Perez v. Brownell/Dissent Warren

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. The petitioner in this case, a native-born American, is declared to have lost his citizenship by voting in a foreign election. 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 considerations.

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 initial 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.

Citizenship is 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. 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 be subject to deportation and thereby deprived of the right to assert any rights. This government was not established with power to decree this fate.

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 United States and of the State wherein they reside.' United States citizenship is thus the constitutional birth-right 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.S. 649, 703, 18 S.Ct. 456, 477, 42 L.Ed. 890. The Constitution also provides that citizenship can be bestowed under a 'uniform Rule of Naturalization,' but there is no corresponding provision authorizing divestment. Of course, naturalization unlawfully procured can be set aside. But apart from this circumstance, the status of the naturalized citizen is secure. As this Court stated in Osborn v. Bank of United States, 9 Wheat. 738, 827, 6 L.Ed. 204:

'(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 those rights. 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. Congress declared that 'the right of expatriation is a natural and inherent right of all people * *  * .'  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. 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. And, 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. Prior to 1868 all efforts to obtain congressional enactments concerning expatriation failed. 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:

'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.

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 world.'

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. 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. 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. 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 under these 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.S. 491, 70 S.Ct. 292, 94 L.Ed. 287, 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 another nation.' 338 U.S. at page 498, 70 S.Ct. at page 296. Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, 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. It provided that 'any American woman who marries a foreigner shall take the nationality of her husband.' 'At the termination of the marital relation,' the statute continues, 'she may resume 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. One of those recommendations, substantially incorporated in the 1907 Act, was as follows:

'That an American woman who marries a foreigner shall take     during coverture 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 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, and the law of foreign states. The statute was merely declarative of the law as it was then understood. Although the opinion in Mackenzie v. Hare contains some 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 page 312, 36 S.Ct. at page 108, not as having surrendered her citizenship. 'Therefore,' the Court concludes, 'as long as the relation lasts, it is made tantamount to expatriation.' Ibid. (Emphasis added.)

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. However that may be, the foregoing demonstrates that Mackenzie v. Hare should not be understood to sanction a power to divest citizenship. Rather this case, like Savorgnan, simply acknowledges that United States citizenship can be abandoned, temporarily or permanently, by conduct showing a voluntary transfer of allegiance to another country.

The background of the congressional enactment pertinent to this case indicates that Congress was proceeding generally in accordane 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. 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:

'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.' (Emphasis added.) 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,  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:

'Mr. Poage. Isn't that based on the constitutional provision     that all persons born in the United States are citizens      thereof?

'Mr. Flournoy. Yes.

'Mr. Poage. In other words, it is not a matter we have any     control over.

'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 provisions.

'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 of citizenship.

'Mr. Rees. Surely, that way.' 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.'

The precise issue posed by Section 401(e) is whether the conduct it describes invariably involves a dilution of undividued 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. 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 an election of nationality by taking advantage of his Canadian citizenship and voting 'as a Canadian.' 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:

'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. 'The connection between the fact proved and that presumed is not sufficient.' Manley v. State of Georgia, 279 U.S. 1, 7, 49 S.Ct. 215, 217, 73 L.Ed. 575; see also Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; Bailey v. State of Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191. The 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. 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.

My conclusions are as follows. The Government is without power to take citizenship away from a native-born or lawfully naturalized American. The Fourteenth 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.