To give to this citizen that which is his own': justice black's originalist interpretation of the fourteenth amendment citizenship clause in Afroyim v. Rusk

• Author: Ibad Jafri
• Position: J.D. expected, Georgetown University Law Center, 2022; B.A., International Relations and Cinema & Media Studies, Carleton College, 2017
• Pages: 1113-1130

“TO GIVE TO THIS CITIZEN THAT WHICH IS HIS

OWN”: JUSTICE BLACK’S ORIGINALIST

INTERPRETATION OF THE FOURTEENTH

AMENDMENT CITIZENSHIP CLAUSE IN

AFROYIM V. RUSK

IBAD JAFRI*

ABSTRACT

This Note examines the evolution of Justice Hugo Black’s originalist

approach to the Fourteenth Amendment Citizenship Clause, culminating in

the majority opinion he authored in 1967’s Afroyim v. Rusk. In that landmark

decision, the Court ruled that citizens of the United States may not be invol-

untarily deprived of their citizenship. The Court’s ruling in Afroyim struck

down a federal law mandating loss of U.S. citizenship for voting in a foreign

election, overruling 1958’s Perez v. Brownell, in which the Court upheld loss

of citizenship under similar circumstances. The Note examines primary

source material from the Library of Congress—in particular, cert memo-

randa and correspondence between the Justices—to show Justice Black’s

eventual reliance on a narrow selection of materials. Specifically, Justice

Black uses the text of the Amendment and floor speeches by the two principal

framers of the Fourteenth Amendment, New York Representative John

Bingham and Michigan Senator Jacob Howard. The Note argues that Justice

Black’s approach ultimately shapes much of Chief Justice Warren’s jurispru-

dence on the Citizenship Clause. The Note concludes by showcasing the leg-

acy of Justice Black’s opinion as a landmark work of progressive

originalism.

TABLE OF CONTENTS

I. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1114

II. THE DEVELOPMENT OF JUSTICE BLACK’S VIEWS ON THE CITIZENSHIP

CLAUSE PRE-AFROYIM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1115

*J.D. expected, Georgetown University Law Center, 2022; B.A., International Relations and Cinema &

Media Studies, Carleton College, 2017. © 2022, Ibad Jafri.

1113

III. AFROYIM V. RUSK AND JUSTICE BLACK’S USE OF THE CITIZENSHIP

CLAUSE ......................................... 1119

IV. THE IMPACTS OF AFROYIM AND JUSTICE BLACK’S CITIZENSHIP CLAUSE

ABSOLUTISM ...................................... 1129

I. BACKGROUND

Much of Beys Afroyim’s life is shrouded in mystery. Various sources state

that he was born in either 1893 or 1898, either in Ryki, Poland, or Riga,

Latvia.

1

Certain details of Mr. Afroyim’s life are beyond dispute, however. In

1912, Afroyim immigrated to the United States, and on June 14, 1926, he

was naturalized as a U.S. citizen.

2

In the United States, Afroyim obtained a

top-tier arts education and was commissioned to paint portraits of cultural

luminaries like George Bernard Shaw, Theodore Dreiser, and Arnold

Schoenberg.

3

In 1949, Afroyim left the United States and settled in Israel, to-

gether with his wife, famed artist Soshana Afroyim, herself an acclaimed

artist. And in 1951, he voted in an Israeli election.

In 1960, following the breakdown of his marriage, Afroyim sought to

return to the United States. The State Department, however, refused to renew

his passport, claiming that his 1951 vote caused him to forfeit his citizenship

under the Nationality Act of 1940. His challenge of that decision, Afroyim v.

Rusk, progressed to the Supreme Court in 1967, when the Court determined

that Afroyim’s right to retain his citizenship was guaranteed by the

Citizenship Clause of the Fourteenth Amendment. In so doing, the Court

struck down the Nationality Act and overruled its precedent from Perez v.

Brownell, which had upheld loss of citizenship under similar circumstances

less than a decade earlier.

4

The driving force behind that decision was Justice

Hugo Black’s proto-originalist interpretation of the Citizenship Clause.

Black’s opinion presented an expansive, originalist view of the Citizenship

Clause. As Black describes it,

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 vol-

untarily relinquishes that citizenship.

5

1. Compare PETER J. SPIRO, AT HOME IN TWO COUNTRIES: THE PAST AND FUTURE OF DUAL

CITIZENSHIP 153 (2016), with Naturalization Record of Beys Afroyim, (on file with the U.S. National

Archives & Records Administration).

2. Id.

3. Id.

4. Perez v. Brownell, 356 U.S. 44, 62 (1958).

5. Afroyim v. Rusk, 387 U.S. 253, 268 (1967).

1114 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 36:1113