Afroyim v. Rusk, 387 U.S. 253 (1967), is a landmark decision of the Supreme Court of the United States, which ruled that citizens of the United States may not be deprived of their citizenship involuntarily.. Dionisopoulos (1970–71), p. 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." The U.S. government had attempted to revoke the citizenship of Beys Afroyim, a man born in Poland, because he had cast a vote in an Israeli election after becoming a naturalized U.S. citizen. The Supreme Court decided that Afroyim's right to retain his citizenship was guaranteed by the Citizenship Clause of the Fourteenth Amendment to the Constitution. In so doing, the Court struck down a federal law mandating loss of U.S. citizenship for voting in a foreign election—thereby overruling 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 dual (or multiple) citizenship in United States law.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." The Bancroft Treaties—a series of agreements between the United States and other nations which had sought to limit dual citizenship following naturalization—were eventually abandoned after the Carter administration concluded that Afroyim and other Supreme Court decisions had rendered them unenforceable.
The impact of Afroyim v. Rusk was narrowed by a later case, Rogers v. Bellei (1971), in which the Court determined that the Fourteenth Amendment safeguarded citizenship only when a person was born or naturalized in the United States, and that Congress retained authority to regulate the citizenship status of a person who was born outside the United States to an American parent. However, the specific law at issue in Rogers v. Bellei—a requirement for a minimum period of U.S. residence that Bellei had failed to satisfy—was repealed by Congress in 1978. As a consequence of revised policies adopted in 1990 by the United States Department of State, it is now (in the words of one expert) "virtually impossible to lose American citizenship without formally and expressly renouncing it."
Background
Early history of United States citizenship 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");"Acquisition of U.S. Citizenship by Birth in the United States". Foreign Affairs Manual, vol. 8 (8 FAM), sec. 301.1-1.a. United States Department of State. June 27, 2018. by birth outside the United States to an American parent (jus sanguinis, "right of the blood");U.S. citizenship via jus sanguinis was confirmed by Congress in the Naturalization Act of 1790—"An Act to establish an uniform Rule of Naturalization", 1st Cong., Sess. II, Chap. 3; 1 Stat. 103; March 26, 1790. . or by immigration to the United States followed by naturalization.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".
In 1857, the Supreme Court held in Dred Scott v. SandfordDred Scott v. Sandford, . that African slaves, former slaves, and their descendants were not eligible to be citizens. After the Civil War (1861–1865) and the resulting abolition of slavery in the United States by the Thirteenth Amendment, 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. Even as the Civil Rights Act was being debated in Congress, its opponents argued that the citizenship provision was unconstitutional. In light of this concern, as well as to protect the new grant of citizenship for former slaves from being repealed by a later Congress,United States v. Wong Kim Ark, . "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." the drafters of the Fourteenth Amendment to the Constitution included a 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". The Fourteenth Amendment—including the Citizenship Clause—was ratified by state legislatures and became a part of the Constitution in 1868.
Loss of United States citizenship The Constitution does not specifically deal with loss of citizenship. An amendment proposed by Congress in 1810—the Titles of Nobility Amendment—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.
In the Expatriation Act of 1868, Congress declared that individuals born in the United States had an inherent right to expatriation (giving up of citizenship).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." It has historically been accepted that certain actions could result in loss of citizenship. The possibility of this was noted by the Supreme Court in United States v. Wong Kim Ark, an 1898 case involving the citizenship of a man born in the United States to Chinese parents who were legally domiciled in the country. 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."Wong Kim Ark, 169 U.S. at 704. By making this statement, the Supreme Court affirmed that Wong had not done anything to result in the loss of United States citizenship, therefore acknowledging that there were actions that could result in the loss of citizenship.
The Nationality Act of 1940Nationality Act of 1940, Public Law 76-853, 54 Stat. 1137. provided for loss of 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.Spiro (2005), p. 150. 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),Nishikawa v. Dulles, . and revocation of citizenship as a punishment for desertion was struck down that same year in another case (Trop v. Dulles).Trop v. Dulles, .
However, in yet another 1958 case (Perez v. Brownell),Perez v. Brownell, . the Supreme Court affirmed the provision revoking the citizenship of any American who had voted in an election in a foreign country, as a legitimate exercise (under the Constitution's Necessary and Proper Clause) of Congress' authority to regulate foreign affairs and avoid potentially embarrassing diplomatic situations.Spiro (2005), p. 151.Dionisopoulos (1970–71), p. 238. Associate Justice Felix Frankfurter, the author of the opinion of the Court (supported by a 5–4 majority), wrote that:
In a dissenting opinion, Chief Justice Earl Warren argued that "Citizenship is man's basic right, for it is nothing less than the right to have rights" and that "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."Perez, 356 U.S. at 64–65. While Warren was willing to allow for loss of citizenship as a result of foreign naturalization or other actions "by which [an American] manifests allegiance to a foreign state [which] may be so inconsistent with the retention of [U.S.] citizenship as to result in loss of that status",Perez, 356 U.S. at 68. he wrote that "In specifying that any act of voting in a foreign political election results in loss of citizenship, Congress has employed a classification so broad that it encompasses conduct that fails to show a voluntary abandonment of American citizenship."Perez, 356 U.S. at 76.Spiro (2005), pp. 151–152.
Two Supreme Court decisions after Perez called into question the principle that loss of citizenship could occur even without the affected individual's intent. In Kennedy v. Mendoza-Martinez (1963),Kennedy v. Mendoza-Martinez, . the Court struck down a law revoking citizenship for remaining outside the United States in order to avoid conscription into the armed forces. Associate Justice William J. Brennan (who had been in the majority in Perez) wrote a separate opinion concurring with the majority in Mendoza-Martinez and expressing reservations about Perez. In Schneider v. Rusk (1964),Schneider v. Rusk, . where the Court invalidated a provision revoking the citizenship of naturalized citizens who returned to live permanently in their countries of origin, Brennan recused himself and did not participate in the decision of the case.
Beys Afroyim