The Sovereign Citizen. Patrick Weil
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from native-born Americans. On the eve of the war, only American-born citizens acquiring another nationality risked losing their citizenship. But in 1940, a new law extended the denationalization power to include those Americans who had evaded the draft, joined a foreign army, or participated in foreign elections.
The Supreme Court reacted over a sixteen-year period from 1955 until 1971 by splitting on several occasions over the question of the constitutionality of forced denationalization provisions. About half of the Court, depending on the particulars of a given case, continued to uphold the authority of Congress to deprive naturalized and native Americans alike of their citizenship. As the basis for its decisions, the Court asserted judicial restraint and the exclusive authority of the elected branches over foreign affairs. The other half of the Court, however, invoked a number of constitutional rights in support of striking down and restricting laws permitting denaturalization and expatriation.
Denaturalization had provoked a fierce debate on the Supreme Court between these two factions. And, eventually, the practice of denaturalization was sharply restricted. Nevertheless, a nearly unanimous Court permitted—and still permits, in narrow circumstances—a naturalized citizen to lose her American citizenship.25
But for the native-born, the situation was different. Some justices were aghast at the possibility of forced denationalization of American-born citizens. “I am convinced that such a suggestion would have been shocking to the Founding Fathers and the American people and it should still be shocking,” wrote Chief Justice Earl Warren at the beginning of 1958 on a stenography pad found in his personal archives.26 At that moment Warren was in the middle of a fight with his brethren on the Court over that very issue in the Perez v. Brownell case and lacked a majority supporting his views. But thanks to Justice Hugo Black and with the help of his clerk, Jon Newman, Warren was in the process of developing a reasoned criticism of expatriation that was rooted in the language of the Constitution. Several members of the Court, principally Justices Felix Frankfurter and Tom Clark, invoked the war powers, the exclusive authority of the elected branches to manage foreign affairs, and the sovereignty of the state with respect to its citizens to limit judicial intervention. Warren replied to them that, on the basis of the founding principles of the American Republic crystallized in the Fourteenth Amendment, American sovereignty was derived not only from the state but belonged to citizens themselves. At the time, Warren’s view was in the minority, and his approach was detailed only in a dissenting opinion. Eventually, however, Justice Warren and his allies on the Court were able to marshal several other constitutional provisions in support of their view that the denationalization of Americans was unconstitutional, including the Eighth Amendment (which prohibits cruel and unusual punishment) and the Fifth Amendment (which protects due process). The road was a bumpy one, however, and Warren’s rough coalition would lose some cases before winning several others.
It was only in 1967, in Afroyim v. Rusk, that Justice Black was finally able to outline an interpretation of the Fourteenth Amendment that secured for all—native-born and naturalized—the full set of privileges entailed in American citizenship. American citizenship was no longer a contingent benefit conferred by a sovereign state in exchange for its citizens’ respect for the laws. As Justice Warren put it in his Perez dissent, “their citizenship is not subject to the general powers of their government.” Citizens themselves were now a fount of sovereignty.
Contrary to the definition of citizenship as “the right to have rights,” the concept of citizenship as the source of sovereignty could cover and protect all citizens, including those with dual citizenship and the foreign-born. By the time Perez was reversed in 1967 in the Afroyim decision, the concept of citizen sovereignty had become the jurisprudence of the land. And what is more, it had achieved, without much notice, a revolution in the definition of American citizenship.
The evolution of denaturalization in twentieth-century America carries us from the edges to the very heart of the American story by revealing the transformation of Americans’ understanding of citizenship. Changes in America’s management of naturalization and denaturalization reflect larger structural phenomena such as the rise of the state and the growing recognition of basic civil and human rights, but these changes were not the inevitable product of broader forces.
Before naturalization could become the federal institution that it is now, a foundation first had to be laid. Richard Campbell, the first Chief of the Division of Naturalization, served from 1906 to 1922. A policy entrepreneur, Campbell initially took his post with relatively few resources at his disposal, his denaturalization authority among them, but succeeded in using the minor clout of the position to his full advantage. His successes were less the result of intra-governmental competition than they were born of cooperation and the forging of bureaucratic alliances. The federalization process did not occur without resistance, but in contrast to other policy areas where units of government typically compete to exercise and extend the authority at their disposal, in the case of naturalization, many of the political stakeholders were eager to transfer power to the rising Division—and, later, Bureau—of Naturalization.27
Although the executive branch and the wider public backed a vigorous and aggressive denaturalization policy, several dissenting figures played a major role in preventing hundreds of thousands of foreign-born Americans from losing their citizenship. These advocates were not prophets of a future where Americans were fully secure in their citizenship, but they were able to find in the law of the land—or, at least, in their interpretations of the law—a basis for a position that favored the preservation of citizenship.28 From the end of the 1930s until the 1960s, courageous lawyers defended their clients from the trial courts all the way up to the Supreme Court. It took years before mounting judicial losses finally yielded to substantial legal gains. But without these efforts, the federal judiciary might have continued to denaturalize hundreds of American citizens for such causes as “mental reservation” at the moment of the pledge of allegiance or for “lack of attachment” to the Constitution.29 Among these advocates were Harry Weinberger from New York, who represented the famed anarchist Emma Goldman; Ernie Goodman from Detroit, who defended numerous Communists during the Cold War; and their colleague from New York, Carol King, who worked on behalf of radicals like Harry Bridges and William Schneiderman. For instance, had King not possessed the audacity to ask Wendell Willkie, a former Republican presidential candidate who received nearly 45 percent of the vote in the 1940 election, to represent the communist Schneiderman in front of the Supreme Court (and had Willkie himself not summoned the courage to take on the case), the fate of many leftist activists targeted for denaturalization in the 1950s might have been quite different.
Still, perhaps the most forgotten, yet important, historical player in reducing the scope of denaturalization was George Wickersham, U.S. Attorney General under President Taft. Wickersham was skeptical of denaturalization, and immediately upon his arrival at the Justice Department in 1909, he issued an instruction called Circular 107 ordering the Department not to initiate denaturalization proceedings against new Americans who had by accident or circumstance failed to follow the letter of the law when they were naturalized. Instead, Justice Department lawyers were only to pursue denaturalization proceedings in instances where a substantial result could be achieved “in the way of the betterment of the citizenship of the country.” In this manner, Circular 107 played a major role in reducing the impact of denaturalization prior to World War II. Similarly, Wickersham fought against the State Department to prevent it from adopting a policy that would deprive naturalized citizens living abroad of their citizenship. Instead, he prevailed on the State Department to impose the much less severe consequence of loss of U.S. consulate protection. His interpretation again preserved the citizenship of thousands of naturalized Americans. Wickersham was also an early defender of a liberal approach to free speech. In 1912, outraged that a socialist union leader had been denaturalized through proceedings initiated by an assistant U.S. attorney, he ordered the attorney to work to reestablish the man’s American citizenship.30
Finally, there is a serendipitous dimension to the Supreme Court’s revolutionary jurisprudence. If certain provisions permitting the forced expatriation of many categories of Americans had not been inserted in the 1940 Nationality Act at the request of the State Department and the Department of War, perhaps the Supreme Court would not have been forced to enter the fray, redefining