Afroyim v. Rusk
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''Afroyim v. Rusk'', 387 U.S. 253 (1967), was 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. The U.S. government had attempted to revoke the citizenship of Beys Afroyim, a man born in
Poland Poland, officially the Republic of Poland, is a country in Central Europe. It is divided into 16 administrative provinces called voivodeships, covering an area of . Poland has a population of over 38 million and is the fifth-most populou ...
, because he had cast a vote in an
Israel Israel (; he, יִשְׂרָאֵל, ; ar, إِسْرَائِيل, ), officially the State of Israel ( he, מְדִינַת יִשְׂרָאֵל, label=none, translit=Medīnat Yīsrāʾēl; ), is a country in Western Asia. It is situated ...
i 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 The Citizenship Clause is the first sentence of the Fourteenth Amendment to the United States Constitution, which was adopted on July 9, 1868, which states: This clause reversed a portion of the ''Dred Scott v. Sandford'' decision, which had d ...
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
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
s, '' 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 The United States Department of State (DOS), or State Department, is an United States federal executive departments, executive department of the Federal government of the United States, U.S. federal government responsible for the country's fore ...
, 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 Citizenship of the United States is a legal status that entails Americans with specific rights, duties, protections, and benefits in the United States. It serves as a foundation of fundamental rights derived from and protected by the Constitu ...
has historically been acquired in one of three ways: by birth in the United States ('' jus soli'', "right of the soil"); by birth outside the United States to an American parent ('' jus sanguinis'', "right of the blood"); or by
immigration to the United States Immigration has been a major source of population growth and cultural change throughout much of the history of the United States. In absolute numbers, the United States has a larger immigrant population than any other country in the worl ...
followed by naturalization. In 1857, the Supreme Court
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in ''
Dred Scott v. Sandford ''Dred Scott v. Sandford'', 60 U.S. (19 How.) 393 (1857), was a landmark decision of the United States Supreme Court that held the U.S. Constitution did not extend American citizenship to people of black African descent, enslaved or free; th ...
'' that African slaves, former slaves, and their descendants were not eligible to be citizens. After the
Civil War A civil war or intrastate war is a war between organized groups within the same state (or country). The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government policies ...
(1861–65) and the resulting abolition of slavery in the United States, steps were taken to grant citizenship to the freed slaves. Congress first enacted the Civil Rights Act of 1866, which included a clause declaring "all persons born in the United States and not subject to any foreign power" to be citizens. Even as the Civil Rights Act was being debated in Congress, its opponents argued that the citizenship provision was
unconstitutional Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
. 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, the drafters of the Fourteenth Amendment to the Constitution included a
Citizenship Clause The Citizenship Clause is the first sentence of the Fourteenth Amendment to the United States Constitution, which was adopted on July 9, 1868, which states: This clause reversed a portion of the ''Dred Scott v. Sandford'' decision, which had d ...
, 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 The Titles of Nobility Amendment is a proposed and still-pending amendment to the United States Constitution. The 11th Congress passed it on May 1, 1810, and submitted to the state legislatures for ratification. It would strip United States ci ...
—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. Ever since the affirmation by Congress, in the
Expatriation Act of 1868 The Expatriation Act of 1868 was an act of the 40th United States Congress that declared, as part of the United States nationality law, that the right of expatriation (i.e. a right to renounce one's citizenship) is "a natural and inherent rig ...
, that individuals had an inherent right to
expatriation An expatriate (often shortened to expat) is a person who resides outside their native country. In common usage, the term often refers to educated professionals, skilled workers, or artists taking positions outside their home country, either ...
(giving up of citizenship), it has historically been accepted that certain actions could result in loss of citizenship. This possibility was noted by the Supreme Court in '' United States v. Wong Kim Ark'', an 1898 case involving a man born in the United States to Chinese parents 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 " adnot been lost or taken away by anything happening since his birth." The
Nationality Act of 1940 The Nationality Act of 1940 (H.R. 9980; Pub.L. 76-853; 54 Stat. 1137) revised numerous provisions of law relating to American citizenship and naturalization. It was enacted by the 76th Congress of the United States and signed into law on October ...
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. 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''), and revocation of citizenship as a punishment for desertion was struck down that same year in another case ('' Trop v. Dulles''). However, in yet another 1958 case ('' 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 The Necessary and Proper Clause, also known as the Elastic Clause, is a clause in Article I, Section 8 of the United States Constitution: Since the landmark decision '' McCulloch v. Maryland'', the US Supreme Court has ruled that this clause g ...
) of Congress' authority to regulate foreign affairs and avoid potentially embarrassing diplomatic situations.
Associate Justice Associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some sta ...
Felix Frankfurter Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Austrian-American jurist who served as an Associate Justice of the Supreme Court of the United States from 1939 until 1962, during which period he was a noted advocate of judic ...
, 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." While Warren was willing to allow for loss of citizenship as a result of foreign naturalization or other actions "by which n Americanmanifests allegiance to a foreign state
hich Ij ( fa, ايج, also Romanized as Īj; also known as Hich and Īch) is a village in Golabar Rural District, in the Central District of Ijrud County, Zanjan Province, Iran Iran, officially the Islamic Republic of Iran, and also ...
may be so inconsistent with the retention of .S.citizenship as to result in loss of that status", 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." 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), 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 William Joseph "Bill" Brennan Jr. (April 25, 1906 – July 24, 1997) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States from 1956 to 1990. He was the seventh-longest serving justice ...
(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), where the Court invalidated a provision revoking the citizenship of naturalized citizens who returned to live permanently in their countries of origin, Brennan
recused Judicial disqualification, also referred to as recusal, is the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer. Appli ...
himself and did not participate in the decision of the case.


Beys Afroyim

Beys Afroyim (born Ephraim Bernstein, 1893–1984) was an artist and active communist. Various sources state that he was born in either 1893Spiro (2005), p. 153., painting by Beys Afroyim, exhibited at the Museum of the City of New York. This source says Afroyim was born in 1893, in Riki , Poland. It also states that Afroyim's court case "hinged on his ability to convince the Court that he had never voted in Israel", a claim contradicted by the facts as laid out in the Supreme Court's opinion in ''Afroyim v. Rusk.''The court opinions in Afroyim's case state that he was born in Poland in 1893. ''Afroyim v. Rusk'', 250 F. Supp. 686, 687; 361 F.2d 102, 103; 387 U.S. 253, 254. or 1898, Naturalization record of Ephraim Bernstein, also known as Beys Afroyim. U.S.
National Archives and Records Administration The National Archives and Records Administration (NARA) is an " independent federal agency of the United States government within the executive branch", charged with the preservation and documentation of government and historical records. It ...
(via Ancestry.com). Retrieved May 8, 2012. This source says Afroyim was born on March 15, 1898, in Riga, Russia, and became a U.S. citizen on June 14, 1926. A letter confirming Afroyim's loss of U.S. citizenship, dated January 13, 1961, accompanies the naturalization record.
and either in Poland generally, specifically in the Polish town of
Ryki Ryki is a town in eastern Poland between Warsaw and Lublin. It has 9,767 inhabitants (as of 2007). Situated in the Lublin Voivodeship (since 1999). It is the capital of Ryki County. Ryki belongs to Lesser Poland, and historically is part of '' ...
, or in Riga, Latvia (then part of the
Russian Empire The Russian Empire was an empire and the final period of the Russian monarchy from 1721 to 1917, ruling across large parts of Eurasia. It succeeded the Tsardom of Russia following the Treaty of Nystad, which ended the Great Northern War. ...
). In 1912, Afroyim immigrated to the United States, and on June 14, 1926, he was naturalized as a U.S. citizen.''Afroyim'', 387 U.S. at 254. He studied at the Art Institute of Chicago, as well as the
National Academy of Design The National Academy of Design is an honorary association of American artists, founded in New York City in 1825 by Samuel Morse, Asher Durand, Thomas Cole, Martin E. Thompson, Charles Cushing Wright, Ithiel Town, and others "to promote the f ...
in New York City, and he was commissioned to paint portraits of
George Bernard Shaw George Bernard Shaw (26 July 1856 – 2 November 1950), known at his insistence simply as Bernard Shaw, was an Irish playwright, critic, polemicist and political activist. His influence on Western theatre, culture and politics extended from ...
,
Theodore Dreiser Theodore Herman Albert Dreiser (; August 27, 1871 – December 28, 1945) was an American novelist and journalist of the naturalist school. His novels often featured main characters who succeeded at their objectives despite a lack of a firm mora ...
, and Arnold Schoenberg. In 1949, Afroyim left the United States and settled in Israel, together with his wife and former student Soshana (an Austrian artist). In 1960, following the breakdown of his marriage, Afroyim decided to return to the United States,Spiro (2005), p. 154. but the State Department refused to renew his U.S. passport, ruling that because Afroyim had voted in the
1951 Israeli legislative election Events January * January 4 – Korean War: Third Battle of Seoul – Chinese and North Korean forces capture Seoul for the second time (having lost the Second Battle of Seoul in September 1950). * January 9 – The Government of the United K ...
, he had lost his citizenship under the provisions of the Nationality Act of 1940.''Afroyim'', 387 U.S. at 254. "In 1960, when froyimapplied 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.'" A letter certifying Afroyim's loss of citizenship was issued by the Immigration and Naturalization Service (INS) on January 13, 1961. Afroyim challenged the revocation of his citizenship. Initially, he claimed that he had not in fact voted in Israel's 1951 election, but had entered the
polling place A polling place is where voters cast their ballots in elections. The phrase polling station is also used in American English and British English, although polling place is the building
solely in order to draw sketches of voters casting their ballots. Afroyim's initial challenge was rejected in administrative proceedings in 1965. He then sued in
federal district court The United States district courts are the trial courts of the U.S. federal judiciary. There is one district court for each federal judicial district, which each cover one U.S. state or, in some cases, a portion of a state. Each district cou ...
, with his lawyer agreeing to a
stipulation In United States law, a stipulation is a formal legal acknowledgment and agreement made between opposing parties before a pending hearing or trial. For example, both parties might stipulate to certain facts and so not have to argue them in court. A ...
that Afroyim had in fact voted in Israel, but arguing that the statute under which this action had resulted in his losing his citizenship was unconstitutional. A federal judge of the
United States District Court for the Southern District of New York The United States District Court for the Southern District of New York (in case citations, S.D.N.Y.) is a federal trial court whose geographic jurisdiction encompasses eight counties of New York State. Two of these are in New York City: New ...
rejected Afroyim's claim on February 25, 1966, concluding that "in the opinion of Congress voting in a foreign political election could import 'allegiance to another country' in some measure 'inconsistent with American citizenship'" and that the question of this law's validity had been settled by the Supreme Court's 1958 ''Perez'' decision.''Afroyim'', 387 U.S. at 253 . Afroyim appealed the district court's ruling against him to the
Second Circuit Court of Appeals The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate juri ...
, which upheld the lower court's reasoning and decision on May 24, 1966. Two of the three judges who heard Afroyim's appeal found the district court's analysis and affirmation of ''Perez'' to be "exhaustive and most penetrating". "We affirm the judgment f the district courton the authority of Perez v. Brownell.... The exposition by the istrict courtof the present posture of the issues that were decided by the upremeCourt in Perez was exhaustive and most penetrating...." The third judge expressed serious reservations regarding the viability of ''Perez'' and suggested that Afroyim might have obtained a different result if he had framed his case differently, but decided to concur (albeit reluctantly) in the majority's ruling.


Arguments before the Supreme Court

After losing his appeal to the Second Circuit, Afroyim asked the Supreme Court to overrule the
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
it had established in ''Perez'', strike down the foreign voting provision of the Nationality Act as unconstitutional, and decide that he was still a United States citizen. Afroyim's counsel argued that since "neither the Fourteenth Amendment nor any other provision of the Constitution expressly grants Congress the power to take away .S.citizenship once it has been acquired ... the only way froyimcould lose his citizenship was by his own voluntary renunciation of it." The Supreme Court agreed to consider Afroyim's case on October 24, 1966 and held oral arguments on February 20, 1967. The official respondent (defendant) in Afroyim's case on behalf of the U.S. government was
Dean Rusk David Dean Rusk (February 9, 1909December 20, 1994) was the United States Secretary of State from 1961 to 1969 under presidents John F. Kennedy and Lyndon B. Johnson, the second-longest serving Secretary of State after Cordell Hull from the F ...
, the Secretary of State during the Kennedy and
Johnson Johnson is a surname of Anglo-Norman origin meaning "Son of John". It is the second most common in the United States and 154th most common in the world. As a common family name in Scotland, Johnson is occasionally a variation of ''Johnston'', a ...
administrations (1961–1969). The legal brief laying out Afroyim's arguments was written by Nanette Dembitz,
general counsel A general counsel, also known as chief counsel or chief legal officer (CLO), is the chief in-house lawyer for a company or a governmental department. In a company, the person holding the position typically reports directly to the CEO, and their ...
of the
New York Civil Liberties Union The New York Civil Liberties Union (NYCLU) is a civil rights organization in the United States. Founded in November 1951 as the New York affiliate of the American Civil Liberties Union, it is a not-for-profit, nonpartisan organization with nea ...
; the government's brief was written by
United States Solicitor General The solicitor general of the United States is the fourth-highest-ranking official in the United States Department of Justice. Elizabeth Prelogar has been serving in the role since October 28, 2021. The United States solicitor general represent ...
(and future Supreme Court Associate Justice)
Thurgood Marshall Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's first African-A ...
.Spiro (2005), p. 156. The oral arguments in the case were presented by attorneys Edward Ennis—chairman of the
American Civil Liberties Union The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States". T ...
(ACLU)—for Afroyim, and Charles Gordon—general counsel for the INS—for the government.Spiro (2005), pp. 157–158. Afroyim was in New York City at this time, having been granted a visitor's visa in 1965 while his case went through the courts. Before heading the ACLU, Ennis had served as general counsel for the INS. In his oral argument supporting Afroyim, Ennis asserted that Congress lacked the power to prescribe forfeiture of citizenship, and he sharply criticized the foreign-relations argument under which the ''Perez'' court had upheld loss of citizenship for voting in a foreign election—pointing out, for example, that when a referendum was held in 1935 on the status of the Saar (a region of Germany occupied after World War I by the United Kingdom and France), Americans had participated in the voting without raising any concerns within the State Department at the time. Gordon did not make a good showing in the ''Afroyim'' oral arguments despite his skill and experience in the field of immigration law, according to a 2005 article on the ''Afroyim'' case by law professor Peter J. Spiro. Gordon mentioned Israeli elections in 1955 and 1959 in which Afroyim had voted—facts which had not previously been presented to the Supreme Court in the attorneys' briefs or the written record of the case—and much of the remaining questioning from the justices involved criticism of Gordon for confusing matters through the last-minute introduction of this new material. Afroyim's earlier stipulation that he had voted in the 1951 Israeli election—together with an accompanying concession by the government that this was the sole ground upon which it had acted to revoke Afroyim's citizenship—allowed the potential issue of diluted
allegiance An allegiance is a duty of fidelity said to be owed, or freely committed, by the people, subjects or citizens to their state or sovereign. Etymology From Middle English ''ligeaunce'' (see medieval Latin ''ligeantia'', "a liegance"). The ''al ...
through dual citizenship to be sidestepped. Indeed, in 1951 there was no Israeli nationality law; eligibility to vote in the election that year had been based on residence rather than any concept of citizenship. Although Afroyim had later acquired Israeli citizenship and voted in at least two other elections in his new country, his lawyers were able to avoid discussing this matter and instead focus entirely on whether foreign voting was a sufficient cause for loss of one's U.S. citizenship.


Opinion of the Court

The Supreme Court ruled in Afroyim's favor in a 5–4 decision issued on May 29, 1967. The opinion of the Court—written by Associate Justice Hugo Black, and joined by Chief Justice Warren and Associate Justices
William O. Douglas William Orville Douglas (October 16, 1898January 19, 1980) was an American jurist who served as an associate justice of the Supreme Court of the United States, who was known for his strong progressive and civil libertarian views, and is often ci ...
and
Abe Fortas Abraham Fortas (June 19, 1910 – April 5, 1982) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1965 to 1969. Born and raised in Memphis, Tennessee, Fortas graduated from R ...
—as well as Associate Justice Brennan, who had been part of the majority in ''Perez''—was grounded in the reasoning Warren had used nine years earlier in his ''Perez'' dissent. The court's majority now held that "Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof." Specifically repudiating ''Perez'', the majority of the justices rejected the claim that Congress had any power to revoke citizenship and said that "no such power can be sustained as an implied attribute of sovereignty". Instead, quoting from the Citizenship Clause, Black wrote:
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.
The Court found support for its position in the history of the unratified
Titles of Nobility Amendment The Titles of Nobility Amendment is a proposed and still-pending amendment to the United States Constitution. The 11th Congress passed it on May 1, 1810, and submitted to the state legislatures for ratification. It would strip United States ci ...
. The fact that this 1810 proposal had been framed as a constitutional amendment, rather than an ordinary act of Congress, was seen by the majority as showing that, even before the passage of the Fourteenth Amendment, Congress did not believe that it had the power to revoke anyone's citizenship. The Court further noted that a proposed 1818 act of Congress would have provided a way for citizens to voluntarily relinquish their citizenship, but opponents had argued that Congress had no authority to provide for expatriation. Afroyim's counsel had addressed only the foreign voting question and had carefully avoided any direct challenge to the idea that foreign naturalization might legitimately lead to loss of citizenship (a concept which Warren had been willing to accept in his ''Perez'' dissent). Nevertheless, the Court's ''Afroyim'' ruling went beyond even Warren's earlier position—holding instead that "The very nature of our 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."Spiro (2005), pp. 158–159. In sum Justice Black concluded:
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. ..Citizenship is no light trifle 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.


Dissent

The minority—in a dissent written by Associate Justice
John Marshall Harlan II John Marshall Harlan (May 20, 1899 – December 29, 1971) was an American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1955 to 1971. Harlan is usually called John Marshall Harlan II to distinguish him ...
and joined by Associate Justices Tom C. Clark,
Potter Stewart Potter Stewart (January 23, 1915 – December 7, 1985) was an American lawyer and judge who served as an Associate Justice of the United States Supreme Court from 1958 to 1981. During his tenure, he made major contributions to, among other areas, ...
, and
Byron White Byron "Whizzer" Raymond White (June 8, 1917 April 15, 2002) was an American professional football player and jurist who served as an associate justice of the U.S. Supreme Court from 1962 until his retirement in 1993. Born and raised in Colo ...
—argued that ''Perez'' had been correctly decided, that nothing in the Constitution deprived Congress of the power to revoke a person's citizenship for good cause, and that Congress was within its rights to decide that allowing Americans to vote in foreign elections ran contrary to the foreign policy interests of the nation and ought to result in loss of citizenship. Harlan wrote: Responding to the assertion that Congress did not have power to revoke a person's citizenship without his or her assent, Harlan predicted that "Until the Court indicates with greater precision what it means by 'assent', today's opinion will surely cause still greater confusion in this area of the law."


Subsequent developments

The ''Afroyim'' decision stated that no one with United States citizenship could be involuntarily deprived of that citizenship. Nevertheless, the Court
distinguish The ruling made by the judge or panel of judges must be based on the evidence at hand and the standard binding precedents covering the subject-matter (they must be ''followed''). Definition In law, to distinguish a case means a court decides th ...
ed a 1971 case, '' Rogers v. Bellei'', holding in this newer case that individuals who had acquired citizenship via '' jus sanguinis'', through birth outside the United States to an American parent or parents, could still risk loss of citizenship in various ways, since their citizenship (unlike Afroyim's citizenship) was the result of federal statutes rather than the Citizenship Clause. The statutory provision whereby Bellei lost his citizenship—a U.S. residency requirement which he had failed to satisfy in his youth—was repealed by Congress in 1978; the foreign voting provision, already without effect since ''Afroyim'', was repealed at the same time.A bill to repeal certain sections of title III of the Immigration and Nationality Act, and for other purposes.
Public Law 95-432; 92 Stat. 1046. October 10, 1978.
Although ''Afroyim'' appeared to rule out any involuntary revocation of a person's citizenship, the government continued for the most part to pursue loss-of-citizenship cases when an American had acted in a way believed to imply an intent to give up citizenship—especially when an American had become a naturalized citizen of another country. In a 1980 case, however—'' Vance v. Terrazas''—the Supreme Court ruled that intent to relinquish citizenship needed to be proved by itself, and not simply inferred from an individual's having voluntarily performed an action designated by Congress as being incompatible with an intent to keep one's citizenship. Immigration and Nationality Act, sec. 349; 8 U.S.C.br>sec. 1481
The phrase ''"voluntarily performing any of the following acts with the intention of relinquishing United States nationality"'' was added in 1986, and various other changes have been made over time to the list of expatriating acts; se
notes
The concept of dual citizenship, which previously had been strongly opposed by the U.S. government, has become more accepted in the years since ''Afroyim''. In 1980, the administration of President
Jimmy Carter James Earl Carter Jr. (born October 1, 1924) is an American politician who served as the 39th president of the United States from 1977 to 1981. A member of the Democratic Party, he previously served as the 76th governor of Georgia from 1 ...
concluded that the Bancroft Treaties—a series of bilateral agreements, formulated between 1868 and 1937, which provided for automatic loss of citizenship upon foreign naturalization of a U.S. citizen—were no longer enforceable, due in part to ''Afroyim'', and gave notice terminating these treaties. In 1990, the State Department adopted new guidelines for evaluating potential loss-of-citizenship cases, under which the government now assumes in almost all situations that Americans do not in fact intend to give up their citizenship unless they explicitly indicate to U.S. officials that this is their intention. As explained by Peter J. Spiro, "In the long run, ''Afroyims vision of an absolute right to retain citizenship has been largely, if quietly, vindicated. As a matter of practice, it is now virtually impossible to lose American citizenship without formally and expressly renouncing it."Spiro (2005), p. 163. While acknowledging that "American citizenship enjoys strong protection against loss under ''Afroyim'' and ''Terrazas''", retired journalist Henry S. Matteo suggested, "It would have been more equitable ... had the Supreme Court relied on the Eighth Amendment, which adds a moral tone as well as a firmer constitutional basis, than the Fourteenth." Matteo also said, "Under ''Afroyim'' there is a lack of balance between rights and protections on one hand, and obligations and responsibilities on the other, all four elements of which have been an integral part of the concept of citizenship, as history shows." Political scientist P. Allan Dionisopoulos wrote that "it is doubtful that any upreme Court decisioncreated a more complex problem for the United States than ''Afroyim v. Rusk''", a decision which he believed had "since become a source of embarrassment for the United States in its relationships with the Arab world" because of the way it facilitated dual U.S.–Israeli citizenship and participation by Americans in Israel's armed forces. After his Supreme Court victory, Afroyim divided his time between West Brighton ( Staten Island, New York) and the Israeli city of Safed until his death on May 19, 1984, in West Brighton.Obituary of Beys Afroyim. ''Staten Island Advance''. May 20, 1984.


See also

* List of United States Supreme Court cases, volume 387 * '' Reid v. Covert'',''Reid v. Covert'', . a Supreme Court case holding that treaties cannot override the Constitution


Notes


References

* Dionisopoulos, P. Allan (1970–71).
"Afroyim v. Rusk: The Evolution, Uncertainty and Implications of a Constitutional Principle".
''
Minnesota Law Review The ''Minnesota Law Review'' is a student-run law review published by students at University of Minnesota Law School. The journal is published six times a year in November, December, February, April, May, and June. It was established by Henry J. Fl ...
'' 55:235–257. * * Matteo, Henry S. (1997). ''Denationalization v. "The Right to Have Rights": The Standard of Intent in Citizenship Loss''. University Press of America. . * Spiro, Peter J. (2005). "''Afroyim'': Vaunting Citizenship, Presaging Transnationality". In Martin, David A.; Schuck, Peter H. (2005). ''Immigration Stories''. Foundation Press. pp. 147–168.


External links

* * * Summaries of the case a
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{{DEFAULTSORT:Afroyim V. Rusk 1967 in United States case law History of immigration to the United States United States Citizenship Clause case law United States Supreme Court cases United States Supreme Court decisions that overrule a prior Supreme Court decision United States Supreme Court cases of the Warren Court Denaturalization case law