From: fgz@ddxrus.enet.dec.com (Federico Genoese-Zerbi)
Newsgroups: soc.culture.italian
Subject: Re: Cittadinanza doppia?
Date: 20 Aug 92 17:41:37 GMT
Reply-To: fgz@ddxrus.enet.dec.com (Federico Genoese-Zerbi)
Organization: Digital Equipment Corporation



Alcune persone mi hanno chiesto di fare un posting del mio
articolo sulla cittadinanza USA, ed eccolo qui....

Chiedo scusa per vari errori di ortografia, e per la mancanza delle
citazioni  -- tutto questo a causa della conversione da MacWrite II a
ASCII.

Saluti.

F.





Expatriation: Constitutional Constraints and National Policy


Federico Genoese Zerbi







When the framers of the United States constitution drafted that
historic document, they provided little guidance for how citizenship
should be handled.  References to United States citizenship in the
original constitution were few.  Under the original constitution
ratified in 1787, congress had limited power indeed to regulate
citizenship--it was granted the power to "establish an uniform Rule of
Naturalization..." Despite this language however, the states retained
the right to import or admit such persons as they deemed appropriate
or necessary until the year 1808.  The existence of a United States
citizenship status which can be reasonably inferred from the wording
of the naturalization clause of article 8, is in fact explicitly
listed as a prerequisite for holding office as president,
representative in congress , or senator.  Interestingly enough
however, the constitution did not abolish citizenship in the several
states, and in fact ensured that citizens of a state would receive the
equal protection of law in each individual sovereign as the citizens
of the foreign state; the framers thus recognized a dual and parallel
citizenship of sorts.  Obviously citizens of each state were entitled
to the rights and protections flowing from each of their citizenships.


The equal protection clause of article IV, was expanded upon and
strengthened in 1868 with the passage of the XIV amendment.  The XIV
amendment to some extent limited the power of congress to regulate
naturalization, for it provided in part that "All persons born [...]
in the United States [...] are citizens of the Unites States".
Implicit in these words is the assumption that congress could not
limit or deny citizenship from natural born citizens.  More
importantly the XIV amendment also provides that "No State shall make
or enforce any law which shall abridge the privileges or immunities of
citizens of the United States".  The XIV amendment however also
maintained the dual-citizenship status of every citizen of the united
states, for it provides that all persons that fall within its wording
are not simply citizens of the United States, but also of "...the
State wherein they reside".  Through the incorporation doctrine, the
supreme court, has found that the XIV amendment applies to the federal
government and not just states.  Congress' power to regulate
naturalization is thus limited, despite the words of Article 1.
Indeed, its power resides in the space bounded by Article 1 and the
XIV amendment; the interpretation and scope of this space has evolved
over the years and shaped by several decisions of the supreme court.


If congress' power to naturalize is limited and not clearly defined by
the constitution, its power to expatriate, that is to take away
citizenship, is even less clear.  Through the history of the congress,
several laws have been passed which attempted to define actions and
circumstances leading to denaturalization.  These laws have met with
different degrees of success on constitutional challenges.  Absent
specific language in the constitution, and cognizant of international
law tenets recognizing certain special statuses the supreme court has
initially dealt with these laws inconsistently.  Over the last twenty
years however, it has developed a more consistent approach to the
problem, and forced the Unites States Department of State to modify
its policy in this area.  Now, it looks like the court may, once again
change its posture.  This paper will examine the evolution of the law
and national policy on the issue of multiple nationalities and probe
the limits of the power of congress to expatriate and denaturalize
United States citizens.


When the United States organized themselves as a nation, the country
was sparsely populated and immigration was a welcome source of
inhabitants.  As many immigrants entered the new country, they became
naturalized; since the European countries that these immigrants came
from did not recognize naturalization as Americans as a source of loss
of their citizenships these individuals were often constricted into
military service by their former sovereigns.  To remedy this
situation, congress passed in 1868 the Expatriation Act of 1868.  This
statute, despite its name, did not have any explicit provisions for
stripping United States citizenship, rather it articulated the
existence of a right under public international law to reject one's
allegiance to a nation and therefore effect expatriation.  This act
was designed to protect immigrants to the United States returning to
their countries of origin for visits by making clear the position of
the United States that its citizens were considered to owe no
allegiance to other countries and thus could not be bound against
their will into service by foreign powers.  Soon after its passage,
however, the department of state began using its language to strip
United States citizenship from United States for alleged expatriating
acts conforming to the ones outlined in the statute.


Ambiguity over whether congress intended that citizenship could be
relinquished by United States citizens through expatriating acts was
cleared up in 1907, when congress passed the Expatriation act of 1907.
The act had several provisions that spelled out the position of the
congress that certain acts would constitute expatriating acts and
would result in loss of citizenship status.  The statute provided for
instance that citizens living abroad for more than 2 years would be
faced with a rebuttable presumption of having expatriated themselves.
In another provision, the statute provided for the expatriation of
women who married foreign nationals, a provision which flowed from the
now obsolete doctrine of coverture.  It was this last provision of the
act that was challenged in the courts, and provides the earliest
example of our courts struggling with the question of congressional
power to denaturalize.  In MacKenzie v. Hare , a woman who was a
natural born citizen of the United States and a resident of the state
of California married a national of the United Kingdom.  When she
tried to register to vote, she was refused on the grounds that she had
acquired the nationality of her husband and thus was ineligible to
vote.  Her challenge to the statute was predicated on two grounds: the
first that congress did not intend the statute to apply to a woman
married to a foreign national but residing within the territory of the
United States, the second ground was a general lack of power in
congress to strip citizenship without the citizen's consent.


The first argument presented by MacKenzie was quickly rejected by the
Supreme Court.  Writing for the majority, Justice McKenna ruled that
the intent of congress was all but irrelevant to the interpretation of
a law where the language was plain.  In the present case, the words of
the act were plain and it would "transcend judicial powers to insert
limitations or conditions upon disputable considerations of reasons
which compelled the law".  Having dealt with the first issue on
appeal, the court quickly moved on the weightier issue of
congressional power.  The arguments MacKenzie presented were based
upon the XIV amendment.  She argued that the XIV amendment had
bestowed United States citizenship upon her, and that this right was
"incident to her birth in the United States, and, under the
Constitution and the laws of the United States, it became a right,
privilege and immunity which could not be taken away from her except
as a punishment for crime of by her voluntary expatriation."  To
further support the argument, MacKenzie cited to international law and
the common law, as well as prior cases.  Under international law, she
argued, allegiance--and therefore citizenship--is immutable, and
therefore cannot be stripped by mere legislative action.  While
acknowledging the immutable nature of citizenship at international
law, the court dismissed this concern as a constraint upon the ability
of the United States to expatriate.  The United States is a sovereign
nation, and where direct legislative action has occurred, this must
preempt rules of international law where they conflict; not to
recognize this power, the court argued, would diminish the sovereignty
of the nation. A similar argument was also presented by MacKenzie
grounded in common law.  Under English common law, citizenship, once
obtained, was considered to be immutable.  This English common law,
argued MacKenzie, was adopted by the United States at the time of its
secession from British rule, and therefore binding upon congress.  The
court once again pointed to the explicit enactment of the statute and
ruled that the express will of congress must take precedence over
common law where there is a conflict.  The right to expatriate
oneself, and thus, tangentially, the power of a government to
expatriate and recognize expatriating acts, Justice MacKenna ruled,
was originally expressed in the Expatriation Act of 1868 and further
refined in the Expatriation Act of 1907.  The last argument submitted
for review by MacKenzie was one based on several prior judicial
decisions and statutes.  The thrust of her arguments was that congress
lacked the power to expatriate, absent the consent of the individual
being expatriated. The Supreme Court recognized this argument, but
came to a different conclusion than the one argued by MacKenzie.
Consent here was not a problem, ruled Justice MacKenna.  Congress had
expressed its intention to expatriate for certain actions.  These
actions, such as marriage, are entered into voluntarily, "with notice
of the consequences".  The court conceded that congress could not
arbitrarily expatriate its citizens, but it also found that the
conditions set forth in the Expatriation Act were not arbitrary,
rather grounded in ancient rule of law of coverture.  Having the
conditions set in the statute been ruled legal, having found that
congress had the power to enact the Expatriation Act, and finally
having found that MacKenzie voluntarily committed the act (marriage)
with notice, the court stripped MacKenzie of her United States
citizenship.


The rule of MacKenzie v. Hare would not be reexamined until the end of
world war II when the court examined a series of cases involving
Japanese-United States dual nationals who had participated in hostile
actions against the United States during the conflict.  In one of
these cases, Kawakita v. United States Tomoya Kawakita, the petitioner
before the court attempted to establish that he had expatriated
himself and was therefore no longer a citizen of the United States,
but solely a subject of Japan.  Kawakita was born in United States of
Japanese parents and therefore possessed both United States and
Japanese citizenships.  In 1939 he traveled to Japan with his father,
where he remained to study in Meiji University.  While there, he
continued to travel on a United States passport, continued to register
with the United States consular mission as a United States citizen and
took the oath of allegiance to the United States.  When the war broke
out, Kawakita was still studying in Japan.  In 1943 Kawakita, having
come of age, registered in the Koseki, a Japanese family census
register.  He then obtained employment as an interpreter with the
Oeyama Nickel Industries Co, where he worked until the Japanese
surrender.  While working for Oeyama, Kawakita translated
communications between Japanese officers and American prisoners of war
who were assigned to work in thee company's mine.  After the war,
Kawakita registered as a United States citizen at the consulate in
Yokohama, and took an oath stating that he had not committed acts
amounting to expatriation.  After the consul issued Kawakita a
passport, he returned to the United States, where one of the prisoners
of war he had contact with recognized him.  Kawakita was thereafter
tried for treason and convicted by a jury that found, among other
findings, that he was a Unite States citizen at the time of the
alleged acts of treason, and that he believed himself to be a citizen
of the United States (and thus had the requisite intent to commit
treason).


On appeal, Kawakita argued that he could not be convicted of treason,
since treason is an offense that can only be committed by citizens of
the United States and, Kawakita argued, he was not a United States
citizen as a matter of law.  To support his theory, Kawakita relied on
the Nationality Act of 1940, which states in part that a citizen may
lose his citizenship status by

(a) Obtaining Naturalization in a foreign state; or

(b) Taking an oath or making an affirmation or other formal
declaration of allegiance to a foreign state; or

(c) Entering or serving in, the armed forces of a foreign state unless
expressly authorized by the laws of the United States, if he has or
acquires the nationality of such foreign state; or

(d) Accepting or performing the duties of any office post or
employment under the government of a foreign state


Before the Supreme Court Kawakita argued that his acts of allegiance
to the government of Japan placed him within the scope of the
Nationality Act and thus resulted in his expatriation by simple
application of law.  The Supreme Court, Justice Douglas writing for
the majority, ruled against him, finding that his actions--recording
with the Koseki to get a job, no longer recording as an alien,
obtaining a job which was only available to Japanese nationals--did
not constitute actions which would automatically work an expatriation.
If in MacKenzie a citizen was stripped of citizenship status simply by
meeting statutorily defined conditions, it would seem like the result
in Kawakita-- where a citizen also committed acts that could be
construed as expatriating acts--is facially inconsistent with
MacKenzie but upon closer examination it is not, and it is important
to examine the differences.  In Kawakita, the actions were not so
clearly defined in the statute as the actions of MacKenzie were.  But
more importantly, in Kawakita the court notes that Mr. Kawakita was a
dual national.  As such, he did not need to take affirmative actions
to obtain his Japanese citizenship.  Justice Douglas affirms the
United States' recognition of dual citizenship and further points out
that as a dual citizen Kawakita did not take any actions that were in
violation of the Nationality act.  If he registered in the Koseki,
obtained a job and pledged allegiance to the nation of Japan, he was,
in doing so, merely exercising rights already vested, or reaffirming
allegiances already owed; his status did was not affected by his
actions.  The facts of MacKenzie, on the other hand, were different;
in her case, the affirmative and voluntary act of marriage modified
her status-- under the doctrine of coverture it merged her legal being
into her husband.


After Kawakita, it would be six more years before another major case
on expatriation would confront the Supreme Court.  In 1958, the court
was confronted with another case involving a Japanese- United States
dual national in Nishikawa v. Dulles.  In Nishikawa, the court had to
decide the fate of a Japanese-American dual national who had served in
the Japanese military.  The Nationality Act of 1940, in force at the
time, specified that serving in the armed forces of a foreign nation,
would lead to expatriation.  Nishikawa, desiring to protect his
citizenship claimed that he was conscripted at the time the war broke
out, and since his service was not voluntary, he did not meet the
standard of MacKenzie.  The government conceded that the expatriating
act had to be voluntary, but argued that the burden of proof rested
with the individual arguing against expatriation to show that the
expatriating act was involuntary.  The supreme court ruled against the
government, and found that the XIV amendment established a burden upon
the government--the government was bound to prove with clear and
convincing evidence that all the requirements for expatriation had
been met.


Also decided in 1958, was another case, Perez v. Brownell which would
prove pivotal in the modern analysis and evolution of expatriation
cases.  Perez, a native of Texas, had lived most of his life in
Mexico, and participated in political elections in that country.  Upon
applying for a passport at the United States consulate, he was denied,
based on a section of the Nationality act of 1940 which, as amended,
provided for loss of nationality for Rparticipating in an electionS.
The court upheld the rule of MacKenzie, by a narrow 5-4 margin, and
upheld the power of congress to expatriate Perez and set forth a
rational relation test for the constitutionality of expatriation
legislation.  A strongly worded dissent by Chief Justice Warren,
joined by Justices Black and Douglas, however, lay the groundwork for
a change in the law.  Justice Warren drew upon the foundation of the
nation, and the writings of the founding fathers as well as the
constitution, to conclude that the congress had no power to expatriate
one who had no desire to be expatriated.  "This government", Warren
wrote, "was born of its citizens, it maintains itself in a continuing
relation with them, and [...] is without power to sever the
relationship that gives rise to its existence."  Warren further
characterized the right to citizenship as the "right to have rights",
and therefore a right so essential and basic that could not be denied
by the government without the consent of the people.  Justice Warren
also avoided conflict with doctrines of sovereignty by recognizing
that the people themselves are sovereign, and the power of their
government derives from this sovereignty and is therefore bound and
limited by it.  The citizens have created the sovereign and endowed it
with broad powers, but not so broad that they subject themselves to
the sovereignty of their creation. Once established his finding of
law, Warren continues on to find the statute providing for
expatriation to be constitutionally lacking.  "In specifying that any
act of voting in an foreign political election results in loss of
citizenship, Congress has employed a classification so broad that it
encompasses conduct that fails to show a voluntary abandonment of
American Citizenship".  Since he had established the need for
voluntary abandonment of citizenship in order to effect expatriation,
Warren then could only find the statute lacking and would have ruled
it beyond the reach of congressional power.


While Perez upheld the rule of MacKenzie, it was a short lived reign
and both cases would be overruled 10 years later in the case of
Afroyim v. Rusk. The facts in Afroyim were almost identical to those
in Perez.  Afroyim, the petitioner before the Supreme court, was born
in Poland, from where he immigrated to the United States in 1912.  He
was naturalized as a United States citizen in 1926.  In 1950, he went
to Israel, and participated in a political election to the Knesset,
Israel's parliament.  Upon his application for a new passport, Afroyim
was informed that his act was considered grounds for expatriation and
that therefore his passport would not be renewed.  Afroyim appealed,
and the Supreme Court, looking to overrule Perez, granted certiorari.


The decision in Afroyim, was delivered by Justice Black, one of the
dissenters in the Perez case and the content followed closely chief
Justice WarrenUs dissent in that case.  In crafting his decision,
Black drew upon United States history, starting with the Expatriation
Act of 1868.  In that act, he argued, congress unequivocally affirmed
its position that citizenship could only be lost by a voluntary
abandonment or renunciation of it.  He also cited Chief Justice
Marshall's dictum in Osborn interpreting the naturalization clause of
the constitution to grant congress the power to "confer citizenship,
not a power to take it away".  More importantly, however, Justice
Black looks to the XIV amendment for protection of citizenship.  He
finds that a restriction on a citizen's ability to vote in a foreign
election under pain of expatriation, would amount to an abridgment,
restriction or denial of the protection of citizenship.  Since the XIV
amendment states that the states (and therefore congress by the
inclusion doctrine) cannot make any laws "which shall abridge the
privileges or immunities of citizens of the United States" Black goes
on to conclude that congress has no power to expatriate citizens for
any act absent an intent to relinquish citizenship.  It is important
to note the difference in the level of intent implied by Afroyim, and
the level required by MacKenzie.  In the former, the court required
that an act must be done voluntarily, with notice of its consequences
before expatriation can follow from it.  Afroyim, however abandons
this standard, and finds that the intentionality of the act, while
still necessary, is not sufficient to raise an act to the level
necessary to effect expatriation.  In order to reach that level, the
citizen must intend to relinquish citizenship, not simply commit the
act that could be construed as an act of expatriation.


As both Perez and Afroyim were decided by narrow 5-4 decisions,
scholars speculated that the law of expatriation would remain in a
state of flux, not reaching a strong consensus for years to come.
Quite to the contrary, Afroyim has shown to be long lived and its
progeny has consistently upheld it, only lightly modifying its reach.


In 1980 the State Department of the United States attempted to
construe Afroyim narrowly, and tried to strip a man of his United
States citizenship.  In Vance v. Terrazas the court dealt with a dual
national, Laurence Terrazas who had committed acts which the State
Department argued constituted denationalizing acts.  Terrazas was born
in the United States the son of a Mexican citizen.  As such, he
possessed both United States and Mexican citizenship.  When he was 22
and a student at the university of Monterey, Mexico, Terrazas applied
for a certificate of nationality in Mexico, and to obtain it he signed
a statement swearing allegiance to the Mexican Republic and renouncing
loyalty and submission to any foreign government, and, in particular,
the government of the United States of America.  After the State
Department had issued a statement of loss of nationality, Terrazas
appealed to federal court.  The federal district court, relying on
Afroyim, found that Terrazas had knowingly renounced his United States
citizenship, and that his renunciation statement left "no room for
ambiguity as to the intent of the applicant".  The appeals court,
however, overruled the district court's findings.  It did not find
error in the finding of voluntariness to relinquish citizenship, but
it ruled that the standard of proof set forth in the Nationality act
was constitutionally infirm.  The Nationality act provided that in
expatriation cases, there existed a rebuttable presumption that the
acts committed were committed with the intent of renouncing
citizenship.  The appeals court found that this was a violation of the
rule set forth in Nishikawa, since in that case the court had ruled
that the standard of proof necessary must be clear and convincing
evidence of the intent.  In reversing the Appeals court finding, the
Supreme Court once again reiterated the rule of Afroyim, and remanded
the case to the district court for a determination of the intent of
the expatriating acts.  The court did not criticize the reading of
Afroyim by the appeals court, but it did find in error the assumption
that the standard set forth in Nishikawa applied to the present case.
The court pointed out that the Nishikawa standard did not rise out of
a constitutional concern, rather it was born out of a statutory
reading.  As such, it was subject to examination, and since congress
had set forth a new evidentiary standard valid for the Terrazas case,
there was no constitutional infirmity warranting reversing the
findings of the district courts.  Therefore, while congress may not
strip citizenship from an unwilling citizen, it may set forth the
standard of proof necessary to prove intent to relinquish citizenship.
In the present case the standard was established to be preponderance
of the evidence with a rebuttable presumption of intent to relinquish.


One of the most recent cases on point, further defining the law of
expatriation is Kahane v. Shultz.  Although from a district court, and
therefore not providing the level of authority of the cases examined
above, this case is crucial for it reinforces the rule of Afroyim, and
provides insight into the motivation and public policy rationale
behind Afroyim.  Rabbi Kahane, a United States citizen born in the
United States, had moved to Israel, where he exercised the Israeli law
of return to obtain Israeli citizenship. Rabbi Kahane, once in Israel,
participated in its political life; he founded a party, organized
political campaigns, and eventually was elected to the Knesset.
Through this experience, Rabbi Kahane maintained his desire to retain
his United States citizenship, and maintained frequent correspondence
with the State Department to that effect, vehemently denying any
intent to relinquish his citizenship when questioned by the consular
post or the State Department representatives.  The State Department,
in arguing for expatriation of Rabbi Kahane, believes that the Rabbi's
actions, contradict his words, and that since they are so incompatible
with United States citizenship, they imply a desire to renounce United
States nationality.  Finally, the State Department argues that the
only reason why Kahane might want to retain his citizenship is to be
able to enter and leave the United States at will, something he
probably could not do were he to be expatriated.


In analyzing the case, the district judge correctly looked to Afroyim
and Terrazas for guidance. He found that the intent to retain
citizenship can only reasonably be gauged by the person committing
expatriating acts.  The State Department, he ruled, had not proved
that it was Kahane's intent to relinquish citizenship.  In fact, even
if the State Department is correct in its assessment that Rabbi Kahane
intended to retain citizenship only as a tool to enter and leave the
United States at his will, this bespoke of a will to retain his
nationality.  The judge points out that Afroyim and Terrazas do not
require any particular reasons why a person may want to retain his
nationality--only that they can not be stripped of it while they still
intend to retain it, no matter why.  It is important to point out that
this last ruling by the district judge is of tantamount importance to
the protection of freedom of expression rights.  If any time an
individual acted in a manner or expressed himself in a way that the
State Department found incompatible with citizenship the department
could then infer an intent to relinquish nationality, it would have a
chilling effect on the exercise of basic rights such as freedom of
speech.  Perhaps it is partly for this reason that Chief Justice
Warren believed that citizenship was the "right to have rights" and
was the cornerstone of our society.


United States citizenship is a precious privilege, and not one which
may easily be stripped from an individual.  Through the history of the
United States, the courts have struggled with attempts to decide what
power congress has to expatriate a citizen.  While initially they
found that congress had the power to set forth actions that could
result in expatriation, later courts reexamined these rules and found
that congress has no basis of power to deny its citizens with that
basic protection unless the citizens themselves desire to relinquish
it.  The courts of the United States have also recognized that dual
nationality as a status exists in the international law community and
that dual nationals can enjoy the benefits that accrue from both their
nationalities.  Congress can therefore no more limit or constrain 
the enjoyment of rights flowing from citizenship in foreign 
nations than it can expatriate its citizens for exercising their 
rights.