Mackenzie v. Hare/Opinion of the Court

Mandamus prosecuted by plaintiff in error as petitioner against defendants in error, respondents, as and composing the board of election commissioners of the city and county of San Francisco, to compel her registration as a qualified voter of the city and county, in the appropriate precinct therein.

An alternative writ was issued, but a permanent writ was denied upon demurrer to the petition.

The facts are not in dispute and are stated by Mr. Justice Shaw, who delivered the opinion of the court, as follows:

'The plaintiff was born and ever since has resided in the state of California. On August 14, 1909, being then a resident and citizen of this state and of the United States, she was lawfully married to Gordon Mackenzie, a native and subject of the kingdom of Great Britain. He had resided in California prior to that time, still resides here, and it is his intention to make this state his permanent residence. He has not become naturalized as a citizen of the United States and it does not appear that he intends to do so. Ever since their marriage the plaintiff and her husband have lived together as husband and wife. On January 22, 1913, she applied to the defendants to be registered as a voter. She was then over the age of twenty-one years and had resided in San Francisco for more than ninety days. Registration was refused to her on the ground that, by reason of her marriage to Gordon Mackenzie, a subject of Great Britain, she thereupon took the nationality of her husband and ceased to be a citizen of the United States.' [165 Cal. 778, L.R.A.--, --, 134 Pac. 713, Ann. Cas. 1915B, 261.]

Plaintiff in error claims a right as a voter of the state under its Constitution and the Constitution of the United States.

The Constitution of the state gives the privilege of suffrage to 'every native citizen of the United States,' and it is contended that under the Constitution of the United States every person born in the United States is a citizen thereof. The latter must be conceded, and if plaintiff has not lost her citizenship by her marriage, she has the qualification of a voter prescribed by the Constitution of the state of California. The question then is. Did she cease to be a citizen by her marriage?

On March 2, 1907, that is, prior to the marriage of plaintiff in error, Congress enacted a statute the 3d section of which provides: '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 therein.' [34 Stat. at L. 1228, chap. 2534, Comp. Stat. 1913, § 3960.]

Plaintiff contends that 'such legislation, if intended to apply to her, is beyond the authority of Congress.'

Questions of construction and power are, therefore, presented. Upon the construction of the act it is urged that it was not the intention to deprive an American-born woman, remaining within the jurisdiction of the United States, of her citizenship by reason of her marriage to a resident foreigner. The contention is attempted to be based upon the history of the act and upon the report of the committee, upon which, it is said, the legislation was enacted. Both history and report show, it is asserted, 'that the intention of Congress was solely to legislate concerning the status of citizens abroad and the questions arising by reason thereof.'

Does the act invite or permit such assistance? Its declaration is general, 'that any American woman who marries a foreigner shall take the nationality of her husband.' There is no limitation of place; there is no limitation of effect, the marital relation having been constituted and continuing. For its termination there is provision, and explicit provision. At its termination she may resume her American citizenship if in the United States by simply remaining therein; if abroad, by returning to the United States, or, within one year, registering as an American citizen. The act is therefore explicit and circumstantial. It would transcend judicial power to insert limitations or conditions upon disputable considerations of reasons which impelled the law, or of conditions to which it might be conjectured it was addressed and intended to accommodate.

Whatever was said in the debates on the bill or in the reports concerning it, preceding its enactment or during its enactment, must give way to its language; or, rather, all the reasons that induced its enactment and all of its purposes must be supposed to be satisfied and expressed by its words, and it makes no difference that in discussion some may have been given more prominence than others, seemed more urgent and insistent than others, presented the mischief intended to be remedied more conspicuously than others.

The application of the law thus being determined, we pass to a consideration of its validity.

An earnest argument is presented to demonstrate its invalidity. Its basis is that the citizenship of plaintiff was an incident to her birth in the United States, and, under the Constitution and laws of the United States, it became a right, privilege, and immunity which could not be taken away from her except as a punishment for crime or by her voluntary expatriation.

The argument to support the contention and the argument to oppose it take a wide range through the principles of the common law and international law and their development and change. Both plaintiff and defendants agree that under the common law originally allegiance was immutable. They do not agree as to when the rigidity of the principle was relaxed. Plaintiff in error contests the proposition which she attributes to defendants in error, 'that the doctrine of perpetual allegiance maintained by England was accepted by the United States,' but contends 'that the prevalent doctrine of this country always has been that a citizen had a right to expatriate himself,' and cites cases to show that expatriation is a natural and inherent right.

Whether this was originally the law of this country or became such by inevitable evolution it is not important to inquire. The first view has certainly high authority for its support. In Shanks v. Dupont, 3 Pet. 242, 246, 7 L. ed. 666, 668, Mr. Justice Story, delivering the judgment of the court, said: 'The general doctrine is, that no persons can by any act of their own, without the consent of the government, put off their allegiance, and become aliens.' And Kent, in his Commentaries, after a historical review of the principle and discussion in the Federal courts, declares that 'the better opinion would seem to be, that a citizen cannot renounce his allegiance to the United States without the permission of government to be declared by law; and that, as there is no existing legislative regulation on the case, the rule of the English common law remains unaltered.' 2 Kent, 14th ed. 49. The deduction would seem to have been repelled by the naturalization laws, and it was certainly opposed to executive opinion; and, we may say, popular sentiment, so determined that it sought its vindication by war. Further discussion would lead us far afield, and, besides, would only have historical interest. The condition which Kent suggested has occurred; there is a legislative declaration. In 1868 Congress explicitly declared the right of expatriation to have been and to be the law. And the declaration was in effect said to be the dictate of necessity. The act recites that emigrants have been received and invested with citizenship in recognition of the principle of the right of expatriation and that there should be a prompt and final disavowal of the claim 'that such American citizens, with their descendants, are subjects of foreign states.' Rev. Stat. § 1999, Comp. Stat. 1913, § 3955.

But plaintiff says, 'Expatriation is evidenced only by emigration, coupled with other acts indicating an intention to transfer one's allegiance.' And all the acts must be voluntary, 'the result of a fixed determination to change the domicil and permanently reside elsewhere, as well as to throw off the former allegiance, and become a citizen or subject of a foreign power.'

The right and the condition of its exercise being thus defined, it is said that the authority of Congress is limited to giving its consent. This is variously declared and emphasized. 'No act of the legislature,' plaintiff says, "can denationalize a citizen without his concurrence," citing Burkett v. McCarty, 10 Bush, 758. 'And the sovereign cannot discharge a subject from his allegiance against his consent except by disfranchisement as a punishment for crime,' citing Ainslie v. Martin, 9 Mass. 454. 'The Constitution does not authorize Congress to enlarge or abridge the rights of citizens,' citing Osborn v. Bank of United States, 9 Wheat. 738, 6 L. ed. 204. 'The power of naturalization vested in Congress by the Constitution is a power to confer citizenship, not a power to take it away. . . . The 14th Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict strict the effect of birth declared by the Constitution to constitute a sufficient and complete right to citizenship;' citing United States v. Wong Kim Ark, 169 U.S. at p. 703, 42 L. ed. 910, 18 Sup. Ct. Rep. 456.

It will thus be seen that plaintiff's contention is in exact antagonism to the statute. Only voluntary expatriation, as she defines it, can devest a woman of her citizenship, she declares; the statute provides that, by marriage with a foreigner, she takes his nationality.

It would make this opinion very voluminous to consider in detail the argument and the cases urged in support of or in attack upon the opposing conditions. Their foundation principles, we may assume, are known. The identity of husband and wife is an ancient principle of our jurisprudence. It was neither accidental nor arbitrary, and worked in many instances for her protection. There has been, it is true, much relaxation of it, but in its retention as in its origin it is determined by their intimate relation and unity of interests, and this relation and unity may make it of public concern in many instances to merge their identity, and give dominance to the husband. It has purpose, if not necessity, in purely domestic policy; it has greater purpose, and, it may be, necessity, in international policy. And this was the dictate of the act in controversy. Having this purpose, has it not the sanction of power?

Plaintiff contends, as we have seen, that it has not, and bases her contention upon the absence of an express gift of power. But there may be powers implied, necessary or incidental to the expressed powers. 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. But monition is not necessary in the present case. There need be no dissent from the cases cited by plaintiff; there need be no assertion of very extensive power over the right of citizenship or of the imperative imposition of conditions upon it. It may be conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen. The law in controversy does not have that feature. It deals with a condition voluntarily entered into, with notice of the consequences. 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. And this is an answer to the apprehension of counsel that our construction of the legislation will make every act, though lawful, as marriage, of course, is, a renunciation of citizenship. The marriage of an American woman with a foreigner has consequences of like kind, may involve national complications of like kind, as her physical expatriation may involve. Therefore, as long as the relation lasts, it is made tantamount to expatriation. This is no arbitrary exercise of government. It is one which, regarding the international aspects, judicial opinion has taken for granted would not only be valid, but demanded. 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. It is as voluntary and distinctive as expatriation and its consequence must be considered as elected.

Judgment affirmed.

Mr. Justice McReynolds is of opinion that this court is without jurisdiction, and that therefore this writ of error should be dismissed.