Afroyim v. Rusk
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Introduction
The United States of America is founded on the concepts of equality and diversity. Nevertheless, original notions of equality were faulty and exclusive. After the nation’s founding, it was characterized by genocide, institutional slavery, and white male suffrage. Still today, systemic discrimination against most minorities and women plagues almost all facets of life. Over time, though, despite the remaining inequalities, the nation has grown into what is considered a “melting pot” of diverse people and cultures. Today, it is composed of more immigrants than any other country in the world, with over forty million non-citizen, foreign-born residents, accounting for around one-fifth of the world’s total migrants.
Citizenship is not limited to birthplace; it is simply a relationship between individual and state, and may be acquired in the US via birthright or naturalization. There are at least eighty-nine countries, as of the year 2000, that allow or encourage dual citizenship in some form. With over eighty-five percent of today’s immigrants to the United States coming from countries that increasingly advocate for the preservation of immigrants’ ties to their homelands, it is understandable that dual citizenship in the US has been widely normalized and accepted over recent years. Before 1967, however, US policy held that participation in the political activities of another country was grounds for withdrawal of US citizenship. The Supreme Court case Afroyim v. Rusk cemented the idea that citizenship is not conditional on total allegiance nor a superficial American identity.
Facts
Beys Afroyim immigrated from Poland to the United States in 1912 and became a naturalized citizen in 1926. He traveled to Israel in 1950 to vote in its 1951 elections, as Israel lacked absentee voting, and, upon returning to the US in 1960, he was denied renewal of his American passport. By voting in another country’s election he had forfeited his American citizenship, in accordance with § 401(e) of the 1940 Nationality Act. The Act stipulated that “voting in a political election in a foreign state” corresponds with forfeiture of citizenship. On this basis the United States revoked Afroyim’s US citizenship.
Legal Background
Afroyim argued that the 1940 Nationality Act violated both the Due Process Clause of the Fifth Amendment and the Citizenship Clause of the Fourteenth Amendment, which, while repeating the Due Process Clause, states additionally that no state may “deny to any person within its jurisdiction the equal protection of the laws.” Afroyim argued that the Constitution does not give Congress the power to take away citizenship, only grant it. He claimed, therefore, that one can only lose citizenship by voluntary renunciation of it. The argument was rejected by the District Court and the Second Circuit, which determined that Congress does hold the power to revoke citizenship, because it is implied by Congress’s power to regulate foreign affairs. In 1966, the Supreme Court granted certiorari and heard Afroyim’s appeal.
Holding & Reasoning
The Court ultimately ruled in favor of Afroyim and his right to US citizenship in a 5-4 decision, characterized by an ideological split with more liberal Justices on the majority and more conservative Justices dissenting. This ruling overturned Perez v. Brownell, which gave Congress the authority to provide for involuntary expatriation of US citizenship for citizens who voted in foreign elections. In Perez, the Court stated that withdrawal of citizenship is “reasonably calculated to effect the end that is within the power of Congress to achieve.” In Afroyim, the Court, per Justice Black, declared that Congress has no “general power, express or implied, to take away an American citizen’s citizenship without his assent.” The Court added that the Fourteenth Amendment fully controls citizenship status, citing the first sentence of the Citizenship Clause, which states: “All persons born or naturalized in the United States . . . are citizens of the United States . . . .” The majority opinion rejected the idea that Congress has the power to strip away citizenship without assent because, in a state in which the people are sovereign, the government has no right to terminate its relationship with its citizens. The majority, led by Justice Black and joined by Justices Warren, Douglas, Brennan, and Fortas, cited Congressman Thomas Lowndes (1766-1843) of South Carolina, who made the case that if the Founders intended for Congress to have such a delicate power as expatriation, they would have explicitly granted this power, and its parameters would have been set clearly in the Constitution. The dissenting opinion, written by Justice Harlan, joined by Justices Clark, Stewart, and White, argued that overruling the Perez case unnecessarily constrained Congress’s powers. The Afroyim decision is grounded in the idea that Congress has no explicit power to strip a person of their citizenship. Before this decision, dual citizenship was considered to be under the jurisdiction of Congress based on Congress’s power to regulate foreign affairs under Article I, § 8 of the Constitution. In the previously decided Perez v. Brownell, the Court held that, in possessing the power to regulate foreign relations, it was reasonable for Congress to have the power to withdraw citizenship from anyone who voted in a foreign election. The Court reasoned that such activities, should they cause international embarrassment, could influence the conduct of foreign affairs. Therefore, the Perez Court reasoned, the power of citizenship withdrawal fell under the Necessary and Proper Clause. The Court moreover decided that there is nothing in “the language, the context, the history or the manifest purpose of the Fourteenth Amendment to warrant” using it as a tool to bar Congress from the power of withdrawing citizenship. In Afroyim, overturning the Perez precedent, the Court adopted a new understanding of the Fourteenth Amendment, determining that the lack of reference to the withdrawal of citizenship was in and of itself a sufficient constraint on Congress’s powers.
Analysis
The Supreme Court correctly decided Afroyim. The majority’s decision encompasses the values of tolerance and inclusion, despite opinion writer Justice Black’s prior demonstrations of opposing ideals and beliefs, which included membership in the Ku Klux Klan, as well as having written the majority opinion in Korematsu v. United States, condemning over 100,000 Japanese Americans to internment. The fundamental basis of this decision is that under the Fourteenth Amendment, “All persons born or naturalized in the United States . . . are citizens of the United States . . . .” This concept was reinforced by the case United States v. Wong Kim Ark, in which the Court established the parameters of jus soli, birthright citizenship, as it applies to the United States. The absence of guidelines for withdrawal of citizenship is reason enough to conclude that the Constitution was never intended to be employed as a means of severing relationships between United States citizens and their government.
Furthermore, the people are sovereign in relation to the government, meaning that once a person is a citizen, they alone have the power to voluntarily terminate their status. Some scholars argue for exceptions in cases of treasonous crimes, though this notion is highly contested. Congress’s express right to govern foreign affairs is insufficient grounds for the regulation of multiple citizenship, or the regulation of citizens’ participation in foreign elections. In Perez, the precedent Afroyim overturned, the case was decided on the grounds that participation in a foreign election may lead to international “embarrassment,” which, in turn, affects international relations. Nevertheless, the government cannot tell its citizens how to vote, and while it may set conditions under which they may not, for example with the disenfranchisement of felons, regardless of their already controversial implications, those conditions may not reach the level of expatriation.
Given the long history of and many ongoing discussions and debates over citizenship in the United States, many find it difficult to imagine that the lack of Constitutional guidelines for removal of citizenship was an accident or oversight by the Founders. Citizenship was first mentioned in the Constitution only in 1790, and there has been ample time since to set regulations for expatriation, yet this has not been done. If the Founders, and generations that followed, intended for the Constitution to grant the federal government power over the removal of citizenship, they almost certainly would have written deliberate and clear rules and guidelines with this intention. A dual, or multiple, citizen should have every right to enjoy the privileges and benefits that each country provides.
Finally, the importance of having citizens with global and diverse perspectives is immeasurable. Robust data demonstrates the immense value immigrants bring to our country. To require naturalized citizens to give up their previous citizenship would be detrimental to the country’s economic and social welfare. The connections created between people of all backgrounds, along with the transcension of any single nationality, are crucial factors in the road to achieving peace, tolerance, and understanding on an international scale.