Rogers v. Bellei

PETITIONER:William P. Rogers, Secretary of State
RESPONDENT:Aldo Mario Bellei
LOCATION:Ohio State Bar Association

DOCKET NO.: 24
DECIDED BY: Burger Court (1970-1971)
LOWER COURT:

CITATION: 401 US 815 (1971)
ARGUED: Jan 15, 1970
REARGUED: Nov 12, 1970
DECIDED: Apr 05, 1971

Facts of the case

Question

Media for Rogers v. Bellei

Audio Transcription for Oral Argument – January 15, 1970 in Rogers v. Bellei

Audio Transcription for Oral Reargument – November 12, 1970 in Rogers v. Bellei

Warren E. Burger:

This morning is number 24, Rogers against Bellei.

Mr. Solicitor General.

Erwin N. Griswold:

Mr. Chief Justice and may it please the court.

This case comes here on a direct appeal from a three-judge court in the District of Columbia.

The legal question involved is the constitutional validity of an Act of Congress relating to the citizenship of a child born abroad, one of whose parents is an American citizen.

The statutory provision in question is Sections 301(a) (7) and 301(b) of the Nationality Act of 1952.

These are set forth beginning at the bottom of page 45 of the Government’s brief and continuing on to page 46.

I would like to read the important portions of the statute.

Beginning at the bottom of page 45, the following shall be nationals and citizens of the United States at birth (7).

A person born outside the geographical limits of the United States in its outlying possession of parents, one of whom is a alien and the other, a citizen of the United States who prior to the birth of such person was physically present in the United States or its outlying possession for a period or periods totaling not less than 10 years, at least five of which were after attaining the age of 14 years.

And then 301(b), any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a) of this Section shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of 23 years and shall immediately following any such coming be continuously physically present in the United States for at least five years.

Provided that such physical presence follows the attainment of the age of 14 years and precedes the age of 28 years.

And I may add that there is another statute which provides that the continuous presence is not broken by absences which do not exceed one year so that he is perfectly possible to go back for visits, but he must have five years without more than a one year break.

The case arises on the following facts which were stipulated and thus are not the subject of any dispute.

The appellee, Aldo Mario Bellei was born in Italy in 1939.

His father is an Italian, a native and citizen of Italy.

Aldo Mario Bellei became an Italian citizen at birth.

He is an Italian citizen today.

Thus, there is no question of statelessness here.

The appellee’s mother was born in the United States and has always been an American citizen.

The father and mother were married in Philadelphia on March 14, 1939.

A few days later, they left for Italy where the appellee was born in December 1939 and the family has since recited in Italy.

At the time of the appellee’s birth, an Act of 1934 was in effect.

This is printed on page 44 of my brief.

It was an amendment to Section 1993 of the Revised Statutes and it provided that a child in these circumstances is declared to be a citizen of the United States, but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother as the case maybe has resided in the United States previous to the birth of such child.

And then it goes on to provide that where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously, immediately previous state to his 18th birthday.

And unless within six months after the child’s 21st birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Immigration and Naturalization Service.

That statute in 1934 was amended in 1940, liberalizing the time period and casting it and not in terms of citizenship shall not descend but in terms of a statement that he is a citizen, but that he shall lose his citizenship if the condition is not met and the time provision was further extended by the 1952 statute which is the one now in effect and before the Court.

Under this statute as I’ve indicated, the child born abroad with one parent or citizen may retain or perfect his citizenship by residing in the United States for five continuous years, some time between his 14th birthday and his 28th birthday.

And that means that if he has not started to do that residence by his 23rd birthday, then there is no possibility if the statute is valid that he can retain his citizenship under the statute.

Erwin N. Griswold:

The appellee here has lived in Italy most of his life.

Recently, he took up residence in England.

He has made five brief visits to the United States, but he has never established residence in this country.

On his first two trips in 1948 and 1951, he traveled on his mother’s American passport.

On his next two trips in 1955 and 1962, he traveled on his own United States passport and this was periodically renewed until December 22, 1962.

In connection with the last two renewals of this passport, he was expressly advised of the need to establish residence in the United States prior to his 23rd birthday if he wished to retain his American citizenship.

When he failed to do so, the Department of State notified him that he had lost his United States citizenship.

He came there after to the United States in 1965 using an Italian passport and was admitted as an alien visitor.

That too was a temporary visit.

Two years later in 1967, the appellee brought this suit contending that the conditions for the retention of citizenship prescribed by the Immigration and Nationality Act are unconstitutional and that he has not lost his citizenship.

When this contention was sustained by the three-judge District Court, the case was brought here for review on direct appeal.

The decision below is I think one which shows the result of an unduly conceptual approach to the problems in this area.

There are indeed two absolutes which have dominated thinking in this field.

One is reminded in the consideration of this problem of the reference by Judge Cardozo nearly 50 years ago in the nature of the judicial process to the tendency of a principle to expand itself to the limit of his logic or to home his references to carrying things to a dryly logical extreme.

One of these absolutes is that all United States citizens are exactly alike as far as their citizenship is concerned.

Under this view, there can be no variations whatever in any aspect of the citizenship of a citizen.

A citizen is a citizen is a citizen.

The other absolute is that no citizen can be deprived of his citizenship except by some action which he not only takes intentionally, but takes for the very purpose of terminating his citizenship.

It is clear I think that these absolutes find some support in the opinions of this Court in the cases of Schneider against Rusk in 377 U.S. and Afroyim against Rusk in 387 U.S. on which the court below relied.

If these propositions are truly absolutes, then this appeal must fail.

My effort will be to show that this conceptual approach is not a sound one and that there is no appropriate reason to hold that citizenship cannot be qualified in certain circumstances or that citizenship maybe extended in some cases including this one in a tentative or preliminary or in court manner which will not come to full maturity if certain requirements are not met.

After all, here is a statute which is entirely fair, rational, understandable and sensible.

Why it should be thought to be unconstitutional or what provision of the constitution that violates is hard to see?

It is wholly clear I believe that Congress could have provided a condition preceding rather than a condition subsequent.

That is Congress could have provided that a child born abroad with one parent a citizen should not acquire citizenship at birth, but that he would become a citizen by coming to the United States and residing here for five years between the ages of 14 and 28.

That would have been niggardly and it would have presented many practical problems.

If the child wanted to come here, he would have to come as a foreigner.

He would travel on a foreign passport.

He would have to get a visa, even though special provisions might be made for visas in such cases.

When he got here, he would have to register as an alien.

Erwin N. Griswold:

If over 18 or 21, he could not vote.

If a problem like the problem in this case arose in the fields of mathematics or the natural sciences, it would be called a boundary problem.

We want to be generous in our citizenship, but there has to be a line somewhere and this case is close to that line.

Until 1922, a situation like this was unlikely to arise.

Until that year, husband and wife were generally regarding as having the same citizenship and that was the husbands.

As early as 1790, Congress provided that a child born abroad would be a citizen if his father was a citizen.

At least from 1907, it was the American Law that a wife lost her citizenship if she married an alien.

And this Court upheld the validity of that result in Mackenzie against Hare in 239 U.S.

Hugo L. Black:

Mr. Solicitor General, where is Mr. Bellei been living since the suit was charged him?

Erwin N. Griswold:

I understand he has been living most recently in England.

He is not been living in the United States.

I believe that appears in the stipulation, although the stipulation was entered into close to two years ago and I don’t know where he has been living since that time, but there’s nothing that indicated that he is been in the United States.

When both parents are citizens, the family is likely to be an American family.

And it is appropriate that the children should be American citizens even though they are born abroad.

But the situation gets closer to the line when only one parent is a citizen.

If the father is foreign and the family lives in his country as was the situation here, the chances are that it is essentially a foreign family.

At any rate, the case for citizenship is not as clear or may well have seem to Congress not to be so clear.

In mathematics and the natural sciences, it is well recognized that when situation to approach a boundary of one sort or another, rules which otherwise seem absolute may no longer be absolute.

If one examines water at many different temperatures, he may well conclude that the density of water increases as the temperature decreases and that it fixed indefinite rate.

This is more or less a constant and is known as the co-efficient of expansion.

But it’s well known when the temperature of water gets down to four degrees centigrade, the rule no longer applies.

In the area just short of the freezing boundary, the density of water decreases as the temperature goes down.

Sometimes at or near the boundary, things become stretched out, attenuated.

Even in the case of Fourth Amendment rights, this Court has recognized that the relation of a person to the premises or the time factors involved may make the effective of violation so attenuated that the constitutional provision is no longer applicable.

The rule or concept that citizenship is an absolute surely as a very general validity, of course, citizenship in every aspect is always subject to the Due Process and the Equal Protection Clauses.

It may never be taken away arbitrarily, but it does not necessarily follow that there cannot be qualification or a conditions with respect to citizenship depending on the circumstances of its acquisition.

As to two classes of citizenship, the situation is constitutionally clear.

These maybe called Fourteenth Amendment citizens.

In the words of the first sentence of the Fourteenth Amendment, they are all persons born in the United States and all persons naturalized in the United States.

There can be no conditions or qualifications on their citizenship because the constitution gives them that citizenship as this Court has held in Kennedy against Mendoza-Martinez with respect to a native born citizen and in Schneider against Rusk and Afroyim against Rusk with respect to naturalized citizens.

Erwin N. Griswold:

The provisions in the Fourteenth Amendment, however, made no reference to the citizenship of children born abroad of American parents; the type of citizenship which is involved here.

In this, it followed the Civil Rights Act of 1866.

In the brief of amici curiae at page 9, it is said, “Since at that time, there were doubtless.

No Negro Americans oversees, the amendment contained no reference to foreign born Americans.”

But I think it may well be suggested that this was so and that the omission may have been intentional.

There was the American colonization society which undertook to settle Liberia, was Negro Americans.

And the constitution of Liberia was written by Professor Simon Greenleaf of the Harvard Law School.

Under the Civil Rights Act and the Fourteenth Amendment, the Negroes who went to settle in Liberia were American citizens.

Although I know of no evidence one way or another, it may have been the intention not to provide that their children should be citizens.

This case does not involve a person born in the United States with respect to persons born abroad that we may take alternative positions.

We may contend in the first place that citizenship in such cases is not acquired by naturalization, but by an independent power of Congress.

A power in Congress to grant citizenship according to its judgment, a power which Congress has exercised from the time of the first Congress.

Only seven years ago, Congress granted citizenship to Sir Winston Churchill.

Obviously, that cannot be rested on the power of Congress to establish a uniform rule of naturalization.

And Congress has passed many Acts granting citizenship to individuals whose citizenship was doubtful, particularly in the case of women who married foreigners and then returned to the United States.

Such a special Act was once passed for the daughter of President Grant.

Does anyone think that these statutes were beyond the power of Congress?

Similarly, Congress has given citizenship to all of the people in Puerto Rico and the Virgin Islands, and before that to all the people in Hawaii and Alaska, except Indians in Alaska who were excluded in the 1867 statute.

At the last argument of this case, it was asked if Congress could give citizenship to all the people of Canada.

I have no doubt that it could.

Indeed some 60 years ago, there was some talk of merger between the United States and Canada.

And if that had progressed further, a grant of citizenship would obviously have been a part of it.

We have a clear example in the Citizenship Clause of the Civil Rights Act of 1866 which overruled the Red Scott case and gave citizenship to a large group of persons whom this Court had said, were not citizens before.

Potter Stewart:

Am I right in my recollection Mr. Solicitor General that Congress has given the United States citizenship to all the descendants of General Lafayette?

Erwin N. Griswold:

Mr. Justice, I thought that was true and I tried to bring it in as one of my illustrations.

But apparently, it was the states of Maryland and Virginia which gave citizenship to the Marcus de Lafayette and his descendants.

Potter Stewart:

Right.

Erwin N. Griswold:

And we could not find any Congressional statute to that effect.

Of course, that illustrates an element in this case.

There were no provisions in the constitution for the granting of citizenship, and to a large extent, citizenship was thought of as a state matter.

Erwin N. Griswold:

Indeed many years ago and going through some old papers of a law firm that asked me to look through them to see which should be burned and which should be kept.

I came across a passport issued by the Commonwealth of Massachusetts in 1844.

And apparently at that time, that was the normal way. You got a state passport because you were a state citizen.

I wish I could claim the Lafayette statute and whether the Marcus descendants are now citizens, I don’t know.

So Congress has the power to grant citizenship.

A power which we believe it can be said it has exercised in enacting Section 301(a) (7) and 301(b).

This is not Fourteenth Amendment citizenship and there is no reason, verbal or theoretical why it must be subject to all the absolute conceptions which have been attached to Fourteenth Amendment citizenship.

Here for good reasons, reasons which are surely valid as far as the Due Process Clause is concerned, Congress has attached the condition of Section 301(b).

Our law is full of such conditions.

This can be called “citizenship”, or preliminary citizenship, or a conditional citizenship.

There is no reason why Congress could not vest it with great force and significance unless and until the condition is complied with.

There is no reason for not giving effect to that condition except the concept that citizenship is in all cases and situations absolute.

Thurgood Marshall:

Mr. Solicitor General, certainly not in this case but what about a fellow who did not have money that comes from Italy here?

Is there any leeway in the statute [voice overlap]

Erwin N. Griswold:

No Mr. Justice.

Unless he can get here before five years between the time, between the ages of 14 and 28, he will lose his citizenship.

I would venture the thought that a young man with an intense desire to establish his connection with the United States so as to preserve his citizenship would find a way to do it.

Millions of people have come to this country with no money and have established themselves here.

I think theoretically, we can make a case of a man who not only has no money but has no initiative who can make it.

But if he has the initiative, I think he can make it without the money.

Thurgood Marshall:

Well, certainly not this case.

Erwin N. Griswold:

Not this case.

No question about that in this case.

But whether citizenship is an absolute is the issue here, to decide the case on that ground is to beg the question.

There is no case decided by this Court which requires that resolution and there is surely no wording in the constitution which requires it.

Both Schneider and Rusk and Afroyim against Rusk involved regularly naturalized citizens whose citizenship was guaranteed by the Fourteenth Amendment and who obtained it only after five years of residence here as required by the naturalization provision.

Moreover, it’s clear that the privileges of citizenship are not necessarily uniform and absolute.

Some can be president and some cannot.

Some can be Representatives or Senators, and some cannot until they have resided here the prescribed time.

Some citizens can vote and some cannot vote, depending upon whatever the age requirement is.

Erwin N. Griswold:

Naturalized citizenship can be taken away for fraud.

Such persons are citizens.

They would not commit a crime if they voted, for example.

But their citizenship is subject to a condition subsequent.

Citizens who are in the military are treated differently from other citizens.

In Johansson against the United States in 225 U.S. this Court said that a grant of citizenship was closely analogous to a public grant of land and this was quoted in the Schneiderman case in 320 U.S.

But of course, a grant of land including a grant of public land can be made conditional.

A mining claim is a grant of public land and it gives substantial vested rights.

But such claims have long been subject to a condition of work performed.

There is a similar condition with respect to Homestead claims.

The Homesteader loses his rights if he does not live upon the land and work it.

But beyond that, let us look at this very statute: Under Section 301(a) (7), citizenship can be transmitted only through a citizen parent “who prior to the birth of the child was physically present in the United States or its outlying possession for a period or periods totaling not less than 10 years, at least five of which were after attaining the age of 14 years.”

Thus, if this Court holds that the appellee is a citizen, he will not be a citizen with exactly the same qualifications as most other citizens or as his mother, for she can transmit citizenship and he cannot unless and until he meets the requirements.

This qualification goes completely back to 1790; an Act of the First Congress and it was sustained by this Court in Weedin against the Chin Bow, in an opinion by Chief Justice Taft without dissent.

Unless this qualification is allowed, it would mean that the constitution requires that American citizenship maybe transmitted endlessly through a single parent, generation after generation, even though there is no trace of any connection with the United States or any allegiance to the United States.

It seems an unnecessarily bizarre result.

Yet if the condition of residence of the parent is sustained, not every citizen has the same qualifications and status.

And let me give another example though a small one.

We are dealing in this case with Section 301(a) (7).

Immediately before it, is Section 301(a) (6) which provides for citizenship at birth or (6) a person of unknown parentage found in the United States while under the age of five years until shown prior to his attaining the age of 21 years not to have been born in the United States.

Now, this is a sensible and humane provision.

Yet if it is valid I hope it is, we have another instance of citizenship subject to a condition subsequent.

Now, the other way to look at this problem is to say that Sections 301(a) (7) and (b) are an exercise by Congress of its power to establish a uniform rule of naturalization.

But that like other naturalizations, this is a process which takes time.

It requires substantial proof of prospective allegiance and the individuals involved are not naturalized until the conditions are met.

In ordinary naturalization of foreigners within the United States, a five-year period residence is required.

In the situation involved in this case, many of the incidences of citizenship are conferred at birth.

But the naturalization process is not completed until the residency requirement is met.

And it is that process in its entirety to which reference is made on the Fourteenth Amendment.

It’s true of course that the wording of the statute as its stands now speaks in terms of citizenship and not of the naturalization process.

Erwin N. Griswold:

But if a process of naturalization is the purpose and effect of the statute, it should be given that effect in law that this was the purpose as shown by the history of the statutory provision.

A precedent may indeed be found in the Welch case decided last term.

The problem there was to make the statute valid in the light of this Court’s view of the constitutional requirements of the First Amendment.

The situation here is exactly parallel if the court does find that there are constitutional difficulties here under the Fourteenth Amendment.

In 1939 when the appellee was born, the statute then in effect was that of 1934, printed on page 44.

I have already called the attention to the fact that that statute was in terms of — in the right of citizenship shall not descend unless the child comes to the United States and in addition takes an oath of allegiance.

This sounds like a condition precedent rather than subsequent.

And moreover and of first importance, isn’t it unduly formalistic to make this case turn on whether the condition is precedent or subsequent.

It’s like talking about conditional remainders and springing uses.

When the intention of Congress is perfectly clear, there is no Due Process violation in giving effect to that intention and no reason except the purely conceptual one for denying.

The relevant statute was amended in 1940.

This puts it in condition subsequent terms and this was carried forward in the 1952 revision involved here.

But there is nothing to indicate that this was anything other than a verbal or stylistic change or that Congress contemplated that it was changing the law as far as it was applicable in this case.

Moreover, there are some provisions in the naturalization part of the statute which are applicable to a child born abroad with one parent of citizen.

Under Section 320 on the Nationality Act, such a child is naturalized if the alien parent is naturalized while the child is under 16 and the child is resident in the United States.

And under Section 322 such a child under the age of 18 years maybe naturalized on the application of the citizen parent, if both are resident in the United States.

Can it be suppose that Congress would have made provision for naturalization of such children within the United States, if it was the understanding of Congress that they were full citizens already?

Does this not support the view that Sections 301(a) (7) and (b) can be fairly and properly construed as an essence naturalization statutes.

Providing for a process by which such a child becomes a full citizen on completion of the conditions prescribed; conditions which are wholly appropriate for a naturalization statute.

Finally, I would suggest a question of separability.

If Section 301(b) is invalid, is it clear that Congress would have enacted Section 301(a) (7) as it did?

If Congress could have achieved its purpose by casting Section 301(a) (7) in terms of a condition subsequent, is it not clear that it would not have enacted Section 301(a) (7) as it now stands without enacting Section 301(b) at the same time?

In that event, should not Section 301(a) (7) fall if Section 301(b) falls?

I submit that it should thus giving Congress a clean slate to write upon in the event that it is purely formal choice of words led to constitutional difficulties.

The judgment below should be reversed and the constitutional validity of Sections 301(a) (7) and 301(b) should be sustained.

Byron R. White:

Mr. Solicitor General, with this Court should affirm, do you anticipate that Congress might repeal the statutes?

Erwin N. Griswold:

It’s difficult for me Mr. Justice to know what Congress might do in the future.

I think it’s very likely that there would be a recommendation that these statutes be reworded and then reenacted to provide that such a person becomes a citizen if he comes to the United States for five years between the ages of 14 and 28 and that in the period before he comes to the United States, he shall have certain rights of citizenship such as the right to enter free of porters and to have perhaps some kind of a special document, not a passport indicating his potential citizenship in the United States.

I think to me, it is perfectly plain that the results of by Congress here can be achieved in all its details or virtually all its details by formal, verbal changes even though this Court holds Section 301(b) invalid and I would anticipate that Congress would proceed in that line, not to abandon the citizenship for one-parent-children born abroad entirely, but to subject it to a condition precedent rather than a condition subsequent which seems to me to emphasize the essential formal detail, verbal nature of the issue which is raised here.

Warren E. Burger:

Mr. Rogge.

O. John Rogge:

Mr. Chief Justice Burger, may it please the court.

I will divide the time on behalf of the appellee with Professor Gardner of the Columbia Law School who did the April brief on behalf of the amici curiae Association of American Wives married to Europeans and the American Bar Association.

Counsel, I suppose in their role as advocates, no matter how objective they try to be are going to state facts a little bit differently.

Now, the Solicitor General stated that Rev. Stat. 1993 as amended by the Nationality Act of 1944 was amended.

1934 was amended in 1940, I think a more correct statement would be that Section 1993 as amended was repealed by the Nationality Act of 1940, but there was a Saving Clause which provided that this repeal shall not terminate nationality here to for lawfully acquired.

The Solicitor General referred to five brief visits.

If I were stating that on behalf of appellee, I would say that he made visits here which were substantially, were all about three months or more.

He came here from April 27 of 48 to July 31, 1948; this was to visit his grandparents.

His mother was born and raised in Philadelphia.

She lived there until after her 24th birthday, she married the appellee and a few days later went to Italy.

She has always been an American citizen.

She’s prized that as has the appellee.

He registered for selective service in Italy.

He passed his test.

He was due to be inducted but he was working on a NATO defense program as a result of which he was deferred and then he was later on told “well, we’ve taken your citizenship away”.

Now Mr. Justice Harlan in answer to your question, at the time of drafting the stipulation, he was in England working on a NATO defense project for a company called Magical Limited, he is at present back in Italy.

But further on his visit, there was another visit from July 10, of ’51 to October 5, of ’51.

There was another visit from June of ’55 until October of ’55.

These aren’t brief visits.

These are visits for substantial periods of time and they were to visit his maternal grandparents.

When he married in Italy, he wanted to come over here a fifth time and this time they told him “well, your American citizenship has expired.”

He again wanted to come here to visit his maternal grandparents.

For 12 years, Aldo Mario Bellei had his own United States passport as an American citizen from 1952 until 1964, and this is what the Government now says that without his consent, they can’t take away from him.

I do read these statutes but with a slightly different emphasis.

The Solicitor General pointed out there in the Government’s brief at 45 and 46 and the way that now reads, it says “the following shall be nationals and citizens of the United States at birth.

And when it comes to taking the nationality away, it’s an expatriation statute.”

It says any person who is a national and citizen of the United States at birth under the Section I’ve just read shall lose his nationality and citizenship.

That is an expatriation statute.

Now, the Solicitor General asked what provison was violated.

A Due Process Clause of the Fifth Amendment, and I am not asking for any absolute here.

O. John Rogge:

I am relying on Schneider against Rusk which I say is precisely in point.

Now, Angelica Schneider was not a Fourteenth Amendment citizen.

Angelica Schneider never stood up in any United States Court, raised her hand and swore an oath of allegiance.

No.

Her mother did that and then the statute said and that statute to be found in 8 USC Section 1432 or immigration and nationality lawyers would refer to that as Section 321 of the Immigration and Nationality Act of 1952 and that says in its very caption, “automatic citizenship”.

So what I am relying on as a case being precisely in point is Schneider against Rusk and I submit to this Court that Angelica Schneider was just as much a statutory citizen if that’s what the Government wanted to draw the distinction between statutory and Fourth Amendment.

Angelica Schneider was just as much as statutory citizen as Aldo Mario Bellei.

And if Schneider against Rusk is to be followed where the court held that the Section which required Angelica Schneider to have her citizenship taken away because she returned to the country of her origin for three years, I say by a parity of reasoning, if that provision as held on constitution as it was on the ground that more over while the Fifth Amendment contains no Equal Protection Clause, it does forbid discrimination that it is so unjustifiable as to be violating of Due Process.

If that decision is correct, then the provision requiring Aldo Mario Bellei to come here and be here for five years between the ages of 14 and 28, likewise, violates the Due Process Clause of the Fifth Amendment.

Now, I am asking for no absolute but I am asking on the basis of Schneider against Rusk that where this Government has given citizenship at birth, it cannot come along.

Under the circumstances of this case and take it away without the voluntary act of the one who got citizenship.

Supposing the statute which you rephrased in terms of like in the condition receiving as required as opposed to condition we have.

O. John Rogge:

Mr. Justice Harlan, I would look at the Due Process Clause and I would apply that in the same manner in which Your Honor thinks it should be applied, namely what constitutes fundamental fairness at the time of the decision and I would probably as a lawyer, and lawyers are careful in their phrasing.

I would probably say it would make a difference.

We lawyers are supposed to be careful at draftsmanship and I think it would make a difference whether it was phrased in terms of a condition subsequent or a condition preceding.

I think it would make a difference in a case where Congress had said “you are not a citizen.

You are going to be a citizen under the performance of certain conditions.”

That would be one thing.

I think I would draw the difference and would say that where is condition preceding, that’s one thing.

But where it’s a condition subsequent where Congress says as it did in this case, “you are a citizen at birth” I would then say you can’t come along later under the Due Process Clause of the Fifth Amendment and say oh by the way, because you did not come here for five years, we are now going to take it away. I would say it makes a difference, yes.

Harry A. Blackmun:

Well then, I take it would follow that you agree that Congress need not vest a person in his position with citizenship if it chooses not to do so.

O. John Rogge:

That is correct Mr. Justice Blackmun.

Harry A. Blackmun:

And then having — however having granted, it is your position that Schneider against Rusk is in controlling here.

O. John Rogge:

Precisely in point, if Your Honor please.

Harry A. Blackmun:

I’ll ask to you then the same question I asked the Solicitor General.

Do you think if this case is affirmed that Congress might repeal the statute if its intention was as the Solicitor General indicated?

O. John Rogge:

In that connection and I think Mr. Justice White had a question in the same area.

I can call the Court’s attention to the fact that on December 4, 1969.

Senator Kennedy on behalf of himself and 23 other Senators introduced S3202 in the 91st Congress First Session.

It is in its second session now.

O. John Rogge:

A bill to revise the Immigration and Nationality Act, that bill was referred to the Senate Committee on the judiciary.

Now respecting Section 21 of this bill, Senator Kennedy stated this as found in the 115 Congressional record; page 15612 of the daily edition.

This important segment of public policy has been ignored and overlooked by the Congress since the codification and amendment of Nationality and Naturalization Laws in 1952.

There is little doubt that many provisions in the basic statute are product of a harsher period in our nation’s history and should have no place in the public policy of a free society.

But aside from this Court’s decisions in recent years have altered the statute considerably.

The situation clearly demands a comprehensive review and evaluation of our nationality and naturalization policy.

So that entering that question of course, one cannot say what Congress is going to do.

But my feeling would be that if that Congress did act, it would as it has done a number of times in the past.

Ameliorate the situation and bring about the result that I am asking this Court for right now in affirming the judgment of the court below on the basis of Schneider against Rusk.

So that I say that citizenship as an absolute is not an issue in this case.

The precise question here as sharpened by Mr. Justice Harlan’s question is whether having given American citizenship at birth and there is no doubt, but that’s what the statute did, whether Congress can then come along with a condition subsequent and make what the court called in Schneider against Rusk, second class citizens out of such persons.

And I submit that that cannot be done consistent with the Due Process Clause of the Fifth Amendment.

Potter Stewart:

Of course in Schneider against Rusk, the appellant was naturalized in the United States at the age of 16 and so she came within the literal provisions of the Fourteenth Amendment just as did the appellant in the Afroyim.

O. John Rogge:

I do not read that case that way Mr. Justice.

Potter Stewart:

Well, is that true as a matter of fact.

O. John Rogge:

Her mother took the naturalization oath; Angelica never did.

Potter Stewart:

Yes, but she became a citizen when she is physically in the United States at the age of 16.

O. John Rogge:

By virtue of a statute.

Potter Stewart:

Yes.

So, she was naturalized in the United States and therefore within the literal language of the Fourteenth Amendment.

O. John Rogge:

That depends now on what the language naturalized in the United States means.

Potter Stewart:

Good.

O. John Rogge:

If naturalized in the United States means that a person has to stand up in a District Court as they do, raise their right hand and take the oath of allegiance.

If that’s what naturalized in the United States means under the Fourteenth Amendment, then, as I read Schneider against Rusk, Angelica Schneider never did that, her mother did.

Potter Stewart:

But whatever it may mean, it probably doesn’t mean naturalized in Italy does it?

O. John Rogge:

I am not claiming.

I am not claiming either naturalization under the Fourteenth — I am not claiming under the Fourteenth Amendment.

Potter Stewart:

Well, I didn’t think you were.

O. John Rogge:

No, I am placing mine plainly and simply on the Fifth — on the Due Process Clause of the Fifth Amendment, and I do say that if my understanding of Schneider against Rusk is correct, namely that Angelica Schneider never stood up and took the oath of naturalization and this is what I think naturalization in the United States means.

Angelica Schneider never did that, her mother did.

O. John Rogge:

And as far as protecting the interests of this country in the dissenting opinion there in Schneider against Rusk by Mr. Justice Clark, this is the way he describes the appellant there.

He says and here appellant has been away from the country for 10 years, has married a foreign citizen, has continuously lived with him in her native land for eight years, has born four sons who are German nationals and admits that she has no intention to return to this country.

We have quite a different situation with dual nationals such as are involved in the present case, and I cannot see why Schneider against Rusk isn’t directly in point because I don’t think Angelica Schneider was naturalized in the United States within the meaning of the Fourteenth Amendment, her mother was.

And then a statute and I’ve called attention to it has the caption under which she gets citizenship.

This is 8 USC Section 1432 says “conditions for automatic citizenship” but that is a statutory provision.

Just as much statutory as the one that said Aldo Mario Bellei is a citizen at birth.

Byron R. White:

But if this — if Schneider against Rusk, the person haven’t been a naturalized citizen, she wouldn’t have lost her citizenship at all.

Because that’s the only — the only people would lose citizenship were naturalized citizens.

And both the majority in the dissent referred to Angelica Schneider’s a naturalized citizen and the very provision which was claimed to porter or citizenship refers only to naturalized citizens.

O. John Rogge:

Well as I read this Section under which I think Angelica Schneider was a citizen, it’s 8 USC Section 1432 and it says conditions for automatic citizenship.

Byron R. White:

Well, that provision by which she was supposedly was going to lose her citizenship says if a person who has become national by naturalization, so the Section wouldn’t even apply if you are right.

There would have been any problem in the whole case.

O. John Rogge:

Well, my difference with Your Honor is this, I cannot see my way clear — I beg your pardon.

Byron R. White:

I am not sure we have a difference, we just read the statute.

Well I guess to that extent, we may have a difference.

O. John Rogge:

Yes.

I mean I find it difficult to say that Angelica Schneider was any more a statutory — was a statutory citizen just as Aldo Mario Bellei was.

I can’t feel that she comes within the Fourteenth Amendment.

A statute says because your mother was naturalized, we’re going to call you a naturalized citizen.

That’s a statute —

Byron R. White:

What difference does it make to you if Due Process Clause has this whammy?

You wouldn’t care whether she was a naturalized citizen or not would you?

O. John Rogge:

Under — Well, the Government draws —

Byron R. White:

If she was a naturalized citizen, you’d make the same argument, what difference does it make?

O. John Rogge:

Well, the Government draws a distinction Mr. Justice White between one who is born or naturalized in the United States —

Byron R. White:

Yes, but why should you?

Why should you if Due Process Clause has this much of an impact or this reach, it would reach naturalized citizens as well as non-naturalized citizens.

O. John Rogge:

Well, you might say that where you’re a citizen by the constitution, that is something which cannot be taken away at all and you don’t get to the Due Process Clause.

Byron R. White:

I know, but if you have to, you easily could.

I mean, you could make the same argument about the Due Process Clause.

O. John Rogge:

Mr. Justice White, I have a great feeling for the Due Process Clause either of the Fifth or the Fourteenth Amendment and I would find myself very ready in almost any situation where a client of mine had a grievance to make an argument under the Due Process Clause.

Byron R. White:

Well but a fortiori.

You could make it as if she was a naturalized citizen.

O. John Rogge:

Under the Fourteenth Amendment?

Byron R. White:

A fortiori.

O. John Rogge:

Oh yes, yes.

I could then make it a fortiori case.

Byron R. White:

What difference does it make to you whether — and Schneider was a naturalized citizen?

Well excuse me, sorry.

O. John Rogge:

No, I want to follow this through.

I might say — if it were under – If I felt it was truly under the Fourteenth Amendment, there is a situation where I would say it violated the Fourteenth Amendment and I did not have to rely on the Due Process Clause of the Fifth Amendment.

Byron R. White:

That may well be true, but if you can rely on the Due Process Clause in this case, surely you could in the other.

O. John Rogge:

Yes, you’re right.

I would say it was a fortiori but I think as I reflect on it more, I would not rely on it because if I had a Fourteenth Amendment citizen whether by birth or naturalization, under those circumstances, I would say I don’t have to rely on the Due Process Clause.

But in this situation where I think it is precisely controlling, I do rely on.

Byron R. White:

You certainly would if the descenders had prevailed on the one point in the case, in Schneider against Rusk, you most certainly would have had to rely on the Due Process Clause.

O. John Rogge:

Well if I have to rely on it, I would and I do rely on it in this case and I do say that Schneider against Rusk is directly in point.

Now, I —

Potter Stewart:

As I understand that you implicitly concede that your client is not a so called Fourteenth Amendment citizen, am I mistaken about that?

O. John Rogge:

I have never placed this on Fourteenth Amendment citizenship, if Your Honor please, that’s one reason why I could see we have tussle with the Government here, but I — even though my client is not a Fourteenth Amendment citizen, he is a citizen at birth by statute and I think under Schneider against Rusk and even if Schneider against Rusk were not there, I would say on the basis of fundamental fairness, this Government can’t come along to someone who wants his citizenship, who had his passport for 12 years as an American citizen and say “oh by the way, we’re now taking that away from you and seek to that without his consent.”

Potter Stewart:

That’s purely a matter of fundamental fairness under the substantive reach of the Due Process Clause of the Fifth Amendment.

O. John Rogge:

Absolutely.

Potter Stewart:

Right.

O. John Rogge:

I would like to —

Hugo L. Black:

Is that your only argument?

O. John Rogge:

Yes, Mr. Justice Black.

I would now like to turn the balance of the time over to Professor Gardner.

Warren E. Burger:

Mr. Gardner.

Richard N. Gardner:

Mr. Chief Justice, Mr. Justices, may it please the Court.

The amici curiae in this case are the American Bar Association and American Wives of Europeans.

Richard N. Gardner:

The later organization is a group based in Paris of American women married to European husbands.

These women share a common bond of allegiance to this country.

They organize American educational and cultural programs.

And most important of all, they are concerned to protect the American citizenship of their children, which is at issue in this case.

They do not agree with the Solicitor General that this residence requirement is as he put it this morning fair, rational, and sensible.

On the contrary, they regard it as unfair, irrational and not sensible.

They do not appear here to vindicate what the Solicitor General calls an unduly conceptual approach rather they are here to vindicate fundamental human rights and to eliminate an invidious discrimination against a class of American citizens, which works very substantial human hardship to themselves and their children.

Hugo L. Black:

Mr. Gardner, when you say fundamental human rights, do you concede as I take it to your co-counsel did that Congress need not have gone so far as to grant citizenship here.

Richard N. Gardner:

That is correct.

Hugo L. Black:

To that extent then, it is not a fundamental human right?

Richard N. Gardner:

The right not to have their citizenship withdrawn once it has been granted.

Hugo L. Black:

You have to take that second step.

Richard N. Gardner:

That is correct.

In the last 36 years, since this residence requirement was adopted, the number of Americans living abroad has increased from less than 100,000 to close to 2 million.

Potter Stewart:

That is for the military?

Richard N. Gardner:

This includes nearly 1 million —

Potter Stewart:

And their dependents?

Richard N. Gardner:

Military, servicemen and their dependents, 92,500 US civilian Government employees and their dependents and approximately 940,000 other persons.

And among these nearly 2 million Americans abroad are many thousand children whose citizenship will be affected by your decision in this case.

Among these, to give some examples are the daughter of the Director of the American Library in Paris, a boy who is a direct descendant of Commodore Perry and whose family has served in the US Navy for generations going back to the revolution.

Potter Stewart:

How old is he?

Richard N. Gardner:

I think he is approximately; he is a 10 or 11 years of age.

Potter Stewart:

So, he has plenty of time to comply with it.

Richard N. Gardner:

That is correct.

But only at a price which we argue is an excessive price in terms of the hardship worked on the families, I will seek to show in a moment.

Thurgood Marshall:

Do you object that taking the oath of allegiance to the United States Government?

Richard N. Gardner:

I would not object if the Congress in its wisdom required that these children born abroad at the age of 21 reaffirmed their allegiance to this country by oath at 21.

Thurgood Marshall:

What do you mean reaffirm, when did they affirmed it before?

Richard N. Gardner:

Affirmed.

Thurgood Marshall:

Thank you.

Richard N. Gardner:

Yes.

Thurgood Marshall:

And I imagine they could do it in the foreign language of that country?

Richard N. Gardner:

I think it will be appropriate to have them do it in English.

Most of them speak English.

Thurgood Marshall:

But what about those who don’t?

Richard N. Gardner:

Well, I would want to consider that further Mr. Justice. I think that —

Thurgood Marshall:

What about those who don’t —

Richard N. Gardner:

An affirmation of the citizenship would be appropriate and would not cause a constitutional problem.

Thurgood Marshall:

Will it be good if they had a little knowledge of American History?

Richard N. Gardner:

Yes.

Thurgood Marshall:

And suppose they didn’t have?

Richard N. Gardner:

The overwhelming majority of these foreign born children do have such knowledge in view —

Thurgood Marshall:

How do you know that?

Richard N. Gardner:

Because there are 350 schools primary and secondary schools now all over the world not counting the schools maintained by the US Military establishment.

And the American wives of European Husbands has conducted surveys in Paris which indicates that the majority, the overwhelming majority speak English and are brought up in an American cultural tradition in their home.

Thurgood Marshall:

It’s rather self serving isn’t it?

Richard N. Gardner:

Well, it is such evidence that we have.

Thurgood Marshall:

I mean you’re going about that party that you represent?

Richard N. Gardner:

That is correct.

Other —

Harry A. Blackmun:

Did I understand your answer to Mr. Justice Marshall’s question that you would have no objection to the requirement that they take an oath of allegiance at age 21?

Richard N. Gardner:

That is correct.

Harry A. Blackmun:

Is this then a condition subsequent?

Richard N. Gardner:

No it would not be.

It would be a means of Congress perhaps avoiding any difficulty that might be involved in dual nationality or other problems which might be felt to be caused by this.

Harry A. Blackmun:

But would failure or refusal to take such an oath result in non continuation of citizenship, is that the import of Justice Marshall’s question that you understood?

Richard N. Gardner:

Well, I would — we are claiming that any condition subsequent which takes away the citizenship without the consent of the person is unconstitutional.

Warren E. Burger:

Then, you have to revise your answer to Justice Blackmun don’t you?

Richard N. Gardner:

Well, I suppose.

I wouldn’t want to concede the point.

Warren E. Burger:

Well, take this man up to age 21 and he refuses to go to an American Embassy or whatever regulations would provide and take the oath.

Since it is a condition subsequent, you say that they cannot impose that to his —

Richard N. Gardner:

We’re making essentially two arguments Mr. Chief Justice.

First —

Warren E. Burger:

I really wasn’t making any argument, but I was really asking you a question.

Richard N. Gardner:

There are two possible arguments that could be used to sustain our position; one is that Congress has no power to take away citizenship without the consent.

If that argument is the one which this Court affirms today and we believe that is what it said in Afroyim, then no conditions subsequent even of the kind that was put to me is possible.

Alternatively, the Court might wish to go less far and say that if there is a condition subsequent, it must be one which bears directly on the intention of the person with respect to his citizenship.

We claim the residence requirement is unreasonable because in Schneider, the Court said there, “Residence is not a badge of allegiance.”

In answer to the question on that ground, it would seem to me that no condition subsequent would be appropriate even the oath of allegiance although it would be possible to distinguish that from the residence requirement in this case.

Among the American children that are subject to this residence requirement, as the daughter of a retired Colonel in the US Army, a young lady who is presently in California in an attempt to comply with this requirement whose parents cannot join her because her grandparents are ill in Paris and her father retired from the Army is employed there.

And finally, in this class of persons affected by this decision is a young man who is or rather three persons, three young people who are the great grandchildren of Charles Evans Hughes.

So at issue today are the citizenship of direct descendants of people who helped build America, of youngsters, of value who will contribute to the future of America and of children of American citizens who have spent their productive years in the service of America.

Your organization may (Inaudible) change of the law?

Richard N. Gardner:

No sir, I am not informed on that.

They may have done, but I am not informed.

I am informed by my co-counsel that there has been attempt by some of the members to do that.

I submit that these foreign-born children are the victims of an invidious discrimination, a child of two alien parents who happens to be born in the United States.

During a brief visit of those parents can go back to their native land, grow up in a home in which English is not spoken, in a foreign home and remain an American citizen for the rest of his or her life without any residence requirement.

A child of —

Warren E. Burger:

And what’s the source of — by virtue of what does that occur?

Richard N. Gardner:

Fourteenth Amendment.

Warren E. Burger:

Yes, so that it isn’t an Act of Congress is it?

Richard N. Gardner:

That is correct.

But we are claiming that this is a discrimination which violates the Fifth Amendment.

It’s unjustifiable and it seems to me indefensible that the child of those alien parents be considered an American for the rest of his life without a need of residence here and that the child of a naturalized American parents can reside under Schneider v. Rusk for the rest of his or her life abroad without residence requirement.

But that this class of Americans is subjected to this residence requirement.

This seems to us precisely a discrimination so unjustifiable as to be violative of Due Process under Bowling v. Sharpe.

Now this discrimination imposes great hardship as we have tried to develop in our brief.

Because it means that the child can only retain his or her citizenship by coming back here either during the early school years which would be harmful in educational terms and a great expense with long separation from family or at the University level, and we know what the cost of education are, this would mean four or five or more thousand dollars per year, or it would mean giving up the possibility of post graduate study or jobs or careers immediately after graduation from the university.

Richard N. Gardner:

It is a discrimination that bears particularly heavily on middle and low income families who cannot afford to fly the mother back here to have the child born in this country or send the child back for schooling for five years in this country.

To give one example only or perhaps two examples of the unfairness of this provision that has been brought to our attention.

There are cases where a child was born abroad of an American father and an alien mother.

The mother subsequently became naturalized in this country.

The child could not become naturalized because the child was already a citizen at birth and thus that child is subject to a disability to which it would not have been subject had it become nationalized with the mother.

Another anomaly is that here we have people who have been very — in a number of cases as in Bellei case been willing to serve in the Armed Forces of the United States.

And unconditionally make the supreme sacrifice to their country and yet they can be told even if they do serve that they are no longer citizens of this country.

Byron R. White:

Mr. Gardner, enlighten me on that last comment because I saw it in the brief also, isn’t this demanded of resident aliens just as much as of citizens?

Richard N. Gardner:

Military service.

Byron R. White:

Yes.

Richard N. Gardner:

That is correct.

Byron R. White:

Hence, I fail to see the significance of this comment.

Richard N. Gardner:

We make the comment because the Government seeks to suggest that these are person’s who have no allegiance to this country.

And I am seeking to show that they are not conditional citizens, they regard themselves as unconditional citizens, they accept the burdens of citizenship as well as the rights of citizenship, and it seems to us unjust after 23 years of accepting those burdens as well as those rights to take the citizenship away from them.

Now, we claim that this discrimination is unconstitutional, very briefly for two reasons.

In the first place, this Court has held in a Afroyim v. Rusk that Congress has no power to take away the citizenship of an American without his consent.

And that is our case today.

Potter Stewart:

Well that however, was Fourteenth Amendment citizenship is it not?

Richard N. Gardner:

Well in the first —

Potter Stewart:

In alliance in that opinion was put squarely on the literal words of —

Richard N. Gardner:

But in the closing —

Potter Stewart:

Fourteenth Amendment.

Richard N. Gardner:

There in the closing paragraph of that opinion, it was said “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.”

And we submit that one cannot read Afroyim as leaving outside the constitutional protection as important class of citizens.

And there is a second reason for our submission.

In —

Byron R. White:

You don’t think this Mr. Gardner if you are going to rely on the Fifth Amendment.

Richard N. Gardner:

We would rely on both.

And we would rely —

Byron R. White:

It says Fourteenth Amendment case and (Inaudible).

Richard N. Gardner:

Afroyim — yes and indeed there is a third argument which has made in Afroyim by this Court and that is that Congress has no power, quite apart from the Fourteenth or Fifth Amendment to take away citizenship without the consent of the person, and we rely on that too.

Now, the Solicitor General seeks to save —

Byron R. White:

Let me ask you once more Mr. Gardner, going back to this military service thing.

Wouldn’t you be making the same argument here whether or not your client was willing to perform military service?

If you prevail as you have your client is an American citizen and he may never come back here and hence, I ask how will military service on his part ever be compelled?

Richard N. Gardner:

Well, I would make the argument whether or not he was willing to enter the service of his country, but the fact is that in this case, he did and many of these foreign born Americans are prepared to accept this obligation.

Byron R. White:

I guess this brings me back again to inquire whether the argument done has any particular merit in this context as to whether he is willing or is not wiling, because you benefit if you prevail, you benefit either class.

Richard N. Gardner:

Yes, well, I don’t.

It’s not a fundamental point.

Warren E. Burger:

Do you think Professor Gardner, that Congress could constitutionally provide that if on failing to report for induction after reasonable notice, citizenship in these circumstances could be terminated or is that the same kind of a condition subsequent as you were challenging before?

Richard N. Gardner:

Well, I think we would say under our theory that Congress cannot take away citizenship for any reasons that that under that line of argument, that condition subsequent would fail and I think under the Mendoza-Martinez case, there might also be problems and other cases decided by this Court.

Warren E. Burger:

That tends to undermine at least to some extent doesn’t it, your argument about having all the burdens of citizenship?

Richard N. Gardner:

Well, I don’t think so Your Honor.

It seems to me —

Warren E. Burger:

How come he rejects the burdens and you say the United States Government can do nothing about it, he has rejected one very important burden hasn’t he?

Richard N. Gardner:

That is correct, that is correct.

But there are other burdens such as subjection to judicial process under the Blackmer case, paying of taxes and others.

I think there are a whole collection of burdens here which would be very difficult for these foreign born Americans for the first 23 years to avoid.

May I deal very briefly with this fundamental question, which is raised by the Solicitor General that is to say that if it were possible for the Congress to lay down a conditioned precedent, it must thereby be possible for the Congress to apply a condition subsequent.

In our view, the difference is fundamental.

It would be one thing and would not concede the reasonableness of this and it would be one thing for the Congress to say that these people are not citizens but can become citizens at age 21 upon complying with residence requirements.

It’s a very different thing to strip them of their citizenship, and reading the decisions of this Court over the years, one sees two fundamental reasons for this; first, the unfairness of taking away citizenship once vested given the willingness the fact that the people have accepted for 23 years rights and obligations.

And second, the danger of taking away the civil liberties of Americans through the back door by involuntary expatriation.

That it seems to me is the distinction between the condition precedent and the condition subsequent.

And finally, to please the Court, the second pillar of the argument we’re making is that the Court held in Schneider v. Rusk that a residence requirement for a naturalized Americans violated the Fifth Amendment because it involved the discrimination unjustifiable and that is the kind of discrimination which is the case before us.

Warren E. Burger:

Thank you Mr. Gardner.

Mr. Solicitor General.

Erwin N. Griswold:

I have no rebuttal.

Warren E. Burger:

Thank you very much Mr. Solicitor General, Mr. Rogge, and Professor Gardner.

The case is submitted.