The Sovereign Citizen: Denaturalization and the Origins of the American Republic

Conclusion

Conclusion The Afroyim decision marked Chief Justice Earl Warren’s victory in an expatriation battle that had lasted almost ten years. But Warren’s legacy would fall on the shoulders of Justices Hugo Black and William Brennan—an increasingly unlikely set of allies—to resist a spirited set of challenges. In 1968 Warren decided to resign before the end of President Lyndon Johnson’s term so that Johnson could name his successor. But Johnson’s nominee , Abe Fortas, who had served on the Court as an associate justice since 1965,1 failed to win Senate approval, and it fell to President Richard Nixon to choose the next chief justice. His choice, Warren Burger, took office on June 23, 1969. Burger had only been on the Court for a few months when it first considered on direct appeal the expatriation case of Aldo Bellei.2 Bellei was born in Italy in 1939 to an American mother and an Italian father and was a dual citizen of both countries. In order to preserve his American citizenship under the laws then in effect, Bellei was required to satisfy a five-year continuous residency requirement between the ages of fourteen and twentyeight . But Bellei, who was raised in Italy and spent time only intermittently in the United States, had not done so. When he applied for an American passport in 1966, he was notified by the American consul in Rome that he had lost his U.S. citizenship according to Section 301(b) of the Immigration and Nationality Act of 1952. Bellei filed suit in response, requesting that the court invalidate Section 301(b) and declare him an American citizen. In 1969, a three-judge district court panel sustained Bellei’s claims and, citing Afroyim v. Rusk and Schneider v. Rusk, held his expatriation to be unconstitutional.3 The government appealed directly to the Supreme Court, and the case was heard on oral arguments on January 15, 1970. In conference, Black found himself as part of a five-to-three majority favoring the view that Bellei had been properly deprived of his American citizenship, and Burger assigned him the opinion.4 But a few weeks later, Black wrote to his colleagues that “the difficulty of the task of a reversal finally appeared to me to be insurmountable.” Black ultimately decided to write a memo arguing the opposite position, Conclusion 177 leaving the Court equally divided.5 The case was reargued on November 12, 1970, and the opinion was assigned to Harry Blackmun, who had just joined the Court to fill Abe Fortas’ vacant seat after the latter’s retirement following a scuttled chief justice nomination and ethics scandal. In a memo composed a few days before the case was reargued, Blackmun stated his inclination for overturning the Court’s Afroyim and Schneider holdings: “I would like to be able to reverse. The two cases, however, give me great difficulty. I am not at all sure that they are correctly decided. Yet, there they stand. I shall necessarily be interested in Mr. Justice Harlan’s reaction to this.”6 But, although John M. Harlan’s sympathies lay with the majority, he had already expressed his distaste with using the Bellei case as a vehicle for overturning Afroyim. Harlan’s jurisprudential philosophy was to follow precedents ,7 and he felt “bound to bow”8 to even to those “he most disapproved.”9 As a result, Harlan sought to ensure that his vote was “wholly consistent with bowing to the basic holding in Afroyim.”10 This meant that Blackmun lacked the majority necessary for reversing Afroyim. But, as a consolation, he was able to muster five votes in favor of reading it narrowly, effectively restricting the protections offered by the citizenship clause of the Fourteenth Amendment. In response, Black asserted that the term naturalization as it was used in the first sentence of the Fourteenth Amendment should be construed to include American citizens born abroad and, furthermore, that Bellei had never voluntarily relinquished his citizenship.11 Black was defeated on that point. Bellei would lose his American citizenship, but the decision would not reverse of Afroyim. Thus, Blackmun’s opinion for the majority in Bellei, finally decided on April 5, 1971, could be seen as a reaffirmation of Afroyim construction of the Fourteenth Amendment. But, at the same time, the decision excluded American born outside of the physical borders of the United States from the Fourteenth Amendment’s benefits and protections: The central fact, in our weighing...