ArtI.S8.C4.1.6.2 Development of Expatriation Doctrine

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; . . .

Under British common law, the “doctrine of perpetual allegiance” prescribed that an individual retained allegiance to his country of nationality, and could not lose that “bond of allegiance” through his own actions or the acts of a foreign nation.1 But during the early years of the United States, there was some disagreement over whether a U.S. citizen had the right to renounce citizenship.2 Some argued that the doctrine of perpetual allegiance restricted an individual’s ability to relinquish citizenship, while others contended that there was an inherent right of expatriation.3 In one early case, Talbot v. Jansen, the Supreme Court in 1795 determined that a U.S. citizen’s temporary absence from the United States could not be construed as an expatriation.4 The U.S. citizen had captured a Dutch vessel in violation of piracy laws, and, when arrested upon returning to the United States, he claimed that he had expatriated himself by swearing allegiance to France.5 While concluding that the individual “was, and still is, a citizen of the United States,” the Court noted that “[a] statute of the United States, relative to expatriation is much wanted.” 6

Eventually Congress in 1868 passed a law declaring that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.” 7 The law prohibited government action that denied or restricted the right of expatriation, and provided protections to foreign nationals who had relinquished their native citizenship to become U.S. citizens, and who were detained by their former governments.8 While the 1868 Act recognized an “inherent right” of expatriation, the law did not specify the circumstances in which an individual would be considered to have expatriated himself, or address the government’s authority to remove citizenship on the grounds of expatriation.9

After the 1868 expatriation act, the United States entered into treaties with other countries that sought to resolve certain disagreements about citizenship.10 While these treaties generally clarified that persons naturalized in a country would be considered citizens of that country, they also contemplated circumstances in which citizenship could be lost based on the commission of certain acts.11 Based on these treaties, the State Department began issuing ad hoc rulings that determined, in individual cases, whether U.S. citizens had lost their citizenship following the commission of certain acts abroad.12 These administrative rulings laid the groundwork for legislation that would authorize the government to strip citizenship from U.S. citizens who were considered to have expatriated themselves abroad.13

See Jonathan David Shaub, Expatriation Restored, 55 Harv. J. on Legis. 363, 370–71 (2018) ( “Under British law at the time of the Declaration of Independence, the bond of allegiance between a sovereign and its subject was an immutable, permanent bond established by the law of nature.” ). back
Id. at 372 ( “The question of expatriation was of fundamental importance during the early days of the United States, and the debate largely fell along the familiar divide between the Federalists and Republicans, exemplified by the distinctly different views of Thomas Jefferson and Alexander Hamilton.” ); see also Afroyim v. Rusk, 387 U.S. 253, 257 (1967) ( “And even before the adoption of the Fourteenth Amendment, views were expressed in Congress and by this Court that under the Constitution the Government was granted no power, even under its express power to pass a uniform rule of naturalization, to determine what conduct should and should not result in the loss of citizenship.” ). back
See Alan G. James, Expatriation in the United States: Precept and Practice Today and Yesterday, 27 San Diego L. Rev. 853, 862 (1990) ( “Secretaries of State Jefferson, Marshall, Madison, and Monroe vigorously defended the view that expatriation is a natural right.” ); Shaub, supra note 1, at 372 ( “The Federalists, by contrast, continued to espouse a vestige of the doctrine of perpetual allegiance, in which the sovereign retained authority over the relinquishment of citizenship.” ). back
3 U.S. (3 Dall.) 133, 153–54 (1795). back
Id. at 152–54. back
Id. at 153–54; see also Shanks v. Dupont, 28 U.S. 242, 246 (1830) ( “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.” ), superseded by statute, Act of July 27, 1868, ch. 249, 15 Stat. 223. back
Act of July 27, 1868, ch. 249, 15 Stat. 223. back
Id. back
Id.; see also Afroyim v. Rusk, 387 U.S. 253, 265–66 (1967) ( “The Act, as finally passed, merely recognized the ‘right of expatriation’ as an inherent right of all people.” ). back
See James, supra note 3, at 866 ( “Typically, these treaties provided that each of the signatories would acknowledge as a citizen of the other such of its citizens who became naturalized by the other. The treaties thus removed a serious irritant from the relations of the United States with the states with which they were concluded.” ). back
See Perez v. Brownell, 356 U.S. 44, 48 (1958) ( “This series of treaties initiated this country’s policy of automatic divestment of citizenship for specified conduct affecting our foreign relations.” ), overruled by Afroyim v. Rusk, 387 U.S. 253 (1967) . back
See id. at 49 ( “On the basis, presumably, of the Act of 1868 and such treaties as were in force, it was the practice of the Department of State during the last third of the nineteenth century to make rulings as to forfeiture of United States citizenship by individuals who performed various acts abroad.” ); Shaub, supra note 1, at 384 ( “Recognizing that the United States had no authority to determine whether a foreign nation, under its law, considered a particular individual its citizen or subject, the United States entered into a series of international treaties and began to formulate a body of Executive Branch common law to implement them. The State Department was responsible for receiving and responding to requests for assistance from U.S. citizens abroad, and, in administering this responsibility, it applied the Executive Branch common law.” ). back
See Perez, 356 U.S. at 49 ( “[I]t was recognized in the Executive Branch that the [State] Department had no specific legislative authority for nullifying citizenship, and several of the Presidents urged Congress to define the acts by which citizens should be held to have expatriated themselves.” ); Shaub, supra note 1, at 384 ( “Ultimately, the rules and procedures of the Executive Branch common law were codified.” ). back