The idea of punishing people by depriving them of their citizenship is hardly new, even in the United States. It features, for instance, in the classic short story “The Man Without A Country,” by my distant relative Edward Everett Hale. But in the United States, it is usually, though not entirely illegal. Neither Congress, nor the President, nor the courts, have any power to deprive most American citizens of their citizenship. That’s because of the Fourteenth Amendment, ratified in 1868, which declares that
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….
Before 1868, the U.S. Constitution didn’t define citizenship. This created a number of paradoxes, as I describe in more detail in my book The Conscience of The Constitution. Although it’s clear from the Constitution’s text that there is such a thing as U.S. citizenship—Article I section 2 and Article I Section 3 refer to “a Citizen of the United States,” as does Article II section 1, and Article IV section 2 refers the “Privileges and Immunities of Citizens in the several States”—the document never explained what exactly a citizen of the United States is, or how one gets citizenship. Although Congress was given power to enact “an uniform Rule of Naturalization,” it is never given any other powers over citizenship.
That meant that, before 1868, U.S. citizenship was basically a function of state citizenship, which was a real problem in the days of slavery. A black man could be a citizen of Massachusetts, and consequently a citizen of the United States. But a black man could not be a citizen of South Carolina, and therefore could not be a citizen of the United States there. If a black sailor were to sail in a ship from Boston to Charleston, therefore, and be imprisoned under the Negro Seaman’s Act, therefore, was he not being deprived of the “privileges and immunities” of his citizenship? Abolitionists answered yes—he was a citizen of the United States, and state laws to the contrary must be unconstitutional. But then came Dred Scott, which declared that black Americans, slaves or not, could never be American citizens.
The Emancipation Proclamation and the Thirteenth Amendment declared the slaves free, and some argued that they were also automatically citizens as a result. But many feared that this was not a safe assumption. What if wicked men in some future period chose to re-enslave the freedmen or their descendants, or deprive them of citizenship? Southern states in the post-war era were already refusing to respect the rights of free black citizens. And re-enslavement wasn’t an unrealistic fear. The freedmen of Haiti had been re-enslaved only decades before.
It was to clear up these and other problems that the Fourteenth Amendment was written, which takes the question of citizenship almost entirely out of Congress’s hands. It makes citizenship a constitutional matter, not a political one. Congress cannot deprive any person “born or naturalized in the United States, and subject to the jurisdiction thereof” of his or her citizenship.
In Afroyim v. Rusk, the Supreme Court declared that the citizenship conferred by the Fourteenth Amendment cannot be taken away by Congress under any circumstances. “Citizenship,” said the Court,
is no light trifle to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power. In some instances, loss of citizenship can mean that a man is left without the protection of citizenship in any country in the world—as a man without a country. Citizenship in this Nation is a part of a cooperative affair. Its citizenry is the country and the country is its citizenry. The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.
Justices Harlan, Clark, Stewart, and White, dissented. They argued that while the Constitution grants citizenship, Congress still had power to take it away, so long as it comports with due process.
Indeed, deprivation of citizenship was imposed as a punishment for draft-dodging throughout American history, and in Kennedy v. Mendoza-Martinez, the Supreme Court seemed to hold that that is constitutional, again so long as due process is afforded the accused. But the Afroyim Court overruled the cases on which Kennedy was based.
Also, in Rogers v. Bellei, the Court found—over a dissent by Justices Black, Douglas, and Marshall—that there are some citizens whose citizenship can be revoked: those who do not automatically qualify as citizens under the Fourteenth Amendment. For people whose citizenship is based on statute, Congress giveth and Congress can taketh away. That case involved a statute that placed limits on dual citizenship by forcing people to make a choice. Because “a dual national constitutionally may be required to make an election,” a law to that effect was constitutional, so long as it complied with due process.
The dissenters argued that the purpose of the Fourteenth Amendment was to eliminate the notion that there is some “hierarchy of citizenship,” with some people more citizen-y than others. That’s largely true: the authors of the Amendment rejected the notion, advanced by advocates of slavery, that there could be three classes (slaves, citizens, and non-slave “others”).
One thing that is obvious: the idea of depriving people of their citizenship as a punishment for speech is a disgusting proposal, rooted in tyrannical impulses. It’s the sort of political crime that the founders sought to prohibit when they carefully defined the word “treason” and banned bills of attainder—to prevent future Presidents from persecuting people whose political expression they disliked.