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Article I, Section 8 empowers Congress to “establish an uniform Rule of Naturalization”—to regulate the terms by which foreigners may acquire American citizenship. Simple enough, right? Except that Old World nations generally embraced the doctrine of perpetual allegiance (that a natural-born Ubekibekibekibekistanstani remained an Ubekibekibekibekistanstani until death). English common law, for example, effectively denied the legitimacy of the concept of self-denaturalization. As the Royal Navy began to impress into its service British expatriates stationed on American vessels, President Jefferson wrote to Treasury Secretary Albert Gallatin that “I hold the right of expatriation to be inherent in every man by the laws of nature . . . the individual may [exercise such right] by any effectual and unequivocal act or declaration.”

In the mid-1860s, naturalized Americans were conscripted into the French and Prussian Armies while visiting relatives in their former homelands. In 1867, two naturalized Americans were charged with treason against the British government despite having renounced their allegiance to Queen Victoria. America’s firm avowal of the efficacy of individual naturalizations and the Old World’s denial that the antecedent event (expatriation) could occur were clearly incompatible.

Andrew Johnson observed in his Second Annual Message of December 3, 1866 that “[p]eace is now prevailing everywhere in Europe, and the present seems to be a favorable time for an assertion by Congress of the principle, so long maintained by the Executive Department, that naturalization by one State fully exempts the native-born subject of any other State from the performance of military service under any foreign Government, so long as he does not voluntarily renounce its rights and benefits.” See for yourself:

Johnson also wrote in his next Annual Message that this “singular and embarrassing conflict of laws” (contradictory international positions on expatriation) “perplexes the public mind concerning the rights of naturalized citizens and impairs the national authority abroad.” He “appeal[ed] to Congress to declare the national will unmistakably upon this important question.”

Congress responded with the Expatriation Act of July 27, 1868. Echoing Jefferson in more ways than one, the law’s preamble affirmed that “the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.” Any official act undercutting this sacrosanct individual right was thereby “declared inconsistent with the fundamental principles of this government.”

Here are pictures of the draft legislation:

Congress failed to specify the penalty for high-ranking deviancy, nor did it provide a list of actions sufficient to establish an American’s intent to relinquish citizenship (the Expatriation Act of 1907 was Congress’s first crack at such a recitation). I’ll also add that the 1907 Act was partially “inconsistent with the fundamental principles of this government,” for it declared that “no American citizen shall be allowed to expatriate himself when this country is at war.” Ironically, this was precisely the condition under which droves of Englishmen sought naturalization in the United States in the early 1800s; their predicament engendered the home-grown philosophical defenses of self-expatriation that made the 1907 Act possible.

(In this post, I draw heavily on analysis contained in an earlier paper of mine.)

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