Beys Afroyim was a Polish-born artist who immigrated to the United States and became a naturalized U.S. citizen. Years later, after taking up residence in Israel, he voted in an election for the Knesset (the Israeli parliament). At the time, Section 401(e) of the Nationality Act of 1940 provided that a U.S. citizen would lose his nationality by voting in a foreign political election. When Afroyim later applied to renew his U.S. passport, the Department of State—led by Secretary of State Dean Rusk—refused, asserting that Afroyim had expatriated himself by voting abroad. Afroyim brought suit seeking a declaration that he remained a U.S. citizen, arguing that Congress lacked constitutional authority to divest him of citizenship without his consent. The lower courts ruled against him, relying on Perez v. Brownell, which had upheld Congress's power to revoke citizenship for voting in a foreign election. The Supreme Court granted certiorari.
Does the Fourteenth Amendment's Citizenship Clause permit Congress to revoke a person's U.S. citizenship for voting in a foreign political election, absent the citizen's voluntary renunciation of nationality?
Under the Fourteenth Amendment, once acquired by birth or naturalization, United States citizenship is a constitutional status that Congress cannot divest without the citizen's voluntary assent. Citizenship cannot be taken away as a consequence of conduct alone; loss of nationality requires the individual's voluntary relinquishment of citizenship.
No. The Fourteenth Amendment forbids Congress from involuntarily stripping a person of U.S. citizenship. Section 401(e) of the Nationality Act of 1940, which purported to expatriate citizens for voting in a foreign election, is unconstitutional as applied to a Fourteenth Amendment citizen.
The Court, in an opinion by Justice Black, anchored its analysis in the text and history of the Fourteenth Amendment's Citizenship Clause, which declares that all persons born or naturalized in the United States are citizens. The Clause constitutionalizes citizenship, placing it beyond the reach of ordinary legislative control. The Court read the Clause as conferring a substantive right of national membership on both native-born and naturalized citizens and as denying Congress any power to abridge that status except by the citizen's own voluntary renunciation. The majority emphasized that the Civil War Amendments were designed to repudiate Dred Scott and to protect core incidents of national citizenship from political manipulation. Rejecting the government's reliance on implied foreign affairs powers, the Court explained that constitutional guarantees cannot be overridden by policy concerns. Congress's power to establish a uniform rule of naturalization permits it to define the terms for acquiring citizenship, but not to retract citizenship once conferred under the Fourteenth Amendment, absent the citizen's consent. The Court distinguished between the recognized right of voluntary expatriation and involuntary denationalization; only the former is consistent with constitutional text and history. In so holding, the Court expressly overruled Perez v. Brownell, reasoning that Perez improperly treated citizenship as a legislative grace subject to forfeiture for conduct thought to complicate foreign relations. The majority further drew support from Trop v. Dulles, which condemned denationalization as a penalty inconsistent with the Eighth Amendment and underscored the gravity of stripping citizenship. The dissent argued that Congress retained authority to define conditions of continued citizenship based on foreign relations needs, but the majority held that such interests cannot justify extinguishing a constitutional status without the individual's assent.
Afroyim reoriented American citizenship from a statutory status to a constitutional guarantee. It repudiated the notion that Congress may deploy foreign affairs or other implied powers to strip citizenship for conduct such as voting in a foreign election. The case overruled Perez v. Brownell and established that citizenship can be lost only through voluntary renunciation, a principle later elaborated in Vance v. Terrazas, which required proof that any potentially expatriating act was undertaken with intent to relinquish nationality. Practically, Afroyim protects dual nationals and Americans living abroad by ensuring that ordinary participation in foreign civic life, without an intent to abandon U.S. nationality, does not jeopardize their citizenship. Administratively, it led the State Department to adopt policies presuming an intent to retain U.S. citizenship in many common scenarios, reflecting the constitutional baseline that involuntary denationalization is impermissible.
Afroyim v. Rusk stands as a constitutional bulwark safeguarding the permanence and dignity of American citizenship. By grounding citizenship in the Fourteenth Amendment, the Court foreclosed legislative efforts to treat nationality as a revocable privilege contingent on conduct that Congress disfavors, such as voting in a foreign election.