U.S. Supreme Court Afroyim v. Rusk, 387
U.S. 253 (1967) Afroyim v. Rusk No. 456 Argued February 20,
1967 Decided May 29, 1967 387
U.S. 253 CERTIORARI TO THE UNITED STATES
COURT OF APPEAL FOR THE SECOND
CIRCUIT Syllabus Petitioner, of Polish birth, became a naturalized American
citizen in 1926. He went to Israel in 1950, and in 1951 voted in an
Israeli legislative election. The State Department subsequently
refused to renew his passport, maintaining that petitioner had lost
his 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 foreign political election. Petitioner
then brought this declaratory judgment action alleging the
unconstitutionality of § 401(e). On the basis of Perez v.
Brownell, 356 U. S. 44 , the
District Court and Court of Appeals held that Congress, under its
implied power to regulate foreign affairs, can strip an American
citizen of his citizenship. Held: Congress has no power under the Constitution to
divest a person of his United States citizenship absent his
voluntary renunciation thereof. Perez v. Brownell, supra, overruled. Pp. 387 U. S.
256 -268.

															(a) Congress has no express power under the Constitution to
strip a person of citizenship, and no such power can be sustained
as an implied attribute of sovereignty, as was recognized by
Congress before the passage of the Fourteenth Amendment, and a
mature and well considered dictum in Osborn v.
Bank of the United States , 9 Wheat. 738, 22 U. S. 827 ,
is to the same effect. Pp. 387 U. S. 257 -261.

															(b) The Fourteenth Amendment's provision that "All persons born
or naturalized in the United States . . . are citizens of the
United States . . ." completely controls the status of citizenship,
and prevents the cancellation of petitioner's citizenship. Pp. 387 U. S.
262 -268.

															361 F.2d 102, reversed. Page 387 U. S. 254 MR. JUSTICE BLACK delivered the opinion of the Court.

															Petitioner, born in Poland in 1893, immigrated to this country
in 1912 and became a naturalized American citizen in 1926. He went
to Israel in 1950, and in 1951, he voluntarily voted in an election
for the Israeli Knesset, the legislative body of Israel. In 1960,
when he 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." [ Footnote 1 ] Petitioner then brought this declaratory
judgment action in federal district court alleging that § 401(e)
violates both the Due Process Clause of the Fifth Amendment and §
1, cl. 1, of the Fourteenth Amendment, [ Footnote 2 ] which grants American citizenship to persons
like petitioner. Because neither the Fourteenth Amendment nor any
other provision of the Constitution expressly grants Congress the
power to Page 387 U. S. 255 take away that citizenship once it has been acquired, petitioner
contended that the only way he could lose his citizenship was by
his own voluntary renunciation of it. Since the Government took the
position that § 401(e) empowers it to terminate citizenship without
the citizen's voluntary renunciation, petitioner argued that this
section is prohibited by the Constitution. The District Court and
the Court of Appeals, rejecting this argument, held that Congress
has constitutional authority forcibly to take away citizenship for
voting in a foreign country based on its implied power to regulate
foreign affairs. Consequently, petitioner was held to have lost his
American citizenship regardless of his intention not to give it up.
This is precisely what this Court held in Perez v.
Brownell, 356 U. S. 44 .

															Petitioner, relying on the same contentions about voluntary
renunciation of citizenship which this Court rejected in upholding
§ 401(e) in Perez, urges us to reconsider that case, adopt
the view of the minority there, and overrule it. That case, decided
by a 5-4 vote almost 10 years ago, has been a source of controversy
and confusion ever since, as was emphatically recognized in the
opinions of all the judges who participated in this case below.
[ Footnote 3 ] Moreover, in the
other cases decided with [ Footnote
4 ] and since [ Footnote 5 ] Perez, this Court has consistently invalidated on a
case-by-case basis various other statutory sections providing for
involuntary expatriation. It has done so on various grounds, and
has refused to hold that citizens can be expatriated without their
voluntary renunciation of Page 387 U. S. 256 citizenship. These cases, as well as many commentators,
[ Footnote 6 ] have cast great
doubt upon the soundness of Perez. Under these
circumstances, we granted certiorari to reconsider it, 385 U.S.
917. In view of the many recent opinions and dissents
comprehensively discussing all the issues involved, [ Footnote 7 ] we deem it unnecessary to treat
this subject at great length.

															The fundamental issue before this Court here, as it was in Perez, is whether Congress can, consistently with the
Fourteenth Amendment, enact a law stripping an American of his
citizenship which he has never voluntarily renounced or given up.
The majority in Perez held that Congress could do this
because withdrawal of citizenship is "reasonably calculated to
effect the end that is within the power of Congress to achieve."
356 U.S. at 356 U. S. 60 .
That conclusion was reached by this chain of reasoning: Congress
has an implied power to deal with foreign affairs as an
indispensable attribute of sovereignty; this implied power, plus
the Necessary and Proper Clause, empowers Congress to regulate
voting by American citizens in foreign elections; involuntary
expatriation is within the "ample scope" of "appropriate modes"
Congress can adopt to effectuate its general regulatory power. Id. at Page 387 U. S. 257 356 U. S. 57 -60.
Then, upon summarily concluding that

															"there is nothing in the . . . Fourteenth Amendment to warrant
drawing from it a restriction upon the power otherwise possessed by
Congress to withdraw citizenship," id. at 356 U. S. 58 , n.
3, the majority specifically rejected the "notion that the power of
Congress to terminate citizenship depends upon the citizen's
assent," id. at 356 U. S.
61 .

															First, we reject the idea expressed in Perez that,
aside from the Fourteenth Amendment, Congress has any general
power, express or implied, to take away an American citizen's
citizenship without his assent. This power cannot, as Perez indicated, be sustained as an implied attribute of
sovereignty possessed by all nations. Other nations are governed by
their own constitutions, if any, and we can draw no support from
theirs. In our country the people are sovereign and the Government
cannot sever its relationship to the people by taking away their
citizenship. Our Constitution governs us and we must never forget
that our Constitution limits the Government to those powers
specifically granted or those that are necessary and proper to
carry out the specifically granted ones. The Constitution, of
course, grants Congress no express power to strip people of their
citizenship, whether, in the exercise of the implied power to
regulate foreign affairs or in the exercise of any specifically
granted power. And even before the adoption of the Fourteenth
Amendment, views were expressed in Congress and by this Court that,
under the Constitution the Government was granted no power, even
under its express power to pass a uniform rule of naturalization,
to determine what conduct should and should not result in the loss
of citizenship. On three occasions, in 1794, 1797, and 1818,
Congress considered and rejected proposals to enact laws which
would describe certain conduct as resulting in expatriation.
[ Footnote 8 ] On each
occasion Page 387 U. S. 258 Congress was considering bills that were concerned with
recognizing the right of voluntary expatriation and with providing
some means of exercising that right. In 1794 and 1797, many members
of Congress still adhered to the English doctrine of perpetual
allegiance and doubted whether a citizen could even voluntarily
renounce his citizenship. [ Footnote
9 ] By 1818, however, almost no one doubted the existence of the
right of voluntary expatriation, but several judicial decisions had
indicated that the right could not be exercised by the citizen
without the consent of the Federal Government in the form of
enabling legislation. [ Footnote
10 ] Therefore, a bill was introduced to provide that a person
could voluntarily relinquish his citizenship by declaring such
relinquishment in writing before a district court and then
departing from the country. [ Footnote 11 ] The opponents of the bill argued that
Congress had no constitutional authority, either express or
implied, under either the Naturalization Clause or the Necessary
and Proper Clause, to provide that a certain act would constitute
expatriation. [ Footnote 12 ]
They pointed to a proposed Thirteenth Page 387 U. S. 259 Amendment, subsequently not ratified, which would have provided
that a person would lose his citizenship by accepting an office or
emolument from a foreign government. [ Footnote 13 ] Congressman Anderson of Kentucky argued:

															"The introduction of this article declares the opinion . . .
that Congress could not declare the acts which should amount to a
renunciation of citizenship; otherwise there would have been no
necessity for this last resort. When it was settled that Congress
could not declare that the acceptance of a pension or an office
from a foreign Emperor amounted to a disfranchisement of the
citizen, it must surely be conceded that they could not declare
that any other act did. The cases to which their powers before this
amendment confessedly did not extend are very strong, and induce a
belief that Congress could not in any case declare the acts which
should cause 'a person to cease to be a citizen.' The want of power
in a case like this, where the individual has given the strongest
evidence of attachment to a foreign potentate and an entire
renunciation of the feelings and principles of an American citizen,
certainly establishes the absence of all power to pass a bill like
the present one. Although the intention with which it was
introduced, and the title of the bill declare that it is to insure
and foster the right of the citizen, the direct and inevitable
effect of the bill, is an assumption of power by Congress to
declare that certain acts when committed shall amount to a
renunciation of citizenship."

															31 Annals of Cong. 1038-1039 (1818). Page 387 U. S. 260 Congressman Pindall of Virginia rejected the notion, later
accepted by the majority in Perez, that the nature of
sovereignty gives Congress a right to expatriate citizens:

															"[A]llegiance imports an obligation on the citizen or subject,
the correlative right to which resides in the sovereign power:
allegiance in this country is not due to Congress, but to the
people, with whom the sovereign power is found; it is, therefore,
by the people only that any alteration can be made of the existing
institutions with respect to allegiance." Id. at 1045. Although he recognized that the bill
merely sought to provide a means of voluntary expatriation,
Congressman Lowndes of South Carolina argued:

															"But, if the Constitution had intended to give to Congress so
delicate a power, it would have been expressly granted. That it was
a delicate power, and ought not to be loosely inferred, . . .
appeared in a strong light, when it was said, and could not be
denied, that to determine the manner in which a citizen may
relinquish his right of citizenship, is equivalent to determining
how he shall be divested of that right. The effect of assuming the
exercise of these powers will be, that, by acts of Congress a man
may not only be released from all the liabilities, but from all the
privileges of a citizen. If you pass this bill, . . . you have only
one step further to go, and say that such and such acts shall be
considered as presumption of the intention of the citizen to
expatriate, and thus take from him the privileges of a citizen. . .
. [Q]uestions affecting the right of the citizen were questions to
be regulated, not by the laws of the General or State Governments,
but by Constitutional provisions. If there was anything Page 387 U. S. 261 essential to our notion of a Constitution, . . . it was this:
that, while the employment of the physical force of the country is
in the hands of the Legislature, those rules which determine what
constitutes the rights of the citizen, shall be a matter of
Constitutional provision." Id. at 1050-1051. The bill was finally defeated.
[ Footnote 14 ] It is in this
setting that six years later, in Osborn v.
Bank of the United States , 9 Wheat. 738, 22 U. S. 827 ,
this Court, speaking through Chief Justice Marshall, declared in
what appears to be a mature and well considered dictum that
Congress, once a person becomes a citizen, cannot deprive him of
that status:

															"[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."

															Although these legislative and judicial statements may be
regarded as inconclusive and must be considered in the historical
context in which they were made, [ Footnote 15 ] any doubt Page 387 U. S. 262 as to whether prior to the passage of the Fourteenth Amendment
Congress had the power to deprive a person against his will of
citizenship, once obtained, should have been removed by the
unequivocal terms of the Amendment itself. It provides its own
constitutional rule in language calculated completely to control
the status of citizenship: "All persons born or naturalized in the
United States . . . are citizens of the United States. . . ." There
is no indication in these words of a fleeting citizenship, good at
the moment it is acquired but subject to destruction by the
Government at any time. Rather the Amendment can most reasonably be
read as defining a citizenship which a citizen keeps unless he
voluntarily relinquishes it. Once acquired, this Fourteenth
Amendment citizenship was not to be shifted, canceled, or diluted
at the will of the Federal Government, the States, or any other
governmental unit.

															It is true that the chief interest of the people in giving
permanence and security to citizenship in the Fourteenth Amendment
was the desire to protect Negroes. The Dred
Scott decision, 19 How. 393, had shortly before
greatly disturbed many people about the status of Negro
citizenship. But the Civil Rights Act of 1866, 14 Stat. 27, had
already attempted to confer citizenship on all persons born or
naturalized in the United States. Nevertheless, when the Fourteenth
Amendment passed the House without containing any definition of
citizenship, the sponsors of the Amendment in the Senate insisted
on inserting a constitutional definition and grant of citizenship.
They expressed fears that the citizenship so recently conferred on
Negroes by the Civil Rights Act could be just as easily taken away
from them by subsequent Congresses, and it was to provide an
insuperable obstacle against every governmental effort to strip
Negroes of their newly acquired citizenship that the first clause
was added to the Fourteenth Amendment. [ Footnote 16 ] Page 387 U. S. 263 Senator Howard, who sponsored the Amendment in the Senate, thus
explained the purpose of the clause:

															"It settles the great question of citizenship and removes all
doubt as to what persons are or are not citizens of the United
States. . . . We desired to put this question of citizenship and
the rights of citizens . . . under the civil rights bill beyond the
legislative power. . . ."

															Cong.Globe, 39th Cong., 1st Sess., 2890, 2896 (1866).

															This undeniable purpose of the Fourteenth Amendment to make
citizenship of Negroes permanent and secure would be frustrated by
holding that the Government can rob a citizen of his citizenship
without his consent by simply proceeding to act under an implied
general power to regulate foreign affairs or some other power
generally granted. Though the framers of the Amendment were not
particularly concerned with the problem of expatriation, it seems
undeniable from the language they used that they wanted to put
citizenship beyond the power of any governmental unit to destroy.
In 1868, two years after the Fourteenth Amendment had been
proposed, Congress specifically considered the subject of
expatriation. Several bills were introduced to impose involuntary
expatriation on citizens who committed certain acts. [ Footnote 17 ] With little Page 387 U. S. 264 discussion, these proposals were defeated. Other bills, like the
one proposed but defeated in 1818, provided merely a means by which
the citizen could himself voluntarily renounce his citizenship.
[ Footnote 18 ] Representative
Van Trump of Ohio, who proposed such a bill, vehemently denied in
supporting it that his measure would make the Government

															"a party to the act dissolving the tie between the citizen and
his country . . . where the statute simply prescribes the manner in
which the citizen shall proceed to perpetuate the evidence of his
intention, or election, to renounce his citizenship by
expatriation."

															Cong.Globe, 40th Cong., 2d Sess., 1804 (1868). He insisted that
"inasmuch as the act of expatriation depends almost entirely upon a
question of intention on the part of the citizen," id. at
1801,

															"the true question is, that not only the right of expatriation,
but the whole power of its exercise, rests solely and exclusively
in the will of the individual," id. at 1804. [ Footnote 19 ] In strongest of terms, not contradicted by
any during the debates, he concluded:

															"To enforce expatriation or exile against a citizen without his
consent is not a power anywhere belonging to this Government. No
conservative-minded Page 387 U. S. 265 statesman, no intelligent legislator, no sound lawyer has ever
maintained any such power in any branch of the Government. The
lawless precedents created in the delirium of war . . . of sending
men by force into exile, as a punishment for political opinion,
were violations of this great law . . . of the Constitution. . . .
The men who debated the question in 1818 failed to see the true
distinction. . . . They failed to comprehend that it is not the
Government, but that it is the individual, who has the right and
the only power of expatriation. . . . [I]t belongs and appertains
to the citizen, and not to the Government, and it is the evidence
of his election to exercise his right, and not the power to control
either the election or the right itself, which is the legitimate
subject matter of legislation. There has been, and there can be, no
legislation under our Constitution to control in any manner the
right itself." Ibid. But even Van Trump's proposal, which went no
further than to provide a means of evidencing a citizen's intent to
renounce his citizenship, was defeated. [ Footnote 20 ] The Act, Page 387 U. S. 266 as finally passed, merely recognized the "right of expatriation"
as an inherent right of all people. [ Footnote 21 ]

															The entire legislative history of the 1868 Act makes it
abundantly clear that there was a strong feeling in the Congress
that the only way the citizenship it conferred could be lost was by
the voluntary renunciation or abandonment by the citizen himself.
And this was the unequivocal statement of the Court in the case of United States v. Wong Kim Ark, 169 U.
S. 649 . The issues in that case were whether a person
born in the United States to Chinese aliens was a citizen of the
United States and whether, nevertheless, he could be excluded under
the Chinese Exclusion Act, 22 Stat. 58. The Court first held that,
within the terms of the Fourteenth Amendment, Wong Kim Ark was a citizen of the United States, and then pointed out that,
though he might "renounce this citizenship, and become a citizen of
. . . any other country," he had never done so. Id. at 169 U. S.
704 -705. The Court then held [ Footnote 22 ] that Congress could not do anything to
abridge or affect his citizenship conferred by the Fourteenth
Amendment. Quoting Chief Justice Marshall's well considered and
oft-repeated dictum in Osborn to the effect that Congress,
under the power of naturalization, has "a power to confer
citizenship, not a power to take it away," the Court said:

															"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 . . . of
Congress . . . Page 387 U. S. 267 can affect citizenship acquired as a birthright, by virtue of
the Constitution itself. . . . 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." Id. at 169 U. S.
703 .

															To uphold Congress' power to take away a man's citizenship
because he voted in a foreign election in violation of § 401(e)
would be equivalent to holding that Congress has the power to
"abridge," "affect," "restrict the effect of," and "take . . .
away" citizenship. Because the Fourteenth Amendment prevents
Congress from doing any of these things, we agree with THE CHIEF
JUSTICE's dissent in the Perez case that the Government is
without power to rob a citizen of his citizenship under § 401(e).
[ Footnote 23 ]

															Because the legislative history of the Fourteenth Amendment, and
of the expatriation proposals which preceded and followed it, like
most other legislative history, contains many statements from which
conflicting inferences can be drawn, our holding might be
unwarranted if it rested entirely or principally upon that
legislative history. But it does not. Our holding, we think, is the
only one that can stand in view of the language and the purpose of
the Fourteenth Amendment, and our construction of that Amendment,
we believe, comports more nearly than Perez with the
principles of liberty and equal justice to all that the entire
Fourteenth Amendment was adopted to guarantee. Citizenship is no
light trifle Page 387 U. S. 268 to be jeopardized any moment Congress decides to do so under the
name of one of its general or implied grants of power. In some
instances, loss of citizenship can mean that a man is left without
the protection of citizenship in any country in the world -- as a
man without a country. Citizenship in this Nation is a part of a
cooperative affair. Its citizenry is the country, and the country
is its citizenry. The very nature of our free government makes it
completely incongruous to have a rule of law under which a group of
citizens temporarily in office can deprive another group of
citizens of their citizenship. We hold that the Fourteenth
Amendment was designed to, and does, protect every citizen of this
Nation against a congressional forcible destruction of his
citizenship, whatever his creed, color, or race. Our holding does
no more than to give to this citizen that which is his own, a
constitutional right to remain a citizen in a free country unless
he voluntarily relinquishes that citizenship. Perez v. Brownell is overruled. The judgment is Reversed. [ Footnote 1 ]

															54 Stat. 1168, as amended, 58 Stat. 746, 8 U.S.C. § 801 (1946
ed.):

															"A person who is a national of the United States, whether by
birth or naturalization, shall lose his nationality by: "

															" * * * *" "(e) Voting in a political election in a foreign state or
participating in an election or plebiscite to determine the
sovereignty over foreign territory."

															This provision was reenacted as § 349(a)(5) of the Immigration
and Nationality Act of 1952, 66 Stat. 267, 8 U.S.C. §
1481(a)(5).

															[ Footnote 2 ]

															"All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the United
States. . . ."

															[ Footnote 3 ]

															250 F. Supp. 686; 361 F.2d 102, 105.

															[ Footnote 4 ] Trop v. Dulles, 356 U. S. 86 ; Nishikawa v. Dulles, 356 U. S. 129 .

															[ Footnote 5 ] Kennedy v. Mendoza-Martinez, 372 U.
S. 144 ; Schneider v. Rusk, 377 U.
S. 163 . In his concurring opinion in Mendoza-Martinez, MR. JUSTICE BRENNAN expressed "felt
doubts of the correctness of Perez. . . ." 372 U.S. at 372 U. S.
187 [ Footnote 6 ] See, e.g., Agata, Involuntary Expatriation and Schneider v. Rusk, 27 U.Pitt.L.Rev. 1 (1965); Hurst, Can
Congress Take Away Citizenship?, 29 Rocky Mt.L.Rev. 62 (1956);
Kurland, Foreword: "Equal in Origin and Equal in Title to the
Legislative and Executive Branches of the Government," 78
Harv.L.Rev. 143, 169-175 (1964); Comment, 56 Mich.L.Rev. 1142
(1958); Note, Forfeiture of Citizenship Through Congressional
Enactments, 21 U.Cin.L.Rev. 59 (1952); 40 Cornell L.Q. 365 (1955);
25 S.Cal.L.Rev.196 (1952). But see, e.g., Comment, The
Expatriation Act of 1954, 64 Yale L.J. 1164 (1955).

															[ Footnote 7 ] See Perez v. Brownell, supra, at 356 U. S. 62 (dissenting opinion of THE CHIEF JUSTICE), 356 U. S. 79 (dissenting opinion of MR. JUSTICE DOUGLAS); Trop v. Dulles,
supra, at 356 U. S. 91 -93
(part I of opinion of Court); Nishikawa v. Dulles, supra, at 356 U. S. 138 (concurring opinion of MR. JUSTICE BLACK).

															[ Footnote 8 ]

															For a history of the early American view of the right of
expatriation, including these congressional proposals, see
generally Roche, The Early Development of United States
Citizenship (1949); Tsiang, The Question of Expatriation in America
Prior to 1907 (1942); Dutcher, The Right of Expatriation, 11
Am.L.Rev. 447 (1877); Roche, The Loss of American Nationality --
The Development of Statutory Expatriation, 99 U.Pa.L.Rev. 25
(1950); Slaymaker, The Right of the American Citizen to Expatriate,
37 Am.L.Rev.191 (1903).

															[ Footnote 9 ]

															4 Annals of Cong. 1005, 102-1030 (1794); 7 Annals of Cong. 349 et seq. (1797).

															[ Footnote 10 ] See, e.g., 3 U. S. Janson, 3 Dall. 133.

															[ Footnote 11 ]

															31 Annals of Cong. 495 (1817).

															[ Footnote 12 ] Id. at 1036-1037, 1058 (1818). Although some of the
opponents, believing that citizenship was derived from the States,
argued that any power to prescribe the mode for its relinquishment
rested in the States, they were careful to point out that "the
absence of all power from the State Legislatures would not vest it
in us." Id. at 1039.

															[ Footnote 13 ]

															The amendment had been proposed by the 11th Cong., 2d Sess. See The Constitution of the United States of America,
S.Doc. No. 39, 88th Cong., 1st Sess., 77-78 (1964).

															[ Footnote 14 ] Id. at 1071. It is interesting to note that the
proponents of the bill, such as Congressman Cobb of Georgia,
considered it to be "the simple declaration of the manner in which
a voluntary act, in the exercise of a natural right, may be
performed" and denied that it created or could lead to the creation
of "a presumption of relinquishment of the right of citizenship." Id. at 1068.

															[ Footnote 15 ]

															The dissenting opinion here points to the fact that a Civil War
Congress passed two Acts designed to deprive military deserters to
the Southern side of the rights of citizenship. Measures of this
kind passed in those days of emotional stress and hostility are by
no means the most reliable criteria for determining what the
Constitution means.

															[ Footnote 16 ]

															Cong.Globe, 39th Cong., 1st Sess., 2768-2769, 2869, 2890 et
seq. (1866). See generally, Flack, Adoption of the
Fourteenth Amendment 88-94 (1908).

															[ Footnote 17 ]

															Representative Jenckes of Rhode Island introduced an amendment
that would expatriate those citizens who became naturalized by a
foreign government, performed public duties for a foreign
government, or took up domicile in a foreign country without intent
to return. Cong.Globe, 40th Cong., 2d Sess., 968, 1129, 2311
(1868). Although he characterized his proposal as covering "cases
where citizens may voluntarily renounce their allegiance to this
country," id. at 1159, it was opposed by Representative
Chanler of New York, who said,

															"So long as a citizen does not expressly dissolve his allegiance
and does not swear allegiance to another country his citizenship
remains in statu quo, unaltered and unimpaired." Id. at 1016.

															[ Footnote 18 ]

															Proposals of Representatives Pruyn of New York ( id. at
1130) and Van Trump of Ohio ( id. at 1801, 2311).

															[ Footnote 19 ]

															While Van Trump disagreed with the 1818 opponents as to whether
Congress had power to prescribe a means of voluntary renunciation
of citizenship, he wholeheartedly agreed with their premise that
the right of expatriation belongs to the citizen, not to the
Government, and that the Constitution forbids the Government from
being party to the act of expatriation. Van Trump simply thought
that the opponents of the 1818 proposal failed to recognize that
their mutual premise would not be violated by an Act which merely
prescribed "how . . . [the rights of citizenship] might be
relinquished at the option of the person in whom they were vested."
Cong.Globe, 40th Cong., 2d Sess., 1804 (1868).

															[ Footnote 20 ] Id. at 2317. Representative Banks of Massachusetts, the
Chairman of the House Committee on Foreign Affairs which drafted
the bill eventually enacted into law, explained why Congress
refrained from providing a means of expatriation:

															"It is a subject which, in our opinion, ought not to be
legislated upon. . . . [T]his comes within the scope and character
of natural rights which no Government has the right to control and
which no Government can confer. And wherever this subject is
alluded to in the Constitution -- . . . it is in the declaration
that Congress shall have no power whatever to legislate upon these
matters." Id. at 2316.

															[ Footnote 21 ]

															15 Stat. 223, R.S. § 1999.

															[ Footnote 22 ]

															Some have referred to this part. of the decision as a holding, see, e.g., Hurst, supra, 29 Rocky Mt.L.Rev. at
779; Comment, 56 Mich.L.Rev. at 1153-1154; while others have
referred to it as obiter dictum, see, e.g., Roche, supra, 99 U.Pa.L.Rev. at 26-27. Whichever it was, the
statement was evidently the result of serious consideration, and is
entitled to great weight.

															[ Footnote 23 ]

															Of course, as THE CHIEF JUSTICE said in his dissent, 356 U.S. at 356 U. S. 66 ,
naturalization unlawfully procured can be set aside. See, e.g.,
Knauer v. United States, 328 U. S. 654 ; Baumgartner v. United States, 322 U.
S. 665 ; Schneiderman v. United States, 320 U. S. 118 .

															MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK, MR. JUSTICE STEWART,
and MR. JUSTICE WHITE join, dissenting.

															Almost 10 years ago, in Perez v. Brownell, 356 U. S.
44 , the Court upheld the constitutionality of § 401(e)
of the Nationality Act of 1940, 54 Stat. 1169. The section deprives
of his nationality any citizen who has voted in a foreign political
election. The Court reasoned that Congress derived from its power
to regulate foreign affairs authority to expatriate any citizen who
intentionally commits acts which may be prejudicial to the foreign
relations of the United States, and which reasonably may be deemed
to indicate a dilution of his allegiance to this country. Congress,
it was held, could appropriately consider Page 387 U. S. 269 purposeful voting in a foreign political election to be such an
act.

															The Court today overrules Perez, and declares § 401(e)
unconstitutional, by a remarkable process of circumlocution. First,
the Court fails almost entirely to dispute the reasoning in Perez; it is essentially content with the conclusory and
quite unsubstantiated assertion that Congress is without "any
general power, express or implied," to expatriate a citizen
"without his assent." [ Footnote
2/1 ] Next, the Court embarks upon a lengthy, albeit incomplete,
survey of the historical background of the congressional power at
stake here, and yet, at the end, concedes that the history is
susceptible of "conflicting inferences." The Court acknowledges
that its conclusions might not be warranted by that history alone,
and disclaims that the decision today relies, even "principally,"
upon it. Finally, the Court declares that its result is bottomed
upon the "language Page 387 U. S. 270 and the purpose" of the Citizenship Clause of the Fourteenth
Amendment; in explanation, the Court offers only the terms of the
clause itself, the contention that any other result would be
"completely incongruous," and the essentially arcane observation
that the "citizenry is the country and the country is its
citizenry."

															I can find nothing in this extraordinary series of
circumventions which permits, still less compels, the imposition of
this constitutional constraint upon the authority of Congress. I
must respectfully dissent.

															There is no need here to rehearse Mr. Justice Frankfurter's
opinion for the Court in Perez; it then proved and still
proves to my satisfaction that § 401(e) is within the power of
Congress. [ Footnote 2/2 ] It
suffices simply to supplement Perez with an examination of
the historical evidence which the Court in part recites, and which
provides the only apparent basis for many of the Court's
conclusions. As will be seen, the available historical evidence is
not only inadequate to support the Court's abandonment of Perez, but, with due regard for the Page 387 U. S. 271 restraints that should surround the judicial invalidation of an
Act of Congress, even seems to confirm Perez' soundness. I Not much evidence is available from the period prior to the
adoption of the Fourteenth Amendment through which the
then-prevailing attitudes on these constitutional questions can now
be determined. The questions pertinent here were only tangentially
debated; controversy centered instead upon the wider issues of
whether a citizen might under any circumstances renounce his citizenship, and, if he might, whether that right should be
conditioned upon any formal prerequisites. [ Footnote 2/3 ] Even the discussion of these issues was
seriously clouded by the widely accepted view that authority to
regulate the incidents of citizenship had been retained, at least
in part, by the several States. [ Footnote 2/4 ] It should therefore be remembered that the
evidence which is now available may not necessarily represent any
carefully considered, still less prevailing, viewpoint upon the
present issues.

															Measured even within these limitations, the Court's evidence for
this period is remarkably inconclusive; the Court relies simply
upon the rejection by Congress of Page 387 U. S. 272 legislation proposed in 1794, 1797, and 1818, and upon an
isolated dictum from the opinion of Chief Justice Marshall in Osborn v. Bank of the United
States , 9 Wheat. 738. This, as will appear, is
entirely inadequate to support the Court's conclusion, particularly
in light of other and more pertinent evidence which the Court does
not notice.

															The expatriation of unwilling citizens was apparently first
discussed in the lengthy congressional debates of 1794 and 1795,
which culminated eventually in the Uniform Naturalization Act of
1795. [ Footnote 2/5 ] 1 Stat. 414.
Little contained in those debates is pertinent here. The present
question was considered only in connection with an amendment,
offered by Congressman Hillhouse of Connecticut, which provided
that any American who acquired a foreign citizenship should not
subsequently be permitted to repatriate in the United States.
Although this obscure proposal scarcely seems relevant to the
present issues, it was apparently understood, at least by some
members, to require the automatic expatriation of an American who
acquired a second citizenship. Its discussion in the House consumed
substantially less than one day, and, of this debate, only the
views of two Congressmen, other than Hillhouse, were recorded by
the Annals. [ Footnote 2/6 ] Murray
of Maryland, for reasons immaterial here, supported the proposal.
In response, Baldwin of Georgia urged that foreign citizenship was
often conferred only as a mark of esteem, and that it would be
unfair to deprive of his domestic citizenship an American honored
in this fashion. There is no indication that any member believed
the proposal to be forbidden by the Constitution. The measure was
rejected by the House without a reported Page 387 U. S. 273 vote, and no analogous proposal was offered in the Senate.
Insofar as this brief exchange is pertinent here, it establishes,
at most, that two or more members believed the proposal both
constitutional and desirable, and that some larger number
determined, for reasons that are utterly obscure, that it should
not be adopted.

															The Court next relies upon the rejection of proposed legislation
in 1797. The bill there at issue would have forbidden the entry of
American citizens into the service of any foreign state in time of
war; its sixth section included machinery by which a citizen might
voluntarily expatriate himself. [ Footnote 2/7 ] The bill contained nothing which would
have expatriated unwilling citizens, and the debates do not include
any pronouncements relevant to that issue. It is difficult to see
how the failure of that bill might be probative here.

															The debates in 1817 and 1818, upon which the Court so heavily
relies, are scarcely more revealing. Debate centered upon a brief
bill [ Footnote 2/8 ] which provided
merely that any citizen who wished to renounce his citizenship must
first declare his intention in open court, and thereafter depart
the United States. His citizenship would have terminated at the
moment of his renunciation. The bill was debated only in the House;
no proposal permitting the involuntary expatriation of any citizen
was made or considered there or in the Senate. Nonetheless, the
Court selects portions of statements made by three individual
Congressmen, who apparently denied that Congress had authority to
enact legislation to deprive unwilling citizens of their
citizenship. These brief dicta are, by the most generous standard,
inadequate to warrant the Court's broad constitutional conclusion.
Moreover, it must be observed that they were in great part
deductions from Page 387 U. S. 274 constitutional premises which have subsequently been entirely
abandoned. They stemmed principally from the Jeffersonian
contention that allegiance is owed by a citizen first to his State,
and only through the State to the Federal Government. The spokesmen
upon whom the Court now relies supposed that Congress was without
authority to dissolve citizenship, since "we have no control" over
"allegiance to the State. . . ." [ Footnote 2/9 ] The bill's opponents urged that

															"The relation to the State government was the basis of the
relation to the General Government, and therefore, as long as a man
continues a citizen of a State, he must be considered a citizen of
the United States. [ Footnote
2/10 ]"

															Any statute, it was thought, which dissolved federal citizenship
while a man remained a citizen of a State "would be inoperative."
[ Footnote 2/11 ] Surely the Court
does not revive this entirely discredited doctrine, and yet, so
long as it does not, it is difficult to see that any significant
support for the ruling made today may be derived from the
statements on which the Court relies. To sever the statements from
their constitutional premises, as the Court has apparently done, is
to transform the meaning these expressions were intended to convey.
Finally, it must be remembered that these were merely the views of
three Congressmen; nothing in the debates indicates that their
constitutional doubts were shared by any substantial number of the
other 67 members who eventually opposed the bill. They were plainly
not accepted by the 58 members who voted in the bill's favor. The
bill's opponents repeatedly urged that, whatever its constitutional
validity, the bill was imprudent Page 387 U. S. 275 and undesirable. Pindall of Virginia, for example, asserted that
a citizen who employed its provisions would have "motives of
idleness or criminality," [ Footnote
2/12 ] and that the bill would thus cause "much evil." [ Footnote 2/13 ] McLane of Delaware feared
that citizens would use the bill to escape service in the armed
forces in time of war; he warned that the bill would, moreover,
weaken "the love of country so necessary to individual happiness
and national prosperity." [ Footnote
2/14 ] He even urged that "The commission of treason, and the
objects of plunder and spoil, are equally legalized by this bill."
[ Footnote 2/15 ] Lowndes of South
Carolina cautioned the House that difficulties might again arise
with foreign governments over the rights of seamen if the bill were
passed. [ Footnote 2/16 ] Given
these vigorous and repeated arguments, it is quite impossible to
assume, as the Court apparently has, that any substantial portion
of the House was motivated wholly, or even in part, by any
particular set of constitutional assumptions. These three
statements must, instead, be taken as representative only of the
beliefs of three members, premised chiefly upon constitutional
doctrines which have subsequently been rejected, and expressed in a
debate in which the present issues were not directly involved.

															The last piece of evidence upon which the Court relies for this
period is a brief obiter dictum from the lengthy opinion
for the Court in Osborn v. Bank of the United
States , 9 Wheat. 738, 22 U. S. 827 ,
written by Mr. Chief Justice Marshall. This use of the dictum is
entirely unpersuasive, for its terms and context make quite plain
that it cannot have been intended to reach the questions
presented Page 387 U. S. 276 here. The central issue before the Court in Osborn was
the right of the bank to bring its suit for equitable relief in the
courts of the United States. In argument, counsel for Osborn had
asserted that, although the bank had been created by the laws of
the United States, it did not necessarily follow that any cause
involving the bank had arisen under those laws. Counsel urged by
analogy that the naturalization of an alien might as readily be
said to confer upon the new citizen a right to bring all his
actions in the federal courts. Id. at 813-814 [argument of
counsel omitted from electronic version]. Not surprisingly, the
Court rejected the analogy, and remarked that an act of
naturalization "does not proceed to give, to regulate, or to
prescribe his capacities," since the Constitution demands that a
naturalized citizen must in all respects stand "on the footing of a
native." Id. at 22 U. S. 827 .
The Court plainly meant no more than that counsel's analogy is
broken by Congress' inability to offer a naturalized citizen rights
or capacities which differ in any particular from those given to a
native-born citizen by birth. Mr. Justice Johnson's discussion of
the analogy in dissent confirms the Court's purpose. Id. at 22 U. S.
875 -876.

															Any wider meaning, so as to reach the questions here, wrenches
the dictum from its context and attributes to the Court an
observation extraneous even to the analogy before it. Moreover, the
construction given to the dictum by the Court today requires the
assumption that the Court in Osborn meant to decide an
issue which had to that moment scarcely been debated, to which
counsel in Osborn had never referred, and upon which no
case had ever reached the Court. All this, it must be recalled, is
in an area of the law in which the Court had steadfastly avoided
unnecessary comment. See, e.g., 8 U. S. Coxe's
Lessee, 4 Cranch 209, 8 U. S. 212 -213; The Santissima
Trinidad , 7 Wheat. 283, 20 U. S.
347 -348. By any Page 387 U. S. 277 standard, the dictum cannot provide material assistance to the
Court's position in the present case. [ Footnote 2/17 ]

															Before turning to the evidence from this period which has been
overlooked by the Court, attention must be given an incident to
which the Court refers, but upon which it apparently places
relatively little reliance. In 1810, a proposed thirteenth
amendment to the Constitution Page 387 U. S. 278 was introduced into the Senate by Senator Reed of Maryland; the
amendment, as subsequently modified, provided that any citizen who
accepted a title of nobility, pension, or emolument from a foreign
state, or who married a person of royal blood, should "cease to be
a citizen of the United States." [ Footnote 2/18 ] The proposed amendment was, in a
modified form, accepted by both Houses, and subsequently obtained
the approval of all but one of the requisite number of States.
[ Footnote 2/19 ] I have found
nothing which indicates with any certainty why such a provision
should then have been thought necessary, [ Footnote 2/20 ] but two reasons suggest themselves for
the use of a constitutional amendment. First, the provisions may
have been intended in part as a sanction for Art. I, § 9, cl. 8;
[ Footnote 2/21 ] it may therefore
have been thought more appropriate that it be placed within the
Constitution itself. Second, a student of expatriation issues in
this period has dismissed the preference for an amendment with the
explanation that

															"the dominant Jeffersonian view held that citizenship was within
the jurisdiction of the states; a statute would thus have been a
federal usurpation of state power. [ Footnote 2/22 ]"

															This second explanation is fully substantiated by the debate
in Page 387 U. S. 279 1818; the statements from that debate set out in the opinion for
the Court were, as I have noted, bottomed on the reasoning that,
since allegiance given by an individual to a State could not be
dissolved by Congress, a federal statute could not regulate
expatriation. It surely follows that this "obscure enterprise"
[ Footnote 2/23 ] in 1810,
motivated by now discredited constitutional premises, cannot offer
any significant guidance for solution of the important issues now
before us.

															The most pertinent evidence from this period upon these
questions has been virtually overlooked by the Court. Twice in the
two years immediately prior to its passage of the Fourteenth
Amendment, Congress exercised the very authority which the Court
now suggests that it should have recognized was entirely lacking.
In each case, a bill was debated and adopted by both Houses which
included provisions to expatriate unwilling citizens.

															In the spring and summer of 1864, both Houses debated
intensively the Wade-Davis bill to provide reconstruction
governments for the States which had seceded to form the
Confederacy. Among the bill's provisions was § 14, by which

															"every person who shall hereafter hold or exercise any office .
. . in the rebel service . . . is hereby declared not to be a
citizen of .the United States. [ Footnote 2/24 ]"

															Much of the debate upon the bill did not, of course, center on
the expatriation provision, although it certainly did not escape
critical attention. [ Footnote
2/25 ] Nonetheless, I have not found any indication in the
debates in either House that it was supposed that Congress was
without authority to deprive an unwilling citizen of his
citizenship. The bill was not signed by President Lincoln before
the adjournment Page 387 U. S. 280 of Congress, and thus failed to become law, but a subsequent
statement issued by Lincoln makes quite plain that he was not
troubled by any doubts of the constitutionality of § 14. [ Footnote 2/26 ] Passage of the Wade-Davis
bill of itself "suffices to destroy the notion that the men who
drafted the Fourteenth Amendment felt that citizenship was an absolute.'" [ Footnote
2/27 ] Twelve months later, and less than a year before its passage of
the Fourteenth Amendment, Congress adopted a second measure which
included provisions that permitted the expatriation of unwilling
citizens. Section 21 of the Enrollment Act of 1865 provided that
deserters from the military service of the United States "shall be
deemed and taken to have voluntarily relinquished and forfeited
their rights of citizenship and their rights to become citizens. .
. ." [ Footnote 2/28 ] The same
section extended these disabilities to persons who departed the
United States with intent to avoid "draft into the military or
naval service. . . ." [ Footnote
2/29 ] The bitterness of war did not cause Congress here to
neglect the requirements of the Constitution, for it was urged in
both Houses that § 21 as written was ex post facto, and
thus was constitutionally Page 387 U. S. 281 impermissible. [ Footnote 2/30 ]
Significantly, however, it was never suggested in either debate
that expatriation without a citizen's consent lay beyond Congress'
authority. Members of both Houses had apparently examined
intensively the section's constitutional validity, and yet had been
undisturbed by the matters upon which the Court now relies.

															Some doubt, based on the phrase "rights of citizenship," has
since been expressed [ Footnote
2/31 ] that § 21 was intended to require any more than
disfranchisement, but this is, for several reasons, unconvincing.
First, § 21 also explicitly provided that persons subject to its
provisions should not thereafter exercise various "rights of
citizens"; [ Footnote 2/32 ] if the
section had not been intended to cause expatriation, it is
difficult to see why these additional provisions would have been
thought necessary. Second, the executive authorities of the United
States afterwards consistently construed the section as causing
expatriation. [ Footnote 2/33 ]
Third, the section was apparently understood by various courts to
result in expatriation; in particular, Mr. Justice Strong, while a
member of the Supreme Court of Pennsylvania, construed the section
to cause a "forfeiture of citizenship," Huber v. Reily, 53
Pa. 112, 118, and although this point was not expressly reached,
his general understanding of the statute was approved by this Court
in Kurtz v. Moffitt, 115 U. S. 487 , 115 U. S. 501 .
Finally, Congress in 1867 approved an exemption from the section's
provisions for those who had deserted after the termination of
general hostilities, and the statute as adopted specifically
described the disability from which exemption was given as a "loss
of his citizenship." Page 387 U. S. 282 15 Stat. 14. The same choice of phrase occurs in the pertinent
debates. [ Footnote 2/34 ]

															It thus appears that Congress had twice, immediately before its
passage of the Fourteenth Amendment, unequivocally affirmed its
belief that it had authority to expatriate an unwilling
citizen.

															The pertinent evidence for the period prior to the adoption of
the Fourteenth Amendment can therefore be summarized as follows.
The Court's conclusion today is supported only by the statements,
associated at least in part with a now abandoned view of
citizenship, of three individual Congressmen, and by the ambiguous
and inapposite dictum from Osborn. Inconsistent with the
Court's position are statements from individual Congressmen in
1794, and Congress' passage in 1864 and 1865 of legislation which
expressly authorized the expatriation of unwilling citizens. It may
be that legislation adopted in the heat of war should be discounted
in part by its origins, but, even if this is done, it is surely
plain that the Court's conclusion is entirely unwarranted by the
available historical evidence for the period prior to the passage
of the Fourteenth Amendment. The evidence suggests, to the
contrary, that Congress in 1865 understood that it had authority,
at least in some circumstances, to deprive a citizen of his
nationality. II The evidence with which the Court supports its thesis that the
Citizenship Clause of the Fourteenth Amendment was intended to lay
at rest any doubts of Congress' inability to expatriate without the
citizen's consent is no more persuasive. The evidence consists
almost exclusively of two brief and general quotations from
Howard Page 387 U. S. 283 of Michigan, the sponsor of the Citizenship Clause in the
Senate, and of a statement made in a debate in the House of
Representatives in 1868 by Van Trump of Ohio. Measured most
generously, this evidence would be inadequate to support the
important constitutional conclusion presumably drawn in large part
from it by the Court; but, as will be shown, other relevant
evidence indicates that the Court plainly has mistaken the purposes
of the clause's draftsmen.

															The Amendment as initially approved by the House contained
nothing which described or defined citizenship. [ Footnote 2/35 ] The issue did not as such even
arise in the House debates; it was apparently assumed that Negroes
were citizens, and that it was necessary only to guarantee to them
the rights which sprang from citizenship. It is quite impossible to
derive from these debates any indication that the House wished to
deny itself the authority it had exercised in 1864 and 1865; so far
as the House is concerned, it seems that no issues of citizenship
were "at all involved." [ Footnote
2/36 ]

															In the Senate, however, it was evidently feared that, unless
citizenship were defined, or some more general classification
substituted, freedmen might, on the premise that they were not
citizens, be excluded from the Amendment's protection. Senator
Stewart thus offered an amendment which would have inserted into §
1 a definition of citizenship, [ Footnote 2/37 ] and Senator Wade urged as an alternative
the elimination of the term "citizen" from the Amendment's first
section. [ Footnote 2/38 ] After a
caucus of the Page 387 U. S. 284 chief supporters of the Amendment, Senator Howard announced on
their behalf that they favored the addition of the present
Citizenship Clause. [ Footnote
2/39 ]

															The debate upon the clause was essentially cursory in both
Houses, but there are several clear indications of its intended
effect. Its sponsors evidently shared the fears of Senators Stewart
and Wade that, unless citizenship were defined, freedmen might,
under the reasoning of the Dred Scott decision, [ Footnote 2/40 ] be excluded by the courts
from the scope of the Amendment. It was agreed that, since the
"courts have stumbled on the subject," it would be prudent to
remove the "doubt thrown over" it. [ Footnote 2/41 ] The clause would essentially overrule Dred Scott and place beyond question the freedmen's right
of citizenship because of birth. It was suggested, moreover, that
it would, by creating a basis for federal citizenship which was
indisputably independent of state citizenship, preclude any effort
by state legislatures to circumvent the Amendment by denying
freedmen state citizenship. [ Footnote
2/42 ] Nothing in the debates, however, supports the Court's
assertion that the clause was intended to deny Congress its
authority to expatriate unwilling citizens. The evidence indicates
that its draftsmen instead expected the clause only to declare
unreservedly to Page 387 U. S. 285 whom citizenship initially adhered, thus overturning the
restrictions both of Dred Scott and of the doctrine of
primary state citizenship, while preserving Congress' authority to
prescribe the methods and terms of expatriation.

															The narrow, essentially definitional purpose of the Citizenship
Clause is reflected in the clear declarations in the debates that
the clause would not revise the prevailing incidents of
citizenship. Senator Henderson of Missouri thus stated specifically
his understanding that the "section will leave citizenship where it
now is." [ Footnote 2/43 ] Senator
Howard, in the first of the statements relied upon, in part, by the
Court, said quite unreservedly that

															"This amendment [the Citizenship Clause] which I have offered is
simply declaratory of what I regard as the law of the land already,
that every person born within the limits of the United States, and
subject to their jurisdiction, is . . . a citizen of the United
States. [ Footnote 2/44 ]"

															Henderson had been present at the Senate's consideration both of
the Wade-Davis bill and of the Enrollment Act, and had voted at
least for the Wade-Davis bill. [ Footnote 2/45 ] Page 387 U. S. 286 Howard was a member of the Senate when both bills were passed,
and had actively participated in the debates upon the Enrollment
Act. [ Footnote 2/46 ] Although his
views of the two expatriation measures were not specifically
recorded, Howard certainly never expressed to the Senate any doubt
either of their wisdom or of their constitutionality. It would be
extraordinary if these prominent supporters of the Citizenship
Clause could have imagined, as the Court's construction of the
clause now demands, that the clause was only "declaratory" of the
law "where it now is," and yet that it would entirely withdraw a
power twice recently exercised by Congress in their presence.

															There is, however, even more positive evidence that the Court's
construction of the clause is not that intended by its draftsmen.
Between the two brief statements from Senator Howard relied upon by
the Court, Howard, in response to a question, said the
following:

															"I take it for granted that, after a man becomes a citizen of
the United States under the Constitution, he cannot cease to be
citizen except by expatriation or the commission of
some crime by which his citizenship shall be forfeited. [ Footnote 2/47 ]"

															(Emphasis added.) It would be difficult to imagine a more
unqualified rejection of the Court's position; Senator Howard, the
clause's sponsor, very plainly believed that it would leave
unimpaired Congress' power to deprive unwilling citizens of their
citizenship. [ Footnote 2/48 ] Page 387 U. S. 287 Additional confirmation of the expectations of the clause's
draftsmen may be found in the legislative history, wholly
overlooked by the Court, of the Act for the Relief of certain
Soldiers and Sailors, adopted in 1867. 15 Stat. 14. The Act,
debated by Congress within 12 months of its passage of the
Fourteenth Amendment, provided an exception from the provisions of
21 of the Enrollment Act of 1865 for those who had deserted from
the Union forces after the termination of general hostilities. Had
the Citizenship Clause been understood to have the effect now given
it by the Court, surely this would have been clearly reflected in
the debates; members would at least have noted that, upon final
approval of the Amendment, which had already obtained the approval
of 21 States, § 21 would necessarily be invalid. Nothing of the
sort occurred; it was argued by some members that § 21 was
imprudent, and even unfair, [ Footnote
2/49 ] but Congress evidently did not suppose that it was, or
would be, unconstitutional. Congress simply failed to attribute to
the Citizenship Page 387 U. S. 288 Clause the constitutional consequences now discovered by the
Court. [ Footnote 2/50 ]

															Nonetheless, the Court urges that the debates which culminated
in the Expatriation Act of 1868 materially support its
understanding of the purposes of the Citizenship Clause. This is,
for several reasons, wholly unconvincing. Initially, it should be
remembered that discussion of the Act began in committee some six
months after the passage of the Relief Act of 1867, by the Second
Session of the Congress which had approved the Relief Act; the
Court's interpretation of the history of the Expatriation Act thus
demands, at the outset, the supposition that a view of the
Citizenship Clause entirely absent in July had appeared vividly by
the following January. Further, the purposes and background of the
Act should not be forgotten. The debates were stimulated by
repeated requests both from President Andrew Johnson and from the
public that Congress assert the rights of naturalized Americans
against the demands of their former countries. [ Footnote 2/51 ] The Act as finally adopted was thus
intended

															"primarily to assail the conduct of the British Government
[chiefly for its acts toward naturalized Americans resident in
Ireland] and to declare the right of naturalized Americans to
renounce their native allegiance; [ Footnote 2/52 ]"

															accordingly, very little of the lengthy debate was in the least
pertinent to the present issues. Several members did make plain,
through their proposed amendments to the bill or their Page 387 U. S. 289 interstitial comments, that they understood Congress to have
authority to expatriate unwilling citizens, [ Footnote 2/53 ] but ,in general, both the issues now
before the Court and questions of the implications of the
Citizenship Clause were virtually untouched in the debates.

															Nevertheless, the Court, in order to establish that Congress
understood that the Citizenship Clause denied it such authority,
fastens principally upon the speeches of Congressman Van Trump of
Ohio. Van Trump sponsored, as one of many similar amendments
offered to the bill by various members, a proposal to create formal
machinery by which a citizen might voluntarily renounce his
citizenship. [ Footnote 2/54 ] Van
Trump himself spoke at length in support of his proposal; his
principal speech consisted chiefly of a detailed examination of the
debates and judicial decisions pertinent to the issues of voluntary
renunciation of citizenship. [ Footnote 2/55 ] Never in his catalog of relevant
materials did Van Trump even mention the Citizenship Clause of the
Fourteenth Amendment; [ Footnote
2/56 ] so far as may be seen from his comments on the House
floor, Van Trump evidently supposed the clause to be entirely
immaterial to the issues of expatriation. This is completely
characteristic of the debate in both Houses; even its draftsmen and
principal supporters, such as Senator Howard, permitted the
Citizenship Clause to Page 387 U. S. 290 pass unnoticed. The conclusion seems inescapable that the
discussions surrounding the Act of 1868 cast only the most minimal
light, if indeed any, upon the purposes of the clause, and that the
Court's evidence from the debates is, by any standard, exceedingly
slight. [ Footnote 2/57 ]

															There is, moreover, still further evidence, overlooked by the
Court, which confirms yet again that the Court's view of the
intended purposes of the Citizenship Clause is mistaken. While the
debate on the Act of 1868 was still in progress, negotiations were
completed on the first of a series of bilateral expatriation
treaties, which "initiated this country's policy of automatic
divestment of citizenship for specified conduct affecting our
foreign relations." Perez v. Brownell, supra, at 356 U. S. 48 .
Seven such treaties were negotiated in 1868 and 1869 alone;
[ Footnote 2/58 ] each was ratified
by the Senate. If, as the Court now suggests, it was "abundantly
clear" to Congress in 1868 that the Citizenship Clause had taken
from its hands the power of expatriation, it is quite difficult to
understand why these conventions were negotiated, or why, once
negotiated, Page 387 U. S. 291 they were not immediately repudiated by the Senate. [ Footnote 2/59 ]

															Further, the executive authorities of the United States
repeatedly acted, in the 40 years following 1868, upon the premise
that a citizen might automatically be deemed to have expatriated
himself by conduct short of a voluntary renunciation of
citizenship; individual citizens were, as the Court indicated in Perez, regularly held on this basis to have lost their
citizenship. Interested Members of Congress, and others, could
scarcely have been unaware of the practice; as early as 1874,
President Grant urged Congress in his Sixth Annual Message to
supplement the Act of 1868 with a statutory declaration of the acts
by which a citizen might "be deemed to have renounced or to have
lost his citizenship." [ Footnote
2/60 ] It was the necessity to provide a more satisfactory basis
for this practice that led first to the appointment of the
Citizenship Board of 1906, and subsequently to the Nationality Acts
of 1907 and 1940. The administrative practice in this period was
described by the Court in Perez; it suffices here merely
to emphasize that the Court today has not ventured to explain why
the Citizenship Clause should, so shortly after its adoption, have
been, under the Court's construction, so seriously
misunderstood.

															It seems to me apparent that the historical evidence which the
Court in part recites is wholly inconclusive, Page 387 U. S. 292 as indeed the Court recognizes; the evidence, to the contrary,
irresistibly suggests that the draftsmen of the Fourteenth
Amendment did not intend, and could not have expected, that the
Citizenship Clause would deprive Congress of authority which it
had, to their knowledge, only recently twice exercised. The
construction demanded by the pertinent historical evidence, and
entirely consistent with the clause's terms and purposes, is
instead that it declares to whom citizenship, as a consequence
either of birth or of naturalization, initially attaches. The
clause thus served at the time of its passage both to overturn Dred Scott and to provide a foundation for federal
citizenship entirely independent of state citizenship; in this
fashion it effectively guaranteed that the Amendment's protection
would not subsequently be withheld from those for whom it was
principally intended. But nothing in the history, purposes, or
language of the clause suggests that it forbids Congress in all
circumstances to withdraw the citizenship of an unwilling citizen.
To the contrary, it 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.

															The Citizenship Clause thus neither denies nor provides to
Congress any power of expatriation; its consequences are, for
present purposes, exhausted by its declaration of the classes of
individuals to whom citizenship initially attaches. Once obtained,
citizenship is, of course, protected from arbitrary withdrawal by
the constraints placed around Congress' powers by the Constitution;
it is not proper to create from the Citizenship Clause an
additional, and entirely unwarranted, restriction Page 387 U. S. 293 upon legislative authority. The construction now placed on the
Citizenship Clause rests, in the last analysis, simply on the
Court's ipse dixit, evincing little more, it is quite
apparent, than the present majority's own distaste for the
expatriation power.

															I believe that Perez was rightly decided, and on its
authority would affirm the judgment of the Court of Appeals.

															[ Footnote 2/1 ]

															It is appropriate to note at the outset what appears to be a
fundamental ambiguity in the opinion for the Court. The Court at
one point intimates, but does not expressly declare, that it adopts
the reasoning of the dissent of THE CHIEF JUSTICE in Perez. THE CHIEF JUSTICE there acknowledged that "actions
in derogation of undivided allegiance to this country" had "long
been recognized" to result in expatriation, id. at 356 U. S. 68 ; he
argued, however, that the connection between voting in a foreign
political election and abandonment of citizenship was logically
insufficient to support a presumption that a citizen had renounced
his nationality. Id. at 356 U. S. 76 . It
is difficult to find any semblance of this reasoning, beyond the
momentary reference to the opinion of THE CHIEF JUSTICE, in the
approach taken by the Court today; it seems instead to adopt a
substantially wider view of the restrictions upon Congress'
authority in this area. Whatever the Court's position, it has
assumed that voluntariness is here a term of fixed meaning; in
fact, of course, it has been employed to describe both a specific
intent to renounce citizenship and the uncoerced commission of an
act conclusively deemed by law to be a relinquishment of
citizenship. 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.

															[ Footnote 2/2 ]

															It is useful, however, to reiterate the essential facts of this
case, for the Court's very summary statement might unfortunately
cause confusion about the situation to which § 401(e) was here
applied. 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." 250 F. Supp. 686, 687. He voted in
the election for the Israeli Knesset in 1951, and, as his Israeli
Identification Booklet indicates, in various political elections
which followed. Transcript of Record 1-2. In 1960, after 10 years
in Israel, petitioner determined to return to the United States,
and applied to the United States Consulate in Haifa for a passport.
The application was rejected, and a Certificate of Loss of
Nationality, based entirely on his participation in the 1951
election, was issued. Petitioner's action for declaratory judgment
followed. There is, as the District Court noted, "no claim by the
[petitioner] that the deprivation of his American citizenship will
render him a stateless person." Ibid. [ Footnote 2/3 ] See generally Tsiang, The Question of Expatriation in
America Prior to 1907, 25-70; Roche, The Expatriation Cases, 1963
Sup.Ct.Rev. 325, 327-330; Roche, Loss of American Nationality, 4
West.Pol.Q. 268.

															[ Footnote 2/4 ]

															Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 329.
Although the evidence, which consists principally of a letter to
Albert Gallatin, is rather ambiguous, Jefferson apparently believed
even that a state expatriation statute could deprive a citizen of
his federal citizenship. 1 Writings of Albert Gallatin 301-302
(Adams ed. 1879). His premise was presumably that state citizenship
was primary, and that federal citizenship attached only through it. See Tsiang, supra, at 25. Gallatin's own views
have been described as essentially "states' rights"; see Roche, Loss of American Nationality, 4 West.Pol.Q. 268, 271.

															[ Footnote 2/5 ] See 4 Annals of Cong. 1004 et seq. [ Footnote 2/6 ]

															The discussion and rejection of the amendment are cursorily
reported at 4 Annals of Cong. 1028-1030.

															[ Footnote 2/7 ]

															The sixth section is set out at 7 Annals of Cong. 349.

															[ Footnote 2/8 ]

															The bill is summarized at 31 Annals of Cong. 495.

															[ Footnote 2/9 ]

															31 Annals of Cong. 1046.

															[ Footnote 2/10 ]

															31 Annals of Cong. 1057.

															[ Footnote 2/11 ] Ibid. Roche describes the Congressmen upon whom the
Court chiefly relies as "the states' rights opposition." Loss of
American Nationality, 4 West.Pol.Q. 268, 276.

															[ Footnote 2/12 ]

															31 Annals of Cong. 1047.

															[ Footnote 2/13 ]

															31 Annals of Cong. 1050.

															[ Footnote 2/14 ]

															31 Annals of Cong. 1059.

															[ Footnote 2/15 ] Ibid. [ Footnote 2/16 ]

															31 Annals of Cong. 1051.

															[ Footnote 2/17 ]

															Similarly, the Court can obtain little support from its
invocation of the dictum from the opinion for the Court in United States v. Wong Kim Ark, 169 U.
S. 649 , 169 U. S. 703 .
The central issue there was whether a child born of Chinese
nationals domiciled in the United States is an American citizen if
its birth occurs in this country. The dictum upon which the Court
relies, which consists essentially of a reiteration of the dictum
from Osborn, can therefore scarcely be considered a
reasoned consideration of the issues now before the Court.
Moreover, the dictum could conceivably be read to hold only that no
power to expatriate an unwilling citizen was conferred either by
the Naturalization Clause or by the Fourteenth Amendment; if the
dictum means no more, it would, of course, not even reach the
holding in Perez. Finally, the dictum must be read in
light of the subsequent opinion for the Court, written by Mr.
Justice McKenna, in Mackenzie v. Hare, 239 U.
S. 299 . Despite counsel's invocation of Wong Kim
Ark, id. at 302 and 303 [argument of counsel -- omitted], the
Court held in Mackenzie that marriage between an American
citizen and an alien, unaccompanied by any intention of the citizen
to renounce her citizenship, nonetheless permitted Congress to
withdraw her nationality. It is immaterial for these purposes that
Mrs. Mackenzie's citizenship might, under the statute there, have
been restored upon termination of the marital relationship; she did
not consent to the loss, even temporarily, of her citizenship, and,
under the proposition apparently urged by the Court today, it can
therefore scarcely matter that her expatriation was subject to some
condition subsequent. It seems that neither Mr. Justice McKenna,
who became a member of the Court after the argument but before the
decision of Wong Kim Ark, supra, at 169 U. S. 732 ,
nor Mr. Chief Justice White, who joined the Court's opinions in
both Wong Kim Ark and Mackenzie, thought that Wong Kim Ark required the result reached by the Court
today. Nor, it must be supposed, did the other six members of the
Court who joined Mackenzie, despite Wong Kim
Ark. [ Footnote 2/18 ]

															The various revisions of the proposed amendment may be traced
through 20 Annals of Cong. 530, 549, 572-573, 635, 671.

															[ Footnote 2/19 ]

															Ames, The Proposed Amendments to the Constitution of the United
States during the First Century of Its History, 2
Ann.Rep.Am.Hist.Assn. for the Year 1896, 188.

															[ Footnote 2/20 ]

															Ames, supra, at 187, speculates that the presence of
Jerome Bonaparte in this country some few years earlier might have
caused apprehension, and concludes that the amendment was merely an
expression of "animosity against foreigners." Id.. at
188.

															[ Footnote 2/21 ]

															The clause provides that

															"No Title of Nobility shall be granted by the United States: And
no Person holding any Office of Profit or Trust under them, shall,
without the Consent of the Congress, accept of any present,
Emolument, Office, or Title, of any kind whatever, from any King,
Prince, or foreign State."

															[ Footnote 2/22 ]

															Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 335.

															[ Footnote 2/23 ] Ibid. [ Footnote 2/24 ]

															6 Richardson, Messages and Papers of the Presidents 226.

															[ Footnote 2/25 ] See, e.g., the comments of Senator Brown of Missouri,
Cong.Globe, 38th Cong., 1st Sess., 3460.

															[ Footnote 2/26 ]

															Lincoln indicated that, although he was "unprepared" to be
"inflexibly committed" to "any single plan of restoration," he was
"fully satisfied" with the bill's provisions. 6 Richardson,
Messages and Papers of the Presidents 222-223.

															[ Footnote 2/27 ]

															Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 343.

															[ Footnote 2/28 ]

															13 Stat. 490. It was this provision that, after various
recodifications, was held unconstitutional by this Court in Trop v. Dulles, 356 U. S. 86 . A
majority of the Court did not there hold that the provision was
invalid because Congress lacked all power to expatriate an
unwilling citizen. In any event, a judgment by this Court 90 years
after the Act's passage can scarcely reduce the Act's evidentiary
value for determining whether Congress understood in 1865, as the
Court now intimates that it did, that it lacked such power.

															[ Footnote 2/29 ]

															13 Stat. 491

															[ Footnote 2/30 ]

															Cong.Globe, 38th Cong., 2d Sess., 642-643, 1155-1156.

															[ Footnote 2/31 ]

															Roche, The Expatriation Cases, 1963 Sup.Ct.Rev. 325, 336.

															[ Footnote 2/32 ]

															13 Stat. 490

															[ Footnote 2/33 ]

															Hearings before House Committee on Immigration and
Naturalization on H.R. 6127, 76th Cong., 1st Sess., 38.

															[ Footnote 2/34 ] See, e.g., the remarks of Senator Hendricks,
Cong.Globe, 40th Cong., 1st Sess., 661.

															[ Footnote 2/35 ]

															The pertinent events are described in Flack, Adoption of the
Fourteenth Amendment 83-94.

															[ Footnote 2/36 ] Id. at 84

															[ Footnote 2/37 ]

															Cong.Globe, 39th cong., 1st Sess., 2560.

															[ Footnote 2/38 ]

															Wade would have employed the formula "persons born in the United
States or naturalized under the laws thereof" to measure the
sections protection. Cong.Globe, 39th Cong., 1st Sess.,
2768-2769.

															[ Footnote 2/39 ]

															81 Cong.Globe, 39th Cong., 1st Sess., 2869. The precise terms of
the discussion in the caucus were, and have remained, unknown. For
contemporary comment, see Cong.Globe, 39th Cong., 1st
Sess., 2939.

															[ Footnote 2/40 ] Scott v.
Sandford , 19 How. 393.

															[ Footnote 2/41 ]

															Cong.Globe, 39th Cong., 1st Sess., 2768.

															[ Footnote 2/42 ] See, e.g., the comments of Senator Johnson of Maryland,
Cong.Globe, 39th Cong., 1st Sess., 2893. It was subsequently
acknowledged by several members of this Court that a central
purpose of the Citizenship Clause was to create an independent
basis of federal citizenship, and thus to overturn the doctrine of
primary state citizenship. The Slaughter-House
Cases , 16 Wall. 36, 83 U. S. 74 , 83 U. S. 95 , 83 U. S. 112 .
The background of this issue is traced in tenBroek, The
Anti-slavery Origins of the Fourteenth Amendment 71-93.

															[ Footnote 2/43 ]

															Cong.Globe, 39th Cong., 1st Sess., 3031. See also Flack, The Adoption of the Fourteenth Amendment 93. In the same
fashion, tenBroek, supra, at 215-217, concludes that the
whole of § 1 was "declaratory and confirmatory." Id. at
217.

															[ Footnote 2/44 ]

															Cong.Globe, 39th Cong., 1st Sess., 2890. See also the
statement of Congressman Baker, Cong.Globe, 39th Cong., 1st Sess.,
App. 255, 256. Similarly, two months after the Amendment's passage
through Congress, Senator Lane of Indiana remarked that the clause
was "simply a re-affirmation" of the declaratory citizenship
section of the Civil Rights Bill. Fairman, Does the Fourteenth
Amendment Incorporate the Bill of Rights? 2 Stan.L.Rev. 5, 74.

															[ Footnote 2/45 ]

															Senator Henderson participated in the debates upon the
Enrollment Act and expressed no doubts about the constitutionality
of § 21, Cong.Globe, 38th Cong., 2d Sess., 641, but the final vote
upon the measure in the Senate was not recorded. Cong.Globe, 38th
Cong., 2d Sess., 643.

															[ Footnote 2/46 ] See, e.g., Cong.Globe, 38th Cong., 2d Sess., 632.

															[ Footnote 2/47 ]

															Cong.Globe, 39th Cong., 1st Sess., 2895.

															[ Footnote 2/48 ]

															The issues pertinent here were not, of course, matters of great
consequence in the ratification debates in the several state
legislatures, but some additional evidence is nonetheless available
from them. The Committee on Federal Relations of the Texas House of
Representatives thus reported to the House that the Amendment's
first section "proposes to deprive the States of the right . . . to
determine what shall constitute citizenship of a State, and to
transfer that right to the Federal Government." Its "object" was,
they thought, "to declare negroes to be citizens of the United
States." Tex. House J. 578 (1866). The Governor of Georgia reported
to the legislature that the

															"prominent feature of the first [section] is, that it settles
definitely the right of citizenship in the several States, . . .
thereby depriving them in the future of all discretionary power
over the subject within their respective limits, and with reference
to their State Governments proper."

															Ga.Sen. J. 6 (1866). See also the message of Governor
Cox to the Ohio Legislature, Fairman, supra, 2 Stan.L.Rev.
at 96, and the message of Governor Fletcher to the Missouri
Legislature, Mo.Sen.J. 14 (1867). In combination, this evidence
again suggests that the Citizenship Clause was expected merely to
declare to whom citizenship initially attaches, and to overturn the
doctrine of primary state citizenship.

															[ Footnote 2/49 ]

															Senator Hendricks, for example, lamented its unfairness,
declared that its presence was an "embarrassment" to the country,
and asserted that it "is not required any longer." Cong.Globe, 40th
Cong., 1st Sess., 660-661.

															[ Footnote 2/50 ]

															Similarly, in 1885, this Court construed § 21 without any
apparent indication that the section was, or had ever been thought
to be, beyond Congress' authority. Kurtz v. Moffitt, 115 U. S. 487 , 115 U. S.
501 -502.

															[ Footnote 2/51 ]

															Tsiang, supra, 387
U.S. 253 fn2/3|>n. 3, at 95. President Johnson emphasized in
his Third Annual Message the difficulties which were then
prevalent. 6 Richardson, Messages and Papers of the Presidents 558,
580-581.

															[ Footnote 2/52 ]

															Tsiang, supra, at 95. See also 3 Moore, Digest
of International Law 579-580.

															[ Footnote 2/53 ] See, e.g., Cong.Globe, 40th Cong., 2d Sess., 968,
1129-1131.

															[ Footnote 2/54 ]

															Van Trump's proposal contained nothing which would have
expatriated any unwilling citizen, see Cong.Globe, 40th
Cong., 2d Sess., 1801; its ultimate failure therefore cannot,
despite the Court's apparent suggestion, help to establish that the
House supposed that legislation similar to that at issue here was
impermissible under the Constitution.

															[ Footnote 2/55 ]

															Cong.Globe, 40th Cong., 2d Sess., 1800-1805.

															[ Footnote 2/56 ]

															It should be noted that Van Trump, far from a "framer" of the
Amendment, had not even been a member of the Congress which adopted
it. Biographical Directory of the American Congress 1774-1961,
H.R.Doc. No. 442, 85th Cong., 2d Sess., 1750.

															[ Footnote 2/57 ]

															As General Banks, the Chairman of the House Committee on Foreign
Affairs, carefully emphasized, the debates were intended simply to
produce a declaration of the obligation of the United States to
compel other countries "to consider the rights of our citizens and
to bring the matter to negotiation and settlement"; the bill's
proponents stood "for that and nothing more." Cong.Globe, 40th
Cong., 2d Sess., 2315.

															[ Footnote 2/58 ]

															The first such treaty was that with the North German Union,
concluded February 22, 1868, and ratified by the Senate on March
26, 1868. 2 Malloy, Treaties, Conventions, International Acts,
Protocols and Agreements between the United States and other Powers
1298. Similar treaties were reached in 1868 with Bavaria, Baden,
Belgium, Hesse, and Wurttemberg; a treaty was reached in 1869 with
Norway and Sweden. An analogous treaty was made with Mexico in
1868, but, significantly, it permitted rebuttal of the presumption
of renunciation of citizenship. See generally Tsiang, supra, at 88.

															[ Footnote 2/59 ]

															The relevance of these treaties was certainly not overlooked in
the debates in the Senate upon the Act of 1868. See, e.g., Cong.Globe, 40th Cong., 2d Sess., 4205, 4211, 4329, 4331. Senator
Howard attacked the treaties, but employed none of the reasons
which might be suggested by the opinion for the Court today. Id. at 4211.

															[ Footnote 2/60 ]

															7 Richardson, Messages and Papers of the Presidents 284, 291. See further Borchard, Diplomatic Protection of Citizens
Abroad §§ 319, 324, 325.