AFROYIM v. RUSK
After immigrating to the United States from Poland in 1912, Beys Afroyim became a naturalized American citizen in 1926. In 1950, Afroyim went to Israel where he voted in that country's 1951 governmental elections. In 1960, Afroyim applied for renewal a of his American passport. The State Department informed him that he had forfeited his American citizenship by virtue of Section 401(e) of the 1940 Nationality Act which stipulates that citizens of the United States shall "lose" their citizenship upon voting in a foreign state's political elections. Afroyim challenged the constitutionality of Section 401(e). On appeal from a district court's summary judgment favoring Secretary of State Dean Rusk, the Second Circuit Court of Appeals affirmed. The Supreme Court granted Afroyim certiorari.
Does Section 401(e) of the 1940 Nationality Act, revoking U.S. citizenship to persons who vote in other countries' elections, violate either the Fifth Amendment right to Due Process or the Fourteenth Amendment, under which naturalized citizens are granted national citizenship?
Legal provision: Citizenship Clause
Yes. In a 5-to-4 decision, overruling Perez v. Brownell (356 US 44), the Court held that Congress has no general power to revoke American citizenship without consent. Noting the special bond between Americans and their government, a bond that protects every citizen against all manner of destruction of their rights, the Court held that only citizens themselves may voluntarily relinquish their citizenship. This sacred principle applies equally to natural and naturalized citizens. As such, Section 401(e) violated both the Fifth and Fourteenth Amendments.
Argument of Edward J. Ennis
Chief Justice Earl Warren: Number 456, Afroyim, Petitioner, versus Dean Rusk, the Secretary of State.
Mr. Edward J. Ennis: May it please the Court.
This case is here on a writ of certiorari to the United States Court of Appeals of the Second Circuit, which unanimously affirmed a summary judgment of the United States District Court for the Southern District of New York, holding that the petitioner had expatriated himself pursuant to the authority of 401 (e) of the Nationality Act of 1940 by the act of voting in an election in the State of Israel in 1951 for the legislature of the State of Israel.
This case was to be argued by the general counsel for the New York Civil Liberties Union Nanette Dembitz-Berman, who wrote the briefs in the case and it is Mrs. Berman's appointment as a judge of the family court of the City of New York that brings me here today.
She is very disappointed that she missed this opportunity to address the Court on this subject.
The facts are very simple and are stated in a stipulation of facts which appears in the record and -- at page 11 and are simply that the petitioner who was born in Poland in 1893, immigrated to the United States in 1912, was naturalized in 1926 and went to Israel in 1949, a year after that state was established in 1948.
And in 1951, he voted for the second Knesset, which was the second election of the legislature of Israel.
At that time indeed, when there was no Israeli citizenship at all and that everyone who voted in that election, voted on the basis of their residence in Israel.
Indeed, it was that legislature which a year later adopted the first Israeli law of nationality and established Israeli nationality.
The District Court, in the basis of the stipulation of facts in which it appeared that the petitioner voluntarily voted in that political election, stated that it was bound by the decision of this court in the Perez case in 1958 and held that he had lost his citizenship as indeed when he applied for a United States passport in 1960 to return to the United States, the consul in Israel so determined and the State Department approved that loss of citizenship and when he did return, he obtained a full hearing, which is part of the record, before the Passport Review Board which affirmed this loss of nationality and then he brought this -- this action.
The record does indicate that the man's profession, he was an artist by profession, a painter and sculptor, and indeed in this country, he has some of his paintings which are products of the WPA Art Program in some of our high schools and hospitals.
The case presents squarely the constitutionality of this Section 401 (e) of the Nationality Act of 1940, which is repeated in haec verba in Sections 349 of the present Immigration and Nationality Act.
Justice John M. Harlan: Wouldn't the -- what you're asking is to overrule Perez?
Mr. Edward J. Ennis: Over -- yes, overruled Perez, which is now.
Mr. Justice Harlan, when I -- I recognize the -- from the facts of the reargument that was ordered in Perez, the 100 pages of opinions on that -- in that case and the Trop case, the 75 of pages of opinion in the Mendoza case which followed a year -- few years later, in which again the court ordered rearguments.
When I read the opinions of the Court in those cases and read the records in the briefs, I must say I was nonplussed as to what I've read to the consideration of the Court of this -- again of this issue, which has been obviously so painstakingly considered by the Court.
In the short time that is available to me, I felt it would be bootless and of no assistance to the Court to try to review here the formulations of the applicable constitutional doctrine.
Most of the justices are sitting here have expressed themselves on the constitutional doctrine.
It occurred to me that in my short time, I might assist the Court by examining very briefly the two factual propositions which are, I submit, accepted by the majority of the Court in the present case and which I believe are factually false.
One of those propositions in which the Solicitor General bases his argument, one of those propositions is that for an American citizen to vote in a foreign election is an indication of some diminution of his allegiance to the United States and some adherence to a foreign allegiance.
The other proposition is that for an American citizen to so vote in a foreign election, in some way embroils the United States in foreign affairs or in some way exacerbates or makes more difficult the handling of foreign affairs.
I would submit to Your Honors very briefly that both of those propositions are factually inaccurate.
Now, as to the first proposition, that voting in the --
Justice John M. Harlan: Can I interrupt you --
Mr. Edward J. Ennis: Certainly.
Justice John M. Harlan: Would you agree that the -- taking those two propositions that the constitutional question is this, whether Congress has the power to reasonably or rationally so conclude irrespective of what we or some others might think as the wisdom of the legislation.
Mr. Edward J. Ennis: I agree -- subject to my basic constitutional position that where we're dealing with citizenship granted by the Fourteenth Amendment, a Congress has much less authority and indeed, my final proposition is that Congress has no authority, under the Constitution to remove United States citizenship that this can only be done by the voluntary act of the United States citizen and all that the power of Congress is, is to regulate the manner in which this voluntary expatriation shall be expressed.
Obviously, a man cannot put a note of expatriation on his desk floor and take it out when he wants to.
Congress can say that if you wish to adjure allegiance to the United States, if you're abroad, you must do it before a consul.
If you are in the United States, you must do it on the forms supplied by the Attorney General of the United States.
The limit of Congress' power is to regulate voluntary conduct or conduct which in most instances or in common experience is voluntary.
Justice John M. Harlan: What provision of the Constitution which do you derive that annotation?
Mr. Edward J. Ennis: From the Fourteenth Amendment which provides that every person born in the United States or naturalized alien is a citizen of the United States and the state in which he resides.
And from the opinions expressed by some of the justices that this sets up a relationship between the United States and its citizens, which the Congress does not have the power to terminate, that the relationship of citizenship can only be terminated by the act of the individual and that Congress is therefore limited to regulating those voluntary acts.
Justice Byron R. White: So there's no -- you -- you go so far as to say that there's just no behavior by the citizen which may -- which Congress may recognize as a -- in effect in expatriation --
Mr. Edward J. Ennis: None at all.
I believe that -- I believe that it's plain that a naturalization in the foreign state is --
Justice Potter Stewart: Now, why --
Mr. Edward J. Ennis: -- the clearest indication of --
Justice Potter Stewart: That may be a clear indication but what if the citizen says, “Now, look, I don't intend to lose my United States citizenship at all.
I'm becoming a citizen of another country but there are a lot of dual citizenships in the world.
So why should you take this to be an expatriation?
I say I'm still a citizen.”
Now, how come Congress can recognize that event?
Mr. Edward J. Ennis: Well, my -- my -- my personally belief that Congress may take conduct which normally connotes a putting off of your United States allegiance and taking on a foreign allegiance and may nominate that may -- as a control of voluntary conduct may say that that is expatriation.
Even though the individual says that, “I denied what I'm doing,” has a natural effect --
Justice Byron R. White: So Congress can say that that there's some -- there's some events which will result in involuntary expatriation.
Mr. Edward J. Ennis: No, I -- well -- we're standing on a very narrow ground, Your Honor, of whether conduct which in common experience is considered voluntary, whether the particular individual who was acting voluntarily and becoming as I said that I don't want this to have the result which the law says it shall have.
Now, I say that that's voluntary conduct and all that the Congress is doing and all that it can do constitutionally is recognized this effect --
Justice Potter Stewart: What about the voting?
What about voting, if --
Mr. Edward J. Ennis: That's what I -- that's what I want to come to.
Justice Potter Stewart: If Congress says voting shall result expatriation and the persons who knows that, he goes and votes.
Is that voluntary?
Mr. Edward J. Ennis: But the trouble with that is, Your Honor, is that voting as a factual matter does not indicate a maybe voluntary conduct but it's not voluntary conduct that indicates a lack of allegiance to the United States or the adherence to a foreign state.
Now, let me very briefly just state one page of history on this matter.
This came into the law in 1940.
Our courts, from the founding of the Republic until 1868, in many opinions of this Court and other courts, had considered the whole problem of expatriation and indeed a very strong opinion was held that the common law applied and that allegiance was permanent and there could be no expatriation.
This was debated in the courts.
There were cases on voting for example.
There were three cases, a federal case, a main case, and Iowa case in which the individuals had voted in Canadian elections.
The courts unanimously held that voting was not an indication of loss of United States allegiance.
These cases are quoted in Borchard's Diplomatic Protection Abroad and cited in our brief.
Justice John M. Harlan: Suppose you didn't have the Fourteenth Amendment, would your argument be the same?
Mr. Edward J. Ennis: Would my argument be the same without the Fourteenth Amendment?
Yes, I would -- my argument --
Justice John M. Harlan: Where did you derive this connotation as congressional power and that's it?
Mr. Edward J. Ennis: I would derive it upon the nature of the relation to count -- the relationship between the Government and its citizens under our Constitution.
I would say that the one thing that Congress in achieving its statutory objectives that one sanction that is not available to it unless the Constitution gave to it expressly was the termination of citizenship, the termination of the relation between the state and one of its -- one of its members.
Justice John M. Harlan: We have to overrule the decision of this Court in Perez to the statutes.
Mr. Edward J. Ennis: Are you -- is Your Honor referring to Mackenzie in --
Justice John M. Harlan: Among others, yes.
Mr. Edward J. Ennis: Well, Your Honor, the opinions of the Court have discussed Mackenzie as a suspension of citizenship during coverture because of the special relationship of the wife as part of the husband.
I think that deals with that case so far as Savorgnan case is concerned that this is the case that really I was discussing with Mr. Justice White where a woman becomes naturalized in the foreign state.
And although she signed the papers and becomes naturalized and abjures allegiance to the United States, she said “I did it because my husband, the United States -- the Italian consul in St. Louis asked me to do it.
I really don't want to lose my citizenship.”
I am content to take the position that conduct, which is considered normally as voluntary conduct that merely by -- say so, the individual may not say that it doesn't have the result that law said it does.
Justice Tom C. Clark: Mr. Ennis, what was the evil that Congress was trying to prevent?
Mr. Edward J. Ennis: Well, if Your Honor pleases, an examination of this history indicates that there was no evil that Congress was trying to prevent.
Let me try or range you directly, Mr. Justice Clark this way.
And on the second factual proposition that our foreign relations might be affected, the truth of the matter is, that voting in foreign elections, there's not the slightest indication that voting in a foreign election had in a -- legally, at the invitation of the foreign government in effect, has any effect on our foreign relations.
Let's examine --
Justice Tom C. Clark: That was the basis, wasn't it?
The main --
Mr. Edward J. Ennis: This was -- this was recited Your Honor, in one short statement which I will refer to.
Justice Tom C. Clark: And it appears to me it is true, it real permits, non-residents, non-foreigners to vote.
Mr. Edward J. Ennis: The voting at that time, Your Honor, was based entirely on residence.
There was no Israeli nationality.
Justice Tom C. Clark: You did not have to be a nation --
Mr. Edward J. Ennis: You did not have to be -- no, you did not have to be foreign national.
Justice Tom C. Clark: It couldn't have any effect on the foreign relations with Israel.
Mr. Edward J. Ennis: Yes, but let me tell -- let me suggest two other instances Your Honor, which perhaps point out your question.
This 1940 law is on the books for only one reason.
The Chairman of the Immigration of the Judiciary Committee, Immigration Subcommittee, Mr. Dickstein of New York, was exercised by the fact that German aliens, resident aliens and naturalized Germans went back to the czar in 1935 and voted that the czar should be German rather than French.
This didn't bother the French government.
It didn't bother the German government, it didn't bother the State Department but it certainly bothered Mr. Dickstein and he proposed to the President of the United States that he set up a commission to examine the nationality laws and to codify it.
In the course of that codification, a new section which we're dealing with crept into the codification which the -- which was transmitted to the president for the very modest letter by the Secretary of State and the Attorney General to the effect that these are only suggestions for the consideration of Congress.
One of these suggestions was voting in a political election in a foreign state or participating in an election of plebiscite to determine the sovereignty of a foreign territory.
The entire support for that proposal is in two short paragraphs.
In the rest of this report, the other proposals are supported by judicial decisions, by diplomatic decisions, the correspondence between the Secretary of State and foreign governments.
This course which we're dealing with has two sentences in it.
Along the line, Your Honor, suggested without any factual support whatever and here's what they are.
This section is clear, applicable on any case on American votes in a political election in a foreign state whether or not he's a national thereof.
Taking an active part in the political affairs of a foreign state by voting in a political election therein is believed to involve a political attachment and practical allegiance thereto, which is in consistent with continued allegiance to the United States whether or not the person in question has acquired the nationality of the foreign state.
There was not one iota of factual support for the statement prepared by the State Department, I think by the Assistant Solicitor, Mr. Flournoy, who was the State Department expert for many years on nationality questions.
At the suggestion of the -- Mr. Dickstein, the Chairman of the House Immigration Committee, there is -- not only no support for that statement but the factual evidence in the diplomatic history of the United States was at that time that voting in a foreign election was not an indication of throwing offered or any diminution of allegiance to the United States for taking on allegiance to a foreign state.
As I've indicated to the Court, the judicial decisions which are the contrary, the diplomatic correspondence which discussed that great length how you could lose United States nationality was limited entirely to naturalization abroad, and residing abroad as part of that naturalization, or adjuring allegiance to the United States.
There was no support whatever for that statement.
Justice Tom C. Clark: Does Mexico require their voters to be nationals of Mexico?
Mr. Edward J. Ennis: When Mr. Perez was born in El Paso, voted in a Mexican election for president, I do not know, Your Honor, whether the Mexican law required him to be a --
Justice Tom C. Clark: I thought perhaps you might distinguish the fact that --
Mr. Edward J. Ennis: Yes.
Justice Tom C. Clark: -- if Perez represented, he was a Mexican which he did at that time --
Mr. Edward J. Ennis: Yes.
Justice Tom C. Clark: -- while your petitioner in his application or in his brochure that if he files that he was a citizen of the United States, you might distinguish between them rather than saying that you were obliged to overrule Perez.
Mr. Edward J. Ennis: Well, let me give you one, a bit of factual information.
The first page of the record contains Mr. Afroyim's identification booklet which he had a hand in when he voted.
That lists him as a citizen of the United States.
I mean there wasn't any question that he was a citizen of the United States and only of the United States and that he disclosed this and voted as a citizen.
Now, if Your Honor's suggestion is that this case might be distinguished on this basis from the matter of a person who was a citizen of the foreign state, all I can say that the statute as drawn will not support such a distinction and indeed, my last argument and the one that appeal to Mr. Justice Whittaker in the -- in the Perez case, was that in any event the statute that's drawn was too broad because it covered a person, an American citizen who voted in the foreign election whether or not the circumstances indicated any diminution of U.S. allegiance or any taking on of a foreign allegiance.
Justice Tom C. Clark: Well, my, my -- I'm suggesting that --
Mr. Edward J. Ennis: Of course, I understand that.
Justice Tom C. Clark: -- and perhaps said that I would vote that but it appears to me that it has to be voluntary as indicated in Perez by -- if one who said “I'm a citizen of the United States and I would like to vote in your election and they said okay, I -- certainly it would not be a voluntary relinquishment of his citizenship to the United States insofar as your expression is concerned while in Perez, while he is repetitiously or rather he represented the Mexican government he wasn't (Voice Overlap) but it seems to be a volun -- more volunteer there would be in the other case.
Mr. Edward J. Ennis: Well except, Your Honor, might -- perceive, of course, the distinction Your Honor's suggesting that I do not stand on it.
This law has been held to take away the United States citizenship even if you vote in a municipal election as to whether it should be local option that forbear control or not.
This law has been -- by the people administering it by the lower trib -- administrative tribunals, they say any voting in a foreign political election or in a plebiscite takes away your United States citizenship and I do not think that Your Honor's distinction will support the constitutionality of this statute because I do not believe that a dual citizen, the voting in a foreign election and exercising his rights under his second citizenship indicates any desire to terminate his United States citizenship.
I do not think that factual supports there.
At any rate, it is curious that the instance which brought this law into being in this all instance, as I say without any diplomatic or factual or judicial support was this voting in the czar which disturbed me that our Government nor the other two governments involved, the German or the French government.
But it's suggested in this one paragraph, which is all that this Court relied on in Perez.
In any event, it is not believed that an American national should be permitted to participate in the politics, in the political affairs of a foreign state and at the same time retain his American nationality.
The two facts would seem to be inconsistent with each other.
I suggest to Your Honors that in view of the complete lack of any authority for that statement, it is purposely extremely tentative in its own terms.
It's a suggestion and curiously enough, Congress took this tentative suggestion and passed it without any debate at all and put this into the Nationality Act, which was generally a codification of the former laws and edit this provision without any debate on it.
Justice John M. Harlan: Suppose that there'd been a full congressional evidentiary record made that voting in foreign elections had indication embarrassing to the foreign relation to the United States and Congress had asked -- had acted on that kind of a record.
What would be your position?
Mr. Edward J. Ennis: Well, my position would not change for the reason that I do not believe that this extremely limited power of Congress to regulate voluntary expatriation permits Congress to achieve a purpose of the exercise of it power's namely the promotion of good foreign relations.
It doesn't put in Congress' hands the weapons of expatriation.
Justice John M. Harlan: Well, if you can establish that proposition, you don't have to argue anything else.
Mr. Edward J. Ennis: I understand that, Your Honor, but that is a -- that is perhaps a more difficult proposition than the -- than what the factual proposition is, that foreign relations are not exacerbated by voting in a foreign election which is usually at the invitation of the foreign government.
And if Your Honor will read again the majority in Perez, Mr. Justice Frankfurter, for the Court, has one citation and for the proposition that the foreign relations of the United States might be affected by voting.
He cites one article in the American Journal of International Law, Mr. Bruce's article which deals entirely with the question of private persons by propaganda in our soil or in the soil of one nation attacking a foreign government and Mr. Bruce concludes his article by saying, this is the kind of private conduct which cannot be controlled in our country.
This is only citations of the Court for the proposition that Congress might reasonably think that voting in a foreign election injured our foreign relations and was a sufficient basis for what Mr. Justice Brennan has called the “drastic and truly terrible remedy of expatriation”.
Justice Abe Fortas: Mr. Ennis, how often does this problem arise as practical matter?
Mr. Edward J. Ennis: Well, Your Honor, we have put in our supplemental brief to our petition for certiorari the number of persons who have lost their citizenship by voting in foreign elections in just the last few years and it runs to a couple of thousand questions, Your Honor.
Justice Abe Fortas: Where do they vote?
Where do these persons voting?
Mr. Edward J. Ennis: Unfortunately, I don't have the -- Ms. Dembitz has put them in this memorandum and she obtained these facts from the State Department and the fact --
Justice Abe Fortas: They don't take it -- don't take your time --
Mr. Edward J. Ennis: Yes but we -- we don't -- I don't find here, Your Honor, the particular elections that were involved or the particular statement involved.
Justice Hugo L. Black: Suppose that it had been established as suggested beyond the shadow of a doubt that voting would in a foreign country into some extent effect the foreign relations of this county, would that answer to your argument under the Fourteenth Amendment?
Mr. Edward J. Ennis: No.
Justice Hugo L. Black: To the effect that citizenship is then granted and can only be lost by giving it up?
Mr. Edward J. Ennis: No, Your Honor, it would not.
I have wanted to refer, Your Honor, to this factual basis because frankly, it was the only thing in reading the opinions of the court and in reading all of the briefs, it was the only thing that I had -- that I thought I found that have not been completely explored in the opinions of the Court that namely, that this proposition that voting in the foreign election did indicate some diminution of allegiance or taking on a foreign list was just erroneous and also other factual proposition that our foreign relations are affected.
Now, let me give you other example and I will sit down.
In addition to this --
Justice Hugo L. Black: May I suggest this?
Mr. Edward J. Ennis: Yes.
Justice Hugo L. Black: Your interest in that voting as to what effect it would have as I understand it under your Fourteenth Amendment argument is that it is not sufficient to show a voluntary enunciation of citizenship by an American citizen to show that he voted in a foreign election.
Mr. Edward J. Ennis: Of course not, Your Honor.
It doesn't establish any such thing.
Justice Hugo L. Black: And your argument under the Fourteenth Amendment as I understand it is based on the fact that it must be a voluntary renunciation of citizenship and while there could be conduct -- could be conduct such as the shaking of the head or something that would in itself show a renunciation, that does not.
Mr. Edward J. Ennis: That's correct, Your Honor.
Justice Hugo L. Black: That under the Fourteenth Amendment, there must be a plain or a valid renunciation of citizenship --
Mr. Edward J. Ennis: That's right.
Justice Hugo L. Black: -- in order for a citizen that's been stripped of it.
Mr. Edward J. Ennis: That's correct.
Now, I sit down with calling your --
Justice John M. Harlan: Will you regard the Fourteenth Amendment as imposing enunciation of congressional power of your own statement.
Mr. Edward J. Ennis: Of course, Your Honor.
I'll sit down by calling Your Honor's attention to one other factual matter.
Congress has recognized that voting in a foreign election in effect does not diminish your relation -- your allegiance to the United States by providing -- by having to amend the Act; to provide that every American citizen who voted in Italy between 1946 and 1948 should be given their citizenship back because it was recognized that often voting of foreign relation, contrary to being against the United States citizenship may be done at the instance of officials of the United States, asking for support of a foreign government by American citizens residing in that territory who are eligible to vote.
So that the American citizens, thousands of them, who voted the Italian elections after the war from 1946 to 1948 had been given back their citizenship by Congress, recognizing, I submit, in effect that such voting is not a voluntary giving off up your citizenship.
If I have -- I think my time has expired.
Chief Justice Earl Warren: Mr. Gordon?
Argument of Charles Gordon
Mr. Charles Gordon: May it please the Court.
This is a suit seeking a declaratory judgment of citizenship.
Petitioner is a naturalized citizen who voted in a political election in Israel.
He disputes the findings of the lower courts that he thereby lost his citizenship.
The facts to some extent were recited by petitioner's counsel but there are a few more that I'd like to call to the Court's attention.
Justice Abe Fortas: Is there -- Mr. Gordon, I beg your pardon.
Is there a finding that he intended to relinquish his citizenship?
Mr. Charles Gordon: No, there's a finding that it was voluntary.
Justice Abe Fortas: But his voting was voluntary?
Mr. Charles Gordon: His voting was voluntary.
He says that he did not thereby intend to give up citizenship.
The Government does not -- did not in the stipulation agree to that.
Justice Abe Fortas: Did the Government contest it?
Mr. Charles Gordon: They did not contest it.
They -- the Government says it's immaterial.
Justice Abe Fortas: And that's really the issue that we have.
In other words, the Government says that it's immaterial whether he intended to or not and he says that it is material.
Mr. Charles Gordon: Why, I believe that's one of the issues.
There are several others that were posed where Congress can impose citizen -- loss of citizenship against his will where the Congress was acting reasonably in making such a determination so forth.
Now, to some extent, the facts are reflected as has been indicated in the stipulation of the parties.
The stipulation is set forth at pages 11 to 12 of the record.
In addition, the certified passport file of the Department of State was incorporated by reference in the motion for summary judgment and was considered by the District Court and by the Court of Appeals.
The passport filed is lodged with the clerk of this Court.
Petitioner was born in Poland about 1893.
He came to the United States in 1912 at the age of 19.
He was naturalized as a citizen of the United States in 1926 when he was 33 years old.
In 1949, he left the United States with an American passport.
He then went to Israel in 1950 and remained there for 14 years.
Now, by his stipulation, petitioner concedes that he voluntary voted in the election in 1951 in Israel for the second Knesset or parliament.
It appears also from his Israeli identification booklet, which Your Honors will find at pages 1 to 2 of the record that he voted additionally in two other elections 1959 and -- 1955 and 1959 for the third and fourth Knesset.
Now, it also appears that following --
Justice Potter Stewart: This case, however, was not decided at all upon his voting in those two later elections, was it?
Mr. Charles Gordon: I'm not sure.
This was the stipulation --
Justice Potter Stewart: Well, they're decided, I thought on a stipulation of fact.
Mr. Charles Gordon: No.
The other -- the State Department record and this booklet, which is at pages 1 and 2 were before the District Court and the Court of Appeals and they did refer to the facts which appear in the State Department record.
So the courts were considering that too.
And I don't think this Court is limited to determining only on the 1951 election.
He voted in three national elections.
Justice Potter Stewart: Do I understand in the first to those elections, under the laws of Israel, it was not neces -- it was necessary only to be a resident because indeed there was no such --
Mr. Charles Gordon: That is true.
Justice Byron R. White: -- thing as Israel nationality.
Mr. Charles Gordon: That is true.
Justice Byron R. White: And that -- but in the second two elections in which it shown that he voted, there was Israel nation -- such a thing as Israel nationality.
Mr. Charles Gordon: And only Israeli -- Israeli nation --
Justice Byron R. White: That only Israelis could --
Mr. Charles Gordon: Could vote.
Justice Byron R. White: -- could vote, is that correct?
Mr. Charles Gordon: And he did vote.
Justice Byron R. White: Well now, it's an -- may be important to know on -- what basis this case was decided.
I'd understood that it's decided on the stipulation of facts which indicates that which is -- which includes only the first of those three votes.
Mr. Charles Gordon: Your Honor, the passport file of the Department of State was incorporated by reference in the motion for summary judgment and was considered in the opinion of the District Court and the opinion of the Court of Appeals.
I think that was equally before the Court and it is lodged in the files of the clerk of this Court.
I don't think the court below -- I think they found that on the basis of that voting alone, they lost but they had build the facts and I think this Court will consider.
Justice Abe Fortas: But what -- what do you mean there was a reference to those things in the opinion of the court below?
Mr. Charles Gordon: Well, they referred to that --
Justice Abe Fortas: I mean, really -- really there ought to be -- ought to be lot of ambiguity about what is and what's not part of the record should be --
Mr. Charles Gordon: I -- I agree with what --
Justice Abe Fortas: -- one of the government case.
Mr. Charles Gordon: Mr. Justice Fortas, this record is a little ambiguous.
Justice Abe Fortas: Well, that's too bad.
Mr. Charles Gordon: I agree with Your --
Justice Hugo L. Black: But the stipulation is not Mr. Gordon, is it?
Mr. Charles Gordon: I'm sorry, sir.
Justice Hugo L. Black: I think stipulation is not ambiguous and that it says that he voted in '51 in the elections in the second Knesset.
Mr. Charles Gordon: That is true.
He conceded that.
Justice Hugo L. Black: Standing about the other.
Mr. Charles Gordon: No, but they in the record and if Your Honor will look at pages 1 and 2, you'll see that the record shows that he voted in two other elections, 1955 and 1959.
Justice Hugo L. Black: They're not involved in here.
We don't have the complaint here.
Mr. Charles Gordon: The complaint is not in the record.
Justice Hugo L. Black: Does the complaint mention he other elections?
Mr. Charles Gordon: No, I don't know if it does or not.
He hasn't been very talkative about these other elections.
He restricts himself to the first election but he does not deny and it appears in the record that he did vote in the 1955 and 1959 election.
Justice Abe Fortas: What do you mean he had been very talkative?
Mr. Charles Gordon: Well, I guess he has been so talkative in some State Department but in this proceeding, he has restricted --
Justice Abe Fortas: Was he -- was -- is there any oral testimony in this record?
Mr. Charles Gordon: Yes, sir.
There is testimony before the State Department Board of Review, very full testimony.
Justice Abe Fortas: Was that part of the record of the record before us?
Mr. Charles Gordon: It is a part of the record that was before the District Court and the Court of Appeals and is lodged in the office of the clerk, yes.
Justice Abe Fortas: So this is not a case it's here on the stipulated facts?
Mr. Charles Gordon: Not in my view, sir.
Justice Abe Fortas: No, I'd like to here your brother Ennis as toward his understanding as in the record because I think it's kind of important --
Mr. Charles Gordon: I agreed for, Your Honor.
I think it's unfortunate that the record isn't filled up but these materials were before the District Court.
They were part of the record considered by the District Court and by the Court of Appeals.
Both courts have that record.
Justice Tom C. Clark: Where is the testimony?
Mr. Charles Gordon: I'm sorry, sir.
Justice Tom C. Clark: Where is the testimony?
Mr. Charles Gordon: In the transcript of State Department file which is certified by the District Court and is lodged with the clerk of this Court.
Justice Byron R. White: Well, what do you -- did you draw the thing -- a large distinction between the two situations?
Mr. Charles Gordon: I don't draw such a distinction but I want to cover both that in the event as Mr. Justice Clark has suggested that a distinction might exist in the minds of the Court.
I think it covers both situations where he was not a citizen and voted and where he was a citizen who voted.
Justice Byron R. White: Well, you say in the last two elections in which he voted, it is necessary to be a national of Israel on both the elections.
Mr. Charles Gordon: That is true, sir.
Justice Byron R. White: How did he evidence that he was national of Israel?
Mr. Charles Gordon: Well, I'll be glad to describe that to Your Honor.
Under the law of Israel, known as the “Law of Return”, all Jewish persons were welcome to Israel; they could become settlers.
That law was passed in 1950.
He went to Israel a month after that law became effective.
In 1952, Israel passed its nationality law, saying that all Jews who had settled in Israel under the Law of Return were automatically Israeli's citizens but they have a right to elect not to accept Israeli citizenship by filing a written election.
We have passport which was submitted by the petitioner which shows that Israel regarded him as an Israeli national, issued passport to him and therefore, he did not file such an election.
Justice Abe Fortas: Well, is that in the record?
Mr. Charles Gordon: Not in the record.
Justice Byron R. White: And why is it --
Mr. Charles Gordon: Unfortunately, this --
Justice Byron R. White: Why isn't it in the record?
Mr. Charles Gordon: Because --
Justice Byron R. White: Because you wanted -- you wanted to get the issue up here on the -- on that they're voting issue in this or what?
Mr. Charles Gordon: Well, Your Honor, as I was not in the case at the District Court.
As the parties then conceived the issue, it was a simple issue of the constitutionality of the statute based on a single act to voting.
But I think that in adjudging this --
Justice Byron R. White: But why shouldn't we take the case like that instead of this other evidence which apparently you didn't -- the Government could have put in the evidence if they wanted to.
Mr. Charles Gordon: Mr. Justice White, I believe that in issue of this importance is very desirable to get the record as full as possible and I think that if the record were as full as it can be, it would indicate that petitioner has demonstrated his diminution of allegiance to the United States has indicated that he regard himself as a citizen of Israel.
Indeed, he did not apply for an American passport for ten years and did apply for an Israel passport and obtained it.
Justice Byron R. White: Well, we could, on that evidence so that the Court can hold on this current statute unconstitutional and still -- and still say that he'd lost his citizenship on another ground.
Mr. Charles Gordon: Well, the only ground that is involved here is voting in the election of Israel.
Justice Byron R. White: I know.
I mean, that's -- that -- that -- that but this other evidence in the record, you might sustain lost citizenship even though you did it on the basis of voting.
Mr. Charles Gordon: Well, I -- I --
Justice Byron R. White: You might do it on the basis of becoming -- becoming a citizen of another country.
Mr. Charles Gordon: By being naturalized and by some voluntarily action as part.
That's conceivable, I believe.
But at least, insofar as voting is concerned, the decisions of this Court have indicated that in order to sustain the statute, there must be some indication of the diminished allegiance and my view is that the act of the voting in itself, indicates such a diminution.
But if it becomes important in the context of this case, I think the facts here if fully developed would demonstrate that the allegiance of the petitioner here is primarily to Israel or was at that time to --
Justice John M. Harlan: Would it be in evidence by a Fourteenth Amendment case?
Mr. Charles Gordon: I believe that would if that is considered important.
In our view of the case, we believe the statute on its face is -- is valid and we would support the statute on that basis.
Justice John M. Harlan: Who tried these cases?
Mr. Charles Gordon: It wasn't tried.
It was taken by the Court on stipulation; United States attorney in New York.
Justice John M. Harlan: United States attorney represented your case?
Mr. Charles Gordon: That is right.
Justice John M. Harlan: (Inaudible)
Mr. Charles Gordon: Well, there is an officer there who represents the Immigration Service in the United States Attorney's Office.
Chief Justice Earl Warren: So when the case was tried on stipulation of facts and decided on a motion for summary judgment, can the Court enlarge the allegations in the complaint and decided on an issue further than that is in the complaint?
Mr. Charles Gordon: But, Your Honor, the -- there's a misconception that the case was tried only on the stipulation of facts because with the motion for summary judgment, the Government incorporated by reference the passport file of the Department of State and it was considered by the District Court and the Court of Appeals.
Your Honor will notice the opinions of the District Court and the Court of Appeals contain facts which nowhere appear in the stipulation.
I myself wondered where they got those facts until I found out that the passport file of Department of State was before the Court.
Justice Tom C. Clark: Unless, the petitioner admit that he voted in the other elections.
Mr. Charles Gordon: No, there's no such admission.
Justice Tom C. Clark: I couldn't --
Mr. Charles Gordon: The only --
Justice Tom C. Clark: -- get that, then before us of that stipulation only covers one election?
Mr. Charles Gordon: But the record includes --
Justice Tom C. Clark: But he didn't have a chance to testify --
Mr. Charles Gordon: No, no.
But it cannot be ignored that this is an official Israeli identification booklet issued to the petitioner.
There's no doubt this he submitted.
And in it, it contains indications, notations by the Government that he voted in the other two elections.
Justice Tom C. Clark: In fact, to me though when you say that the case was submitted on stipulation and the stipulation only includes one election while he would be bound by that stipulation.
Mr. Charles Gordon: Well, Your Honor, I don't agree that the case was submitted on stipulation.
Justice Tom C. Clark: Well, I misunderstood u?
Mr. Charles Gordon: No, I -- I don't contend that.
My view is that the case was submitted on a stipulation and on the certified record of the Department of State, which was incorporated in the Government's motion for summary judgment.
Justice Abe Fortas: Well, I show where -- is there anything in the stipulation where can we look at?
Mr. Charles Gordon: The Department of State passport file, which is in the office of clerk of the court.
Justice Abe Fortas: I know it's in the office of the clerk but I say, what is there in the papers that had been submitted to us has any reference to it in your brief?
Mr. Charles Gordon: Not at all.
No reference to it in the brief.
Justice John M. Harlan: What's your view of that in your submission which practically would support it?
Mr. Charles Gordon: Well, my own view, Your Honor, is that this additional material is not relevant.
My own view is that the statute is constitutional in a reasonable determination by Congress that there is potential danger to the foreign relations of the United States if the person -- United States citizen votes in the political election of foreign country and if he thereby indicates his diminished allegiance to the United States.
Justice John M. Harlan: (Inaudible)
Mr. Charles Gordon: I'm well aware, Your Honor.
Justice John M. Harlan: And therefore, I would suppose that you would be trying to defend the states as well on some kind of the basis of case that you'd make it appropriate to this Court and not to have to base the case at least the decision to this Court or do that much substantive if they're not -- if they can be avoided in overruling in some other perhaps (Inaudible).
Mr. Charles Gordon: I've been well aware to that situation, Your Honor, that's why I stressed these additional facts which I think --
Justice John M. Harlan: By substantive means if you now say, you won't have to worry about what the additional record is saying, doesn't it?
Mr. Charles Gordon: I didn't quite say that, Your Honor.
I said that in my view, I don't need the additional record but I'm aware that in the view of some of the justices, these facts may be important.
My view is that the Perez case is still the law that this Court is not modifying, that it is sound and that on the basis of the Perez case, the mere fact that there was voting in a foreign political election, voluntary voting is enough to cause expatriation.
Justice Potter Stewart: Do I understand -- did I understand you correctly to say that the true facts of this case, not perhaps the facts of record but facts about this petitioner or that he has voluntarily now become a citizen of Israel and has an Israeli passport?
Mr. Charles Gordon: Yes, two Israeli passports and he -- the voluntary becoming a citizen of Israel was a sort of a nega -- negative --
Justice Potter Stewart: By declining to say he didn't want to be --
Mr. Charles Gordon: That's right.
Yes, he didn't file any specific declaration saying, “I want to become a citizen” but he didn't take advantage of the other opportunity for recollection.
I may say that in the State Department --
Justice Potter Stewart: And he has a passport of Israel now?
Mr. Charles Gordon: Yes, I have it here.
Justice Abe Fortas: And this is the first time these facts have been called of this Court's attention?
Mr. Charles Gordon: Oh!
Yes, Your Honor.
Justice Abe Fortas: What?
Mr. Charles Gordon: It is certainly so that this is not been called to the attention of the Court previously.
I discovered this in my researches.
Justice Abe Fortas: Well, as new member of this Court and I wasn't here at the time of Perez.
I had ordered considerable time to your papers.
Now, what you're telling me that there are facts and circumstances here that you contend a part of the record before us and which had not been called our attention?
Mr. Charles Gordon: Well, Your Honor, this was --
Justice Abe Fortas: Fortunately, you see I didn't have the benefit of your oral document before today.
That usually happens.
That we hear oral argument only when it's made to us so I didn't -- these facts were not called tp our attention.
Mr. Charles Gordon: Your Honor, I offer my apologies.
I think this is certainly a fault on our part.
These facts were discovered by me in my research in preparing for the case.
I deemed them to be quite important as the members of the Court do in the disposition of this case and I thought it was my duty to bring to the attention of the Court.
I think it would be unfortunate if this case were decided without a full apprehension of the facts in this case.
Justice John M. Harlan: You have a brief on these facts?
Mr. Charles Gordon: No, these facts are not briefed.
These -- the --
Justice John M. Harlan: Do I understand that --
Mr. Charles Gordon: Well, Your Honor, the -- part of them are on my brief.
Justice John M. Harlan: But you just said that's not in your brief.
Mr. Charles Gordon: Your Honor, part of them are referred to the brief.
The fact that there was voting in the two additional elections is referred to at least twice in the brief.
Justice John M. Harlan: The materials themselves do rely on your print of it --
Mr. Charles Gordon: Except for these passports.
These passports weren't submitted by petitioner to the Immigration and Naturalization Service and they are in the Immigration record.
They were never before the Court.
I mentioned them only because petitioner is seeking a declaratory judgment that he is a citizen and if these documents, which bear I think on his citizenship status are not brought before the Court.
The Court may enter a judgment declaring him to be a citizen when he actually is not.
I'm sorry the argument went off on this pageant but it seems to me that it was our duty to bring these facts to the attention of the Court.
Well, I -- I go back to the argument.
I want to emphasize the possibility that in this case and unfortunately some of these facts are not fully developed in the record.
All of them are in the record except for this passport.
The indications that petitioner intended to become a citizen of Israel.
I repeat, in 1950, he went to Israel.
He lived there for 14 years.
He did not apply for a renewal of his American passport which expired in 1950.
He did not expired -- applied for renewal for 10 years.
He did not register with the American embassy or consulate.
He did obtain this Israeli identification booklet in 1951.
In 1952, after the new nationality law became effective, he did obtain an Israeli passport.
He voted in three national elections.
It seems to me that under those circumstances, of course, he didn't asked to retain his American citizenship when the new Israeli nationality law went into effect.
It seems to me that under those circumstances, petitioner has indicated that his primary allegiance is to Israel and not to the United States.
Now, I want to --
Chief Justice Earl Warren: As to this record that you say should now be before us but hasn't --
Mr. Charles Gordon: Well, some -- most of it is before the Court, in my view.
Chief Justice Earl Warren: Well, as to this record of the State Department, was that a part of the stipulation?
Mr. Charles Gordon: No, it was a part of the motion for summary judgment incorporated by reference in the motion.
Chief Justice Earl Warren: Is there any objection by the petitioner?
Mr. Charles Gordon: No.
Chief Justice Earl Warren: To the record going in?
Mr. Charles Gordon: No, not as far as I'm aware.
Justice Byron R. White: Well, what veracity in the motion -- for the motion for summary judgment do you suppose just an incorporation by reference gives these facts?
Chief Justice Earl Warren: Well, the entire file was before the Court.
Justice Byron R. White: I don't care whether it was before the Court or not but what is this -- what is this motion for summary judgment based on?
Based on some uncontroverted facts, I suppose.
Chief Justice Earl Warren: Well --
Justice Byron R. White: I suppose everything -- every single word in that file, you expect the other side will accept without controversy?
Chief Justice Earl Warren: Well, there are parts of the file that may not relevant to this determination.
Justice Byron R. White: I don't care about the relevancy.
How about the truth?
You say that every fact in that file has been accepted by the court below?
Mr. Charles Gordon: No, I -- I wouldn't say that.
Justice Byron R. White: Well, which one?
Mr. Charles Gordon: I think that the facts --
Justice Byron R. White: The one that you want?
Mr. Charles Gordon: No, there are certain facts that relate to his status.
Justice Byron R. White: If the Government wanted to declare him with a summary judgment and attach some affidavits and give the other side the opportunity to controvert them that might have been one thing.
But here is a blanket of reference to a file.
It might have all sorts of things and even contradictory material.
Mr. Charles Gordon: Well, Mr. Justice White, this is not uncommon in immigration proceedings.
Justice Byron R. White: I don't care whether it's common or uncommon.
I just want to know about that -- about what facts you expect the Court to operate on when you -- all you do is make a broad reference to -- to some file.
Mr. Charles Gordon: Some of the facts are in the record, Your Honor.
This is the Israeli identi -- (Voice Overlap)
Justice Byron R. White: -- facts.
Mr. Charles Gordon: It's a booklet of his.
It's a -- an identification booklet relating to the petitioner.
Justice Byron R. White: Well, how do you really know that for example, he voted in the last -- in the last two elections?
Mr. Charles Gordon: Well, it is -- this is his booklet which he submitted to us.
Justice Abe Fortas: Was there any finding of fact by the District Court on this?
Mr. Charles Gordon: No, the only --
Justice Abe Fortas: You've gone way beyond any findings of fact by the District Court, haven't you?
What you're really telling us is that the District Court passed upon a hypothetical case and that what's before us now is really a hypothetical case.
That's what you're telling us.
Mr. Charles Gordon: No, Mr. Justice Fortas.
Justice Abe Fortas: Now, if you confine yourself to the findings of the District Court about two-thirds of what you've been telling us would have to be eliminated --
Mr. Charles Gordon: Mr. Justice Fortas --
Justice Abe Fortas: -- from the factual terms, isn't that right?
Mr. Charles Gordon: No.
No, I don't agree, Mr. Justice Fortas.
I believe the District Court passed on an actual case because it is conceded that petitioner voted in the election of 1951.
The District Court and the Court of Appeals found that that was enough.
And my view is, also that that is enough but some members of the Court may feel that the additional facts which I have suggested are relevant to the consideration of this case.
My view is, that on the stipulation itself is concession that he voted voluntarily in a political election in Israel that under the terms of statute and under the terms of Perez caused him to lose his citizenship.
Now if the Court agrees that this alone is sufficient, then the case is over.
There's no need to consider these additional facts.
If the Court --
Chief Justice Earl Warren: Mr. Gordon, if you're not satisfied to rest on the pleadings of this case and the facts that therein alleged but want to premise your case on something that happened years after that, why didn't you dismiss this case and start another proceeding that would have -- that have brought those into play?
Mr. Charles Gordon: Well, Your Honor, when these facts came to light in my research, this was the time I was preparing for argument.
They were not fully developed in the courts below.
The records were before the court.
The court referred to some of these facts.
Chief Justice Earl Warren: If you didn't come -- they didn't come into your purview until you're preparing for argument in this case, how can you say that they got the careful attention of the courts below?
Mr. Charles Gordon: The facts -- some of the facts were referred to in the opinions of the court.
They are not in the stipulation.
Some of these additional facts.
And I was mystified as I said, when I read the opinions of the courts of where they got these facts until I learned that the court had the benefit of the certified record of the State Department.
This booklet incidentally was not part of the stipulation.
The book, of which is on pages 1 and 2.
That was in the State Department record and was extracted from that record.
Were not adding anything to the facts which are considered by the court below.
The fact is, that these -- the certified record of the State Department should have been printed because it was considered by the court -- District Court and the Court of Appeals but those -- that record is in the office of the clerk of this Court and it was considered by the court below.
I'm not really dragging this in at the last minute.
They were considered.
They should have been briefed more fully.
Justice John M. Harlan: It wasn't a premise on the statement of about stating Perez in these facts.
Mr. Charles Gordon: That is exactly right.
Justice John M. Harlan: They didn't have to use that position, they shall be deliberately defined whether there is sufficient inquiry to include (Inaudible) or not?
Mr. Charles Gordon: That is right.
Justice John M. Harlan: That's the posture in which this case exactly, isn't it?
Mr. Charles Gordon: That is the posture in which the determination to affirm might be entered if there question of reversal and a determination that statute is unconstitutional, it seems to me that the additional facts may be relevant in the consideration of a majority that would vote that way.
Justice Abe Fortas: Well, I really -- I really don't want to be overly critical but what it sounds -- it sounds to me as if what you're telling us and you've got before us two records.
One record, if we are willing to affirm but quite another in a much more extensive record, if we are so misguided in your point of view is to reverse.
Now, that's kind of a novel concept as first concerned but may be I'm just not adequately informed as to procedure.
Mr. Charles Gordon: Well, Mr. Justice Fortas, I would say that differently.
In my view, the record in its present shape is sufficient and in my view, the record in its present shape requires an affirmance of the lower courts.
In my view, the statute as it was upheld in Perez contemplates that the mere fact of voting in a foreign political election, voluntary voting as is conceded here causes a citizen to lose his nationality.
They found correct in that, then there's nothing further in the case.
But I suggest these additional facts in the event the Court may determine their relevance.
Chief Justice Earl Warren: Are you satisfied to submit your case on the -- on the original complaint in the original stipulation?
Mr. Charles Gordon: Well, I -- I'm also satisfied to submit it on the motion for summary judgment.
I don't think we're going to exclude it.
Chief Justice Earl Warren: I know.
Does that raise the issue that you intended to bring here to this Court?
Mr. Charles Gordon: That definitely is the only issue that we thought we are bringing to this Court.
Chief Justice Earl Warren: Then you ought to be satisfied to rest on it, should you?
Mr. Charles Gordon: Well, if Your Honor feels that my duty to this Court permits me to exclude these facts, that's alright but I thought the Court would want to know these facts.
The only reason I brought them to your attention is that they may be significant in the determination of this issue.
And they were before the District Courts.
The courts did consider them and refer to them.
Justice Byron R. White: How do you know that fact?
Mr. Charles Gordon: Well --
Justice Byron R. White: We don't know courts considered it, all you know that it is part of the --
Mr. Charles Gordon: No, there -- there are some additional circumstances.
The Court mentioned some -- some of the background of this individual to which I've referred in the opinions, they were not in the stipulation.
Justice Byron R. White: But neither in the court below mentioned any voting except the voting in one year.
Mr. Charles Gordon: Because that -- that was the only issue they thought was significant.
That alone, they said, was sufficient to uphold the statute.
Justice Byron R. White: Well, I know but they have -- neither court -- certainly the District Court never found any fact with respect to these other two years.
Mr. Charles Gordon: That is perfectly right, Your Honor, but the District Court found that one fact alone.
I think the District Court indicated that it wasn't necessary to go any further; that this fact alone was sufficient to cause loss of citizenship.
Justice Byron R. White: I don't know how we're going to sit up here and say that even if we wanted to, how -- how we could say that what facts were.
We don't know whether they're facts or not.
Mr. Charles Gordon: Well, if those facts are deemed broad, in my view, they're not relevant.
In the view of the Government at that time they entered into stipulation, in the view of the District Court, in the view of the Court of Appeals, those additional facts are not relevant.
And in my view, if the Court agrees, then there's nothing further to the case.
Then the statute is constitutional and then petitioner lost his citizenship.
It seems to me that --
Chief Justice Earl Warren: A jumping a few hurdles so, isn't it?
Mr. Charles Gordon: Well, I think we can leave the other material aside if the Court agrees with me in that position.
If the Court finds that voting in a foreign political election under Section 401 (e) under the Perez case itself expatriate him then there's nothing further to consider.
Chief Justice Earl Warren: We don't need these facts then that you've been --
Mr. Charles Gordon: That is right.
Chief Justice Earl Warren: -- taking up all your time on?
Mr. Charles Gordon: Well, I'm trying to be a little predictive as to what might be relevant in the minds of some of the justices.
And, I'm trying to bring to the attention really the facts that were considered in the District Court.
Chief Justice Earl Warren: But are you trying to expound real issue here that petitioner's citizenship depends upon this one act of voting in that Israelian election?
Mr. Charles Gordon: Well --
Chief Justice Earl Warren: Are you trying to muddy the waters so that we can't decide it on that simple issue that was in the complaint only and that concerning which you have stipulation between the parties on which the case was to be tried?
Mr. Charles Gordon: Well, Your Honor, I'm not trying to muddy the waters.
I am trying to give the entire the record as it was considered by the District Court and only part of it appears in the stipulation.
This is only one part of it.
Chief Justice Earl Warren: But nobody knew about it until you finally discovered it in preparing for your argument.
Mr. Charles Gordon: No.
Your Honor, that is not so.
The District Court and the Court of Appeals knew about it.
It was before them.
No, this wasn't hidden from anybody.
The only regret I have is that they weren't printed in the record because they were before the court below.
This is not something I dreamed up.
It was considered fully in the court below.
Justice Abe Fortas: Mr. Gordon, isn't it a fact that when stipulation of fact is presented to a court and the Court rather amounts to a request to the Court to decide the case on the basis of these are the facts in stipulation.
If they were preliminary motions, a motion for summary judgment or motion to dismiss to which affidavit were attached or as you get here, you attach record.
And thereafter, a stipulation of fact is presented to the Court by the parties.
Isn't it customary for the court to decide the case on the basis of stipulation of facts without reference to the affidavits or whatever may be attached to the motion for summary judgment?
Is that the way we run law business?
Mr. Charles Gordon: Mr. Justice Fortas, I would say it would depend on the context and on the understanding of the Court.
Justice Abe Fortas: If the parties in the -- in the stipulation of fact, went to the Court also to consider the affidavits or a transcript that was involved in some of the preliminary motions, there would be a reference to that.
That would be incorporated in the stipulation of fact.
Mr. Charles Gordon: Well, I -- I agree that that's a possibility but the motion for summary judgment --
Justice Abe Fortas: And now you're here telling us -- you're here talking to us about this case in which those stipulation of facts and you're also using a phrase that was “before the Court”, some other documents that were involved in the preliminary motions.
Now, I submit to you that what lawyers do before trial courts and then appellate courts, case that's involved that's decided on the basis of stipulation of fact is to assume that the Court attended to the material included in the stipulation of fact.
And this is some other reference, some other provisions as something else is said here and you might have put there might be a nature in the file with the clerk.
But that doesn't mean that it was before the court in the sense of being a part of a factual record to which the Court devoted its attention in deciding the case.
Justice John M. Harlan: I thought what you are doing.
You are quite contented on the stipulation of this Court from the secret (Inaudible).
Mr. Charles Gordon: Mr. Justice Harlan, I fully agree.
I thought if I did not bring him --
Justice John M. Harlan: That's what I understand your position.
Mr. Charles Gordon: That is my position and my position is that knowing of these facts and knowing that they may be relevant in the minds of some of the justices, it was my obligation to bring them to the attention of the Court.
Chief Justice Earl Warren: Are you asking us to remand it?
Mr. Charles Gordon: No.
I'm standing on the statute.
I'm standing on the opinions of the courts below.
I don't believe, in my view of the statute that these facts are relevant.
In my view of the statute, the mere fact of voting is sufficient to cause expatriation.
Justice John M. Harlan: Perhaps, we have one common ground in that (Inaudible).
Mr. Charles Gordon: Well, I realized that there are some possibilities that it might not stand and I therefore feel that these facts may be significant in the minds of some of the justices.
Chief Justice Earl Warren: Very well.
Rebuttal of Edward J. Ennis
Mr. Edward J. Ennis: Mr. Chief Justice, I have no further argument but I've been a member of this Court for 30 years and I would not submit and request this Court to rule an Act of Congress unconstitutional and improper record.
What's been said here about passport is entirely out of order and in two minutes, I can make it perfectly clear to the Court that you have a proper record and a proper issue.
Chief Justice Earl Warren: You may take five minutes then.
Mr. Edward J. Ennis: Your Honor, under the Nationality Act and the laws of nationality, there are some 15 grounds.
Now the way it's determined whether a person has lost it's nationality.
He goes through a passport.
He goes to the consul.
This printed form, Your Honor, Certificate of Laws and Nationality, he gives an affidavit.
It's made out.
Here's the certificate that he lost his nationality by voting in an election on July 30 of 1951 not that he used the passport there who was naturalized in some other country.
That's a precise issue.
And the Certificate of Nationality was issued.
Now, what is this business on the record?
When he got to the United States, now I learned from my friend here that he got here on Israeli passport.
Well, may be that's the only he could get here when in 1960, the United States consul said he'd lost his citizenship and that he -- and he came here to bring the suit to get it back.
Now, what happens?
When the consul issues this Certificate of Nationality, you have under the State Department regulations an appeal to the Passport Review Board.
This is a transcript of the record, 100 pages in which to Mr. Afroyim himself without counsel went before these three members of the board and there were president in addition to the three members: the chief of the foreign operations division and specialist on Israeli affairs.
Now, they talked to Mr. Afroyim for a 100 pages and they talked on one issue.
Did you lose your nationality when you voted in the one election in 1951?
Now, in the basis of the record and their affirmance of the consul's action, he brought an action in the District Court and his attorney, and he insist the United States attorney assisted by the attorney for the District Court as well the Immigration Service, do stipulation of the facts.
Now on page 11 it says that, “On November 14, 1960, the American consul in Haiti ruled he had lost his -- that he had expatriated himself on July 30 of 1951 by voting in a political election in a foreign state.
That's all that was in the case.
It was whether that vote lost his nationality.
Now, in addition to the stipulation, the Government brought in at the hearing before the district judge the administrative file offered in evidence.
It's limited to the 1950 -- to the -- 1951 issue.
We made no objection, his attorney at that time.
And this is part of the record and it's in this Court.
But still, the issue is only one simple thing.
Did you lose your citizenship by voting in 1951?
Now, my friend, Mr. Gordon called me and he said, “I found out that your client had a passport, an Israeli passport.”
I said, “Charles”, I said this, “I don't -- I didn't know that.”
I said, “This has got nothing to do with the case.”
The Nationality Act does not make having a foreign passport.
It was in -- by the way, it was in described to the '40 Act.
It was stricken out by Congress using a foreign passport.
I said, “Charles, it's not in the record.
The record is limited -- I'm perfectly happy.
I have the record included this 100 pages discussion about this 1951 loss of nationality.
I said, “These passports which you discovered from the Immigration file”, which the Solicitor General of the United States has not relied on in his brief and you want to bring this in, it can only have one purpose to prejudice this Court against this individual and I object.
And if you do it, I will tell the Court it's improper and I object”, which I'm telling the Court.
Now, I submit to Your Honor, that if this -- that this Court has a complete record here on which to rule whether Mr. Afroyim lost his nationality by his vote 1951.
If he did not lose it by his vote in 1951, the Department State of the United States is perfectly free to tell him that he lost it by having a passport, by voting in a 1952 election, by voting in a 1953 election or any other ground which they want to imply although its not expressed in the loss of nationality provisions.
This is a separate proceeding.
This isn't a matter at large to decide whether Mr. Afroyim lost his nationality by four or five of the 20 Acts set there.
It's to decide whether he lost it by voting in 1951.
And this record is 100 percent complete on that issue because it's a 100 pages of passport review testimony limited to that issue.
These passports are not in this case; they have no business in the case and they're -- here they merely confused issue and why.
Because the Government perhaps now feels that since as part of the passport record, as part of this appeal record, there was this identification document which everybody who resides in Israel gets and that has in it an indication that he voted in a municipal election and in other elections.
But the Department of State, knowing this, did not decide to wholly was expatriated for those elections.
This -- the Department of State decided and all we have here is the decision whether he lost his nationality by voting in the 1951 election, there's nothing else in the case and this record is entirely complete for this Court to decide whether Perez is a law of the United States.