1813) 9 Mass. 454, 460; Murray v. McCarty (1811) 2 Munf. 393; Alsberry v. Hawkins (1839) 9 Dana, 177,-are among the cases cited. In Ainslie v. Martin the indelibility of allegiance, according to the common-law rule, was maintained; while in Murray v. McCarty and Alsberry v. Hawkins the right of expatriation was recognized as a practical and fundamental doctrine of America. There was no uniform rule so far as the states were severally concerned, and none such assumed in respect of the United States.
In 1859, Atty. Gen. Black thus advised the president (9 Ops. Attys. Gen. 356): 'The natural right of every free person, who owes no debts and is not guilty of any crime, to leave the country of his birth in good faith and for an honest purpose, the privilege of throwing off his natural allegiance, and substituting another allegiance in its place,-the general right, in one word, of expatriation,-is incontestable. I know that the common law of England denies it; that the judicial decisions of that country are opposed to it; and that some of our own courts, misled by British authority, have expressed, though not very decisively, the same opinion. But all this is very far from settling the question. The municipal code of England is not one of the sources from which we derive our knowledge of international law. We take it from natural reason and justice, from writers of known wisdom, and from the practice of civilized nations. All these are opposed to the doctrine of perpetual allegiance.'
In the opinion of the attorney general, the United States, in recognizing the right of expatriation, declined, from the beginning, to accept the view that rested the obligation of the citizen on feudal principles, and proceeded on the law of nations, which was in direct conflict therewith.
And the correctness of this conclusion was specifically affirmed not many years after, when the right, as the natural and inherent right of all people and fundamental in this country, was declared by congress in the act of July 27, 1868 (15 Stat. 223, c. 249), carried forward into sections 1999 and 2000 of the Revised Statutes, in 1874. [169 U.S. 649, 714] It is beyond dispute that the most vital constituent of the English common-law rule has always been rejected in respect of citizenship of the United States.
Savorgnan v. United States, 338 U.S. 491 (1950):
Traditionally the United States has supported the right of expatriation as a natural and inherent right of all people. 10 Denial, restriction, impairment or questioning [338 U.S. 491, 498] of that right was declared by Congress, in 1868, to be inconsistent with the fundamental principles of this Government. 11 From the beginning, one of the most obvious and effective forms of expatriation has been that of naturalization under the laws of another nation. However, due to the common-law prohibition of expatriation without the consent of the sovereign, our courts hesitated to recognize expatriation of our citizens, even by foreign naturalization, without the express consent of our Government. 12 Congress finally gave its consent upon the specific terms stated in the Citizenship Act of 1907 and in its successor, the Nationality Act of 1940. Those Acts are to be read in the light of the declaration of policy [338 U.S. 491, 499] favoring freedom of expatriation which stands unrepealed. 3 Hackworth, Digest of International Law 242-250 (1942).
A. One contention of the petitioner is the novel one that her naturalization did not meet the requirements of 2 of the Act of 1907, 13 because it did not take place within the boundaries of a foreign state. The answer is that the phrase in 2 which states that "any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, . . ." (emphasis supplied) refers merely to naturalization into the citizenship of any foreign state. It does not refer to the place where the naturalization proceeding occurs. The matter is even more clearly dealt with in the Act of 1940. 14 Section 401 (a) there lists "Obtaining naturalization in a foreign state, . . ." as a means of losing nationality. Section 403 (a) then states that expatriation shall result from the performance of the acts listed in 401 "within the United States . . ." if and when the national performing them "thereafter takes up a residence abroad." Thus Congress expressly recognized that "naturalization in a foreign state" included naturalization proceedings which led to citizenship in a foreign state, but took place within the United States.
B. The petitioner's principal contention is that she did not intend to give up her American citizenship, although she applied for and accepted Italian citizenship, and that her intent should prevail. However, the acts upon which the statutes expressly condition the consent of our Government to the expatriation of its citizens are stated objectively. 15 There is no suggestion in the statutory language that the effect of the specified overt [338 U.S. 491, 500] acts, when voluntarily done, is conditioned upon the undisclosed intent of the person doing them.
The United States has long recognized the general undesirability of dual allegiances. Since 1795, Congress has required any alien seeking American citizenship to declare "that he both absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever, and particularly by name, the prince, potentate, state or sovereignty, whereof he was before a citizen or subject; . . . ." 1 Stat. 414, see 8 U.S.C. 735 (a). 16 Temporary or limited duality of citizenship has arisen inevitably from differences in the laws of the respective nations as to when naturalization and expatriation shall become effective. There is nothing, however, in the Act of 1907 that implies a congressional intent that, after an American citizen has performed an overt act which spells expatriation under the wording of the statute, he, nevertheless, can preserve for himself a duality of citizenship by showing his intent or understanding to have been contrary to the usual legal consequences of such an act. 17 [338 U.S. 491, 501]
This Court, in interpreting 3 of the Act of 1907 as it existed from 1907 to 1922, has passed upon substantially this question. Section 3 then provided that "any American woman who marries a foreigner shall take the nationality of her husband." 34 Stat. 1228, repealed in 42 Stat. 1022. While that provision was in effect, a woman who was a native-born citizen of the United States married a subject of Great Britain residing in California. The woman had not intended to give up her American citizenship. On being advised that she had done so, she sought a writ of mandamus to compel the [338 U.S. 491, 502] local Board of Elections to register her as a voter and she showed that she had the necessary qualifications for registration, provided she established her American citizenship. The Court held that, during her coverture, her expatriation was binding upon her as the statutory consequence of her marriage to a foreigner in spite of her contrary intent and understanding as to her American citizenship. She accordingly was denied relief. Mackenzie v. Hare, 239 U.S. 299 . See also, Ex parte Griffin, 237 F. 445 (N. D. N. Y.). Cf. Perkins v. Elg, 307 U.S. 325 .
The petitioner, in the instant case, was a competent adult. She voluntarily and knowingly sought and obtained Italian citizenship. 18 Her application for naturalization and her oath of allegiance were in Italian, which she did not understand, but Savorgnan did understand Italian, and he was with her and able to translate and explain them to her when she signed them. She knew that the instruments related to her citizenship and that her signature of them was an important condition upon which her marriage depended. She thus was as responsible for understanding them as if they had been in English. On that basis, she was married. Whatever the legal consequences of those acts may be, she is bound by them.
C. The Government contends vigorously that the petitioner's Italian naturalization, in 1940, then and there expatriated her. It contends that this provides sufficient basis, under the Act of 1907, to affirm the decision of the [338 U.S. 491, 503] Court of Appeals without reference to the petitioner's subsequent residence abroad. While recognizing the force of this alternative ground for affirmance, we do not rest our decision upon it. It is, however, entitled to be noted. The Government's argument is that, while residence abroad may have been required before the Act of 1907 and is now expressly required by the Act of 1940, it was not required under the Act of 1907. See Mackenzie v. Hare, 239 U.S. 299 . The Government concedes, however, that, at least since 1933, the State Department has considered residence abroad to be a necessary element of expatriation. 3 Hackworth, Digest of International Law 242-250 (1942). In our view, the petitioner's residence abroad from 1941 to 1945 makes it unnecessary to determine, in this case, what would have been her status if she had not taken up her residence abroad. We accordingly do not do so.
Richards v. Secretary of State, Dept of State, 752 F.2d 1413 (1985):
Due process clause of the Fifth Amendment imposes on federal government the limitations that equal protection clause of Fourteenth Amendment imposes on states.
United States citizens' constitutional right to remain a citizen unless he voluntarily relinquishes that right of citizenship applies at least to all persons born or naturalized in the United States.
There is no presumption that expatriating act was performed with intent to relinquish citizenship.
Voluntariness of acts demonstrating intent to renounce United States citizenship is necessary part of showing alleged expatriates' specific intent to relinquish his citizenship.
There is no presumption of voluntariness with respect to acts demonstrating specific intent to relinquish United States citizenship.
Because presumption of voluntariness extended to plaintiff's becoming a Canadian citizen and taking oath of allegiance to Canada, it also of necessity applied to act demonstrating specific intent, i.e., the explicit renunciation of United States citizenship under oath.
Expatriating act cannot be said to have been performed voluntarily if it was performed under conditions of economic duress; at the least, some degree of hardship must be shown.
District court's findings that the plaintiff was under no economic hardship when he renounced his United States citizenship was not clearly erroneous; in short, the evidence amply supported district court's finding that plaintiff became a Canadian citizen purely for purpose of career enhancement.
Person loses his United States citizenship by voluntarily performing expatriating act only if expatriating act was accompanied by intent to terminate United States citizenship.
More is required for loss of citizenship than simply voluntary commission of act Congress has designated as expatriating act.
United states citizen effectively renounces his citizenship by performing act that Congress has designated as expatriating act only if he means the act to constitute renunciation of his United States citizenship; in absence of such intent, he does not lose his citizenship simply by performing expatriating act, even if he knows that Congress has designated the act an expatriating act.
Intent to reounce United States citizenship may be expressed in words or found as fair inference from proved conduct.
Voluntary taking of formal oath that includes explicit renunciation of United States citizenship is ordinarily sufficient to establish specific intent to renounce United States citizenship.
Whether it is done in order to make more money, to advance career or other relationship, to gain someone's hand in marriage, or to participate in political process in country to which he has moved, United States citizen's free choice to renounce his citizenship results in loss of that citizenship.
United States citizens have right to become aliens.
"In Terrazas, the Court established that expatriation turns on the "will" of the citizen. We see nothing in that decision, or in any other cited by Richards, that indicates that renunciation is effective only in the case of citizens whose "will" to renounce is based on a principled, abstract desire to sever ties to the United States. Instead, the cases make it abundantly clear that a person's free choice to renounce United States citizenship is effective whatever the motivation. Whether it is done in order to make more, to advance a career or other relationship, to gain someone's hand in marriage, or to participate in the political process in the country to which he has moved, a United States citizen's free choice to renounce his citizenship results in the loss of that citizenship."
[Richards v. Secretary of State, Dept of State, 752 F.2d 1413 (1985)]
Vance v. Terrazas, 444 U.S. 252 (1980)
I agree with the Court's holding that a citizen of the United States may not lose his citizenship in the absence of a finding that he specifically intended to renounce it. I also concur in the adoption of a saving construction of 8 U.S.C. § 1481(a)(2) [444 U.S. 271] to require that the statutorily designated expatriating acts be done with a specific intent to relinquish citizenship.
I cannot, however, accept the majority's conclusion that a person may be found to have relinquished his American citizenship upon a preponderance of the evidence that he intended to do so. The Court's discussion of congressional power to "prescribe rules of evidence and standards of proof in the federal courts," ante at 265, is the beginning, not the end, of the inquiry. It remains the task of this Court to determine when those rules and standards impinge on constitutional rights. As my Brother STEVENS indicates, the Court's casual dismissal of the importance of American citizenship cannot withstand scrutiny. And the mere fact that one who has been expatriated is not locked up in a prison does not dispose of the constitutional inquiry. As Mr. Chief Justice Warren stated over 20 years ago:
[T]he expatriate has lost the right to have rights.
This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.
Trop v. Dulles, 356 U.S. 86, 102 (1958) (plurality opinion) (footnotes omitted).
For these reasons I cannot understand, much less accept, the Court's suggestion that "expatriation proceedings . . . do not threaten a loss of liberty." Ante at 266. Recognizing that [444 U.S. 272] a standard of proof ultimately "`reflects the value society places'" on the interest at stake, Addington v. Texas, 441 U.S. 418, 425 (1979), I would hold that a citizen may not lose his citizenship in the absence of clear and convincing evidence that he intended to do so.
[Vance v. Terrazas, 444 U.S. 252 (1980), Marshal, dissenting]
Perez v. Brownell, 356 U.S. 44 (1958)
The Congress of the United States has decreed that a citizen of the United States shall lose his citizenship by performing certain designated acts.{1} The petitioner in [356 U.S. 63] this case, a native-born American,{2} is declared to have lost his citizenship by voting in a foreign election.{3} Whether this forfeiture of citizenship exceeds the bounds of the Constitution is the issue before us. The problem is fundamental, and must be resolved upon fundamental considerations.
Generally, when congressional action is challenged, constitutional authority is found in the express and implied powers with which the National Government has been invested or in those inherent powers that are necessary attributes of a sovereign state. The sweep of those powers is surely broad. In appropriate circumstances, they are adequate to take away life itself. The initial [356 U.S. 64] question here is whether citizenship is subject to the exercise of these general powers of government.
What is this Government, whose power is here being asserted? And what is the source of that power? The answers are the foundation of our Republic. To secure the inalienable rights of the individual, "Governments are instituted among Men, deriving their just powers from the consent of the governed." I do not believe the passage of time has lessened the truth of this proposition. It is basic to our form of government. This Government was born of its citizens, it maintains itself in a continuing relationship with them, and, in my judgment, it is without power to sever the relationship that gives rise to its existence. I cannot believe that a government conceived in the spirit of ours was established with power to take from the people their most basic right.
Citizenship is man's basic right, for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. He has no lawful claim to protection from any nation, and no nation may assert rights on his behalf.{4} His very existence is at the sufferance of the state within whose borders he happens to be. In this country, the expatriate would presumably enjoy, at most, only the limited rights and privileges of aliens,{5} and, like the alien, he might even [356 U.S. 65] be subject to deportation, and thereby deprived of the right to assert any rights.{6} This government was not established with power to decree this fate.
The people who created this government endowed it with broad powers. They created a sovereign state with power to function as a sovereignty. But the citizens themselves are sovereign, and their citizenship is not subject to the general powers of their government. Whatever may be the scope of its powers to regulate the conduct and affairs of all persons within its jurisdiction, a government of the people cannot take away their citizenship simply because one branch of that government can be said to have a conceivably rational basis for wanting to do so.
The basic constitutional provision crystallizing the right of citizenship is the first sentence of section one of the Fourteenth Amendment. It is there provided that
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the [356 U.S. 66] United States and of the State wherein they reside.
United States citizenship is thus the constitutional birthright of every person born in this country. This Court has declared that Congress is without power to alter this effect of birth in the United States, United States v. Wong Kim Ark, 169 U.S. 649, 703. The Constitution also provides that citizenship can be bestowed under a "uniform Rule of Naturalization,"{7} but there is no corresponding provision authorizing divestment. Of course, naturalization unlawfully procured can be set aside.{8} But apart from this circumstance, the status of the naturalized citizen is secure. As this Court stated in Osborn v. Bank of the United States, 9 Wheat. 738, 827:
[The naturalized citizen] becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as respects the individual.
(Emphasis added.) Under our form of government, as established by the Constitution, the citizenship of the lawfully naturalized and the native-born cannot be taken from them.
There is no question that citizenship may be voluntarily relinquished. The right of voluntary expatriation was recognized by Congress in 1868.{9} Congress declared that "the right of expatriation is a natural and inherent [356 U.S. 67] right of all people. . . ."{10} Although the primary purpose of this declaration was the protection of our naturalized citizens from the claims of their countries of origin, the language was properly regarded as establishing the reciprocal right of American citizens to abjure their allegiance.{11} In the early days of this Nation, the right of expatriation had been a matter of controversy. The common law doctrine of perpetual allegiance was evident in the opinions of this Court.{12} And, although impressment of naturalized American seamen of British birth was a cause of the War of 1812, the executive officials of this Government were not unwavering in their support of the right of expatriation.{13} Prior to 1868, all efforts to obtain congressional enactments concerning expatriation failed.{14} The doctrine of perpetual allegiance, however, was so ill-suited to the growing nation whose doors were open to immigrants from abroad that it could not last. Nine years before Congress acted, Attorney General Black stated the American position in a notable opinion:{15}
Here in the United States, the thought of giving it [the right of expatriation] up cannot be entertained for a moment. Upon that principle, this country was populated. We owe to it our existence as a nation. [356 U.S. 68] Ever since our independence, we have upheld and maintained it by every form of words and acts. We have constantly promised full and complete protection to all persons who should come here and seek it by renouncing their natural allegiance and transferring their fealty to us. We stand pledged to it in the face of the whole world.
It has long been recognized that citizenship may not only be voluntarily renounced through exercise of the right of expatriation, but also by other actions in derogation of undivided allegiance to this country.{16} While the essential qualities of the citizen-state relationship under our Constitution preclude the exercise of governmental power to divest United States citizenship, the establishment of that relationship did not impair the principle that conduct of a citizen showing a voluntary transfer of allegiance is an abandonment of citizenship. Nearly all sovereignties recognize that acquisition of foreign nationality ordinarily shows a renunciation of citizenship.{17} Nor is this the only act by which the citizen may show a voluntary abandonment of his citizenship. Any action by which he manifests allegiance to a foreign state may be so inconsistent with the retention of citizenship as to result in loss of that status.{18} In recognizing the consequence of such action, the Government is not taking away United States citizenship to implement its general regulatory powers, for, as previously indicated, in my judgment, citizenship is immune from divestment under these [356 U.S. 69] powers. Rather, the Government is simply giving formal recognition to the inevitable consequence of the citizen's own voluntary surrender of his citizenship.
Twice before, this Court has recognized that certain voluntary conduct results in an impairment of the status of citizenship. In Savorgnan v. United States, 338 U.S. 491, an American citizen had renounced her citizenship and acquired that of a foreign state. This Court affirmed her loss of citizenship, recognizing that,
From the beginning, one of the most obvious and effective forms of expatriation has been that of naturalization under the laws of another nation.
338 U.S. at 498. Mackenzie v. Hare, 239 U.S. 299, involved an American woman who had married a British national. That decision sustained an Act of Congress which provided that her citizenship was suspended for the duration of her marriage. Since it is sometimes asserted that this case is authority for the broad proposition that Congress can take away United States citizenship, it is necessary to examine precisely what the case involved.
The statute which the Court there sustained did not divest Mrs. Mackenzie of her citizenship.{19} It provided that "any American woman who marries a foreigner shall take the nationality of her husband."{20} "At the termination [356 U.S. 70] of the marital relation," the statute continues, "she may resume her American citizenship. . . ." (Emphasis added.) Her citizenship was not taken away; it was held in abeyance.
This view of the statute is borne out by its history. The 1907 Act was passed after the Department of State had responded to requests from both houses of Congress for a comprehensive study of our own and foreign nationality laws, together with recommendations for new legislation.{21} One of those recommendations, substantially incorporated in the 1907 Act, was as follows:{22}
That an American woman who marries a foreigner shall take during coverture the nationality of her husband; but upon termination of the marital relation by death or absolute divorce she may revert to her American citizenship by registering within one year as an American citizen at the most convenient American consulate or by returning to reside in the [356 U.S. 71] United States if she is abroad; or if she is in the United States by continuing to reside therein.
(Emphasis added.) This principle of "reversion of citizenship" was a familiar one in our own law,{23} and the law of foreign states.{24} The statute was merely declarative of the law as it was then [356 U.S. 72] understood.{25} Although the opinion in Mackenzie v. Hare contains some reference to termination of citizenship, the reasoning is consistent with the terms of the statute that was upheld. Thus, the Court speaks of Mrs. Mackenzie's having entered a "condition," 239 U.S. at 312, not as having surrendered her citizenship. "Therefore," the Court concludes, "as long as the relation lasts, it is made tantamount to expatriation." Ibid. (Emphasis added.)