Afroyim v. Rusk
Encyclopedia
Afroyim v. Rusk, 387 U.S. 253 (1967), was a United States Supreme Court decision that set an important legal precedent
that a person born or naturalized in the United States
cannot be deprived of his or her citizenship involuntarily. The U.S. government had attempted to revoke the citizenship of a man who had voted in a foreign election after becoming a naturalized U.S. citizen, but the Supreme Court ruled that his right to keep his citizenship was guaranteed by the Fourteenth Amendment to the Constitution
. In so doing, the Supreme Court overruled one of its own precedents, Perez v. Brownell
(1958), in which the Court had upheld loss of citizenship under similar circumstances.
born as Ephraim Bernstein in Ryki
, Poland
. In 1912 he immigrated to the United States, and in 1926 he was naturalized
as a U.S. citizen. He later moved to Israel
, and as a Jew, Afroyim was automatically granted Israeli citizenship under the Law of Return
. In 1960, following the breakdown of his marriage to Austrian painter Soshana Afroyim, Afroyim decided to return to the United States, but the State Department
refused to renew his U.S. passport, ruling that under section 401(e) of the Nationality Act of 1940 — which mandated revocation of U.S. citizenship for voting "in a political election in a foreign state" — Afroyim had lost his citizenship by voting in an Israeli election
in 1951.
The "citizenship clause
" of the Fourteenth Amendment to the United States Constitution
says that: 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. Afroyim argued that since "neither the Fourteenth Amendment nor any other provision of the Constitution expressly grants Congress the power to take away that citizenship once it has been acquired . . . the only way he could lose his citizenship was by his own voluntary renunciation of it." Lower courts, however, rejected Afroyim's claims, based on an earlier Supreme Court decision — Perez v. Brownell
, , a case which upheld Congress's right to revoke U.S. citizenship for voting in a foreign election "under its implied power to regulate foreign affairs." Afroyim asked the Supreme Court to overrule the precedent established in Perez v. Brownell, rule the foreign voting provision of the Nationality Act to be unconstitutional, and rule that he was still a United States citizen.
The court's majority also found support in the history of the Titles of Nobility Amendment
, a proposed constitutional amendment from the early nineteenth century which was passed by Congress in 1810 but never ratified by the states. This amendment, if ratified, would have removed the citizenship of any U.S. citizen who accepted a title of nobility from a foreign government. The fact that this proposal was framed as a constitutional amendment, rather than a simple law, was seen by the court as showing that, even before the passage of the Fourteenth Amendment, Congress did not believe that it had the power to strip U.S. citizenship from anyone.
, — was decided by the Supreme Court, the U.S. government continued to hold to the view that intentionally performing an action which Congress had designated as "expatriating" could be interpreted as clear evidence of the type of consent to relinquish U.S. citizenship mandated by the Afroyim decision.
The statute calling for loss of U.S. citizenship for voting in a foreign election, which the Supreme Court invalidated in this decision, was eventually repealed by Congress in 1978.
Afroyim v. Rusk did not affect people who acquired U.S. citizenship via jus sanguinis
, through birth outside the United States to an American parent or parents. Such individuals could still risk loss of citizenship in various ways, since their citizenship was the result of federal statutes rather than the Fourteenth Amendment.
Even after Afroyim v. Rusk, people found to have committed fraud in the naturalization process (for example, by lying about themselves to U.S. immigration services) could still have their naturalization voided on the grounds that they had never truly been naturalized as U.S. citizens in the first place.
In Vance v. Terrazas
, the Supreme Court ruled that intent to give up U.S. citizenship had to be proven by itself and could not simply be inferred from a person's having performed an action designated by Congress as expatriating. The determination of whether a U.S. citizen had indeed given consent to loss of citizenship, however, could be made upon a preponderance of evidence. Changes of this nature were made to the citizenship law by Congress in 1986 (Public Law 99-653). However, U.S. State Department policy since 1990 has been to assume in almost all situations that an American who performs a potentially expatriating act did not in fact intend to give up U.S. citizenship, unless the person explicitly indicates such an intention to U.S. officials.
The concept of dual citizenship, which previously had been strongly opposed by the U.S. government, has become more accepted since Afroyim v. Rusk. State Department policy since 1990 has gone beyond the requirements of the Afroyim decision in allowing freedom to U.S. citizens to take advantage of multiple citizenships. Opposition to dual citizenship has continued in some circles, and in 2005, an immigration-related bill
— H.R. 3938, the "Enforcement First Immigration Reform Act of 2005" — was introduced in the 109th Congress which, had it been enacted into law, would (among other things) have repudiated current State Department policy toward the use of foreign citizenship after U.S. naturalization by making it a felony
for a naturalized U.S. citizen to vote in an election in, or use a passport from, his former country. H.R. 3938 would also have reversed the State Department's 1990 liberalization of its policy toward dual citizenship. This bill was never brought to a vote and died when the 109th Congress adjourned on January 3, 2007.
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
that a person born or naturalized in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
cannot be deprived of his or her citizenship involuntarily. The U.S. government had attempted to revoke the citizenship of a man who had voted in a foreign election after becoming a naturalized U.S. citizen, but the Supreme Court ruled that his right to keep his citizenship was guaranteed by the Fourteenth Amendment to the Constitution
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. In so doing, the Supreme Court overruled one of its own precedents, Perez v. Brownell
Perez v. Brownell
Perez v. Brownell, , was a United States Supreme Court decision which affirmed Congress's right to revoke United States citizenship as a result of a citizen's voluntary performance of specified actions, even in the absence of any intent or desire on the person's part to lose his or her citizenship...
(1958), in which the Court had upheld loss of citizenship under similar circumstances.
Background
Beys Afroyim (1893-1984) was a painterPainting
Painting is the practice of applying paint, pigment, color or other medium to a surface . The application of the medium is commonly applied to the base with a brush but other objects can be used. In art, the term painting describes both the act and the result of the action. However, painting is...
born as Ephraim Bernstein in Ryki
Ryki
Ryki is a town in eastern Poland on the main road between Warsaw and Lublin. It has 9,767 inhabitants .Situated in the Lublin Voivodeship . It is the capital of Ryki County.- History :...
, Poland
Poland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
. In 1912 he immigrated to the United States, and in 1926 he was naturalized
Naturalization
Naturalization is the acquisition of citizenship and nationality by somebody who was not a citizen of that country at the time of birth....
as a U.S. citizen. He later moved to Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...
, and as a Jew, Afroyim was automatically granted Israeli citizenship under the Law of Return
Law of Return
The Law of Return is Israeli legislation, passed on 5 July 1950, that gives Jews the right of return and settlement in Israel and gain citizenship...
. In 1960, following the breakdown of his marriage to Austrian painter Soshana Afroyim, Afroyim decided to return to the United States, but the State Department
United States Department of State
The United States Department of State , is the United States federal executive department responsible for international relations of the United States, equivalent to the foreign ministries of other countries...
refused to renew his U.S. passport, ruling that under section 401(e) of the Nationality Act of 1940 — which mandated revocation of U.S. citizenship for voting "in a political election in a foreign state" — Afroyim had lost his citizenship by voting in an Israeli election
Israeli legislative election, 1951
Elections for the second Knesset were held in Israel on 30 July 1951. Voter turnout was 75.1%.-Results:¹ Rostam Bastuni, Avraham Berman and Moshe Sneh left Mapam and set up the Left Faction. Bastuni later returned to Mapam whilst Berman and Sneh joined Maki. Hannah Lamdan and David Livschitz left...
in 1951.
The "citizenship clause
Citizenship Clause
The Citizenship Clause refers to the first sentence of Section 1 in the Fourteenth Amendment to the United States Constitution. This clause represented Congress's reversal of that portion of the Dred Scott v...
" of the Fourteenth Amendment to the United States Constitution
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
says that: 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. Afroyim argued that since "neither the Fourteenth Amendment nor any other provision of the Constitution expressly grants Congress the power to take away that citizenship once it has been acquired . . . the only way he could lose his citizenship was by his own voluntary renunciation of it." Lower courts, however, rejected Afroyim's claims, based on an earlier Supreme Court decision — Perez v. Brownell
Perez v. Brownell
Perez v. Brownell, , was a United States Supreme Court decision which affirmed Congress's right to revoke United States citizenship as a result of a citizen's voluntary performance of specified actions, even in the absence of any intent or desire on the person's part to lose his or her citizenship...
, , a case which upheld Congress's right to revoke U.S. citizenship for voting in a foreign election "under its implied power to regulate foreign affairs." Afroyim asked the Supreme Court to overrule the precedent established in Perez v. Brownell, rule the foreign voting provision of the Nationality Act to be unconstitutional, and rule that he was still a United States citizen.
Opinion of the Court
The court ruled, in a 5-4 decision, that "Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof." Specifically discarding the precedent set in the 1958 Perez v. Brownell case, the Supreme Court rejected the claim that Congress had such power and said that "no such power can be sustained as an implied attribute of sovereignty". Instead, the majority held that the Fourteenth Amendment to the Constitution defined "a citizenship which a citizen keeps unless he voluntarily relinquishes it" and which, once acquired, "was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.The court's majority also found support in the history of the Titles of Nobility Amendment
Titles of Nobility amendment
The Titles of Nobility Amendment was proposed as an amendment to the United States Constitution in 1810. Upon approval of a resolution offered by U.S. Senator Philip Reed of Maryland, during the 2nd Session of the 11th Congress, TONA was submitted to the state legislatures for ratification...
, a proposed constitutional amendment from the early nineteenth century which was passed by Congress in 1810 but never ratified by the states. This amendment, if ratified, would have removed the citizenship of any U.S. citizen who accepted a title of nobility from a foreign government. The fact that this proposal was framed as a constitutional amendment, rather than a simple law, was seen by the court as showing that, even before the passage of the Fourteenth Amendment, Congress did not believe that it had the power to strip U.S. citizenship from anyone.
Dissent
The minority argued, in their dissent, that Perez v. Brownell had been correctly decided and should not be repudiated; that the 14th Amendment had not in fact stripped Congress of the power to revoke a person's U.S. citizenship for good cause; and that Congress was within its rights to decide that allowing U.S. citizens to vote in foreign elections ran contrary to the foreign policy interests of the nation and ought to result in loss of citizenship.Subsequent developments
The Supreme Court's ruling in Afroyim v. Rusk stated that no one who had acquired U.S. citizenship through birth or naturalization in the United States could lose that citizenship without his or her consent. However, the question of how such consent might be indicated remained somewhat open. Until a later case — Vance v. TerrazasVance v. Terrazas
Vance v. Terrazas, 444 U.S. 252 , was a United States Supreme Court decision that established that a United States citizen cannot have his or her citizenship taken away unless he or she has acted with an intent to give up that citizenship...
, — was decided by the Supreme Court, the U.S. government continued to hold to the view that intentionally performing an action which Congress had designated as "expatriating" could be interpreted as clear evidence of the type of consent to relinquish U.S. citizenship mandated by the Afroyim decision.
The statute calling for loss of U.S. citizenship for voting in a foreign election, which the Supreme Court invalidated in this decision, was eventually repealed by Congress in 1978.
Afroyim v. Rusk did not affect people who acquired U.S. citizenship via jus sanguinis
Jus sanguinis
Ius sanguinis is a social policy by which citizenship is not determined by place of birth, but by having a parent who are citizens of the nation...
, through birth outside the United States to an American parent or parents. Such individuals could still risk loss of citizenship in various ways, since their citizenship was the result of federal statutes rather than the Fourteenth Amendment.
Even after Afroyim v. Rusk, people found to have committed fraud in the naturalization process (for example, by lying about themselves to U.S. immigration services) could still have their naturalization voided on the grounds that they had never truly been naturalized as U.S. citizens in the first place.
In Vance v. Terrazas
Vance v. Terrazas
Vance v. Terrazas, 444 U.S. 252 , was a United States Supreme Court decision that established that a United States citizen cannot have his or her citizenship taken away unless he or she has acted with an intent to give up that citizenship...
, the Supreme Court ruled that intent to give up U.S. citizenship had to be proven by itself and could not simply be inferred from a person's having performed an action designated by Congress as expatriating. The determination of whether a U.S. citizen had indeed given consent to loss of citizenship, however, could be made upon a preponderance of evidence. Changes of this nature were made to the citizenship law by Congress in 1986 (Public Law 99-653). However, U.S. State Department policy since 1990 has been to assume in almost all situations that an American who performs a potentially expatriating act did not in fact intend to give up U.S. citizenship, unless the person explicitly indicates such an intention to U.S. officials.
The concept of dual citizenship, which previously had been strongly opposed by the U.S. government, has become more accepted since Afroyim v. Rusk. State Department policy since 1990 has gone beyond the requirements of the Afroyim decision in allowing freedom to U.S. citizens to take advantage of multiple citizenships. Opposition to dual citizenship has continued in some circles, and in 2005, an immigration-related bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
— H.R. 3938, the "Enforcement First Immigration Reform Act of 2005" — was introduced in the 109th Congress which, had it been enacted into law, would (among other things) have repudiated current State Department policy toward the use of foreign citizenship after U.S. naturalization by making it a felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
for a naturalized U.S. citizen to vote in an election in, or use a passport from, his former country. H.R. 3938 would also have reversed the State Department's 1990 liberalization of its policy toward dual citizenship. This bill was never brought to a vote and died when the 109th Congress adjourned on January 3, 2007.
See also
- United States nationality lawUnited States nationality lawArticle I, section 8, clause 4 of the United States Constitution expressly gives the United States Congress the power to establish a uniform rule of naturalization. The Immigration and Naturalization Act sets forth the legal requirements for the acquisition of, and divestiture from, citizenship of...
- List of United States Supreme Court cases, volume 387