Dual Nationality Does Not Preclude Civic Loyalty, Martin Says

November 1, 2004

MartinGlobalization is breaking down resistance to dual nationality, and it no longer makes sense to force naturalized Americans to renounce their pre-existing citizenship as part of their oath of allegiance to the United States, law professor David A. Martin said in his Oct. 27 chair lecture marking his appointment as the Warner-Booker Distinguished Professor of International Law.

The American view of citizenship as a right of individual choice was codified in the Expatriation Act of 1868, Martin explained. At first, American rules followed British custom, which regarded citizenship as a matter of perpetual allegiance to the sovereign. "Only the king could release 'subjects,'" Martin said. Even the Revolutionary War was not enough to dissuade King George III from this view. He used it to justify impressing American sailors into the British Navy during the Napoleonic Wars-claiming he had never consented to their naturalization as U.S. citizens-and thereby contributed to the causes of the War of 1812.

After the Expatriation Act of 1868, Britain signed a treaty agreeing to treat naturalized U.S. citizens as no longer holding British nationality and passed a statute recognizing individual choice in such matters.

But the right of individuals had to be balanced somehow against the interests of nations, most of which had trouble with the idea of dual nationality. It was condemned as "worse than bigamy," Martin said. Most dual nationals were regarded as "crass opportunists, dodging the obligations of citizenship by living elsewhere, but then asserting the nationality of the distant state when it momentarily suited their private interests." Fearing divided loyalties in the nation as the prospect of involvement in World War I loomed, Theodore Roosevelt denounced what he called "hyphenated Americans," but not out of animus toward immigrants, Martin pointed out. Indeed, Roosevelt called on Americans to create a just society and thereby win the loyalty of its new residents.

Meanwhile, the State Department advised naturalized U.S. citizens who went back to live for extended periods in their native lands that they thereby forfeit their U.S. nationality. Naturalization in another country automatically triggered the loss of U.S. citizenship, regardless of the individual's wishes. "The same for those who took an oath to a foreign government-which meant that nearly anyone who assumed public office in another state or served in a foreign military would lose American nationality," Martin said.

But officials went too far, Martin said, when for the sake of closing loopholes they decided that American women who married foreign husbands would immediately lose their U.S. citizenship. The suffragists added another grievance to their list. The Supreme Court had no trouble knocking down the argument of Ethel Mackenzie, a suffragist leader, in Mackenzie v. Hare, in 1915. She had been denied the right to register to vote under a progressive 1911 California law that extended the franchise to women, on the ground that she lacked U.S. citizenship because of her marriage to a well-known Scottish tenor who had taken up residence here. Within five years of the enactment of the 19th Amendment to the Constitution, guaranteeing to women the right to vote nationally, Congress repealed the provision in the 1907 Expatriation Act that stripped married women of their citizenship. " The legislators did not think of themselves as voting in favor of dual nationality, of course," Martin noted. "But as a result of that repeal, more children would be born to American mothers and foreign national husbands."

Another source of plural citizenship was beyond their control: the different rules nations used to confer nationality at birth. "The United States had enshrined the jus soli in its Constitution as part of the 14th Amendment, meaning that virtually anyone born on American soil is a U.S. citizen. But most European states, the primary source of our 19th-century immigration, followed the jus sanguinis,the right of blood, whereby citizenship depends on descent, not the place of birth." The State Department's solution was to insist that children born with double nationality had to choose one or the other upon reaching age 21. If a 21-year-old dual national continued his residence for an extended period in the other country, he was deemed to have elected the other nation's citizenship.

The U.S. tried to get the election concept included in the 1930 Hague Convention, but it was dropped.

"Then in 1952, the Supreme Court essentially declared that the emperor had no clothes," Martin said. "The State Department's broad election requirement, the justices gently pointed out, suffered from the modest defect that it utterly lacked statutory foundation."

Serious judicial resistance began to pick up, "not to promote dual nationality-but only to avoid a fate that many of the justices deemed overly harsh: the involuntary stripping of U.S. citizenship," Martin said. A contradictory trio of cases in 1958 signaled the beginning of the end of involuntary expatriation. Finally, in a 1980 case, Vance v. Terrazas,"a unanimous court held that citizenship could be lost only if the person committed an expatriating act with the specific intent of surrendering his U.S. nationality-basically the doctrine for which Ethel Mackenzie had argued 50 years before," he said.

"To value civil society is to accept that citizens will hold a variety of involvements and loyalties at the same time-commitments that are not seen as diluting a healthy allegiance to the nation," Martin said. "We should be able to recognize, in the 21st century, that national allegiance is not all-consuming, that patriotic commitment can coexist with loyalty and devotion to other groups and institutions… Therefore we should drop the language requiring renunciation of other nationalities, although it remains a sound idea to include a non-exclusive oath of allegiance as part of our naturalization ceremonies.

Nation-states will remain the world's essential governance units for decades to come, he said. But nationalist loyalty "can foster blind and unthinking obedience. It can descend to chauvinism. But a more measured loyalty, built on a genuine and enduring sense of commitment, is crucial in making democracy work. Citizens in democracies have to cultivate a far-from-natural impulse to remain engaged in an ongoing common political enterprise even when their side loses an election or a policy battle."

The concept of equal citizenship "also gives a strong foundation for bridging ethnic divides and for adopting measures meant to reduce the differences between rich and poor. Equal citizenship can be a foothold for resisting individual retreat into selfishness, for winning the comfortable over to public or private efforts to assist the poor or to contribute, even at some individual cost, to community enterprises.

"The proper analogy for dual citizenship is not bigamy, but rather the birth of a second child. A good parent extends complete love and devotion to the infant, without diminishing at all the love and devotion felt toward the sibling," he said.

"Citizenship is a key building block in civic nationalism, intimately linked to solidarity and effective democratic engagement," said Martin. "Even in a world that rightly accepts dual nationality on a wider scale, we should, like Roosevelt, foster the sense of reciprocal commitment that national citizenship rightly represents."

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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