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Constitutional Law - Involuntary Expatriation - Specific Intent Ot Relinquish Citizenship Required - Baker V

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Constitutional Law - Involuntary Expatriation - Specific Intent Ot Relinquish Citizenship Required - Baker V DePaul Law Review Volume 19 Issue 1 Fall 1969 Article 11 Constitutional Law - Involuntary Expatriation - Specific Intent ot Relinquish Citizenship Required - Baker v. Rusk, 296 F. Supp. 1244 (1969) Robert Ward Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Robert Ward, Constitutional Law - Involuntary Expatriation - Specific Intent ot Relinquish Citizenship Required - Baker v. Rusk, 296 F. Supp. 1244 (1969), 19 DePaul L. Rev. 193 (1969) Available at: https://via.library.depaul.edu/law-review/vol19/iss1/11 This Case Notes is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. 1969] CASE NOTES the new marijuana statutory scheme.68 Moreover, the Court explicitly stated that the Leary decision is no bar to the enactment of future mari- 6 juana laws by Congress. 11 As a result of the Leary case, other criminal statutory presumptions will no doubt come under the scrutiny of the courts. The presumption, for example, of federal narcotics statute 21 U.S.C. § 174, identical almost word for word with the Leary presumption, will probably be reexamined in the light of the new "rational connection" test. Merely because it could not be established that the majority of marijuana smokers know the origin of their marijuana, it does not necessarily follow that the majority of "hard" narcotics users do not know the origin of their drug. In surveying data relevant to narcotic drugs, the courts may well conclude that drug users are "more likely than not" to have knowledge of its importation, and uphold the validity of that presumption. In judging the constitutionality of criminal statutory presumptions in the future, the following salient points, extracted from Leary and other decisions, should be considered: (1) There must be a rational connection between the fact presumed and the fact proved; (2) The connection is rational if the presumed fact follows the proved fact more than fifty per cent of the time; (3) An empirical approach must be taken to determine whether this relationship exists in fact; (4) Some deference should be paid to the capacity of Congress to judge the rationality of the connection; and (5) The presumption should be "permissive" rather than "mandatory" so that a jury may be satisfactorily instructed as to "reasonable doubt." James Carroll CONSTITUTIONAL LAW-INVOLUNTARY EXPATRIATION -SPECIFIC INTENT TO RELINQUISH CITIZENSHIP REQUIRED Morris Louis Baker, born in 1905 in North Dakota and therefore an American citizen,' was taken to Canada as an infant in 1906. He re- 68. The Court's ruling as to the fifth amendment privilege not discussed in this case note, will probably have a more devastating effect on federal marijuana control than will its ruling as to the presumption. Although only subsection 26 U.S.C. § 4744 (a)(2) (1964) of the Marijuana Tax Act was invalidated, there is a strong likelihood that the entire Act is unconstitutional because it conflicts with the fifth amendment. See, e.g., Santos v. United States, 417 F.2d 340 (7th Cir. 1969); contra, Buie v. United States, - F.2d - (2d Cir. 1969). 69. Supra note 45, at 54. 1. "All persons born or naturalized in the United States, and subject to the juris- DE PAUL LAW REVIEW [Vol. XIX sided and was educated in Canada, and he was admitted to the Canadian Bar in 1926. Among the formalities necessary for admission to the practice of law in Canada were a written and oral oath swearing allegiance to the British monarch; the plaintiff voluntarily complied with these cere- monial prerequisites. 2 Baker returned to the United States in 1944, in- tending to reside there permanently. At that time, the Commissioner of Immigration ruled that notwithstanding his allegations that he had never obtained Canadian citizenship, voted in a Canadian election, nor intended to renounce his American citizenship, Baker "voluntarily" relinquished his United States citizenship by virtue of his swearing allegiance to a foreign state.3 In 1967, he applied for a United States passport, but his appli- cation was denied upon the same ground-self-expatriation by volun- tarily swearing allegiance to a foreign state. He thereupon brought an action seeking a declaratory judgment that he was indeed an American national. The court declared Baker a natural-born American citizen, holding that voluntary expatriation requires a specific intent to renounce citizenship. Baker v. Rusk, 296 F. Supp. 1244 (C.D. Cal. 1969). In order to understand the present status of the doctrine of expatria- tion, it is necessary to understand the historical background of the doc- trine and the three theories of citizenship which have shaped and in- fluenced it: (1) the perpetual allegiance theory; (2) the Jeffersonian states' rights theory; and (3) the voluntary relinquishment theory. It is the purpose of this note to trace the evolution of the doctrine of expatria- tion through these concepts of citizenship, and, more particularly, to focus on the current "voluntary" abandonment test and demonstrate how Baker v. Rusk expands that standard. The theory of perpetual allegiance 4-once a British subject, always a British subject-officially dominated the English concept of citizenship from the time of the Middle Ages to the late nineteenth century. This doctrine developed in response to a real need of feudal society-the diction thereof, are citizens of the United States and of the State wherein they re- side." U.S. CONST. amend. XIV, § 1. 2. The first paragraph of such oath contained a provision that, "I will be faithful and bear true allegiance to His Majesty King George the Fifth . and . will defend him to the utmost of my power against all traitorous conspiracies ... against his person, Crown, and Dignity .... " 3. Plaintiff was found to have forfeited his citizenship based upon 8 U.S.C. § 1481 (a) (2) (1965) which provides that "[any American citizen shall be deemed to have expatriated himself when he has been naturalized in any foreign state in conformity with its laws, or when he has taken an oath of allegiance to any foreign state." 4. See Afroyim v. Rusk, 387 U.S. 253, 258 (1967); Roche, The Expatriation Cases: "Breathes there the Man With Soul So Dead . .?" 1963 S. CT. REV. 325, 328. 1969] CASE NOTES 195 need for manpower to till the fields and fill the ranks of William the Conqueror's armies. Under this theory there was no problem of expatria- tion, for expatriation was impossible by the very nature of the theory. In England this doctrine continued to control the concept of citizenship until 1870, when Parliament passed an act which conferred upon British subjects the right of renunciation of citizenship.5 For a limited period of time perpetual allegiance was acceptable to the American legal system; however, the doctrine proved to be of limited utility in the post-Revolutionary environment for two reasons, the first of which was dictated by political necessity, the second controlled by the demographic demands of a frontier nation. Until the American Revo- lution citizens of the colonies were British subjects; after the Revolution they were no longer British subjects.6 Clearly, the idea of perpetual allegiance proved to be inconsistent with the patriotic revolutionary fervor which had broken all political ties with George III. Furthermore, since the best interests of the United States lay in expansion by immigration, this would only be politically feasible if new immigrants could divest themselves of all previous political ties. Perpetual allegiance thus be- 7 came an obsolete doctrine. The states' rights theory supplanted the perpetual allegiance theory as the basis for citizenship. The essence of the states' rights, or Jefferson- 5. The Naturalization Act of 1870, 33 Vict. c. 14 Act, § 6, provides that "[A]ny British subject who has at any time before or may at any time after the passing of this Act, when in any foreign state, and not under any disability, volun- tarily become naturalized in such state, shall from and after the time of his so having become naturalized in such foreign state be deemed to have ceased to be a British subject and be regarded as an alien ...... See Slaymaker, The Right of the Ameri- can Citizen to Expatriate, 37 AM. L. REV. 191, 193 (1903). See also Talbot v. Jansen, 3 U.S. (3 Dall.) 131 (1795). In Talbot, the Court pointed out that ex- patriation was not a settled issue in 1795. Although a citizen could not dissolve the compact between himself and his country without the consent or default of the community, the government could relieve a citizen from his allegiance. See Shanks v. DuPont, 28 U.S. (3 Pet.) 241 (1830); Inglis v. Trustees of the Sailor's Snug Harbor, 28 U.S. (3 Pet.) 99 (1830). On the other hand, the right of expatriation is treated as a fundamental right in Stoughton v. Taylor, 13 F. Cas. 1179 (No. 7,558) (D.C. N.Y. 1818). In this case a naturalized American citizen entered the service of a foreign nation and completely renounced his American citizenship. He was found to have been released from his obligations. A citizen, domiciled in a foreign country, who took an oath of allegiance to the foreign sovereign was held not to be under the protection of the United States. Nonetheless, the transfer of allegiance had to be under bona fide circumstances of good faith. See The Santissima Trinidad: and the Saint Andre, 20 U.S. (7 Wheat.) 348 (1822); Stoughton v. Taylor, supra. 6. Treaty of Peace of 1783, 22 Geo.
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