At the Volokh Conspiracy, Eugene Volokh discusses Supreme Court caselaw holding that American citizenship can only be lost through an intent to give it up. I have long wondered whether that accords with the original meaning of the 14th Amendment but have never had the time to investigate it.
So I thought I would ask Gemini 2.5 Pro – a first rate AI at the level of the best models from ChatGPT – about the original meaning. It came up with a first rate analysis, which I reproduce below in italics.
The Intent of the Framers: An Originalist Look at Afroyim v. Rusk and the Loss of Citizenship
In the landmark 1967 case of Afroyim v. Rusk, the Supreme Court declared that an American citizen could not be stripped of their citizenship without their intent to relinquish it. This decision, rooted in the Citizenship Clause of the Fourteenth Amendment, remains a cornerstone of U.S. nationality law. However, an examination of the original meaning of the Constitution and the historical context of the 19th century presents a complex and debated picture, suggesting that the Court's interpretation may not be entirely consistent with an originalist perspective.
At the heart of the matter is the first sentence of Section 1 of the Fourteenth Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The primary and undisputed purpose of this clause was to overturn the infamous 1857 Dred Scott v. Sandford decision, which had denied citizenship to African Americans. The amendment aimed to establish a clear, national standard for citizenship based on birthright and naturalization.
An originalist analysis requires understanding the public meaning of the text at the time of its ratification in 1868. This involves examining the legal and philosophical underpinnings of citizenship and expatriation in the 19th century.
The Waning of Perpetual Allegiance and the Rise of Voluntary Expatriation
The common law doctrine of "perpetual allegiance," the idea that a person is bound to their country of birth for life, was a significant concept in the early years of the United States. However, by the mid-19th century, this doctrine was largely in decline. The nation's experience as a country of immigrants fueled a belief in the right of individuals to choose their own allegiance.
This sentiment was formally codified in the Expatriation Act of 1868, enacted just days after the Fourteenth Amendment was ratified. The Act declared expatriation to be a "natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness." This legislation was primarily aimed at protecting naturalized American citizens from claims of allegiance by their former home countries.
Proponents of the Afroyim decision, from an originalist standpoint, argue that this contemporaneous act demonstrates the 39th Congress's strong belief in the voluntary nature of citizenship. They contend that if expatriation is a "natural and inherent right," it can only be exercised freely by the individual. Forcing a citizen to lose their nationality against their will would seem to contradict the very essence of this right.
The Argument for Congressional Power
Conversely, originalists who critique the Afroyim ruling point to several key historical factors. They argue that the Fourteenth Amendment's primary goal was to establish who is a citizen, not to define how citizenship can be lost. The text itself is silent on the matter of expatriation.
These critics often highlight that during the Civil War, Congress passed legislation that stripped citizenship from those who deserted the military or evaded the draft. While these were wartime measures, they suggest that the concept of involuntary expatriation as a consequence of certain actions was not foreign to the lawmakers of that era.
Furthermore, the dissent in Afroyim, penned by Justice John Marshall Harlan II, argued that the majority had selectively read the historical record. Justice Harlan contended that the Expatriation Act of 1868 was about affirming the right to voluntarily renounce allegiance to a foreign power to become an American citizen; it did not, in his view, limit Congress's authority to legislate on the conduct of its own citizens.
The historical debates surrounding the Fourteenth Amendment itself provide little explicit discussion on the issue of involuntary loss of citizenship. The focus was overwhelmingly on establishing birthright citizenship to remedy the injustice of Dred Scott. The absence of a direct debate on this point allows for differing originalist interpretations.
The Competing Originalist Interpretations in Afroyim v. Rusk
The majority opinion in Afroyim, delivered by Justice Hugo Black, leaned heavily on an originalist interpretation that emphasized the purpose of the Citizenship Clause to grant a secure and permanent status. Justice Black argued that the framers of the Fourteenth Amendment intended to place citizenship beyond the reach of a vindictive Congress. He saw the Citizenship Clause as a bulwark against the government's power to render its own people stateless.
Justice Harlan's dissent, on the other hand, presented a more traditional originalist argument focused on the retained powers of Congress. He argued that in the absence of an explicit constitutional prohibition, the power to determine the conditions under which citizenship could be lost remained with the legislative branch as part of its inherent authority to conduct foreign affairs and maintain national security. He viewed the majority's decision as a judicial overreach into a domain properly belonging to Congress.
Conclusion
Ultimately, a definitive originalist answer to whether Afroyim v. Rusk is consistent with the original meaning of the Constitution is elusive.
- A "soft" originalist reading, which considers the broader principles and spirit of the era, could find support for the Afroyim decision in the prevailing 19th-century embrace of voluntary expatriation and the rejection of perpetual allegiance. The Expatriation Act of 1868 stands as strong evidence of this sentiment.
- A "hard" originalist interpretation, focusing strictly on the text and the explicit powers delegated to the federal government, would likely find the Afroyim decision problematic. The absence of explicit language in the Fourteenth Amendment limiting Congress's power over expatriation, coupled with historical examples of Congress legislating on the matter, could lead to the conclusion that the Court in Afroyim created a right not explicitly found in the Constitution.
The debate, therefore, hinges on which set of historical evidence and which originalist methodology one finds more persuasive. The framers of the Fourteenth Amendment were silent on the specific question of involuntary expatriation, leaving subsequent generations to interpret the interplay between the establishment of citizenship and the right to change one's national allegiance.
That’s a great job by Gemeni.
When I have thought about the issue, I have mainly considered the issue from the perspective of the text of the Amendment. In a narrow sense, the text merely says who is a citizen. It does not say anything about what citizenship is. But in a wider sense, the text invokes the concept of citizenship and one might understand the Amendment to be adopting that concept. Thus, if the concept of citizenship at the time of the Amendment’s enactment did not permit involuntary relinquishment, that might be the citizenship that is guaranteed by the Amendment. Of course, if the concept of citizenship at that time permitted involuntary relinquishment, then the Amendment would permit Congress to provide for that.
Posted at 8:00 AM