Article I, Section 8, Clause 4:
[The Congress shall have Power . . .] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; . . .
The history of the right of expatriation, voluntarily on the part of the citizen or involuntarily under duress of statute, is shadowy in United States constitutional law. Justice Story, in the course of an opinion,1 and Chancellor Kent, in his writings,2 accepted the ancient English doctrine of perpetual and unchangeable allegiance to the government of one's birth, a citizen being precluded from renouncing his allegiance without permission of that government. The pre-Civil War record on the issue is so vague because there was wide disagreement on the basis of national citizenship in the first place, with some contending that national citizenship was derivative from state citizenship, which would place the power of providing for expatriation in the state legislatures, and with others contending for the primacy of national citizenship, which would place the power in Congress.3 The citizenship basis was settled by the first sentence of § 1 of the Fourteenth Amendment, but expatriation continued to be a muddled topic. An 1868 statute specifically recognized
the right of expatriation by individuals, but it was directed to affirming the right of foreign nationals to expatriate themselves and to become naturalized United States citizens.4 An 1865 law provided for the forfeiture of the
rights of citizenship of draft-dodgers and deserters, but whether the statute meant to deprive such persons of citizenship or of their civil rights is unclear.5 Beginning in 1940, however, Congress did enact laws designed to strip of their citizenship persons who committed treason,6 deserted the armed forces in wartime,7 left the country to evade the draft,8 or attempted to overthrow the government by force or violence.9 In 1907, Congress provided that female citizens who married foreign citizens were to have their citizenship held
in abeyance while they remained wedded but to be entitled to reclaim it when the marriage was dissolved.10
About the simplest form of expatriation, the renunciation of citizenship by a person, there is no constitutional difficulty.
Expatriation is the voluntary renunciation or abandonment of nationality and allegiance.11 But while the Court has hitherto insisted on the voluntary character of the renunciation, it has sustained the power of Congress to prescribe conditions and circumstances the voluntary entering into of which constitutes renunciation; the person need not intend to renounce so long as he intended to do what he did in fact do.12
The Court first encountered the constitutional issue of forced expatriation in the rather anomalous form of the statute,13 which placed in limbo the citizenship of any American female who married a foreigner. Sustaining the statute, the Court relied on the congressional foreign relations power exercised in order to prevent the development of situations that might entangle the United States in embarrassing or hostile relationships with a foreign country. Noting too the fictional merging of identity of husband and wife, the Court thought it well within congressional power to attach certain consequences to these actions, despite the woman's contrary intent and understanding at the time she entered the relationship.14
Beginning in 1958, the Court had a running encounter with the provisions of the 1952 Immigration and Nationality Act, which prescribed expatriation for a lengthy series of actions.15 In 1958, a five-to-four decision sustained the power to divest a dual national of his United States citizenship because he had voted in an election in the other country of which he was a citizen.16 But at the same time, another five-to-four decision, in which a majority rationale was lacking, struck down punitive expatriation visited on persons convicted by court-martial of desertion from the armed forces in wartime.17 In the next case, the Court struck down another punitive expatriation visited on persons who, in time of war or emergency, leave or remain outside the country in order to evade military service.18 And, in the following year, the Court held unconstitutional a section of the law that expatriated a naturalized citizen who returned to his native land and resided there continuously for a period of three years.19
The cases up to this point had lacked a common rationale and would have seemed to permit even punitive expatriation under the proper circumstances. But, in Afroyim v. Rusk,20 a five-to-four majority overruled the 1958 decision permitting expatriation for voting in a foreign election and announced a constitutional rule against all but purely voluntary renunciation of United States citizenship. The majority ruled that the first sentence of § 1 of the Fourteenth Amendment constitutionally vested citizenship in every person
born or naturalized in the United States and that Congress was powerless to take that citizenship away.21 The continuing vitality of this decision was called into question by another five-to-four decision in 1971, which technically distinguished Afroyim in upholding a congressionally prescribed loss of citizenship visited upon a person who was statutorily naturalized
outside the United States, and held not within the protection of the first sentence of § 1 of the Fourteenth Amendment.22 Thus, although Afroyim was distinguished, the tenor of the majority opinion was hostile to its holding, and it may be that a future case will overrule it.
The issue, then, of the constitutionality of congressionally prescribed expatriation is unsettled.