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The Expatriation Decisions: A Study in Constitutional Improvisation and the Uses of History*
Published online by Cambridge University Press: 02 September 2013
Extract
On February 18, 1963, in the cases of Francisco Mendoza-Martinez and Joseph Henry Cort, the Supreme Court struck down as unconstitutional a provision of the nationality code which said that “departing from or remaining outside of the jurisdiction of the United States” during wartime or a period of national emergency “for the purpose of evading or avoiding training and service in the land or naval forces of the United States” created in effect an irrebuttable presumption of a voluntary decision to expatriate, i.e., to extinguish one's American nationality. The reader who winces at this convoluted formulation should brace himself: worse is yet to come. Indeed, it would be hard to discover an area of American public law in which the premises and logic of action have been so absurdly attenuated, or in which the historical record has been so flagrantly distorted. (Unless it is in the similar area of denaturalization, which is excluded from discussion here.)
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- Copyright © American Political Science Association 1964
References
1 83 S. Ct. 554 (1963).
2 58 Stat. 746 (1944) as amended by 66 Stat. 163 (1952).
3 For the similar development of legal improvisation in this field see Roche, , “Pre-Statutory Denaturalization,” Cornell L. Q., Vol. 25 (1949), p. 120Google Scholar and “Statutory Denaturalization,” Pittsburgh L.R., Vol. 13 (1952), p. 276Google Scholar.
4 Roche, , “Loss of American Nationality: The Years of Confusion,” Western Pol. Q., Vol. 4 (1951), p. 268CrossRefGoogle Scholar; “Loss of American Nationality: The Development of Statutory Expatriation,” U. of Pa. L.R., Vol. 99 (1950), p. 25CrossRefGoogle Scholar; and the studies of denaturalization cited supra note 3.
5 Rusk v. Cort, 369 U. S. 367 (1962).
6 See Roche, , The Early Development of United States Citizenship (1949)Google Scholar.
7 See Steel, Anthony, “Impressment in the Monroe-Pinckney Negotiation, 1806–1807,” Amer. Hist. Rev., Vol. 57 (1952), p. 352CrossRefGoogle Scholar and “Anthony Merry and the Anglo-American Dispute about Impressment,” Cambridge Hist. J., Vol. 9 (1948), p. 331Google Scholar.
8 Steel, , Amer. Hist. Rev., Vol. 57 at p. 357 note 20Google Scholar; Tsiang, , The Question of Expatriation in America Prior to 1907 (1942)Google Scholar; Morrow, , “Early American Attitudes towards the Doctrine of Expatriation,” Amer. Jour. Int. Law, Vol. 26 (1932), p. 552CrossRefGoogle Scholar.
9 3 Peters 242, 246 (1830). As his correspondence reveals, John Marshall was a supporter of indefeasible allegiance: “it is a question upon which I never entertained a scintilla of doubt; and have never yet heard an argument which ought to excite a doubt in any sound and reflecting mind.” Marshall to Pickering, April 11, 1814, cited by Beveridge, , Life of Marshall (1916–1919), Vol. 4, p. 54Google Scholar.
10 Kent, , Commentaries (1827), Vol. 2, pp. 49–50Google Scholar.
11 See Roche, “Loss of American Nationality: The Years of Confusion,” op. cit., supra note 4 at pp. 274–277.
12 See tenBroek, , Anti-Slavery Origins of the Fourteenth Amendment (1951)Google Scholar.
13 Scott v. San [d] ford, 19 Howard 393 (1857).
14 As incorporated, for example, in Justice McKenna's opinion of the Court in MacKenzie v. Hare, 239 U.S. 299 (1915), or Justice Jackson's in Mandoli v. Acheson, 344 U.S. 135 (1952).
15 Stat. 223 (1868). It is perhaps worth recalling that preambles have no legal force, Jacobson v. Mass., 197 U.S. 11 (1905).
16 Ibid.; see Roche, op. cit., supra note 11 at pp. 282–285 for a discussion of the legislative history of this enactment.
17 See ibid. at pp. 286–294 for an analysis of the interpretations of the 1868 statute.
18 Ibid. There was no authoritative judicial determination.
19 Ibid. at p. 289.
20 34 Stat. 1228 (1907). The companion legislation dealt with naturalization, 34 Stat. 596 (1906).
21 For detail see Roche, “The Loss of American Nationality: The Development of Statutory Expatriation,” op. cit., supra note 4.
22 MacKenzie v. Hare, 239 U.S. 299, 311 (1915).
23 54 Stat. 1169 (1940). There was also a special provision for renunciation of American nationality, designed for use by dual nationals living abroad.
24 66 Stat. 163 (1952). There were some additions and changes. Service in the armed forces of a foreign state was held to expatriate without regard to the stipulation of the 1940 act quoted in the text. Accepting service for a foreign government cost one his nationality if (a) he had or acquired the nationality of such state, or (b) if he were required to declare allegiance to such foreign power as a prerequisite for employment. Sec. 349, Immigration and Nationality Act of 1952, 8 U.S.C. 1481.
25 356 U.S. 86 (1958).
26 54 Stat. 1169 (1940).
27 Ibid.
28 58 Stat. 746 (1944).
29 68 Stat. 1146 (1954).
30 Sec. 349 (a) (10), Act of 1952.
31 356 U.S. 86 (1958).
32 83 S. Ct. 554 (1963).
33 356 U.S. 44 (1958).
34 Kennedy v. Mendoza-Martinez, 83 S. Ct. 554 (1963), Brief for Appellant, pp. 53–64. The Solicitor general did not reargue this issue in his brief in the Cort case.
35 See summary of various provisions for denationalization in U.N. General Assembly Doc. No. A/CN.4/66, 6 April 1953, Section 9.
36 Ibid.
37 Ibid.
38 Ibid. See also Laws Concerning Nationality, U.N. Doc. No. ST/LEG/SER. B/4 (1954).
39 Ames, , “Proposed Amendments to the Constitution,” Annual Report of the American Historical Assoc. 1896, Vol. 2 (1896), pp. 186–187Google Scholar.
40 11 Annals of Congress 549 (1810).
41 Ames, op. cit., supra note 39, at p. 187.
42 See Richardson, , Messages and Papers of the Presidents (1899), Vol. 6, p. 223Google Scholar.
43 13 Stat. 490 (1865).
44 As already noted, the distinction between citizenship and rights of citizenship was not lost on Civil War legislators. In 1865 Congressman Ashley of Ohio introduced a measure to deprive high Confederate officials of their citizenship, Cong. Globe, 38th Cong., 2d sees., p. 280. This was immediately forestalled when Congressman Eliot of Massachusetts noted that “A person cannot commit treason if he is not a citizen.” Ibid. at p. 299.
45 Cong. Globe, 38 Cong., 2d sess., p. 643 (Schenckof Ohio).
46 43 Stat. 1940 (1924). For whatever it may be worth, Coolidge referred to those in this category as “fellow citizens.” See generally Gathings, “Loss of Citizenship and Civil Rights for Conviction of Crime,” this Review, Vol. 43 (1949), p. 1228Google Scholar.
47 2 Hearings before Committee on Immigration and Naturalization on H.R. 6127, 76 Cong., 1st sess., Vol. 2, p. 38 (1940). But see In the Matter of P——, 1 I. & N. Dec. 127, 132 (Board of Immigration Appeals, 1941).
48 Who was by birth a dual national of the United States (jure soli) and Mexico (jure sanguinis).
49 Roche, op. cit., supra note 6.
50 See Van Tyne, , The Loyalists in the American Revolution (1929)Google Scholar; Hurst, , “Treason in the United States,” Harvard Law Review, Vol. 58 (1945), pp. 226, 268–272Google Scholar.
51 MacKenzie v. Hare, 239 U.S. 299 (1915).
52 307 U.S. 325 (1939).
53 Ibid. at 334.
54 Ibid. at 329.
55 15 Stat. 615 (1868). See Roche, op. cit., supra note 11 at pp. 285–286.
56 Such dissension was part of the background of the Elg case, see Roche, op. cit., supra note 21 at pp. 30–31.
57 15 Annals of Congress 1050 (1818).
58 See Roche, , “The Expatriation Cases: Breathes There the Man with Soul So Dead … ?,” in Kurland, , ed., 1963 Supreme Court Review (1963)Google Scholar.
59 Mandoli v. Acheson, 344 U.S. 133, 135 (1952)
60 Luria v. U.S., 231 U.S. 9 (1913).
61 Mahler v. Eby, 264 U.S. 32 (1924); Fong Yue Ting v. U.S., 149 U.S. 698 (1893).
62 Flemming v. Nestor, 363 U.S. 603 (1960).
63 Johannessen v. U.S., 225 U.S. 227, 236–38 (1912).
64 See e.g., Judge Geiger's comment in U.S. v. Kamm 247 Fed. 968, 974 (E.D. Wis. 1918).
65 Tatun v. U.S., 270 U.S. 568, 577 (1926).
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