44 WARREN, C. J., dissenting. 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, 23 and the law of foreign states." The statute was merely declarative of the law as it was then 23 Consult, generally, 3 Moore, § 410 (2) ("Reversion of Nationality"); Van Dyne, Naturalization, 242-255. Numerous cases contain references to a woman's "reverting" to United States citizenship after the termination of her marriage to an alien. E. g., Petition of Zogbaum, 32 F. 2d 911, 913; Petition of Drysdale, 20 F. 2d 957, 958; In re Fitzroy, 4 F. 2d 541, 542. The Department of State adopted the same interpretation. In 1890 Secretary Blaine declared the view of the Department that: "The marriage of an American woman to a foreigner does not completely divest her of her original nationality. Her American citizenship is held for most purposes to be in abeyance during coverture, but to be susceptible of revival by her return to the jurisdiction and allegiance of the United States." (Emphasis added.) Foreign Rel. U. S. 1890, 301. In 1906 Secretary Root stated: "Under the practice of the Department of State a widow or a woman who has obtained an absolute divorce, being an American citizen and who has married an alien, must return to the United States, or must have her residence here in order to have her American citizenship revert on becoming femme sole." Foreign Rel. U. S. 1906, Pt. 2, 1365. 24 Consult, generally, 3 Moore, 458-462. H. R. Doc. No. 326, 59th Cong., 2d Sess. 269-538, a report by the Department of State which Congress requested prior to its Act of March 2, 1907, contains a digest of the nationality laws of forty-four countries. Twenty-five of those provided in widely varying terms that upon marriage a woman's citizenship should follow that of her husband. Of these twenty-five, all but two made special provision for the woman to recover her citizenship upon termination of the marriage by compliance with certain formalities demonstrative of the proper intent, and in every instance wholly different from the ordinary naturalization procedures. WARREN, C. J., dissenting. 356 U.S. understood.25 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 312, 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 commonlaw fiction now largely a relic of the past-may itself be outdated.26 However that may be, the foregoing demon 25 In re Wohlgemuth, 35 F. 2d 1007; In re Krausmann, 28 F. 2d 1004; Petition of Drysdale, 20 F. 2d 957; In re Page, 12 F. 2d 135. In fact, Congressman Perkins, supporting the bill on the floor of the House, explained its effect in these words: "The courts have decided that a woman takes the citizenship of her husband, only the decisions of the courts provide no means by which she may retake the citizenship of her own country on the expiration of the marital relation. This bill contains nothing new in that respect, except a provision that when the marital relation is terminated the woman may then retake her former citizenship." 41 Cong. Rec. 1465. Cases discussing the pre-1907 law generally held that a woman did not lose her citizenship by marriage to an alien, although she might bring about that result by other acts (such as residing abroad after the death of her husband) demonstrating an intent to relinquish that citizenship. E. g., Shanks v. Dupont, 3 Pet. 242; In re Wright, 19 F. Supp. 224; Petition of Zogbaum, 32 F. 2d 911; In re Lynch, 31 F. 2d 762; Petition of Drysdale, 20 F. 2d 957; In re Fitzroy, 4 F. 2d 541; Wallenburg v. Missouri Pacific R. Co., 159 F. 217; Ruckgaber v. Moore, 104 F. 947; Comitis v. Parkerson, 56 F. 556. This was also the view of the Department of State. 3 Moore, 449-450; 3 Hackworth, 247-248. 26 The marriage provisions of the 1907 legislation were substantially repealed by the 1922 Cable Act, 42 Stat. 1021, and the last remnants of the effect of marriage on loss of citizenship were eliminated in 1931. 46 Stat. 1511. See Roche, The Loss of American Nationality, 99 U. of Pa. L. Rev. 25, 47-49. 44 WARREN, C. J., dissenting. strates 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 accordance 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.28 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: 29 "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.) 27 See 86 Cong. Rec. 11943. 28 Exec. Order No. 6115, April 25, 1933. 29 Codification of the Nationality Laws of the United States, H. R. Comm. Print, Pt. 1, 76th Cong., 1st Sess. VII. 458778 0-58- -9 WARREN, C. J., dissenting. 356 U.S. 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 30-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: 31 "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." 30 The bill was considered by the House Committee on Immigration and Naturalization and its subcommittee. Hearings before the House Committee on Immigration and Naturalization on H. R. 6127, 76th Cong., 1st Sess. The Senate did not hold hearings on the bill. 31 Hearings, at 37-38. 44 WARREN, C. J., dissenting. 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." 32 The precise issue posed by Section 401 (e) is whether the conduct it describes invariably involves a dilution of undivided 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.33 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 32 Id., at 132. The passport provision was apparently deleted by the subcommittee, for it does not appear in the version of the bill that was printed when hearings resumed before the full committee on May 2, 1940. Id., at 207. 33 Cf. In the Matter of P 1 I. & N. Dec. 267 (this par ticular election in Canada was open only to British subjects). |