Legislative Initiatives


Legislative Initiatives

Mr. Speaker, we have approximately 25,000 Japanese interned in our state, and no one could be more interested in this legislation than I, because we are very much concerned that some of these people may be left there to mingle with our people when this war has been completed.

—Congressman Richard Harless (D-AZ), 1944

Congress deliberated on the issue of forced expatriation twice before the American Civil War. The first time was during the debates on the original Thirteenth Amendment (1810); the second was in reaction to the unacceptable betrayal on the part of the Confederacy (from the standpoint of the Union). Both proposals were passed by Congress but were never enacted into law. However, from the end of the nineteenth century until the mid- twentieth century, the legislative branch initiated and legislated many expatriation laws. The hegemonic perception of Congress was that citizenship can and should be taken away if the American citizen acquires another nationality or commits certain acts that represent a transfer of allegiance. Only in the late 1950s did Congress begin to question this policy (mainly in conjunction with new rulings by the Supreme Court). Analyzing debates in the two houses of Congress has important implications for understanding policies and public opinion. The purpose of this chapter is not just to survey the legislative history of U.S. expatriation law1 but to chart the pattern of difference between the official language of the law and the socio-cultural context in which expatriation laws were legislated in the United States. I show that legislation and debates in Congress regarding the practice of taking away citizenship were mainly introduced to eliminate dual citizenship.

The Original Thirteenth Amendment

In 1810 Congress debated whether to add another amendment to the Constitution that would strip American citizenship from citizens who acquire any title of nobility from another country. According to Article 5 of the Constitution, for an amendment to pass, the proposal has to receive a two-thirds majority in both houses and receive ratification by three-fourths of the states. The Titles of Nobility Amendment (TONA) was approved by the Senate by a vote of 19 to 5 on April 27, 1810. The House of Representatives then approved the amendment on May 1, 1810, by a vote of 87 to 3, and TONA was submitted to the states for ratification. The text reads as follows:

The reasons for proposing this amendment are obscure, and there are no records of the debates on it. Some scholars have suggested that it was introduced in reaction to partisan politics or xenophobia. Others have argued that it was connected to rising fears, during the decade preceding the War of 1812, that the United States would be recaptured and marginalized by European powers and that it also stemmed from the long tradition of opposition to hereditary privilege in the United States.3

The passage of an amendment of this nature would have had the potential to denationalize many Americans and even to change the course of history. For example, most lawyers could have been under threat of losing American citizenship for taking the title of “Esquire.” Moreover, some of the American “founding fathers” such as George Washington, Alexander Hamilton, and James Madison had received honorary titles from France.4 This amendment would have put them outside the pale of legitimate American-ness. In the end, an insufficient number of states ratified the Titles of Nobility Amendment so that it did not become part of the Constitution, though ratification by only one more state would have given TONA the three-fourths approval (13 of 17) required.5

This failed amendment was briefly discussed in the Supreme Court in relation to expatriation. In Afroyim v. Rusk (1967) the judges gave some consideration to whether this proposal should have any implication for the then-current interpretation of forced expatriation. It was argued that “this ‘obscure enterprise’ in 1810, motivated by now discredited constitutional premises, cannot offer any significant guidance for solution of the important issues now before us.”6

Expatriation and the American Civil War

Although never implemented, the possibility of revoking American citizenship as a punishment was proposed during the American Civil War (1861–1865). On July 2, 1864, Senator Benjamin Wade (R-OH) and Representative Henry Winter Davis (R-NY) introduced a Reconstruction Bill (HR 244). Congress was concerned that President Lincoln’s “10 percent plan” for reincorporating Southern states into the Union was too weak. While Lincoln was willing to embrace any Confederate state in which 10 percent of its voters swore loyalty to the United States, the Wade-Davis Bill demanded extreme measures from these formerly rebellious states—such as a loyalty oath taken by 50 percent of the white males, abolition of slavery (but not suffrage for the new freedmen), appointment of provisional military governors in the seceded states, disqualification of Confederate officials from voting or holding office, and the revocation of citizenship from the leaders of the rebellion (see Figure 3.1). Although the bill was passed by Congress, these regulations were viewed by many as degrading and unrealistic. Eventually, President Lincoln pocket-vetoed7 the bill because he believed it weakened the efforts to win the war and secure emancipation. In particular, the bill would have compelled him to repudiate the new government of Louisiana. The debates around this bill dealt with Southern reconstruction and did not include any discussion of the theoretical or actual implications of expatriation practices.

In the end, both the Wade-Davis Bill and the Titles of Nobility Amendment did not become law, but in neither case was the issue of expatriation connected to the final decision to abandon the laws. This may suggest that even before the American Civil War, the idea of forcefully disconnecting the tie between the individual and the state was seen as a legitimate punishment for Americans who had transferred their allegiance.

The first occasion on which the revocation of citizenship was introduced and actually performed was during the Civil War, when the 38th Congress (1864–1865) decided to take this step. The overwhelming extent of desertion from the Confederacy and the regiments of the North had significant implications for the social cohesion of both armies (and played an important role in the ultimate failure of the South). In contrast to the horrendous penalties meted out to Confederate deserters, the North tried to delineate a tough but “humane” form of punishment. Section 21 (copied from Bill 175 passed by the Senate) of the Enrollment Act (HR 678) imposed a penalty of citizenship rights revocation for future deserters, as well as current deserters who did not return to their post within sixty days. This section was introduced as part of a bill that provided authority to call for and regulate additional manpower for the national forces. Most of the debates concerning this bill dealt with the relative power of Congress over American citizens, rather than the meaning of this citizenship (or its revocation). When Congressman Andrew J. Rogers (D-NJ) opposed the proposed bill, he was not concerned about the changing value of citizenship; instead, he feared that the bill’s provisions would impose an unnecessary burden on the citizens of the United States. Others, like Congressman John W. Chanler (D-NY), argued that this proposed law would increase the tyrannical powers of presidents. Congressmen James F. Wilson (R-IA), James C. Allen (D-IL), and Philip Johnson (D-PA), who opposed the bill on the grounds that it inflicted punishment without due process, pointed out that there would be no tribunal that decided upon this punishment, and that taking away citizenship from current deserters constituted a retroactive punishment (that is, the bill proposed inflicting punishment on deserters who deserted before the passage of the law). Nevertheless, the legislation was passed and became effective on March 3, 1865. The objections to the revocation of citizenship were connected to the mechanism of the penal system or were part of the protests against the Civil War itself.

Two years later, the provision that revoked the citizenship of deserters was amended. Bill 108 held that enlisted volunteers to the United States who had “faithfully” served until the surrender of Lee and Johnston on April 19, 1865, and then left the ranks without authority, assuming that they had fulfilled their contract with the government, would not forfeit their citizenship as deserters. As was the case with the original bill (HR 678), the opposition to this argument was divorced from any general perception of American nationality. It was feared instead that the amendment would present an opportunity for thousands of “real” deserters to avoid punishment; that soldiers who had remained in their ranks would be outraged; and that this would impose a greater burden on the taxpayers. In 1912, the provision that revoked citizenship from deserters was further relaxed. At the direction of the Committee on Naval Affairs, Congressman Lemuel P. Padgett (D-TN) suggested amending the law that stripped citizenship from deserters so that it applied only during times of war (HR 17483). The debates did not question the meanings or implications of losing citizenship, but considered only whether it was the appropriate judicial punishment for a particular crime.

Only with the Fourteenth Amendment and Expatriation Act of 1868 could a citizen officially choose to follow the Hobbesian assertion that allegiance can be transferred and accordingly renounce his American citizenship. However, once the idea of citizenship was potentially divorced from birthplace, the nation-state was able to demand the reverse. In other words, it had the power to revoke citizenship from persons who did not deserve (from the congressional point of view) to be members of the polity any more. Both decisions determined that citizenship was a basic right for any American but with opposing rationales. On the one hand, the Fourteenth Amendment declares that U.S. citizenship is a constitutional right, which is granted automatically at birth on American soil. On the other hand, the Expatriation Act of 1868 declared the right of all to change their allegiance. The latter law reflects more than any other law the contractual principle behind the liberal ethos of the United States, and posits that because the relationship between the American individual and the state is contractual, it can be terminated at any point by the will of the citizen. While today the right of expatriation may appear natural and trivial, this was not always the case. In the past, and in some countries even today, the state strictly defended its gates from any attempt to shirk civil or military obligations by running away.

The Progressive Era

The legislation that has been produced since the Expatriation Act of 1868 reflects the beginning of a different attitude regarding the perceived relationship between the citizen and the state. The Expatriation Act of 1907, which was legislated in response to the anxiety regarding high levels of immigration, was the first statute to specify acts of expatriation. Among the actions in this statute (HR 24122) that are cause for punishment by expatriation are taking an oath of allegiance to a foreign government; being naturalized by a foreign government; establishing residence abroad by a naturalized American citizen who lives for two years in his native country; and, for women, marrying a foreigner (even if they continue to reside in the United States). Beforehand, such acts could have caused the loss of citizenship, not through law but according to the various treaties the United States had signed with particular states.8 Moreover—and this provision would have important implications during the Second World War—“no American citizen shall be allowed to expatriate himself when this country is at war.” The multiplication of reasons for expatriation meant an elaboration and “internalization” of the national world order.

Although the Expatriation Act of 1907 did not necessarily conform to the philosophy of the Progressive movement, it was the major Progressive Era federal law affecting women’s citizenship.9

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