Law of Return
It is interesting to note that Israel’s “Law of Return” confers Israeli citizenship automatically, without the immigrant having to apply for it, attend any ceremony, or swear any oath of allegiance.

Afroyim v. Rusk, 387 U.S. 253 (1967)

Beys Afroyim (born Ephraim Bernstein in Poland in 1893) immigrated to the US in 1912 and became a naturalized US citizen in 1926. In 1950, Afroyim moved to Israel. He tried to renew his US passport in 1960, but the State Department refused on the grounds that he had lost his citizenship by voting in an Israeli election in 1951. Afroyim sued the State Department, and the Supreme Court ruled (5-4) that he was still a US citizen.

The basic point of the Supreme Court’s ruling in Afroyim v. Rusk was that the “citizenship clause” of the 14th Amendment to the US Constitution — while originally intended mainly to guarantee citizenship to freed Negro slaves and their descendants, and subsequently interpreted in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) as conferring citizenship at birth to virtually everyone born in the US — had effectively elevated citizenship to the status of a constitutionally protected right. Hence, Congress had no right to pass a law which had the effect of depriving an American of his citizenship without his assent.

Thus, the court ruled, a section of the Immigration and Nationality Act mandating automatic loss of citizenship for voting in a foreign election was invalid. Other, similar provisions providing for loss of citizenship for serving in a foreign army, or even swearing allegiance to a foreign country, were similarly invalid unless the action was accompanied by an intent to give up US citizenship.

The Supreme Court noted that the Civil Rights Act of 1866 had already tried to confer citizenship on all persons born or naturalized in the US. However, proponents of the 14th Amendment had expressed fears that this provision could be repealed by a later Congress, and so they insisted that the new amendment should contain its own definition of citizenship that Congress could not change later on.

Further, the court pointed to a proposed (but never ratified) constitutional amendment, early in the 19th century, which would have revoked the US citizenship of anyone who accepted a foreign title or gift, as evidence that Congress was not believed at that time to have the power to do such a thing via ordinary legislation. (Incidentally, this is the same proposed amendment which some foes of the federal income tax allege was in fact duly ratified, then suppressed by lawyers who supposedly feared their “foreign” title of “Esquire” would result in the loss of their US citizenship and their positions of power in the government.)

By ruling as it did in the Afroyim case, the Supreme Court explicitly threw out the principles held nine years earlier in Perez v. Brownell, 356 U.S. 44 (1958).

The Supreme Court’s Afroyim ruling did not definitively throw out all prohibitions against dual citizenship in the US. Although the court clearly stated that loss of citizenship required the individual’s assent, some uncertainty remained as to whether an actual swearing of allegiance to a foreign country would, by itself, constitute such assent. (The question of how, or even whether, Afroyim had become a citizen of Israel, or sworn allegiance to Israel, did not come up in his case.)

Also, the court did not address the issue of what standard of proof would be required in citizenship cases — i.e., whether intent to give up citizenship had to be proved clearly and convincingly (as in a criminal trial), or by a preponderance of evidence (as in a lawsuit). This question would not be resolved until Vance v. Terrazas, 444 U.S. 252 (1980).

It should additionally be noted that the Afroyim case did not deal with Congress’s right to require new citizens to renounce their prior allegiances as a prerequisite for naturalization.

The statutory provision calling for loss of US citizenship for voting in a foreign election, struck down by the court in this case, was repealed by Congress in 1978 citizenship law amendments (Pub.L. 95-432) (Public Law 95-432 – H.R.13349).

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