Tuesday, January 19, 2010

Wong Kim Ark Meet Rogers

By Michael David Rawlings

I. Schneider
II. Afroyim
A. The Marshall Dictum
B. Perpetual Allegiance and the Principle of Assent
C. The Congressional Power of Expatriation in Doubt
D. The Congressional Power of Expatriation Reaffirmed
E. The Sovereignty of the People or the Temerity of Judicial Activism?
F. The Manifest Purpose of the Fourteenth Amendment
G. The Dissent
III. Rogers
A. High Stakes and Low Lifes
B. Blackmun Pulls a Fast One
C. Smack Talk
Closing Arguments

Appendix A - A Compendium of Errors
Appendix B - The Opposing Lines of Judicial Opinion


In Rogers v. Bellei (1971), the Court reiterated the Graysian concept of naturalized-born citizenship, but did so in a way that actually strengthened the Framers' original intent. The Court rejected the plaintiff's claim that Congress could not impose conditions of retention on the grant of citizenship by the law of the bloodline. This was accomplished by excluding it from the Fourteenth Amendment's rules of citizenship acquisition and retention advanced by the leftist Warren Court in the decisions of Schneider v. Rusk (1964) and Afroyim v. Rusk (1967), which had already undermined the congressional prerogatives of statutory citizenship and expatriation, and threatened to extinguish the principle of jus sanguinis proper. The Court's ruling in this landmark decision did not merely thwart the left's ambitions, but inspired the decision in Vance v. Terrazas (1980), which would reverse the left's most injurious incursion. But in order to appreciate the significance of Rogers and Vance, one must familiarize oneself with the usurpation of power that was perpetrated by the left in Schneider and Afroyim.

I. Schneider

In Schneider, the appellant immigrated to the United States from Germany with her parents as a young child. At the age of 16, she was naturalized subsequent to her mother's naturalization and then, after graduating from college, returned to Germany where she resided for several years. In 1959 she was denied a U.S. passport and informed that she had lost her U.S. citizenship under statute 352(a)(1) of the Immigration and Nationality Act of 1952, which stipulated that naturalized citizens who returned to the country of their birth and resided there for three or more years forfeited their U.S. citizenship.

In a 5-3 decision, The Court ruled to reinstate the appellant's citizenship, declaring the statute to be unconstitutionally discriminatory under the Fourteenth Amendment's equal protection clause because there was no provision that revoked the citizenship of duly established natural-born Americans who chose to reside abroad for extended periods. It also held that the statute violated the Fifth Amendment's due process clause because the appellant was not granted an opportunity to challenge the revocation of her citizenship beforehand.

The Warren Court disregarded the fact that previous Courts had upheld the very same kind of requirement of retention under the Revised Statutes of 1906 and 1934, and under the Nationality Act of 1940. It disregarded the fact that citizenship by statute is conditional and that the primary precondition of naturalization is the renunciation of all former allegiances. In other words, along with Congress, the Court had previously held that there was a difference in principle between the natural-born citizenship of native-born Americans in particular and the citizenship of adopted Americans. Prior to this decision, U.S. law prohibited dual citizenship for adults. Technically, it still does in terms of absolute allegiance, but as a result of this decision and the decision in Afroyim, especially, for nearly fifteen years it was not clear where the law drew the line.

As long as they did not commit an act of expatriation, dual citizenship for adults was necessarily tolerated in the case of those born abroad of U.S. citizens in countries that, like the United States since Wong Kim Ark, granted birthright citizenship, but, previously, dual citizenship for naturalized citizens had been absolutely prohibited.1 As for due process, Schneider had been warned by U.S. consulate officials that her citizenship would expire if she did not return to the United States within three years. She responded to this news by stating that she did not intend to retain her U.S. citizenship!

The Warren Court was determined to throw off established law and limit the congressional prerogative of statutory citizenship one way or another. The conferral of citizenship by statute was just too serious a matter to be left entirely to the political deliberations of an elective body. God forbid that America's (xenophobic) electorate would actually expect the country's uniform rule of naturalization to have the flexibility to adapt to changing international circumstances in accordance with the nation's best interests. The equal protection and due process clauses were the scapegoats for the Warren Court's "it-ain’t-fair doctrine".
1An exception to this rule would be in the case of persons with ethnic ties to countries that automatically bestowed citizenship on them upon entrance.

II. Afroyim

In Afroyim, the appellant immigrated to the United States from Poland in 1912 at the age of nineteen and was naturalized fourteen years later. He lived in the United States for the next twenty-four years before moving to Israel in 1950. Under the Law of Return, he was automatically granted Israeli citizenship and voted in an Israeli election. When he attempted to renew his U.S. passport in 1960, the appellant was informed by the State Department that he had forfeited his U.S. citizenship under Section 401(e) of the Nationality Act of 1940 (reenacted as Section 349(a)(5) in the Immigration and Nationality Act of 1952). Regarded by Congress to be act of expatriation, the citizenship of any American who voted in an election of a foreign state was revoked.

Citing Chief Justice Marshall's dictum in Osborn v. Bank of the United States (1824), the Court held in a 5-4 decision that the Constitution did not grant the legislative branch "any general power, express or implied, to take away an American citizen's citizenship without his assent"; that is, "once a person becomes a citizen, [Congress] cannot deprive him of that status."2 But if there were any doubt that the assent principle prevailed at the time of the Court's decision in Osborn, the majority argued, certainly the ratification of the Fourteenth Amendment imposed it in accordance with the common-law doctrine of perpetual allegiance.

A. The Marshall Dictum

Delivering the Court's decision in Osborn, Marshall writes:
He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as respects the individual. The Constitution then takes him up, and, among other rights, extends to him the capacity of suing in the courts of the United States precisely under the same circumstances under which a native might sue. He is distinguishable in nothing from a native citizen except so far as the Constitution makes the distinction. The law makes none.3

But the Warren Court bastardized the Marshall dictum from Osborn by selectively excluding the critically inconvenient caveat immediately proceeding the portion it cited in Afroyim, namely, the first sentence of the above paragraph: "A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities."

The initial issue in Osborn was whether or not a branch of the federal banking system could sue a state in federal court.

The state of Ohio attempted to buck McCulloch v. Maryland (1819), which established the constitutionality of the federal banking system and declared that the levying of taxes by the several states against any federal institution to be unconstitutional. Ohio State Auditor Osborn argued that because the branch from which he forcibly collected a state-imposed tax was, like a naturalized citizen, a "creature of the law",4 it could not sue the state of Ohio in federal court. But the Court countered by pointing out that any matter arising under a federal statute necessarily fell under the jurisdiction of the federal judiciary, especially when the matter involved a federal institution that had been explicitly granted the right to sue in the federal courts by Congress. Besides, the circuit court from which the petition evolved did not hold the State of Ohio liable for the return of the funds with interest, but Osborn and his agents as individual citizens who had seized the funds in violation of the circuit court's injunction. The several states' immunity under the Eleventh Amendment from being sued in federal court "by Citizens of another State, or by Citizens or Subjects of any Foreign State" did not apply either way.

Marshall's repudiation of Osborn's misrepresentation of the distinction between entities of constitutional provision and entities of federal statute was merely a side issue addressed in order to make it absolutely clear as to why the resolution of disputes involving federal institutions could only be addressed by the federal judiciary. Marshall expounded the points of correlation between federal corporations and naturalized citizens in order to extract the critical sense in which Osborn's analogy was not appropriate, that is, the sense in which "no resemblance between the act incorporating the Bank and the general naturalization law" was plausible.5

Unlike the fundamental institutions or branches of government explicitly established by the Constitution, the Bank of the United States being solely instituted by Congress was indisputably a "mere creature of the law". As such it embodied no attributes aside from those ascribed to it by Congress. Had "the act of Congress [been] . . . a simple act of incorporation, and contained nothing more," the argument that the several branches of the Bank did not have the right to sue in the federal court system "might be entitled to great consideration." However, the congressional "act [did] . . . not stop with incorporating the Bank", but like the Constitution, which grants all American citizens the right to sue in the federal courts, the act "proceeds to bestow upon the being it has made all the faculties and capacities which that being possesses."6
Upon the best consideration we have been able to bestow on this subject, we are of the opinion that the clause in the act of incorporation, enabling the Bank to sue in the courts of the United States is consistent with the Constitution, and to be obeyed in all courts.7

Hence, Osborn's analogy breaks down upon the observation that (1) a naturalized citizen is not strictly a "creature of the law", that is, not beyond the moment he acquires his citizenship, and (2) the several branches of the Bank were granted the right to sue in the federal courts by Congress in the very same provision of incorporation. Further, contrary to Osborn's suggestion, beyond the terms of conferral and presidential eligibility, naturalized citizens are in every respect their fellow citizens equals. Absolutely no citizen from the state of Ohio, for example, could sue the state of California unless the matter involved a direct violation of the citizen's constitutional rights or a dispute over a matter covered by a federal statute. Osborn was such a matter.

As no official of the several states can deprive a person adopted by the federal government of the rights of American citizenship, no official of the several states can claim immunity from being sued in the federal courts for allegedly violating the rights of any institution adopted by the federal government. It follows: just as the law governing the conferral of naturalized citizenship, for example, contained no provisos regarding citizenship retention when Marshall enunciated his dictum in 1824, neither the Constitution nor the law governing the voluntary incorporation of financial institutions by the Bank of the United States contained any stipulations prohibiting the several branches to sue in the federal courts.

Relative to the Warren Court's outlandish assertion in Afroyim, the only point that Marshall could have been making with his counter-analogy was that once Congress via its naturalization powers bestowed citizenship, the terms of retention were governed by the provisions and principles of constitutional law. Where does the Constitution prohibit Congress from imposing conditions of retention on statutory citizenship? Where does the Constitution grant Americans the right to violate the terms of national allegiance and retain their citizenship?
2Afroyim v Rusk, 387 U.S. 253 (1967), No. 456, pgs. 257 and 261, http://supreme.justia.com/us/387/253/case.html.

3Osborn v. Bank of the United States, 22 U.S. 9 Wheat. 738 (1824), pg. 827-828, http://supreme.justia.com/us/22/738/case.html.

4Osborn, pg. 827.

5Osborn, pg. 828.

6Osborn, pg. 827.

7Osborn, pg. 828.

B. Perpetual Allegiance and the Principle of Assent

Because the Court insisted on dragging its ridiculous version of Marshall's 1824 dictum into the fray, it necessarily argued the historically impossible: the Constitution had always prohibited Congress from revoking U.S. citizenship. But if this historical artifact was not universally known by America's early nineteenth-century legislators, the ratification of the Fourteenth Amendment imposed the common-law doctrine of perpetual allegiance, making it unambiguously official. Of course, the majority in Wong Kim Ark left the door wide open to this debacle with another historically impossible argument when in 1898 it held that the Fourteenth Amendment imposed the common-law doctrine of birthright citizenship, which unlike the constitutional law of the Framers, embraced persons who were not born of the blood of the nation.

Under English Common Law, regardless of the status of their parents' citizenship, all persons born on the soil of the nation were subjects of the Crown for life, provided, of course, that their parents weren't foreign invaders or diplomats. A subject's fealty was absolute; that is, he could not renounce his allegiance to the Crown . . . well, not without committing an act of treason punishable by death. For subjects of the Crown, the only way out was banishment, a pine box or, as it turned out, a successfully prosecuted war of independence. There was no voluntary termination of allegiance, and the only peaceful route to a severance of ties was one initiated by the Crown, as in the case of India. Banishment meant never setting foot on the soil of the Realm again, otherwise, the pine box. . . .

Of course the doctrine of perpetual allegiance imposed by the Court in Afroyim was a modified version of the common-law original: one that observed natural law's principle of political autonomy, the inherent right to peacefully renounce one's citizenship and walk away. But the Court's version entailed yet another modification of common law's jus soli as it mysteriously did not include the Crown's prerogative to banish errant subjects. In constitutional terms, Congress could not automatically expatriate a citizen due to an entirely new principle that apparently came to the majority in a dream. Justice Black, who delivered the Court's decision, asserted the so-called assent principle. Only Americans themselves could relinquish their citizenship. Automatic revocation of citizenship on the grounds of expatriating acts was unconstitutional.

C. The Congressional Power of Expatriation in Doubt

So in the space of nine years, with a rather ambiguous ratio decidendi, which left the constitutionality of the other provisions of law regarding acts of expatriation in doubt, the Court reversed itself by overruling Perez v. Brownell, which had upheld Section 401(e) in 1958. Under the new assent principle perhaps it was not only permissible for an American to keep his citizenship after voting in a foreign political election, but also permissible for him to keep it after making a declaration of allegiance to a foreign country, as was the case in Perez, lie to U.S. consulate officials and, given the historical context and the appellant's motive, flirt with treason. While the justices that reversed Perez would have probably awarded the appellant a medal, the justices that did decide the appellant's fate in that case only addressed the immediate issue before them and resisted the urge to beat him senseless.
The provision of the Fourteenth Amendment that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States" sets forth the two principal modes (but not the only ones) for acquiring citizenship, but nothing in the terms, the context, the history, or the manifest purpose of the Fourteenth Amendment warrants the inference of a restriction upon the power otherwise possessed by Congress to withdraw citizenship.

Congress, acting under the Necessary and Proper Clause . . . of the Federal Constitution, may attach loss of nationality to voting in a foreign political election, since the means, withdrawal of citizenship, is reasonably calculated to effect the end that is within the power of Congress to achieve, the avoidance of embarrassment in the conduct of foreign relations attributable to voting by American citizens in such elections, and the importance and extreme delicacy of the matters sought to be regulated demand that Congress be permitted ample scope in selecting appropriate modes for accomplishing its purpose.8

While the State Department was obliged to abide by the Warren Court's decision and revised its policy accordingly, Congress ignored Afroyim for years. It left the revocation of citizenship for voting in foreign elections in the Immigration and Nationality Act (INA) and continued to assume automatic revocation of citizenship for the other acts of expatriation.  Congress rejected the notion that persons could commit acts historically regarded to be violations of national allegiance and still retain their citizenship simply because they did not make a formal declaration of their intent to relinquish it.

While the majority in Afroyim believed that it had already abrogated Congress' expatriation power altogether, or for that matter, its power to impose any conditions of citizenship retention, Congress was determined to test the Court's resolve and directed the State Department to enforce the remaining provisions of revocation automatically. In other words, the Court had best come up with a significantly more definitive guideline for governing the process of expatriation than leaving the matter entirely in the hands of persons whose conduct abroad evinced a less than enthusiastic commitment to the obligations of U.S. citizenship.9
8Perez v. Brownell, 356 U.S. 44 (1958), No. 44, Syllabus, pg. 44, http://supreme.justia.com/us/356/44/case.html.

9In all fairness to Afroyim, it appears that he loved America and was genuinely distressed and surprised to learn that by casting a vote in an Israeli election he had jeopardized his U.S. citizenship. Afroyim's situation was unique in that Israeli citizenship was automatically conferred on him "upon return" without an oath of allegiance. His intent was to be both a good American and a good Israeli. Nevertheless, the decision handed down by the Court was wrong.  This situation could have been handled by his congressional representative(s).  A sensible Court would have directed him accordingly.  In other words, provided that the legislative branch was so inclined, this could have been handled without disturbing established law by the passage of a personal, special dispensation that reinstated his citizenship.

D. The Congressional Power of Expatriation Reaffirmed

The test came in 1980 in Vance v. Terrazas (444 U.S. 252, No. 71143). In another 5-4 decision, the Court partially upheld the assent principle from Afroyim.  The State Department could not automatically assume that a person intended to relinquish his citizenship on the basis of an act of expatriation; however, the State Department could infer intent from a person's statements or actions. In other words, the State Department had to prove intent separate from an act of expatriation, but intent could be determined on the preponderance of evidence standard applied to lawsuits in civil court, rather than on the clear and convincing evidence standard applied to criminal proceedings. While it was now permissible for Americans to vote in foreign elections and retain their citizenship and, disturbingly, four of the nine justices would have stripped Congress of its power to expatriate renegade citizens altogether, the remaining provisions of law regarding acts of expatriation withstood the test.

Under current law (INA § 349, 8 USC § 1481), one may lose one's U.S. citizenship by (1) declaring allegiance to or becoming a naturalized citizen of another country after reaching the age of eighteen,10 (2) working for a foreign government as a civil servant or an elected official, (3) engaging in an act of treason while abroad, (4) serving in the military forces of a foreign country as an officer or serving in the military forces of a foreign country engaged in hostilities with the United States, or (5) formally renouncing U.S. citizenship.

In 1986, with the congressional power of expatriation and the preponderance of evidence standard firmly established, a vindicated Congress grudging relented to the judiciary's assent principle. Public Law 99-653 amended the preamble of INA § 349, 8 USC § 1481, making it clear that an act of expatriation did not result in the loss of citizenship unless performed voluntarily and with the premeditated intent of relinquishing citizenship. Because Congress stood its ground, the screwball designs of Afroyim's leftist clique were thwarted in Vance. But it was both a victory and a compromise for Congress. While denied the power to expatriate citizens for voting in the elections of foreign states, Congress retained the power to strip persons of their citizenship for committing the other traditional acts of expatriation. On the other hand, despite the latitude granted it by the Court, the State Department routinely applies the clear and convincing evidence standard, but not always. Since 9/11, the preponderance of evidence standard has been applied to citizens believed to have committed acts of expatriation in high-risk countries.
10This stipulation does not count against those, as in Afroyim's case, who might be automatically naturalized by another country for reasons of ethnicity, unless, presumably, the conferral of citizenship entailed an oath of allegiance.

E. The Sovereignty of the People or the Temerity of Judicial Activism?

Writing for the majority in Afroyim, Justice Black argues:
Congress was considering bills that were concerned with recognizing the right of voluntary expatriation and with providing some means of exercising that right. In 1794 and 1797, many members of Congress still adhered to the English doctrine of perpetual allegiance and doubted whether a citizen could even voluntarily renounce his citizenship. By 1818, however, almost no one doubted the existence of the right of voluntary expatriation, but several judicial decisions had indicated that the right could not be exercised by the citizen without the consent of the Federal Government in the form of enabling legislation. Therefore, a bill was introduced to provide that a person could voluntarily relinquish his citizenship by declaring such relinquishment in writing before a district court and then departing from the country. The opponents of the bill argued that Congress had no constitutional authority, either express or implied, under either the Naturalization Clause or the Necessary and Proper Clause, to provide that a certain act would constitute expatriation.11

Given the historical record, it's not surprising that the majority in Afroyim was able to cite only three members of Congress who were of this opinion, while the dissenting justices demonstrated that the general consensus among lawmakers at the time was quite the opposite. In any event, the majority in Afroyim and the members of Congress whose opinions it cited in its decision conflated the terms of allegiance under common law with the principle of political autonomy under natural and constitutional law.

Under common law, as expounded in supra, all subjects of the Realm owed their fealty to the Crown for life: while the Crown could and did expatriate citizens, citizens could not voluntarily expatriate themselves. Under natural law, all men are creatures of God, the subjects of His realm: they are free to relinquish their citizenship and declare allegiance to any other country that might have them. While this was generally understood to be the case under the Articles of Confederation, it is fair to argue that under the Constitution Congress must explicitly spell out in statute the precise terms of voluntary renunciation and compulsory expatriation. In other words, while an American is certainly free to renounce his U.S. citizenship and walk away, or directly involve himself in the affairs of a foreign country:  in the absence of any provision of law specifically addressing his status as a result of these actions, the government of the United States is obliged to go on recognizing him to be a U.S. citizen. But to argue, as the majority did in Afroyim, that the power to strip a person of his citizenship "cannot . . . be sustained as an implied attribute of sovereignty possessed by all nations" because the Constitution of the United States does not explicitly grant the power to Congress is hogwash.12

Governments necessarily dictate the terms of national allegiance. Under natural law, to which the Constitution is beholden regarding all matters on which it is silent, the terms of national allegiance are determined by the people via the democratic process. The people are sovereign to be sure, and the individual retains his political autonomy within the collective. The individual does not have to observe the terms of allegiance established by the collective, but if not, he is obliged to enjoy his political autonomy somewhere else. Individuals do not dictate the terms of national allegiance to the rest of the members of the body politic, which is precisely what five members of the collective attempted to do in Afroyim. The Framers left certain matters that were subject to changing circumstances in the hands of the people's representative body to work out as was necessary and proper, in this case, in accordance with the traditional grounds of expatriation with an eye on the political autonomy of the individual. The implied powers of the Necessary and Proper Clause apply to Congress, not to the Court.

Justice Black writes in Afroyim: "In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship."13


It is precisely because "the people are sovereign" that through their representative body they retain the inherent right under natural law to declare those among them who violate the general terms of national allegiance to be persona non grata. Unless the principle of free association applies to all of the affairs of the social contract, including the terms of national allegiance, the people are not sovereign, but the hostages of renegade elements. Free association is a two-way street, or it's nothing at all.

Quoting the misguided Congressman Lowndes of South Carolina, the majority in Afroyim contended that the power "to determine the manner in which a citizen may relinquish his right of citizenship . . . is equivalent to determining how he shall be divested of that right." In other words, "you have only one step further to go, and say that such and such acts shall be considered as presumption of the intention of the citizen to expatriate, and thus take from him the privileges of a citizen."14

More gibberish.

The historical grounds for expatriation are specific and well-established.  Persons may only be expatriated for directly entangling themselves in the affairs of foreign countries—as citizens, elected officials, civil servants or warriors. Moreover, Lowndes' argument presupposes the discarded Doctrine of First Allegiance, controversial in its time, necessarily abandoned as a result of the ratification of the Fourteenth Amendment, which stripped the several states' of virtually all of their discretionary power over the administration of national citizenship. The Doctrine held that an American was firstly a citizen of the state in which he resided; indeed, his allegiance to his state was the very foundation of his affiliation with the Union. Hence, only the several states could strip an American of his U.S. citizenship, since any federal action would be of no avail as long as he remained a citizen of his state. In his dissent, Justice Harlan II wirily observed that "[s]urely the Court does not revive this entirely discredited doctrine, and yet, so long as it does not, it is difficult to see that any significant support for the ruling made today may be derived from the statements on which the Court relies."15

But the presumptuousness of Justice Black and his cohorts was only surpassed by their contempt for the intelligence of the American people: "the Constitution governs us and we must never forget that our Constitution limits the Government to those powers specifically granted or to those that are necessary and proper to carry out the specifically granted ones."16

When has Lefty ever cared about restraining the power of government? Lefty's ambition to replace the Constitution handed down to us by the Framers with the living constitution of his feverish dreams is boundless. Whenever a leftist judge invokes the virtue of limiting governmental action to the constitutionally expressed or implied powers, one may safely assume he's concocting a rationale for grabbing a chunk of power constitutionally apportioned to the people's legislative body. The result is always the same: some new, governmentally imposed aberration is declared to be sacrosanct, immune from the demands of changing circumstances and the deliberations of the democratic process.

Given the Necessary and Proper Clause, coupled with the Citizen and Naturalization Clauses, it is not reasonable to insist that the Framers intended that the people be required to amend the Constitution in order to equip their representative body with the power to exercise an inherent right. Acts of expatriation are not inherently criminal, but do place individuals who commit them in positions that may be readily exploited. Once allegiance is compromised, "you have only one step further to go" before you undermine or even betray America's national interests. Americans who betray their country are prosecuted for treason; foreigners who assault America are prosecuted for espionage; Americans who compromise their national allegiance while sojourning abroad are expatriated. This is not rocket science.

Justice Black points out that before the ratification of the Fourteenth Amendment "Congress considered and rejected proposals to enact laws which would describe certain conduct as resulting in expatriation"17  and that it also considered and declined to propose an amendment to the Constitution that would have expressly expatriated any citizen of the United States who accepted a position of employment from a foreign government.18 But the fact of the matter is that Congress at the time was mostly of the opinion that acts of expatriation that did not rise to the level of criminality were relatively harmless, and while some obviously felt a constitutional amendment was necessary, the overwhelming majority of lawmakers confidently believed that should circumstances ever warrant its implementation, the Necessary and Proper Clause already provided for the congressional power of expatriation. In the meantime, the statutes enacted by Congress regulating immigration and the acquisition of citizenship coupled with the statutes it enacted regarding acts of treason and espionage sufficiently addressed the concerns of national allegiance and the national interests of the United States.

Prior to the 1930s, the stipulations governing the acquisition of U.S. citizenship were stricter and more exclusive. Greater mobility, America's emerging international influence and the forces of sexual liberation compelled Congress to make U.S. citizenship more assessable, but at the same time, by way of safeguarding the rights and privileges of citizenship from abuse in an increasingly complex and menacing world, it simultaneously imposed new standards of retention and allegiance. Though liberalized over the years and except for the reproof of voting in the political elections of foreign states, the same provisos governing the retention of citizenship for persons born abroad of U.S. citizens and the strictures regarding the other acts of expatriation first imposed in earnest under the Nationality Act of 1940 remain in force today . . . sans any constitutional amendment. The flexibility and common sense of original intent have mostly prevailed; the Court's impact has been to slightly extenuate the traditional obligations of citizenship.
11Afroyim, pg. 258.

12 and 13Afroyim, pg. 257.

14Afroyim, pg. 260.

15Afroyim, pg. 274.

16 and 17Afroyim, pg. 257.

18Afroyim, pg. 259.

F. The Manifest Purpose of the Fourteenth Amendment

Conscious of the weakness of its deviously couched "sovereignty argument" and in anticipation of the withering rebuke to come from the dissenting justices whose argument would be backed by the preponderance of legal precedent and opinion, the majority in Afroyim prefaced the second and even more insubstantial support for its decidendi with a concession:
Although these legislative and judicial statements may be regarded as inconclusive and must be considered in the historical context in which they were made, any doubt as to whether prior to the passage of the Fourteenth Amendment Congress had the power to deprive a person against his will of citizenship once obtained should have been removed by the unequivocal terms of the Amendment itself. It provides its own constitutional rule in language calculated completely to control the status of citizenship: "All persons born or naturalized in the United States . . . are citizens of the United States. . . ." There is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather, the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.19

This is pure bluster. The Fourteenth Amendment was ratified in 1868; Afroyim was decided in 1967. During this nearly one-hundred-year period, the historical record provides no indication that either the drafters of the Fourteenth Amendment or any other officials of the federal government ever understood the Fourteenth Amendment to have abrogated the congressional power of expatriation. Never mind that acts of expatriation can only be voluntarily committed by adults, that the government does not compel an American to commit them and then strip him of his citizenship. Hence, the idiotic redundancy of the assent principle.

The first clause in Section 1 of the Fourteenth Amendment is a simple declarative statement of status. Nothing more. In no sense whatsoever does it follow from it that a U.S. citizen cannot be expatriated. Not even the manifest purpose of the Fourteenth to establish that "[a]ll persons born or naturalized in the United States . . . are citizens of the United States", including the free and formally enslaved persons of African dissent, can rehabilitate Justice Black's non sequitur.

First, Justice Black adamantly insists that no power expressly granted to Congress by the Constitution may be inferred from intent or historical tradition. Then he opines that a prohibition of power that is neither expressly stated nor inferable from intent or the historical record is the cinnamon in your Mama's apple pie. As if the pile of entrails he makes of Osborn weren't enough, Black butchers the congressional record, out of which he carves arguments, but for a few halfwits, never made and ideas never dreamed, leaving behind a bloody trail of contrivances.
19Afroyim, pg. 261-262

G. The Dissent

For a more detailed critique of the Court's decision in Afroyim, see the dissent authored by Justice Harlan II, joined by Justices Clark, Stewart and White.20 Harlan's dissent is scholarly and sardonic, featuring a virtual avalanche of historical facts and citations which destroy every claim made by Black, with the most significant of these being the statement made in 1867 by Howard of Michigan, the sponsor of the Fourteenth Amendment's Citizenship Clause in the Senate.  When asked about the effect of the Clause, Howard explained that "after a man becomes a citizen of the United States under the Constitution, he cannot cease to be a citizen except by expatriation or the commission of some crime by which his citizenship shall be forfeited."21

The opening remarks of Harlan's dissent, in which he barely suppresses his contempt for Black's obvious lack of candor about the congressional record, neatly summarize the discussion on Afroyim:
The Court today overrules Perez, and declares § 401(e) unconstitutional, by a remarkable process of circumlocution. First, the Court fails almost entirely to dispute the reasoning in Perez; it is essentially content with the conclusory and quite unsubstantiated assertion that Congress is without "any general power, express or implied," to expatriate a citizen "without his assent." Next, the Court embarks upon a lengthy, albeit incomplete, survey of the historical background of the congressional power at stake here, and yet, at the end, concedes that the history is susceptible of "conflicting inferences." The Court acknowledges that its conclusions might not be warranted by that history alone, and disclaims that the decision today relies, even "principally," upon it. Finally, the Court declares that its result is bottomed upon the "language and the purpose" of the Citizenship Clause of the Fourteenth Amendment; in explanation, the Court offers only the terms of the clause itself, the contention that any other result would be "completely incongruous," and the essentially arcane observation that the "citizenry is the country and the country is its citizenry." I can find nothing in this extraordinary series of circumventions which permits, still less compels, the imposition of this constitutional constraint upon the authority of Congress. I must respectfully dissent.22
20Afroyim, pg. 268-293.

21Afroyim, pg. 286.

22Afroyim, pg. 269-270.

III. Rogers

The appellant in Rogers was born in Italy in 1939 of a U.S. citizen mother and an Italian father; the applicable provision bestowing citizenship on him at the time of his birth was the Revised Statutes, Section 1993 of 1934:
Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of birth of such child is a citizen of the United States, is declared to be a citizen of the United States: but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child's twenty-first birthday, he or she shall take an oath of allegiance to the United States of America. . . .

However, during the period of the appellant's minority the residency requirement for citizenship retention was liberalized twice, with § 301(b) of the Immigration and Nationality Act of 1952 being the proviso to which he was bound in December of 1962 when he lost his U.S. citizenship at the age of twenty-three as a result of his inability to thereafter attain five years of continuous residency in the United States no later than the day of his twenty-eighth birthday:
Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United State(s) for at least five years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years.

While the appellant "concededly failed to comply with the conditions imposed by § 301(b) of the Act"23, he challenged its constitutionality on the grounds of the Fifth Amendment's due process clause and the Fourteenth Amendment's equal protection clause since Congress did not strip native-born Americans or, as a result of Schneider, naturalized Americans of their citizenship once acquired for lack of U.S. residency. Naturally, he also challenged the statute on the grounds of Afroyim's decidendi which held that Congress could not strip a person of his U.S. citizenship because of the commandment allegedly contained in the Citizenship Clause of the Fourteenth Amendment.

In a 5-4 decision, the Court correctly held that "Congress [had] . . . the power to impose the condition subsequent of residence in this country on appellee, who does not come within the Fourteenth Amendment's definition of citizens as those 'born or naturalized in the United States,' and its imposition is not unreasonable, arbitrary, or unlawful."24  Ironically, the Court's decision was delivered by Justice Blackmun, consummate leftist and author of the infamous Roe v. Wade decision of 1973, who understood the chaos that would ensue were he to join his fellow travelers and apply the assent principle of Afroyim to persons born abroad to U.S. citizens.
23Rogers v. Bellei, 401 U.S. 815 (1971), No. 24, pg. 820, http://supreme.justia.com/us/401/815/case.html.

24Rogers, Syllabus, pg. 815.


A. High Stakes and Low Lifes

With the congressional prerogative of statutory citizenship for naturalized Americans already seriously undermined by Schneider and the congressional power of expatriation suspended in doubt by Afroyim, Justice Brennan and his fellow leftist thugs on the Bench were no doubt genuinely shocked by the Court's decision in Rogers. A number of important principles of original intent would be preserved after all, including Congress' contention that jus sanguinis imparted natural-born citizenship. Also, the distinct jurisdictions of sovereignty and allegiance established by the Insular Cases were upheld. With respect to the constitutional concerns of nationality, not since Wong Kim Ark was so much at stake. But the Court got it right, and the most destructive line of reasoning premised on the Graysian notion of a naturalized-born citizenship was stopped cold.

A furious Justice Brennan, who had never encountered a principle of original intent that did not provoke his juvenile sensibilities, wrote an especially peevish dissent:
Since the Court this Term has already downgraded citizens receiving public welfare . . . and citizens having the misfortune to be illegitimate . . . I suppose today's decision downgrading citizens born outside the United States should have been expected. . . . Concededly, petitioner was a citizen at birth, not by constitutional right, but only through the operation of a federal statute. In the light of the complete lack of rational basis for distinguishing among citizens whose naturalization was carried out within the physical bounds of the United States, and those, like Bellei, who may be naturalized overseas, the conclusion is compelled that the reference in the Fourteenth Amendment to persons "born or naturalized in the United States" includes those naturalized through operation of an Act of Congress, wherever they may be at the time. Congress was therefore powerless to strip Bellei of his citizenship; he could lose it only if he voluntarily renounced or relinquished it. . . . I dissent.25

Brennan's tantrum might just be the most asinine dissent ever written. Given that Bellei acquired citizenship "not by constitutional right, but only through the operation of a federal statute", how did the Court disparage his (nonexistent) citizenship by enforcing the terms of retention? The majority in Rogers indisputably maintained the status quo! It was Brennan and his cohorts that would have dramatically altered established law by further limiting the exercise of Congress' statutory prerogative and necessarily declaring in a ratio decidendi for the first time in U.S. history that natural-born citizenship by statute was strictly a form of naturalization.

The minority's twaddle that persons "naturalized overseas . . . through operation of an Act of Congress" fall under the Fourteenth Amendment's jurisdiction like persons "born or naturalized in the United States" would have obliterated the historical application of the Constitution's Citizen Clause to the naturalization powers with regard to jus sanguinis proper. But that's not all, the minority's unprecedented non sequitur would have rendered decades of established case and statutory law regarding the boundaries of the respective jurisdictions of sovereignty and allegiance a chaotic, incomprehensible mess all over again. Regardless of the repercussions, these maniacs would have expanded upon the Graysian concept in such a way as to effectively void the people's inherent right to uphold the common obligations of citizenship. Brennan's moralistic gobbledygook is not an expression of reverence for the rights and privileges of citizenship; it's a bitter lament for a usurpation of power not realized.
25Rogers, pg. 845

B. Blackmun Pulls a Fast One

Mindful of the grounds of the appellant's challenge and the rationales of the Schneider and Afroyim decisions, Blackmun writes:
The central fact in our weighing of the plaintiff's claim to continuing and therefore current United States citizenship is that he was born abroad. He was not born in the United States. He was not naturalized in the United States. And he has not been subject to the jurisdiction of the United States. All this being so, it seems indisputable that the first sentence of the Fourteenth Amendment has no application to plaintiff Bellei. He simply is not a "Fourteenth Amendment first sentence" citizen.  His posture contrasts with that of Mr. Afroyim, who was naturalized in the United States, and with that of Mrs. Schneider, whose citizenship was derivative by her presence here and by her mother's naturalization here. The plaintiff's claim thus must center in the statutory power of Congress and in the appropriate exercise of that power within the restrictions of any pertinent constitutional provisions other than the Fourteenth Amendment's first sentence.26

Thus, the Court announced the route it intended to take, and on that day there would be no Fourteenth Amendment detours. However, along the way the unfortunate Graysian dictum was reiterated, this time, however, in order to protect the principle of  jus sanguinis from the Court's previous applications of the British common-law rules of jus soli. Blackmun writes that in Wong Kim Ark "[t]he Court concluded that 'naturalization by descent' was not a common law concept, but was dependent, instead, upon statutory enactment."27 He further underscored the point by citing Justice Taft's observation in Weedin v. Chin Bow (1927) "that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute."28 Hence, Blackmun unified these dicta in support of the Court's decision and sidestepped Taft's repudiation of the Graysian concept.

While Taft, like Justice Gray before him, observed that jus sanguinis was not a component of common law, he did not embrace the Graysian language of "naturalization by descent". The only proper way to talk about the law of the bloodline as conceived by the Framers' along this line would be to use the term birthright citizenship by descent, for it was precisely because the English concept of jus sanguinis did not originate with common law that the Framers invoked the language of Parliamentary decree. That way there would be no doubts about (1) the natural-born status of its beneficiaries and (2) the conditional nature of its blessing in terms of retention. It's necessary to reiterate original intent with regard to the law of the bloodline at this point because the judicial rationale that follows is routinely misconstrued by both leftists and conservatives.29

Blackmun writes that "one might have expected a definition of citizenship in constitutional terms, none was embraced in the original document, or, indeed, in any of the amendments adopted prior to the War Between the States."30 This observation was also made before him in Wong Kim Ark by Gray . . . with one important exception. Gray never claimed that the post-war Constitution contained a definition of citizenship either. Rather, in 1898, thirty years after the ratification of the "Civil War Amendments" (the Thirteenth, Fourteenth and Fifteenth), Gray wrote: "The Constitution nowhere defines the meaning of [citizenship] . . . except insofar as this is done by the affirmative declaration [in the first sentence of the Fourteenth] that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.' "31 Therefore, Gray insisted, and rightly so, that in "this as in other respects, [citizenship] . . . must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution."32 While Gray went on to botch legal tradition with regard to jus sanguinis, he did correctly observe that U.S. citizenship was ultimately predicated on the soil of the nation.

But Blackmun—determined to forestall any further encroachments on the congressional prerogative of statutory citizenship—attributes a definition of sorts to the Court's decision in Wong Kim Ark. He extracts this definition from the distinction that Gray made between the citizenship of the Fourteenth Amendment and that of jus sanguinis. Hence, "the first sentence of the Fourteenth Amendment", Blackmun writes, "so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned" is, in the words of Justice Gray, "declaratory of existing rights, and affirmative of existing law".33 However, Blackmun argues, once again quoting Justice Gray, "it . . . has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization."34

"Thus, at long last," Blackmun shrewdly announces:
[T]here emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.35

The rest of the Court's decision is a preemptive strike. Blackmun astutely hints at both the crisis the dissenting justices would have caused were they to have their way and the feral nature of their secret ambitions. He briefly reviews the case law upholding the congressional prerogative of statutory citizenship—the power to either withhold citizenship at birth by the law of the bloodline or impose subsequent conditions on its retention. He reminds two of the dissenting justices of their very own words in previous decisions regarding the divided loyalties of dual nationality. Then he delivers the coup de grâce:
A contrary holding would convert what is congressional generosity into something unanticipated and obviously undesired by the Congress. Our National Legislature indulged the foreign-born child with presumptive citizenship, subject to subsequent satisfaction of a reasonable residence requirement, rather than to deny him citizenship outright, as concededly it had the power to do, and relegate the child, if he desired American citizenship, to the more arduous requirements of the usual naturalization process. The plaintiff here would force the Congress to choose between unconditional conferment of United States citizenship at birth and deferment of citizenship until a condition precedent is fulfilled. We are not convinced that the Constitution requires so rigid a choice. If it does, the congressional response seems obvious.36

In other words, Congress might respond by repealing its "generosity" and leave the status of children born abroad of only one U.S. citizen to the whim of foreign law, rather than embrace citizens of dual nationality unconditionally. Surely, that's not what the dissenting justices desired. And what of the inevitable challenge, whereby the petitioner, born abroad of only one U.S. citizen, would argue that he was being unconstitutionally discriminated against? Would Congress then be compelled to withdraw the grant of U.S. citizenship at birth via jus sanguinis altogether, even barring from citizenship the children born abroad of U.S. military and diplomatic personnel?
26Rogers, pg. 827-828.

27Rogers, pg. 828.

28Rogers, pg. 828; Weedin v. Chin Bow, 274 U.S. 657 (1927), No. 237, pg. 660, http://supreme.justia.com/us/274/657/case.html#660.

29See Appendix A: “A Compendium of Errors”, Michael David Rawlings, Wong Kim Ark Meet Rogers.

30Rogers, pg. 829.

31 and 32United States v. Wong Kim Ark, 169 U.S. 649 (1898), No. 18, pg. 654, http://supreme.justia.com/us/169/649/case.html.

33Rogers, pgs. 829-830; Wong Kim Ark, pg. 688.

34Rogers, pg. 830; Wong Kim Ark, pg. 688.

35Rogers, pg. 830.

36Rogers, pg. 835.

C. Smack Talk

But the truth of the matter is that had the vote gone the dissenting justices' way in Rogers, the Court in effect would have made citizenship by statute an inherent right, for neither of these recourses—that is, the partial or total repeal of citizenship via jus sanguinis—would have been politically feasible for Congress. The dissenting justices allowance that it was within Congress' constitutional power to withhold citizenship from the foreign-born children of U.S. citizens as long as it did not impose any conditions of retention was a smile and a shoeshine. Brennan tips his hand when he insists that there is no "rational basis for distinguishing among citizens whose naturalization was carried out within the physical bounds of the United States, and those, like Bellei, who may be naturalized overseas"37 And again, "the conclusion is compelled that the reference in the Fourteenth Amendment to persons 'born or naturalized in the United States' includes those naturalized through operation of an Act of Congress, wherever they may be at the time."38

"Wherever they may be at the time"?! Clearly, a Court under the influence of the Brennanian hallucinogen would not have stood still for a partial revocation of jus sanguinis, but would have fielded a challenge to its constitutionality at the earliest opportunity.

It's not an exaggeration to say that Rogers is among the most monumentally important cases of the Twentieth Century. It's important because the Court's decision prevented a grave assault on the  congressional prerogative of statutory citizenship. It's important because it was the eight-hundred-pound gorilla in the court room when in Vance the Court emasculated Black's doctrine of perpetual allegiance from Afroyim and vindicated the congressional power of expatriation. On the other hand, in this case, perhaps it would be more accurate to describe it as the surreptitious presence softly whispering in the ears of the justices. That is to say, it's important because it magnified the startlingly unpredictable course the Court had set with Schneider and Afroyim.

In those cases, the Court addressed the status of persons who had acquired their citizenship in the United States, but their decisions laid the groundwork for launching an assault on the congressional power to regulate the terms of citizenship retention for those who acquired citizenship beyond the Fourteenth Amendment's jurisdiction. It finally dawned on the legal community that the leftist faction of the Court was determined to throw off the respective designations of sovereignty and allegiance established by the Insular Cases, collectively, the foundation on which the entire structure of the United States' immigration and nationality law rested. This certainly made an impression on Blackmun who abandoned his fellow travelers in Rogers. With its frightfully destabilizing notion that the scope of the Fourteenth Amendment was international, the dissenting justices in Rogers would have necessarily overruled the decisions of the Insular Cases and officially demoted the status of citizenship acquired by the law of the bloodline, not merely stripped Congress of a vital regulatory power.

For more evidence of the ultimate intent of the Court's leftist faction, read Justice Black's entire dissent in Rogers, joined by Justices Douglas and Marshall.39 These three stooges vent their spleens in a screed comprised of one unmistakably conscious misrepresentation of the Court's decision after another. It also features an appeal to the congressional record, namely, to the language of the Fourteenth Amendment's Citizenship Clause as originally proposed. This version would have undeniably placed the Constitution's entire apparatus of citizenship under the purview of the Fourteenth Amendment, but it was rejected precisely because its language would have frustrated the congressional powers of prerogative and expatriation. In other words, these charlatans present an historical artifact of insanity as if it had not been sedated and straitjacketed by the Republic's representative body. But for obvious reasons, Black doesn't linger over this stupidity for long. This is a drive by. In passing, he tosses out the remark that "[t]he final version of the Citizenship Clause was undoubtedly intended to have this same scope."40

Yeah. Sure. And if one were to wish really, really hard, pigs might sprout wings. . . .

Black cites cases dating from the late Nineteenth Century, including Wong Kim Ark, which purportedly support the contention that the Citizenship Clause of the Fourteenth Amendment was understood to have constituted "a comprehensive definition of American citizenship" in the sense that "the Citizenship Clause, whatever its effect, did reach all citizens."41 Actually, as if we wouldn't notice, this is merely a paraphrase of the same assertion he made in Afroyim, to which he must necessarily appeal since it's the only decision in case history that actually does assert that the dicta of previous decisions held the Citizenship Clause to be the all-inclusive definition he's after. He even has the chutzpa to claim that "in Afroyim both majority and dissenting Justices appear to have agreed on [this] . . . basic proposition", as if the actual nexus of agreement between the two factions pertained to Black's contention.42
The opinion of the Court in Afroyim described the Citizenship Clause as "calculated completely to control the status of citizenship." And the dissenting Justices agreed with this proposition to the extent of holding that the Citizenship Clause was a "declaration of the classes of individuals to whom citizenship initially attaches."43

Hogwash. Black's key qualifying phrases here are "appear to have agreed" and "to the extent of holding". All the dissenting justices meant in Afroyim was that all Americans were either citizens at birth or subsequent to birth, that is, either natural-born or naturalized citizens, and the full context of their comment clearly shows that they utterly rejected the notion that the Citizenship Clause was "calculated completely to control the status of citizenship" in any sense of prohibiting Congress from exercising the powers of prerogative or expatriation. And in any event, it was this very dictum from Afroyim that was being quashed by Rogers, just as Vance in 1980 would reverse the second plank of Afroyim's insanity, namely, Black's doctrine of perpetual allegiance.

But as everyone sitting at the table of Rogers knew, even if the cases from the late Nineteenth Century cited by Black envisioned a Fourteenth Amendment jurisdiction that, through the law of the bloodline, extended beyond the territorial boundaries of the United States, Downes superceded them. That decision emphatically limited the Fourteenth Amendment's jurisdiction to the several states of the Union and the formally owned, incorporated possessions of the United States. Indeed, the Court's motive in the Insular Cases was to uphold the integrity of the Republic's national sovereignty, safeguard the power of the people's legislative body to orderly regulate the terms of admittance and retention with regard to the rights and privileges of U.S. citizenship. In his dissent, Black isn't telling us what the law is. Garbage. Fed to the choir. To the rubes. He's telling us what he and his cohorts would have done to the law.

Of course no dissenting opinion of a leftist jurist would be complete without some juvenile chatter about fairness, compassion or some such. A cry for justice is the preamble of Black's dissent.

"The Court today holds that Congress can indeed rob a citizen of his citizenship", Black whines.44 And again, "[t]his precious Fourteenth Amendment American citizenship should not be blown around by every passing political wind that changes the composition of this Court."45 Of course, the "citizenship" to which he refers was Lefty's hot air blown on the Constitution only three years before and at best, as far as citizenship acquired abroad by statute was concerned, the unrealized ambition of Afroyim. "Since § 301(b) does not take into account in any way whether the citizen intends or desires to relinquish his citizenship," Black avows, "that section is inevitably inconsistent with the constitutional principles declared in Afroyim."46 Liar! At best Afroyim's assent principle strictly applied to persons who acquired U.S. citizenship within the Fourteenth Amendment's jurisdiction. Lefty had to prevail in Rogers in order to extend the principle beyond the United States proper.

"Under the view adopted by the majority today," Black continues, "all children born to Americans while abroad would be excluded from the protections of the Citizenship Clause, and would instead be relegated to the permanent status of second-class citizenship. . . ."47 More food for the rubes. Once again. The Court did not change anything. The Fourteenth Amendment's protections listed below the Citizenship Clause apply to all American citizens no matter where they were born; the Citizenship Clause simply does not prohibit Congress from exercising its powers to regulate citizenship by the law of the bloodline and to expatriate renegade citizens. Moreover, Bellei treated the privileges of U.S. citizenship and the obligations that applied to him with contempt. It's apparent that he never intended to retain his U.S. citizenship past the age of twenty-three. The whole thing reeks test case.

But the majority in Rogers anticipated the entire composition of the dissenting justices' concerto for the violin.
Neither are we persuaded that a condition subsequent in this area impresses one with "second-class citizenship." That cliché is too handy and too easy, and, like most clichés, can be misleading. That the condition subsequent may be beneficial is apparent in the light of the conceded fact that citizenship to this plaintiff was fully deniable. The proper emphasis is on what the statute permits him to gain from the possible starting point of noncitizenship, not on what he claims to lose from the possible starting point of full citizenship to which he has no constitutional right in the first place. His citizenship, while it lasts, although conditional, is not "second-class."

The plaintiff is not stateless. His Italian citizenship remains. He has lived practically all his life in Italy. He has never lived in this country; although he has visited here five times, the stipulated facts contain no indication that he ever will live here. He asserts no claim of ignorance or of mistake or even of hardship. He was warned several times of the provision of the statute and of his need to take up residence in the United States prior to his 23d birthday.48

Ironically, it was the dissenting justices who acknowledge Congress' historical view regarding the status of citizenship acquired via jus sanguinis proper . . . well, at least before they expressed their desire that the congressional view be obliterated.
Although those Americans who acquire their citizenship under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word "naturalize" in this way has a considerable constitutional history. Congress is empowered by the Constitution to "establish an uniform Rule of Naturalization". . . . Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen.49

Black knows very well why "the foreign-born children of citizens are not popularly thought of as naturalized citizens". The status of their citizenship is based on a centuries-old legal tradition. Both statute and State Department policy hold that a person granted citizenship at birth by the law of the bloodline is a natural-born citizen. Congress views the conferral to be predicated on the Constitution's Citizen Clause in accordance with the principle of hereditary allegiance; its power to "establish an uniform Rule of Naturalization" is merely the mechanism through which the practice of the principle is applied and regulated. Black and his leftist cohorts merely wished that the link between the Citizen Clause and legal tradition be severed so that the practice be subject to the dictates of the judiciary.
37 and 38Rogers, pg. 845.

39Rogers, pgs. 836-845.

40Rogers, pg. 843.

41 and 42Rogers, pg. 842.

43Rogers, pg. 842; Afroyim v. Rusk, 387 U.S. 253 (1967), No. 456, pgs. 262 and 292, http://supreme.justia.com/us/387/253/case.html#262.

44 and 45Rogers, pg. 837.

46Rogers, pg. 838.

47Rogers, pg. 839.

48Rogers, pg. 835-836.

49Rogers, pg. pgs. 839-840.

Closing Arguments

But instead, the majority in Rogers, with a new spin on the Graysian concept, propelled the law of the bloodline into an orbit beyond the reach of the dissenting justices' ambitions. With Schneider and Afroyim under their belt, with Wong Kim Ark now "ripe for the expanding", they never saw it coming. Rogers was the beginning of the end of Lefty's encroachments on the congressional prerogative of statutory citizenship, and Vance would be the proverbial size 13 administered to Justice Black's doctrine of perpetual allegiance, which threatened the congressional power of expatriation. But the thing about Lefty, the moment you think you might have pulverized his bony ass for the last time—finally, by God! reduced him to a catatonic pool of urine—is the moment he stirs and whips out a fresh pair of undies.


Next article in the series:  The Obama Controversy and the Soiler Factor

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