Hey Hey, Ho Ho, Afroyim Has Got to Go!

Having made my prediction about the impact of Trump v. Barbara on the originalist project, I’d like to turn my attention to what I see as an imperative for the conservative legal movement in the wake of Barbara.

Commentators have already begun to note political fall out, and various calls (here and here) comparing Barbara to Roe v. Wade in certain respects, including that it should serve as a rallying cry for conservatives until the makeup of the Supreme Court changes and the decision can be reversed. I want to suggest something else that probably needs to be done first, especially if we think Barbara could be on the books for a decade or more (which is likely): overrule Afroyim v. Rusk.

Decided in 1967 by the ever-stalwart rule-of-law enjoyers Hugo Black, Earl Warren, Abe Fortas, William Douglas, and William Brennan, Afroyim held that Section 401(e) of the Nationality Act of 1940 was unconstitutional. Section 401(e) provided that a person could be stripped of citizenship involuntarily by, e.g., voting in foreign elections or dodging the draft under certain conditions. Mr. Afroyim traveled abroad and voted in a foreign election and then when he tried to renew his passport some years later, the State Department refused on the grounds that he had forfeited his citizenship by voting in the foreign election. Notably, only a decade prior, the Court had faced the same legal issue in Perez v. Brownell, but upheld the constitutionality of Section 401(e) in an opinion authored by Justice Frankfurter, joined by Justices Burton, Clark, Harlan, Brennan, and Whittaker. Justice Brennan would soon after join in a chorus of one-off invalidations of statutes aimed at expatriation and the like, voicing some “concerns” about his decision to join Perez, ultimately switching his vote on a Court that had lost several members of the Perez majority by the time Afroyim came up. (A meta-lesson for the future of Trump v. Barbara in itself).

The imperative for cutting back Afroyim and like cases arises from Trump v. Barbara’s sweeping 5-4 holding that every single person born in the United States (subject to four and only four historical exceptions (don’t ask why those exceptions exist)), is a citizen by birth. Even in the most asinine and preposterous of scenarios, apparently. As Justice Alito noted in his dissent, a mother who is a citizen of a “strategic adversary or enemy of the United States” can give birth here, raise the child “with hatred of this country,” and then the child can even “plo[t] to harm this country,” yet there is little we can do about it; “at least under current precedent,” as Justice Alito observes, citing Vance v. Terazas, 444 U.S. 252, 259-260 (1980) (in turn expounding the rule of Afroyim v. Rusk). See also Trump v. Barbara, Thomas, J., dissenting (“The Court’s decision … makes it unlawful for the President to enforce the Order … against a child of an alien enemy or a child of a foreign spy. He cannot even enforce the Order against children who are raised in foreign countries, join foreign armies, and fight wars against the United States.”).¹

Justice Frankfurter’s majority opinion in Perez, as well as the dissent in Afroyim, exhaustively lay out why Afroyim was wrongly decided, in particular, decimating Afroyim’s “originalist” cherry-picking of sources that even the majority had to admit were at best ambiguous and not the ground of the decision. The Afroyim majority, after making this concession, ultimately held that its ruling rested upon “the principles of liberty and equal justice” behind the Fourteenth Amendment. Not exactly the kind of thing most of the Court’s current originalists or conservatives believe a viable legal principle, at least at the high level of generality in which Afroyim expressed and deployed it.

Even given the long-winded recitation of statements from the sponsors of the Citizenship Clause in Afroyim, I think Justice Barrett in particular would struggle to agree that these sources give the Fourteenth Amendment’s Citizenship Clause a negative power such that citizenship and naturalization can never be withdrawn except by voluntary agreement of the erstwhile citizen. “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.” To say that someone is a citizen says absolutely nothing about Congress’ powers to, at least in some circumstances, revoke that citizenship (indeed, it doesn’t say anything about the individual’s own ability to voluntarily renounce it, either!). On what “originalist” or “textualist” principle does one then infer an absolute bar on expatriation? And how on earth can one square the Citizenship Clause, which was merely adopting ius soli principles with some minor historical exceptions (according to the Barbara majority), with the classical understanding, contra Afroyim that, as Justice Story put it: “no person can by any act of their own, without consent of the government, put off their allegiance, and become aliens”? See Shanks v. Dupont, 28 U.S. 242, 246 (1830).

To be sure, no one would think that, for example, Congress could for arbitrary reasons expatriate someone, or, for example, do so based on someone’s race (else, the Citizenship Clause’s undisputed purpose of overturning Dred Scott and conferring citizenship on Blacks would be an absolute dead letter). But reasonable grounds for expatriating someone due to foreign entanglements or outright national security issues sit far afield from such concerns. Hell, even Justice Brennan was willing to recognize these fundamental legal and political realities at one point. See Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) (Brennan, J., concurring) (acknowledging that expatriation can still be appropriate in light “of serious problems inevitably implicating nationality,” such as “dual allegiance” and “the deliberate assumption of a foreign attachment”).

As Justice Frankfurter argued in dissent in Trop v. Dulles, 356 U.S. 86 (1958)—a case that forms a part of this broader saga and which held that expatriation for military desertion was a “punishment” that was “cruel and unusual” under the Eighth Amendment akin to exile— “Possession by an American citizen of the rights and privileges that constitute citizenship imposes correlative obligations, of which the most indispensable may well be ‘to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense,’ [Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905)]. Harsh as this may sound, it is no more so than the actualities to which it responds. Can it be said that there is no rational nexus between refusal to perform this ultimate duty of American citizenship and legislative withdrawal of that citizenship?” Under a proper and classical conception of justice, which Frankfurter nails, rights in modern parlance must be correlative of identifiable duties. The rights of parents over their children correlate to the very serious duties those parents owe their children, which in turn are the same way we would describe the rights of the children as corresponding to duties those children owe to their parents. That is the very nature of iustitia. Yet Trump v. Barbara, against the backdrop of Afroyim and the cases leading up to it demonstrate something is deeply wrong with the Court’s present conception of the “right” of citizenship.

I have long believed that Afroyim and similar cases should be overruled, and while the reasons here are not exhaustive, conservatives animated by the virtue of pietas should seek expeditiously to get Afroyim expatriated from the U.S. Reports, at least while Trump v. Barbara remains with us.

1. The Court’s cases in theory still recognize grounds for denaturalization on the basis of fraud in the procurement of citizenship, see Harisiades v. Shaughnessy, 342 U.S. 580 n.5 (1952), but the saga leading up to Afroyim saw the Court increasingly whittle away at this basis by, for example, increasing the burden of proof on the government, see Nowak v. United States, 356 U.S. 660 (1958); Schneiderman v. United States, 320 U.S. 118 (1943), often for the express protection of accused communists. Thus by the time Afroyim quipped in a footnote that “[o]f course … naturalization unlawfully procured can be set aside,” (see n.23), the grounds for doing so had been made more difficult for the government while simultaneously the power to remove citizenship for actions taken after it was conferred were done away with.