In proceedings to deport a person born in the United States, the
Government denied that he was an American citizen on the ground
that, by voting in a Mexican political election and remaining
outside of the United States in wartime to avoid military service,
he had lost his citizenship under § 401(e) and (j) of the
Nationality Act of 1940, as amended. He sued for a judgment
declaring him to be a citizen but was denied relief.
It was within the authority of Congress, under
its power to regulate the relations of the United States with
foreign countries, to provide in § 401(e) that anyone who votes in
a foreign political election shall lose his American citizenship,
and the judgment is affirmed. Pp. 356 U. S.
(a) The power of Congress to regulate foreign relations may
reasonably be deemed to include a power to deal with voting by
American citizens in foreign political elections, since Congress
could find that such activities, because they might give rise to
serious international embarrassment, relate to the conduct of
foreign relations. Pp. 356 U. S.
(b) Since withdrawal of the citizenship of Americans who vote in
foreign political elections is reasonably calculated to effect the
avoidance of embarrassment in the conduct of foreign relations,
such withdrawal is within the power of Congress, acting under the
Necessary and Proper Clause. Pp. 356 U. S.
(c) There is nothing in the language, the context, the history
or the manifest purpose of the Fourteenth Amendment to warrant
drawing from it a restriction upon the power otherwise possessed by
Congress to withdraw citizenship. P. 356 U. S. 58
Page 356 U. S. 45
(d) No opinion is expressed with respect to the
constitutionality of § 401(j) relating to persons who remain
outside the United States to avoid military service. P.
356 U. S.
235 F.2d 364, affirmed.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
Petitioner, a national of the United States by birth, has been
declared to have lost his American citizenship by operation of the
Nationality Act of 1940, 54 Stat. 1137, as amended by the Act of
September 27, 1944, 58 Stat. 746. Section 401 of that Act [Footnote 1
] provided that
"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; or"
"* * * *
Page 356 U. S.
"(j) Departing from or remaining outside of the jurisdiction of
the United States in time of war or during a period declared by the
President to be a period of national emergency for the purpose of
evading or avoiding training and service in the land or naval
forces of the United States."
He seeks a reversal of the judgment against him on the ground
that these provisions were beyond the power of Congress to
Petitioner was born in Texas in 1909. He resided in the United
States until 1919 or 1920, when he moved with his parents to
Mexico, where he lived, apparently without interruption, until
1943. In 1928, he was informed that he had been born in Texas. At
the outbreak of World War II, petitioner knew of the duty of male
United States citizens to register for the draft, but he failed to
do so. In 1943, he applied for admission to the United States as an
alien railroad laborer, stating that he was a native-born citizen
of Mexico, and was granted permission to enter on a temporary
basis. He returned to Mexico in 1944, and shortly thereafter
applied for and was granted permission, again as a native-born
Mexican citizen, to enter the United States temporarily to continue
his employment as a railroad laborer. Later in 1944, he returned to
Mexico once more. In 1947, petitioner applied for admission to the
United States at El Paso, Texas, as a citizen of the United States.
At a Board of Special Inquiry hearing (and in his subsequent
appeals to the Assistant Commissioner and the Board of Immigration
Appeals), he admitted having remained outside of the United States
to avoid military service and having voted in political elections
in Mexico. He was ordered excluded on the ground that he had
expatriated himself; this order was affirmed on appeal. In 1952,
petitioner, claiming to be a native-born citizen of Mexico,
Page 356 U. S. 47
was permitted to enter the United States as an alien
agricultural laborer. He surrendered in 1953 to immigration
authorities in San Francisco as an alien unlawfully in the United
States, but claimed the right to remain by virtue of his American
citizenship. After a hearing before a Special Inquiry Officer, he
was ordered deported as an alien not in possession of a valid
immigration visa; this order was affirmed on appeal to the Board of
Petitioner brought suit in 1954 in a United States District
Court for a judgment declaring him to be a national of the United
States. [Footnote 2
] The court,
sitting without a jury, found (in addition to the undisputed facts
set forth above) that petitioner had remained outside of the United
States from November, 1944, to July, 1947, for the purpose of
avoiding service in the armed forces of the United States, and that
he had voted in a "political election" in Mexico in 1946. The
court, concluding that he had thereby expatriated himself, denied
the relief sought by the petitioner. The United States Court of
Appeals for the Ninth Circuit affirmed. 235 F.2d 364. We granted
certiorari because of the constitutional questions raised by the
petitioner. 352 U.S. 908.
Page 356 U. S. 48
Statutory expatriation, as a response to problems of
international relations, was first introduced just a half century
ago. Long before that, however, serious friction between the United
States and other nations had stirred consideration of modes of
dealing with the difficulties that arose out of the conflicting
claims to the allegiance of foreign-born persons naturalized in the
United States, particularly when they returned to the country of
As a starting point for grappling with this tangle of problems,
Congress in 1868 formally announced the traditional policy of this
country that it is the "natural and inherent right of all people"
to divest themselves of their allegiance to any state, 15 Stat.
223, R.S. § 1999. Although the impulse for this legislation had
been the refusal by other nations, notably Great Britain, to
recognize a right in naturalized Americans who had been their
subjects to shed that former allegiance, the Act of 1868 was held
by the Attorney General to apply to divestment by native-born and
naturalized Americans of their United States citizenship. 14
Op.Atty.Gen. 295, 296. In addition, while the debate on the Act of
1868 was proceeding, negotiations were completed on the first of a
series of treaties for the adjustment of some of the disagreements
that were constantly arising between the United States and other
nations concerning citizenship. These instruments typically
provided that each of the signatory nations would regard as a
citizen of the other such of its own citizens as became naturalized
by the other. E.g.,
Treaty with the North German
Confederation, Feb. 22, 1868, 2 Treaties, Conventions,
International Acts, etc. (comp. Malloy, 1910), 1298. This series of
treaties initiated this country's policy of automatic divestment of
citizenship for specified conduct affecting our foreign
Page 356 U. S. 49
On the basis, presumably, of the Act of 1868 and such treaties
as were in force, it was the practice of the Department of State
during the last third of the nineteenth century to make rulings as
to forfeiture of United States citizenship by individuals who
performed various acts abroad. See
Protection of Citizens Abroad, §§ 319, 324. Naturalized citizens
who returned to the country of their origin were held to have
abandoned their citizenship by such actions as accepting public
office there or assuming political duties. See
Weile, Apr. 18, 1870, 3 Moore, Digest of International Law, 737;
Davis to Taft, Jan. 18, 1883, 3 id.
at 739. Native-born
citizens of the United States (as well as naturalized citizens
outside of the country of their origin) were generally deemed to
have lost their American citizenship only if they acquired foreign
Bayard to Suzzara-Verdi, Jan. 27, 1887, 3
at 714; see also Comitis v. Parkerson,
No one seems to have questioned the necessity of having the
State Department, in its conduct of the foreign relations of the
Nation, pass on the validity of claims to American citizenship and
to such of its incidents as the right to diplomatic protection.
However, it was recognized in the Executive Branch that the
Department had no specific legislative authority for nullifying
citizenship, and several of the Presidents urged Congress to define
the acts by which citizens should be held to have expatriated
Message of President Grant to Congress,
Dec. 7, 1874, 7 Messages and Papers of the Presidents (Richardson
ed. 1899) 284, 291-292. Finally, in 1906, during the consideration
of the bill that became the Naturalization Act of 1906, a Senate
resolution and a recommendation of the House Committee on Foreign
Affairs called for an examination of the problems relating to
American citizenship, expatriation and protection
Page 356 U. S. 50
abroad. In response to these suggestions, the Secretary of State
appointed the Citizenship Board of 1906, composed of the Solicitor
of the State Department, the Minister to the Netherlands and the
Chief of the Passport Bureau. The board conducted a study and, late
in 1906, made an extensive report with recommendations for
Among the recommendations of the board were that expatriation of
a citizen "be assumed" when, in time of peace, he became
naturalized in a foreign state, engaged in the service of a foreign
state where such service involved the taking of an oath of
allegiance to that state, or domiciled in a foreign state for five
years with no intention to return. Citizenship of the United
States, Expatriation, and Protection Abroad, H.R.Doc. No. 326, 59th
Cong., 2d Sess. 23. It also recommended that an American woman who
married a foreigner be regarded as losing her American citizenship
during coverture. Id.
at 29. As to the first two
recommended acts of expatriation, the report stated that
"no man should be permitted deliberately to place himself in a
position where his services may be claimed by more than one
government and his allegiance be due to more than one."
at 23. As to the third, the board stated that more
and more Americans were going abroad to live, "and the question of
their protection causes increasing embarrassment to this Government
in its relations with foreign powers." Id.
Within a month of the submission of this report, a bill was
introduced in the House by Representative Perkins of New York based
on the board's recommendations. Perkins' bill provided that a
citizen would be "deemed to have expatriated himself" when, in
peacetime, he became naturalized in a foreign country or took an
oath of allegiance to a foreign state; it was presumed that a
naturalized citizen who resided for five years in a foreign state
Page 356 U. S. 51
ceased to be an American citizen, and an American woman who
married a foreigner would take the nationality of her husband. 41
Cong.Rec. 1463-1464. Perkins stated that the bill was designed to
discourage people from evading responsibilities both to other
countries and to the United States, and "to save our Government
[from] becoming involved in any trouble or question with foreign
countries where there is no just reason." Id.
What little debate there was on the bill centered around the
foreign domicile provision; no constitutional issue was canvassed.
The bill passed the House, and, after substantially no debate and
the adoption of a committee amendment adding a presumption of
termination of citizenship for a naturalized citizen who resided
for two years in the country of his origin, 41 Cong.Rec. 4116, the
Senate passed it and it became the Expatriation Act of 1907. 34
The question of the power of Congress to enact legislation
depriving individuals of their American citizenship was first
raised in the courts by Mackenzie v. Hare, 239 U.
. The plaintiff in that action, Mrs. Mackenzie,
was a native-born citizen and resident of the United States. In
1909, she married a subject of Great Britain and continued to
reside with him in the United States. When, in 1913, she applied to
the defendants, members of a board of elections in California, to
be registered as a voter, her application was refused on the ground
that, by reason of her marriage, she had ceased to be a citizen of
the United States. Her petition for a writ of mandamus was denied
in the state courts of California, and she sued out a writ of error
here, claiming that, if the Act of 1907 was intended to apply to
her, it was beyond the power of Congress. The Court, through Mr.
Justice McKenna, after finding that merging the identity of husband
and wife, as Congress had done in this instance, had
Page 356 U. S. 52
a "purpose and, it may be, necessity, in international policy,"
"As a government, the United States is invested with all the
attributes of sovereignty. As it has the character of nationality,
it has the powers of nationality, especially those which concern
its relations and intercourse with other countries. We should
hesitate long before limiting or embarrassing such powers. . . . We
concur with counsel that citizenship is of tangible worth, and we
sympathize with plaintiff in her desire to retain it and in her
earnest assertion of it. But there is involved more than personal
considerations. As we have seen, the legislation was urged by
conditions of national moment. . . . It is the conception of the
legislation under review that such an act may bring the Government
into embarrassments and, it may be, into controversies. . . ."
239 U.S. at 239 U. S.
-312. The Court observed that voluntary marriage of
an American woman with a foreigner may have the same consequences,
and "involve national complications of like kind," as voluntary
expatriation in the traditional sense. It concluded: "This is no
arbitrary exercise of government." 239 U.S. at 239 U. S. 312
See also Ex parte Griffin,
237 F. 445; Ex parte Ng
Fung Sing, 6 F.2d
By the early 1930's, the American law on nationality, including
naturalization and denationalization, was expressed in a large
number of provisions scattered throughout the statute books. Some
of the specific laws enacted at different times seemed inconsistent
with others, some problems of growing importance had emerged that
Congress had left unheeded. At the request of the House Committee
on Immigration and Naturalization, see
86 Cong.Rec. 11943,
President Franklin D. Roosevelt established a Committee composed of
the Secretary of State,
Page 356 U. S. 53
the Attorney General and the Secretary of Labor to review the
nationality laws of the United States, to recommend revisions and
to codify the nationality laws into one comprehensive statute for
submission to Congress; he expressed particular concern about
"existing discriminations" in the law. Exec.Order No. 6115, Apr.
25, 1933. The necessary research for such a study was entrusted to
specialists representing the three departments. Five years were
spent by these officials in the study and formulation of a draft
code. In their letter submitting the draft code to the President
after it had been reviewed within the Executive Branch, the Cabinet
Committee noted the special importance of the provisions concerning
loss of nationality, and asserted that none of these provisions was
"designed to be punitive or to interfere with freedom of action";
they were intended to deprive of citizenship those persons who had
shown that "their real attachment is to the foreign country, and
not to the United States." Codification of the Nationality Laws of
the United States, H.R. Comm.Print, Pt. 1, 76th Cong., 1st Sess.
The draft code of the Executive Branch was an omnibus bill in
five chapters. The chapter relating to "Loss of Nationality"
provided that any citizen should "lose his nationality" by becoming
naturalized in a foreign country; taking an oath of allegiance to a
foreign state; entering or serving in the armed forces of a foreign
state; being employed by a foreign government in a post for which
only nationals of that country are eligible; voting in a foreign
political election or plebiscite; using a passport of a foreign
state as a national thereof; formally renouncing American
citizenship before a consular officer abroad; deserting the armed
forces of the United States in wartime (upon conviction by court
martial); if a naturalized citizen, residing in the state of his
former nationality or birth for two years if he thereby acquires
the nationality of that state; or, if a naturalized citizen,
Page 356 U. S. 54
residing in the state of his former nationality or birth for
three years. Id.
In support of the recommendation of voting in a foreign
political election as an act of expatriation, the Committee
"Taking an active part in the political affairs of a foreign
state by voting in a political election therein is believed to
involve a political attachment and practical allegiance thereto
which is inconsistent with continued allegiance to the United
States, whether or not the person in question has or acquires the
nationality of the foreign state. In any event, it is not believed
that an American national should be permitted to participate in the
political affairs of a foreign state and at the same time retain
his American nationality. The two facts would seem to be
inconsistent with each other."
at 67. As to the reference to plebiscites in the
draft language, the report states: "If this provision had been in
effect when the Saar Plebiscite was held, Americans voting in it
would have been expatriated." Ibid.
It seems clear that
the most immediate impulse for the entire voting provision was the
participation by many naturalized Americans in the plebiscite to
determine sovereignty over the Saar in January, 1935. H.R.Rep. No.
216, 74th Cong., 1st Sess. 1. Representative Dickstein of New York,
Chairman of the House Committee on Immigration and Naturalization,
who had called the plebiscite an "international dispute" in which
naturalized American citizens could not properly participate, N.Y.
Times, Jan. 4, 1935, p. 12, col. 3, had introduced a bill in the
House in 1935 similar in language to the voting provisions in the
draft code, 79 Cong.Rec. 2050, but, although it was favorably
reported, the House did not pass it.
Page 356 U. S. 55
In June, 1938, the President submitted the Cabinet Committee's
draft code and the supporting report to Congress. In due course,
Chairman Dickstein introduced the code as H.R. 6127, and it was
referred to his committee. In early 1940, extensive hearings were
held before both a subcommittee and the full committee at which the
interested Executive Branch agencies and others testified. With
respect to the voting provision, Chairman Dickstein spoke of the
Americans who had voted in the Saar plebiscite and said, "If they
are American citizens, they had no right to vote, to interfere with
foreign matters or political subdivision." Hearings before the
House Committee on Immigration and Naturalization on H.R. 6127,
76th Cong., 1st Sess. 287. Mr. Flournoy, Assistant Legal Adviser of
the State Department, said that the provision would be
"particularly applicable" to persons of dual nationality,
at 132; however, a suggestion that the provision be
made applicable only to dual nationals, id.
at 398, was
Upon the conclusion of the hearings in June, 1940 ,a new bill
was drawn up and introduced as H.R. 9980. The only changes from the
Executive Branch draft with respect to the acts of expatriation
were the deletion of using a foreign passport and the addition of
residence by a naturalized citizen for five years in any foreign
country as acts that would result in loss of nationality. 86
Cong.Rec. 11960-11961. The House debated the bill for a day in
September, 1940. In briefly summarizing the loss of nationality
provisions of the bill, Chairman Dickstein said that
"this bill would put an end to dual citizenship, and relieve
this country of the responsibility of those who reside in foreign
lands and only claim citizenship when it serves their purpose."
at 11944. Representative Rees of Kansas, who had
served as chairman of the subcommittee that studied the draft code,
said that clarifying
Page 356 U. S. 56
legislation was needed, among other reasons, "because of the
duty of the Government to protect citizens abroad." Id.
11947. The bill passed the House that same day. Id.
In the Senate also, after a favorable report from the Committee
on Immigration, the bill was debated very briefly. Committee
amendments were adopted making the provision on foreign military
service applicable only to dual nationals, making treason an act of
expatriation, and providing a procedure by which persons
administratively declared to have expatriated themselves might
obtain judicial determinations of citizenship. The bill as amended
was passed. Id.
at 12817-12818. The House agreed to these
and all other amendments on which the Senate insisted, id.
at 13250, and, on October 14, the Nationality Act of 1940 became
law. 54 Stat. 1137.
The loss of nationality provisions of the Act constituted but a
small portion of a long omnibus nationality statute. It is not
surprising, then, that they received as little attention as they
did in debate and hearings, and that nothing specific was said
about the constitutional basis for their enactment. The bill as a
whole was regarded primarily as a codification -- and only
secondarily as a revision -- of statutes that had been in force for
many years, some of them, such as the naturalization provisions,
having their beginnings in legislation 150 years old. It is clear
that, as is so often the case in matters affecting the conduct of
foreign relations, Congress was guided by and relied very heavily
upon the advice of the Executive Branch, and particularly the State
Department. See, e.g.,
86 Cong.Rec. 11943-11944. In
effect, Congress treated the Cabinet Committee as it normally does
its own committees charged with studying a problem and formulating
legislation. These considerations emphasize the importance, in the
inquiry into congressional power in this field, of keeping in mind
the historical background
Page 356 U. S. 57
of the challenged legislation, for history will disclose the
purpose fairly attributable to Congress in enacting the
The first step in our inquiry must be to answer the question:
what is the source of power on which Congress must be assumed to
have drawn? Although there is in the Constitution no specific grant
to Congress of power to enact legislation for the effective
regulation of foreign affairs, there can be no doubt of the
existence of this power in the lawmaking organ of the Nation.
See United States v. Curtiss-Wright Export Corp.,
299 U. S. 304
299 U. S. 318
Mackenzie v. Hare, 239 U. S. 299
239 U. S.
-312. The States that joined together to form a
single Nation and to create, through the Constitution, a Federal
Government to conduct the affairs of that Nation must be held to
have granted that Government the powers indispensable to its
functioning effectively in the company of sovereign nations. The
Government must be able not only to deal affirmatively with foreign
nations, as it does through the maintenance of diplomatic relations
with them and the protection of American citizens sojourning within
their territories. It must also be able to reduce to a minimum the
frictions that are unavoidable in a world of sovereigns sensitive
in matters touching their dignity and interests.
The inference is fairly to be drawn from the congressional
history of the Nationality Act of 1940, read in light of the
historical background of expatriation in this country, that, in
making voting in foreign elections (among other behavior) an act of
expatriation, Congress was seeking to effectuate its power to
regulate foreign affairs. The legislators, counseled by those on
whom they rightly relied for advice, were concerned about actions
by citizens in foreign countries that create problems of protection
and are inconsistent with American allegiance. Moreover, we cannot
ignore the fact that embarrassments
Page 356 U. S. 58
in the conduct of foreign relations were of primary concern in
the consideration of the Act of 1907, of which the loss of
nationality provisions of the 1940 Act are a codification and
Broad as the power in the National Government to regulate
foreign affairs must necessarily be, it is not without limitation.
The restrictions confining Congress in the exercise of any of the
powers expressly delegated to it in the Constitution apply with
equal vigor when that body seeks to regulate our relations with
other nations. Since Congress may not act arbitrarily, a rational
nexus must exist between the content of a specific power in
Congress and the action of Congress in carrying that power into
execution. More simply stated, the means -- in this case,
withdrawal of citizenship -- must be reasonably related to the end
-- here, regulation of foreign affairs. The inquiry -- and, in the
case before us, the sole inquiry -- into which this Court must
enter is whether or not Congress may have concluded not
unreasonably that there is a relevant connection between this
fundamental source of power and the ultimate legislative action.
Page 356 U. S. 59
Our starting point is to ascertain whether the power of Congress
to deal with foreign relations may reasonably be deemed to include
a power to deal generally with the active participation, by way of
voting, of American citizens in foreign political elections.
Experience amply attests that, in this day of extensive
international travel, rapid communication and widespread use of
propaganda, the activities of the citizens of one nation when in
another country can easily cause serious embarrassments to the
government of their own country as well as to their fellow
citizens. We cannot deny to Congress the reasonable belief that
these difficulties might well become acute, to the point of
jeopardizing the successful conduct of international relations,
when a citizen of one country chooses to participate in the
political or governmental affairs of another country. The citizen
may by his action unwittingly promote or encourage a course of
conduct contrary to the interests of his own government; moreover,
the people or government of the foreign country may regard his
action to be the action of his government, or at least as a
reflection if not an expression of its policy. Cf.
International Responsibility for Hostile Propaganda Against Foreign
States, 28 Am.J.Int'l L. 649, 650.
It follows that such activity is regulable by Congress under its
power to deal with foreign affairs. And it must be regulable on
more than an ad hoc
basis. The subtle influences and
repercussions with which the Government must deal make it
reasonable for the generalized, although clearly limited, category
of "political election" to be used in defining the area of
regulation. That description carries with it the scope and meaning
of its context and purpose; classes of elections -- nonpolitical in
Page 356 U. S. 60
sense -- as to which participation by Americans could not
possibly have any effect on the relations of the United States with
another country are excluded by any rational construction of the
phrase. The classification that Congress has adopted cannot be said
to be inappropriate to the difficulties to be dealt with. Specific
applications are, of course, open to judicial challenge, as are
other general categories in the law, by a "gradual process of
judicial inclusion and exclusion." Davidson v. New
Orleans, 96 U. S. 97
96 U. S. 104
The question must finally be faced whether, given the power to
attach some sort of consequence to voting in a foreign political
election, Congress, acting under the Necessary and Proper Clause,
Art. I, § 8, cl. 18, could attach loss of nationality to it. Is the
means, withdrawal of citizenship, reasonably calculated to effect
the end that is within the power of Congress to achieve, the
avoidance of embarrassment in the conduct of our foreign relations
attributable to voting by American citizens in foreign political
elections? The importance and extreme delicacy of the matters here
sought to be regulated demand that Congress be permitted ample
scope in selecting appropriate modes for accomplishing its purpose.
The critical connection between this conduct and loss of
citizenship is the fact that it is the possession of American
citizenship by a person committing the act that makes the act
potentially embarrassing to the American Government and pregnant
with the possibility of embroiling this country in disputes with
other nations. The termination of citizenship terminates the
problem. Moreover, the fact is not without significance that
Congress has interpreted
Page 356 U. S. 61
this conduct, not irrationally, as importing not only something
less than complete and unswerving allegiance to the United States,
but also elements of an allegiance to another country in some
measure, at least, inconsistent with American citizenship.
Of course, Congress can attach loss of citizenship only as a
consequence of conduct engaged in voluntarily. See Mackenzie v.
Hare, 239 U. S. 299
239 U. S.
-312. But it would be a mockery of this Court's
decisions to suggest that a person, in order to lose his
citizenship, must intend or desire to do so. The Court only a few
years ago said of the person held to have lost her citizenship in
Mackenzie v. Hare, supra:
"The woman had not intended to
give up her American citizenship." Savorgnan v. United
States, 338 U. S. 491
338 U. S. 501
And the latter case sustained the denationalization of Mrs.
Savorgnan although it was not disputed that she "had no intention
of endangering her American citizenship or of renouncing her
allegiance to the United States." 338 U.S. at 338 U. S. 495
] What both women
did do voluntarily was to engage in conduct to which Acts of
Congress attached the consequence of denationalization irrespective
of -- and, in those cases, absolutely contrary to -- the intentions
and desires of the individuals. Those two cases mean nothing --
indeed, they are deceptive -- if their essential significance is
not rejection of the notion that the power of Congress to terminate
citizenship depends upon the citizen's assent. It is a distortion
of those cases to explain them away on a theory that a citizen's
assent to denationalization may be inferred from his having engaged
in conduct that amounts to an "abandonment of citizenship" or a
Page 356 U. S. 62
of allegiance." Certainly an Act of Congress cannot be
invalidated by resting decisive precedents on a gross fiction -- a
fiction baseless in law and contradicted by the facts of the
It cannot be said, then, that Congress acted without warrant
when, pursuant to its power to regulate the relations of the United
States with foreign countries, it provided that anyone who votes in
a foreign election of significance politically in the life of
another country shall lose his American citizenship. To deny the
power of Congress to enact the legislation challenged here would be
to disregard the constitutional allocation of governmental
functions that it is this Court's solemn duty to guard.
Because of our view concerning the power of Congress with
respect to § 401(e) of the Nationality Act of 1940, we find it
unnecessary to consider -- indeed, it would be improper for us to
adjudicate -- the constitutionality of § 401(j), and we expressly
decline to rule on that important question at this time.
* [On the same day, an order was entered substituting Attorney
General Rogers for former Attorney General Brownell as the party
respondent. See post,
Incorporated into § 349 of the Immigration and Nationality Act
of 1952, 66 Stat. 163, 267-268, 8 U.S.C. § 1481.
Petitioner proceeded under § 503 of the Nationality Act of 1940,
54 Stat. 1137, 1171, which authorizes an individual to bring suit
for a declaration of nationality in a United States District Court
against the head of any government agency that denies him a right
or privilege of United States nationality on the ground that he is
not a United States national. The judicial hearing in such an
action is a trial de novo
in which the individual need
make only a prima facie
case establishing his citizenship
by birth or naturalization. See Pandolo v. Acheson,
F.2d 38, 40-41. The Government must prove the act of expatriation
on which the denial was based by "clear, unequivocal, and
convincing' evidence which does not leave `the issue in doubt.'"
Gonzales v. Landon, 350 U.S. 920; see Schneiderman v.
United States, 320 U. S. 118,
320 U. S.
The provision of the Fourteenth Amendment that "All persons born
or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States . . ." sets
forth the two principal modes (but by no means the only ones) for
acquiring citizenship. Thus, in United States v. Wong Kim
Ark, 169 U. S. 649
(Chief Justice Fuller and Mr. Justice Harlan dissenting), it was
held that a person of Chinese parentage born in this country was
among "all persons born . . . in the United States," and therefore
a citizen to whom the Chinese Exclusion Acts did not apply. But
there is nothing in the terms, the context, the history, or the
manifest purpose of the Fourteenth Amendment to warrant drawing
from it a restriction upon the power otherwise possessed by
Congress to withdraw citizenship. The limit of the operation of
that provision was clearly enunciated in Perkins v. Elg,
307 U. S. 325
307 U. S.
"As at birth she became a citizen of the United States, that
citizenship must be deemed to continue unless she has been deprived
of it through the operation of a treaty or congressional enactment
or by her voluntary action in conformity with applicable legal
Petitioner in the case before us did not object to the
characterization of the election in which he voted as a "political
election." It may be noted that, in oral argument, counsel for the
petitioner expressed his understanding that the election involved
was the election for Mexico's president.
The District Court in Savorgnan
"I am satisfied from the proofs submitted that, at the time
plaintiff signed Exhibits 1 and 2 [application for Italian
citizenship and oath of allegiance to Italian Government], she had
no present or fixed intention in her mind to expatriate
73 F. Supp.
MR. CHIEF JUSTICE WARREN, with whom MR. JUSTICE BLACK and MR.
JUSTICE DOUGLAS join, dissenting.
The Congress of the United States has decreed that a citizen of
the United States shall lose his citizenship by performing certain
designated acts. [Footnote 2/1
Page 356 U. S. 63
this case, a native-born American, [Footnote 2/2
] is declared to have lost his citizenship
by voting in a foreign election. [Footnote 2/3
] Whether this forfeiture of citizenship
exceeds the bounds of the Constitution is the issue before us. The
problem is fundamental, and must be resolved upon fundamental
Generally, when congressional action is challenged,
constitutional authority is found in the express and implied powers
with which the National Government has been invested or in those
inherent powers that are necessary attributes of a sovereign state.
The sweep of those powers is surely broad. In appropriate
circumstances, they are adequate to take away life itself. The
Page 356 U. S. 64
question here is whether citizenship is subject to the exercise
of these general powers of government.
What is this Government, whose power is here being asserted? And
what is the source of that power? The answers are the foundation of
our Republic. To secure the inalienable rights of the individual,
"Governments are instituted among Men, deriving their just powers
from the consent of the governed." I do not believe the passage of
time has lessened the truth of this proposition. It is basic to our
form of government. This Government was born of its citizens, it
maintains itself in a continuing relationship with them, and, in my
judgment, it is without power to sever the relationship that gives
rise to its existence. I cannot believe that a government conceived
in the spirit of ours was established with power to take from the
people their most basic right.
man's basic right, for it is nothing
less than the right to have rights. Remove this priceless
possession and there remains a stateless person, disgraced and
degraded in the eyes of his countrymen. He has no lawful claim to
protection from any nation, and no nation may assert rights on his
behalf. [Footnote 2/4
] His very
existence is at the sufferance of the state within whose borders he
happens to be. In this country, the expatriate would presumably
enjoy, at most, only the limited rights and privileges of aliens,
] and, like the alien,
he might even
Page 356 U. S. 65
be subject to deportation, and thereby deprived of the right to
assert any rights. [Footnote 2/6
This government was not established with power to decree this
The people who created this government endowed it with broad
powers. They created a sovereign state with power to function as a
sovereignty. But the citizens themselves are sovereign, and their
citizenship is not subject to the general powers of their
government. Whatever may be the scope of its powers to regulate the
conduct and affairs of all persons within its jurisdiction, a
government of the people cannot take away their citizenship simply
because one branch of that government can be said to have a
conceivably rational basis for wanting to do so.
The basic constitutional provision crystallizing the right of
citizenship is the first sentence of section one of the Fourteenth
Amendment. It is there provided that
All persons born or naturalized in the United States and subject
to the jurisdiction thereof, are citizens of the
Page 356 U. S. 66
United States and of the State wherein they reside.
United States citizenship is thus the constitutional birthright
of every person born in this country. This Court has declared that
Congress is without power to alter this effect of birth in the
United States, United States v. Wong Kim Ark, 169 U.
, 169 U. S. 703
The Constitution also provides that citizenship can be bestowed
under a "uniform Rule of Naturalization," [Footnote 2/7
] but there is no corresponding provision
authorizing divestment. Of course, naturalization unlawfully
procured can be set aside. [Footnote
] But apart from this circumstance, the status of the
naturalized citizen is secure. As this Court stated in
Osborn v. Bank of the United
9 Wheat. 738, 22 U. S.
"[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
The simple power of the national Legislature is
to prescribe a uniform rule of naturalization, and the exercise of
this power exhausts it so far as respects the individual."
(Emphasis added.) Under our form of government, as established
by the Constitution, the citizenship of the lawfully naturalized
and the native-born cannot be taken from them.
There is no question that citizenship may be voluntarily
relinquished. The right of voluntary expatriation was recognized by
Congress in 1868. [Footnote 2/9
Congress declared that "the right of expatriation is a natural and
Page 356 U. S. 67
right of all people. . . ." [Footnote 2/10
] Although the primary purpose of this
declaration was the protection of our naturalized citizens from the
claims of their countries of origin, the language was properly
regarded as establishing the reciprocal right of American citizens
to abjure their allegiance. [Footnote
] In the early days of this Nation, the right of
expatriation had been a matter of controversy. The common law
doctrine of perpetual allegiance was evident in the opinions of
this Court. [Footnote 2/12
although impressment of naturalized American seamen of British
birth was a cause of the War of 1812, the executive officials of
this Government were not unwavering in their support of the right
of expatriation. [Footnote 2/13
Prior to 1868, all efforts to obtain congressional enactments
concerning expatriation failed. [Footnote 2/14
] The doctrine of perpetual allegiance,
however, was so ill-suited to the growing nation whose doors were
open to immigrants from abroad that it could not last. Nine years
before Congress acted, Attorney General Black stated the American
position in a notable opinion: [Footnote 2/15
"Here in the United States, the thought of giving it [the right
of expatriation] up cannot be entertained for a moment. Upon that
principle, this country was populated. We owe to it our existence
as a nation.
Page 356 U. S. 68
Ever since our independence, we have upheld and maintained it by
every form of words and acts. We have constantly promised full and
complete protection to all persons who should come here and seek it
by renouncing their natural allegiance and transferring their
fealty to us. We stand pledged to it in the face of the whole
It has long been recognized that citizenship may not only be
voluntarily renounced through exercise of the right of
expatriation, but also by other actions in derogation of undivided
allegiance to this country. [Footnote
] While the essential qualities of the citizen-state
relationship under our Constitution preclude the exercise of
governmental power to divest United States citizenship, the
establishment of that relationship did not impair the principle
that conduct of a citizen showing a voluntary transfer of
allegiance is an abandonment of citizenship. Nearly all
sovereignties recognize that acquisition of foreign nationality
ordinarily shows a renunciation of citizenship. [Footnote 2/17
] Nor is this the only act by which
the citizen may show a voluntary abandonment of his citizenship.
Any action by which he manifests allegiance to a foreign state may
be so inconsistent with the retention of citizenship as to result
in loss of that status. [Footnote
] In recognizing the consequence of such action, the
Government is not taking away United States citizenship to
implement its general regulatory powers, for, as previously
indicated, in my judgment, citizenship is immune from divestment
Page 356 U. S. 69
powers. Rather, the Government is simply giving formal
recognition to the inevitable consequence of the citizen's own
voluntary surrender of his citizenship.
Twice before, this Court has recognized that certain voluntary
conduct results in an impairment of the status of citizenship. In
Savorgnan v. United States, 338 U.
, an American citizen had renounced her
citizenship and acquired that of a foreign state. This Court
affirmed her loss of citizenship, recognizing that,
"From the beginning, one of the most obvious and effective forms
of expatriation has been that of naturalization under the laws of
338 U.S. at 338 U. S. 498
Mackenzie v. Hare, 239 U. S. 299
involved an American woman who had married a British national. That
decision sustained an Act of Congress which provided that her
citizenship was suspended for the duration of her marriage. Since
it is sometimes asserted that this case is authority for the broad
proposition that Congress can take away United States citizenship,
it is necessary to examine precisely what the case involved.
The statute which the Court there sustained did not divest Mrs.
Mackenzie of her citizenship. [Footnote 2/19
] It provided that "any American woman who
marries a foreigner shall take the nationality of her husband."
] "At the
Page 356 U. S. 70
of the marital relation," the statute continues, "she may
her American citizenship. . . ." (Emphasis added.)
Her citizenship was not taken away; it was held in abeyance.
This view of the statute is borne out by its history. The 1907
Act was passed after the Department of State had responded to
requests from both houses of Congress for a comprehensive study of
our own and foreign nationality laws, together with recommendations
for new legislation. [Footnote
] One of those recommendations, substantially incorporated
in the 1907 Act, was as follows: [Footnote 2/22
"That an American woman who marries a foreigner shall take
the nationality of her husband; but upon
termination of the marital relation by death or absolute divorce
she may revert to her American citizenship by registering within
one year as an American citizen at the most convenient American
consulate or by returning to reside in the
Page 356 U. S. 71
United States if she is abroad; or if she is in the United
States by continuing to reside therein."
(Emphasis added.) This principle of "reversion of citizenship"
was a familiar one in our own law, [Footnote 2/23
] and the law of foreign states. [Footnote 2/24
] The statute was merely
declarative of the law as it was then
Page 356 U. S. 72
understood. [Footnote 2/25
Although the opinion in Mackenzie v. Hare
reference to termination of citizenship, the reasoning is
consistent with the terms of the statute that was upheld. Thus, the
Court speaks of Mrs. Mackenzie's having entered a "condition," 239
U.S. at 239 U. S. 312
not as having surrendered her citizenship. "Therefore," the Court
concludes, "as long as the relation lasts,
it is made
tantamount to expatriation." Ibid.
A decision sustaining a statute that relies upon the unity of
interest in the marital community -- a common law fiction now
largely a relic of the past -- may itself be outdated. [Footnote 2/26
] However that may be, the
Page 356 U. S. 73
that Mackenzie v. Hare
should not be understood to
sanction a power to divest citizenship. Rather, this case, like
simply acknowledges that United States
citizenship can be abandoned, temporarily or permanently, by
conduct showing a voluntary transfer of allegiance to another
The background of the congressional enactment pertinent to this
case indicates that Congress was proceeding generally in accordance
with this approach. After the initial congressional designation in
1907 of certain actions that were deemed to be an abandonment of
citizenship, it became apparent that further clarification of the
problem was necessary. In 1933, President Roosevelt, acting at the
request of the House Committee on Immigration and Naturalization,
] established a
Committee of Cabinet members to prepare a codification and revision
of the nationality laws. [Footnote
] The Committee, composed of the Secretary of State, the
Attorney General and the Secretary of Labor, spent five years
preparing the codification that became the Nationality Act of 1940,
and submitted their draft in 1938. It is evident that this
Committee did not believe citizenship could be divested under the
Government's general regulatory powers. Rather, it adopted the
position that the citizen abandons his status by compromising his
allegiance. In its letter submitting the proposed codification to
the President, the Committee described the loss of nationality
provisions in these words: [Footnote
"They are merely intended to deprive persons of American
nationality when such persons, by their own acts, or inaction,
show that their real attachment is to the foreign country, and not
to the United States.
Page 356 U. S. 74
Furthermore, when the draft code was first discussed by the
House Committee on Immigration and Naturalization -- the only
legislative group that subjected the codification to detailed
examination [Footnote 2/30
] -- it
was at once recognized that the status of citizenship was protected
from congressional control by the Fourteenth Amendment. In
considering the situation of a native-born child of alien
parentage, Congressmen Poage and Rees, members of the committee,
and Richard Flournoy, the State Department representative, engaged
in the following colloquy: [Footnote
"Mr. POAGE. Isn't that based on the constitutional provision
that all persons born in the United States are citizens
"Mr. FLOURNOY. Yes."
"Mr. POAGE. In other words, it is not a matter we have any
"Mr. FLOURNOY. No, and no one wants to change that."
"Mr. POAGE. No one wants to change that, of course."
"Mr. FLOURNOY. We have control over citizens born abroad, and we
also have control over the question of expatriation. We can provide
for expatriation. No one proposes to change the constitutional
"Mr. REES. We cannot change the citizenship of a man who went
abroad, who was born in the United States."
"Mr. FLOURNOY. You can make certain acts of his result in a loss
"Mr. REES. Surely, that way. "
Page 356 U. S. 75
It is thus clear that the purpose governing the formulation of
most of the "loss of nationality" provisions of the codification
was the specification of acts that would of themselves show a
voluntary abandonment of citizenship. Congress did not assume it
was empowered to use denationalization as a weapon to aid in the
exercise of its general powers. Nor should we.
Section 401(e) of the 1940 Act added a new category of conduct
that would result in loss of citizenship:
"Voting in a political election in a foreign state or
participating in an election or plebiscite to determine the
sovereignty over foreign territory. . . ."
The conduct described was specifically represented by Mr.
Flournoy to the House Committee as indicative of "a choice of the
foreign nationality," just like "using a passport of a foreign
state as a national thereof." [Footnote 2/32
The precise issue posed by Section 401(e) is whether the conduct
it describes invariably involves a dilution of undivided allegiance
sufficient to show a voluntary abandonment of citizenship.
Doubtless, under some circumstances, a vote in a foreign election
would have this effect. For example, abandonment of citizenship
might result if the person desiring to vote had to become a foreign
national or represent himself to be one. [Footnote 2/33
] Conduct of this sort is apparently what
Mr. Flournoy had in mind when he discussed with the committee the
situation of an American-born youth who had acquired Canadian
citizenship through the naturalization of his parents. Mr. Flournoy
suggested that the young man might manifest
Page 356 U. S. 76
an election of nationality by taking advantage of his Canadian
citizenship and voting "as a Canadian." [Footnote 2/34
] And even the situation that bothered
Committee Chairman Dickstein -- Americans voting in the Saar
plebiscite -- might, under some circumstances, disclose conduct
tantamount to dividing allegiance. Congressman Dickstein expressed
his concern as follows: [Footnote
"I know we have had a lot of Nazis, so-called American citizens,
go to Europe who have voted in the Saar for the annexation of
territory to Germany, and Germany says that they have the right to
participate and to vote, and yet they are American citizens."
There might well be circumstances where an American shown to
have voted at the behest of a foreign government to advance its
territorial interests would compromise his native allegiance.
The fatal defect in the statute before us is that its
application is not limited to those situations that may rationally
be said to constitute an abandonment of citizenship. 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. [Footnote 2/36
] "The connection between the fact proved
and that presumed is not sufficient." Manley v. Georgia,
279 U. S. 1
279 U. S. 7
also Tot v. United States, 319 U. S. 463
Bailey v. Alabama, 219 U. S. 219
Page 356 U. S. 77
reach of this statute is best indicated by a decision of a
former attorney general holding that an American citizen lost her
citizenship under Section 401(e) by voting in an election in a
Canadian town on the issue of whether beer and wine should be sold.
] Voting in a
foreign election may be a most equivocal act, giving rise to no
implication that allegiance has been compromised. Nothing could
demonstrate this better than the political history of this country.
It was not until 1928 that a presidential election was held in this
country in which no alien was eligible to vote. [Footnote 2/38
] Earlier in our history, at least 22
States had extended the franchise to aliens. It cannot be seriously
contended that this Nation understood the vote of each alien who
previously took advantage of this privilege to be an act of
allegiance to this country, jeopardizing the alien's native
citizenship. How then can we attach such significance to any vote
of a United States citizen in a foreign election? It is also
significant that of 84 nations whose nationality laws have been
compiled by the United Nations, only this country specifically
designates foreign voting as an expatriating act. [Footnote 2/39
My conclusions are as follows. The Government is without power
to take citizenship away from a native-born or lawfully naturalized
American. The Fourteenth
Page 356 U. S. 78
Amendment recognizes that this priceless right is immune from
the exercise of governmental powers. If the Government determines
that certain conduct by United States citizens should be prohibited
because of anticipated injurious consequences to the conduct of
foreign affairs or to some other legitimate governmental interest,
it may within the limits of the Constitution proscribe such
activity and assess appropriate punishment. But every exercise of
governmental power must find its source in the Constitution. The
power to denationalize is not within the letter or the spirit of
the powers with which our Government was endowed. The citizen may
elect to renounce his citizenship, and, under some circumstances,
he may be found to have abandoned his status by voluntarily
performing acts that compromise his undivided allegiance to his
country. The mere act of voting in a foreign election, however,
without regard to the circumstances attending the participation, is
not sufficient to show a voluntary abandonment of citizenship. The
record in this case does not disclose any of the circumstances
under which this petitioner voted. We know only the bare fact that
he cast a ballot. The basic right of American citizenship has been
too dearly won to be so lightly lost.
I fully recognize that only the most compelling considerations
should lead to the invalidation of congressional action, and where
legislative judgments are involved, this Court should not
intervene. But the Court also has its duties, none of which demands
more diligent performance than that of protecting the fundamental
rights of individuals. That duty is imperative when the citizenship
of an American is at stake -- that status which alone assures him
the full enjoyment of the precious rights conferred by our
Constitution. As I see my duty in this case, I must dissent.
Page 356 U. S. 79
Section 401 of the Nationality Act of 1940, 54 Stat. 1137, 1168
1169, as amended, 8 U.S.C. § 1481.
The fact that the statute speaks in terms of loss of nationality
does not mean that it is not petitioner's citizenship that is being
forfeited. He is a national by reason of his being a citizen, §
101(b), Nationality Act of 1940, 54 Stat. 1137, 8 U.S.C. §
1101(a)(22). Hence, he loses his citizenship when he loses his
status as a national of the United States. In the context of this
opinion, the terms nationality and citizenship can be used
interchangeably. Cf. Rabang v. Boyd, 353 U.
Petitioner was born in El Paso, Texas, in 1909, a fact of which
he was apprised in 1928. His Mexican-born parents took him to
Mexico when he was 10 or 11 years old. In 1932, petitioner married
a Mexican national; they have seven children. In 1943 and 1944,
petitioner sought and received permission to enter this country for
brief periods as a wartime railroad laborer. In 1952, petitioner
again entered this country as a temporary farm laborer. After he
had been ordered deported as an alien illegally in the United
States, he brought this action for a declaratory judgment of
citizenship, relying upon his birth in this country.
Section 401(e) of the Nationality Act of 1940, 54 Stat. 1169, 8
U.S.C. § 1481(5).
The courts below concluded that petitioner had lost his
citizenship for the additional reason specified in § 401(j) of the
Nationality Act, which was added in 1944, 58 Stat. 746, 8 U.S.C. §
"Departing from or remaining outside of the jurisdiction of the
United States in time of war or during a period declared by the
President to be a period of national emergency for the purpose of
evading or avoiding training and service in the land or naval
forces of the United States."
The majority expressly declines to rule on the constitutional
questions raised by § 401(j). My views on a statute of this sort
are set forth in my opinion in Trop v. Dulles, post,
356 U. S. 86
decided this day, involving similar problems raised by § 401(g) of
the Nationality Act, 54 Stat. 1169, as amended, 8 U.S.C. §
Borchard, Diplomatic Protection of Citizens Abroad
(1916), § 8; 1 Oppenheim, International Law (7th ed., Lauterpacht,
1948), §§ 291-294; Holborn, The Legal Status of Political Refugees,
1920-1938, 32 Am.J.Int'l L. 680 (1938); Preuss, International Law
and Deprivation of Nationality, 23 Geo.L.J. 250 (1934); Study on
Statelessness, U.N. Doc. No. E/1112 (1949); 64 Yale L.J. 1164
Konvitz, The Alien and the Asiatic in American Law
(1946); Comment, 20 U. of Chi.L.Rev. 547 (1953). Cf. Takahashi
v. Fish & Game Commission, 334 U.
; Oyama v. California, 332 U.
Harisiades v. Shaughnessy, 342 U.
; Fong Yue Ting v. United States,
149 U. S. 698
Even if Congress can divest United States citizenship, it does
not necessarily follow that an American-born expatriate can be
deported. He would be covered by the statutory definition of
"alien," 8 U.S.C. § 1101(a)(3), but he would not necessarily have
come "from a foreign port or place," and hence may not have
effected the "entry," 8 U.S. C. § 1101(a)(13), specified in the
deportation provisions, 8 U.S.C. § 1251. More fundamentally, since
the deporting power has been held to be derived from the power to
exclude, Fong Yue Ting v. United States, supra,
well be that this power does not extend to persons born in this
country. As to them, deportation would perhaps find its
justification only as a punishment, indistinguishable from
dissenting opinions in United States
v. Ju Toy, 198 U. S. 253
198 U. S. 264
Fong Yue Ting v. United States, supra,
at 149 U. S.
Since this action for a declaratory judgment does not involve
the validity of the deportation order against petitioner, it is
unnecessary, as the Government points out, to resolve the question
of whether this petitioner may be deported.
U.S.Const., Art. I, § 8, cl. 4.
See, e.g., Knauer v. United States, 328 U.
; Baumgartner v. United States,
322 U. S. 665
Schneiderman v. United States, 320 U.
Act of July 27, 1868, 15 Stat. 223.
See Savorgnan v. United States, 338 U.
, 338 U. S. 498
and n. 11; Foreign Relations, 1873, H.R.Exec.Doc. No. 1, 43d Cong.,
1st Sess. Pt. 1, Vol. II, 1186-1187, 1204, 1210, 1213, 1216, 1222
(views of President Grant's Cabinet members); 14 Op.Atty.Gen. 295;
Tsiang, The Question of Expatriation in America Prior to 1907,
See Shanks v.
3 Pet. 242; Inglis v.
Trustees of Sailor's Snug Harbour,
3 Pet. 99.
3 Moore, Digest of International Law, §§ 434-437; Tsiang, 45-55,
9 Op.Atty.Gen. 356, 359.
See, e.g., Savorgnan v. United States, 338 U.
; Mackenzie v. Hare, 239 U.
; Bauer v. Clark,
161 F.2d 397, cert.
332 U.S. 839. Cf. Acheson v. Maenza,
U.S.App.D.C. 85, 202 F.2d 453.
Laws Concerning Nationality, U.N. Doc. No. ST/LEG/
Laws Concerning Nationality, op. cit.
supra, 356 U.S.
Act of March 2, 1907, 34 Stat. 1228-1229. The full text is as
"SEC. 3. That any American woman who marries a foreigner shall
take the nationality of her husband. At the termination of the
marital relation she may resume her American citizenship, if
abroad, by registering as an American citizen within one year with
a consul of the United States, or by returning to reside in the
United States, or, if residing in the United States at the
termination of the marital relation, by continuing to reside
This clause merely expressed the well understood principle that
a wife's nationality "merged" with that of her husband's. Cockburn,
Nationality, 24; 3 Moore, Digest of International Law, 450-451,
453; 3 Hackworth, Digest of International Law, 246-247. This was a
consequence of the common law fiction of a unity of interest in the
marital community. During coverture, the privileges and obligations
of a woman's citizenship gave way to the dominance of her
husband's. Prior to the Act of March 2, 1907, the Department of
State declined to issue passports to American-born women who were
married to aliens. 3 Moore, 454; 3 Hackworth, 247. The Attorney
General ruled that a woman in such circumstances was not subject to
an income tax imposed on all citizens of the United States residing
abroad. 13 Op.Atty.Gen. 128. Several courts held that, during the
duration of a marriage consummated prior to the Act between an
American-born woman and an alien, a court may entertain a petition
for her naturalization. In re Wohlgemuth, 35 F.2d
; In re Krausmann, 28 F.2d
; In re Page, 12 F.2d
. Cf. Pequignot v. Detroit,
16 F. 211.
S.Res. 30, 59th Cong., 1st Sess.; H.R.Rep. No. 4784, 59th Cong.,
H.R.Doc. No. 326, 59th Cong., 2d Sess. 29. The Department's
covering letter makes abundantly clear that marriage was not to
result in "expatriation." Id.
3 Moore, § 410(2) ("Reversion of
Nationality"); Van Dyne, Naturalization, 242-255. Numerous cases
contain references to a woman's "reverting" to United States
citizenship after the termination of her marriage to an alien.
E.g., Petition of Zogbaum, 32 F.2d
, 913; Petition of Drysdale, 20 F.2d
, 958; In re Fitzroy, 4 F.2d
, 542. The Department of State adopted the same
interpretation. In 1890, Secretary Blaine declared the view of the
"The marriage of an American woman to a foreigner does not
completely divest her of her original nationality. Her American
citizenship is held for most purposes to be in abeyance during
but to be susceptible of revival by her return to
the jurisdiction and allegiance of the United States."
(Emphasis added.) Foreign Rel. U.S. 1890, 301.
In 1906 Secretary Root stated:
"Under the practice of the Department of State, a widow or a
woman who has obtained an absolute divorce, being an American
citizen and who has married an alien, must return to the United
States, or must have her residence here in order to have her
American citizenship revert on becoming femme sole.
Foreign Rel. U.S. 1906, Pt. 2, 1365.
3 Moore, 458-462. H.R.Doc. No. 326,
59th Cong., 2d Sess. 269-538, a report by the Department of State
which Congress requested prior to its Act of March 2, 1907,
contains a digest of the nationality laws of forty-four countries.
Twenty-five of those provided in widely varying terms that, upon
marriage, a woman's citizenship should follow that of her husband.
Of these twenty-five, all but two made special provision for the
woman to recover her citizenship upon termination of the marriage
by compliance with certain formalities demonstrative of the proper
intent, and in every instance wholly different from the ordinary
naturalization procedures .
In re Wohlgemuth, 35 F.2d
; In re Krausmann, 28 F.2d
; Petition of Drysdale, 20 F.2d
; In re Page, 12 F.2d
In fact, Congressman Perkins, supporting the bill on the floor
of the House, explained its effect in these words:
"The courts have decided that a woman takes the citizenship of
her husband, only the decisions of the courts provide no means by
which she may retake the citizenship of her own country on the
expiration of the marital relation. This bill contains nothing new
in that respect, except a provision that, when the marital relation
is terminated the woman may then retake her former
41 Cong.Rec. 1465.
Cases discussing the pre-1907 law generally held that a woman
did not lose her citizenship by marriage to an alien, although she
might bring about that result by other acts (such as residing
abroad after the death of her husband) demonstrating an intent to
relinquish that citizenship. E.g., 28 U.
3 Pet. 242; In re
Wright, 19 F. Supp.
; Petition of Zogbaum, 32 F.2d
; In re Lynch, 31 F.2d
; Petition of Drysdale, 20 F.2d
; In re Fitzroy, 4 F.2d 541
Wallenburg v. Missouri Pacific R. Co.,
159 F. 217;
Ruckgaber v. Moore,
104 F. 947; Comitis v.
56 F. 556. This was also the view of the Department
of State. 3 Moore, 449-450; 3 Hackworth, 247-248.
The marriage provisions of the 1907 legislation were
substantially repealed by the 1922 Cable Act, 42 Stat. 1021, and
the last remnants of the effect of marriage on loss of citizenship
were eliminated in 1931. 46 Stat. 1511. See
Loss of American Nationality, 99 U. of Pa.L.Rev. 25, 47-49.
86 Cong.Rec. 11943.
Exec.Order No. 6115, April 5, 1933.
Codification of the Nationality Laws of the United States, H.R.
Comm.Print, Pt. 1, 76th Cong., 1st Sess. VII.
The bill was considered by the House Committee on Immigration
and Naturalization and its subcommittee. Hearings before the House
Committee on Immigration and Naturalization on H.R. 6127, 76th
Cong., 1st Sess. The Senate did not hold hearings on the bill.
Hearings at 37-38.
at 132. The passport provision was apparently
deleted by the subcommittee, for it does not appear in the version
of the bill that was printed when hearings resumed before the full
committee on May 2, 1940. Id.
Cf. In the Matter of P___,
1 I. & N.Dec. 267 (this
particular election in Canada was open only to British
Hearings at 98.
at 286-287 .
The broad sweep of the statute was specifically called to the
attention of the committee by Mr. Henry F. Butler. Hearings at
286-287. Mr. Butler also submitted a brief suggesting that the
coverage of the statute be limited to those voting "in a manner in
which only nationals of such foreign state or territory are
eligible to vote or participate." Id.
In the Matter of F___,
2 I. & N.Dec. 427.
Aylsworth, The Passing of Alien Suffrage, 25 Am.Pol.Sci.Rev.
Laws Concerning Nationality, U.N. Doc. No. ST/LEG/SER. B/4
(1954). The statutes of Andorra (191 sq. mi.; 5,231 pop.) provide
for loss of nationality for a citizen who "exercises political
rights in another country," id.
at 10, and this very
likely includes voting.
Of course, it should be noted that two nations, Romania and
Russia, have statutes providing that, upon decree of the
government, citizenship can be withdrawn, apparently for any
at 396, 463.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
While I join the opinion of THE CHIEF JUSTICE, I wish to add a
word. The philosophy of the opinion that sustains this statute is
foreign to our constitutional system. It gives supremacy to the
Legislature in a way that is incompatible with the scheme of our
written Constitution. A decision such as this could be expected in
England, where there is no written constitution and where the House
of Commons has the final say. But, with all deference, this
philosophy has no place here. By proclaiming it, we forsake much of
our constitutional heritage and move closer to the British scheme.
That may be better than ours or it may be worse. Certainly it is
We deal here with the right of citizenship created by the
Constitution. Section 1 cl. 1, of the Fourteenth Amendment
"All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside."
As stated by the Court in the historic decision United
States v. Wong Kim Ark, 169 U. S. 649
169 U. S.
"Citizenship by naturalization can only be acquired by
naturalization under the authority and in the forms of law. But
citizenship by birth is established by the mere fact of birth under
the circumstances defined in the Constitution."
What the Constitution grants, the Constitution can take away.
But there is not a word in that document that covers expatriation.
The numerous legislative powers granted by Art. I, 8, do not
mention it. I do not know of any legislative power large enough and
powerful enough to modify or wipe out rights granted or created by
§ 1, cl. 1 of the Fourteenth Amendment.
Our decisions have never held that expatriation can be imposed.
To the contrary, they have assumed that
Page 356 U. S. 80
expatriation was a voluntary relinquishment of loyalty to one
country and attachment to another. Justice Paterson spoke of
expatriation in Talbot v.
3 Dall. 133, 3 U.S. 153
, as "a departure with
intention to leave this country, and settle in another." The loss
of citizenship in this country without its acquisition in another
country was to him the creation of "a citizen of the world" -- a
concept that is "a creature of the imagination, and far too refined
for any republic of ancient or modern times." Ibid.
So far as I can find, we have, prior to this day, never
sustained the loss of a native-born American citizenship unless
another citizenship was voluntarily acquired. That was true both in
Mackenzie v. Hare, 239 U. S. 299
Savorgnan v. United States, 338 U.
. We should look to their facts, not to loose
statements unnecessary for the decisions. In the Mackenzie
case, it was the marriage of a native-born woman to an alien that
caused the loss of one nationality and the acquisition of another.
In the Savorgnan
case, the native-born American citizen
became naturalized in Italy. In this case, Perez did vote in a
foreign election of some kind. But, as THE CHIEF JUSTICE has
clearly shown, § 401(e) of the Nationality Act of 1940 "is not
limited to those situations that may rationally be said to
constitute an abandonment of citizenship." Ante,
356 U. S.
Our landmark decision on expatriation is Perkins v.
Elg, 307 U. S. 325
where Chief Justice Hughes wrote for the Court. The emphasis of
that opinion is that "Expatriation is the voluntary renunciation or
abandonment of nationality and allegiance." Id.
307 U. S.
Today's decision breaks with that tradition. It allows Congress
to brand an ambiguous act as a "voluntary renunciation" of
citizenship when there is no requirement and no finding that the
citizen transferred his loyalty from this country to another. This
power is found in the
Page 356 U. S. 81
power of Congress to regulate foreign affairs. But if voting
abroad is so pregnant with danger that Congress can penalize it by
withdrawing the voter's American citizenship, all citizens should
be filled with alarm. Some of the most heated political discussions
in our history have concerned foreign policy. I had always assumed
that the First Amendment, written in terms absolute, protected
those utterances, no matter how extreme, no matter how unpopular
they might be. Yet if the power to regulate foreign affairs can be
used to deprive a person of his citizenship because he voted
abroad, why may not it be used to deprive him of his citizenship
because his views on foreign policy are unorthodox, or because he
disputed the position of the Secretary of State or denounced a
Resolution of the Congress or the action of the Chief Executive in
the field of foreign affairs? It should be remembered that many of
our most heated controversies involved assertion of First Amendment
rights respecting foreign policy. The hated Alien and Sedition Laws
grew out of that field. [Footnote
] More recently, the rise of fascism and communism
Page 356 U. S. 82
has had profound repercussions here. Could one who advocated
recognition of Soviet Russia in the 1920's be deprived of his
citizenship? Could that fate befall one who was a Bundist [Footnote 3/2
] in the late 1930's or early
1940's and extolled Hitler? Could it happen in the 1950's to one
who pleaded for recognition of Red China or who proclaimed against
the Eisenhower Doctrine in the Middle East? No doubt George F.
Kennan "embarrassed" our foreign relations when he recently spoke
over the British radio. [Footnote
] Does the Constitution permit Congress to cancel his
citizenship? Could an American who violated his passport
restrictions and visited Red China be deprived of his citizenship?
Or suppose he trades with those under a ban. To many people, any of
those acts would seem much more heinous than the fairly innocent
act of voting abroad. If casting a ballot abroad is sufficient to
deprive an American of his citizenship, why could not like
penalties be imposed on the citizen who expresses disagreement with
his Nation's foreign policy in any of the ways enumerated?
The fact that First Amendment rights may be involved in some
cases and not in others seems irrelevant. For the grant of
citizenship by the Fourteenth Amendment is clear and explicit, and
should withstand any invasion of the legislative power.
What the Court does is to make it possible for any one of the
many legislative powers to be used to wipe out or modify specific
rights granted by the Constitution, provided the action taken is
moderate and does not do violence to the sensibilities of a
majority of this Court. The examples where this concept of Due
Process has been
Page 356 U. S. 83
used to sustain state action [Footnote 3/4
] as well as federal action, [Footnote 3/5
] which modifies or dilutes
specific constitutional guarantees, are numerous. It is used today
drastically to revise the express command of the first Clause of §
1 of the Fourteenth Amendment. A right granted by the Constitution
-- whether it be the right to counsel or the right to citizenship
-- may be waived by the citizen. [Footnote 3/6
] But the waiver must be first
voluntary act and second
an act consistent with a
surrender of the right granted. When Perez voted, he acted
voluntarily. But, as shown, § 401(e) does not require that his act
have a sufficient relationship to the relinquishment of citizenship
-- nor a sufficient quality of adhering to a foreign power. Nor did
his voting abroad have that quality.
The decision we render today exalts the Due Process Clause of
the Fifth Amendment above all others. Of course, any power
exercised by the Congress must be asserted in conformity with the
requirements of Due Process. Tot v. United States,
319 U. S. 463
United States v. Harriss, 347 U.
; Lambert v. California, 355 U.
. But the requirement of Due Process is a
limitation on powers granted, not the means whereby rights granted
by the Constitution may be wiped out or watered down. The
Fourteenth Amendment grants citizenship to the native-born, as
explained in United States v. Wong Kim Ark, supra.
right may be waived or surrendered by the citizen. But I see no
Page 356 U. S. 84
method by which it can be taken from him. Citizenship, like
freedom of speech, press, and religion, occupies a preferred
position in our written Constitution, because it is a grant
absolute in terms. The power of Congress to withhold it, modify it,
or cancel it does not exist. One who is native-born may be a good
citizen or a poor one. Whether his actions be criminal or
charitable, he remains a citizen for better or for worse, except
and unless he voluntarily relinquishes that status. While Congress
can prescribe conditions for voluntary expatriation, Congress
cannot turn white to black and make any act an act of expatriation.
For then the right granted by the Fourteenth Amendment becomes
subject to regulation by the legislative branch. But that right has
no such infirmity. It is deeply rooted in history, as United
States v. Wong Kim Ark, supra,
shows. And the Fourteenth
Amendment put it above and beyond legislative control.
That may have been an unwise choice. But we made it when we
adopted the Fourteenth Amendment and provided that the native-born
is an American citizen. Once he acquires that right, there is no
power in any branch of our Government to take it from him.
Miller, Crisis in Freedom (1951), 167-168, states the Federalist
case for those laws:
"As in the case of the Alien Act, the Federalists justified the
Sedition Law by citing the power of Congress to provide for the
common defense and general welfare and the inherent right of every
government to act in self-preservation. It was passed at a time of
national emergency, when, as a member of Congress said, 'some
gentlemen say we are at war, and when all believe we must have
war.' 'Threatened by faction,
and actually at
with a foreign and perfidious foe abroad,' the
Sedition Act was held to be 'necessary for the safety perhaps the
existence of the Government.' Congress could not permit subversive
newspapers to 'paralyze the public arm and weaken the efforts of
Government for the defense of the country.' The wiles of France and
its adherents were as dangerous as its armies: 'Do not the Jacobin
fiends of France use falsehood and all the arms of hell,' asked
William Cobbett, 'and do they not run like half-famished wolves to
accomplish the destruction of this country?' If Congress had failed
to take every precautionary measure against such danger, the blood
of the Republic would have been upon its hands."
Cf. Keegan v. United States, 325 U.
Kennan, Russia, The Atom and the West (1957).
See Betts v. Brady, 316 U. S. 455
In re Summers, 325 U. S. 561
Adamson v. California, 332 U. S. 46
Bute v. Illinois, 333 U. S. 640
Feiner v. New York, 340 U. S. 315
Breard v. Alexandria, 341 U. S. 622
Adler v. Board of Education, 342 U.
; Beauharnais v. Illinois, 343 U.
; In re Groban, 352 U.
; Breithaupt v. Abram, 352 U.
United Public Workers v. Mitchell, 330 U. S.
; American Communications Assn. v. Douds,
339 U. S. 382
Dennis v. United States, 341 U. S. 494
E.g., Adams v. McCann, 317 U.
, 317 U. S.
Memorandum of MR. JUSTICE WHITTAKER.
Though I agree with the major premise of the majority's opinion
-- that Congress may expatriate a citizen for an act which it may
reasonably find to be fraught with danger of embroiling our
Government in an international dispute or of embarrassing it in the
conduct of foreign affairs -- I cannot agree with the result
reached, for it seems plain to me that § 401(e) is too broadly
written to be sustained upon that ground. That section, so far as
here pertinent, expatriates an American citizen simply for "voting
in a political election in a foreign state." Voting in a political
election in a particular foreign state may be open to aliens under
the law of that state, as it was in presidential elections
Page 356 U. S. 85
in the United States until 1928 as the dissenting opinion of THE
CHIEF JUSTICE observes. Where that is so -- and this record fails
to show that petitioner's act of voting in a political election in
Mexico in 1946 was not entirely lawful under the law of that state
-- such legalized voting by an American citizen cannot reasonably
be said to be fraught with danger of embroiling our Government in
an international dispute or of embarrassing it in the conduct of
foreign affairs, nor, I believe, can such an act -- entirely legal
under the law of the foreign state -- be reasonably said to
constitute an abandonment or any division or dilution of allegiance
to the United States. Since these are my convictions, I dissent
from the majority's opinion and join in so much of the dissenting
opinion of THE CHIEF JUSTICE as expresses the view that the act of
a citizen of the United States in voting in a foreign political
election which is legally open to aliens under the law of that
state cannot reasonably be said to constitute abandonment or any
division or dilution of allegiance to the United States.
This leaves open the question presented respecting the
constitutionality of § 401(j), but inasmuch as the majority have
found it unnecessary to adjudicate the constitutionality of that
section in this case, it would be wholly fruitless for me now to
reach a conclusion on that question, and I neither express nor
imply any views upon it. Limiting myself to the issue decided by
the majority, I dissent.