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WARREN, C. J., dissenting.

356 U.S.

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. S. 649, 703. 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 the United States, 9 Wheat. 738, 827:

"[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

7U. S. Const., Art. I, § 8, cl. 4.

8 See, e. g., Knauer v. United States, 328 U. S. 654; Baumgartner v. United States, 322 U. S. 665; Schneiderman v. United States, 320 U. S. 118.

9 Act of July 27, 1868, 15 Stat. 223.

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WARREN, C. J., dissenting.

right of all people "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.11 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.12 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.13 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: 15

14

"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.

10 Ibid.

11 See Savorgnan v. United States, 338 U. S. 491, 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, 97-98, 108109.

12 See Shanks v. Dupont, 3 Pet. 242; Inglis v. Trustees of Sailor's Snug Harbour, 3 Pet. 99.

13 3 Moore, Digest of International Law, §§ 434-437; Tsiang, 45-55, 71-86, 110-112.

14 Tsiang, 55-61.

159 Op. Atty. Gen. 356, 359.

WARREN, C. J., dissenting.

356 U.S.

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.16 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.18 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

18 See, e. g., Savorgnan v. United States, 338 U. S. 491; Mackenzie v. Hare, 239 U. S. 299; Bauer v. Clark, 161 F. 2d 397, cert. denied, 332 U. S. 839. Cf. Acheson v. Maenza, 92 U. S. App. D. C. 85, 202 F.2d 453.

17 See Laws Concerning Nationality, U. N. Doc. No. ST/LEG/ SER.B/4 (1954).

18 See, generally, Laws Concerning Nationality, op. cit. supra, note 17.

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WARREN, C. J., dissenting.

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, 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 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.

19

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." 20 "At the termina

19 Act of March 2, 1907, 34 Stat. 1228-1229. The full text is as follows:

"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 therein."

20 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

WARREN, C. J., dissenting.

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356 U.S.

tion 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.21 One of those recommendations, substantially incorporated in the 1907 Act, was as follows: 22

"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 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 1007; In re Krausmann, 28 F. 2d 1004; In re Page, 12 F. 2d 135. Cf. Pequignot v. Detroit, 16 F. 211.

21 S. Res. 30, 59th Cong., 1st Sess.; H. R. Rep. No. 4784, 59th Cong., 1st Sess.

22 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., at 3.

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