ROGERS v. BELLEI

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Argument of Joseph J. Connolly

Chief Justice Warren E. Burger: Mr. Connolly, you may proceed whenever you're ready on 179, Roger's against Bellei.

Mr. Joseph J. Connolly: Mr. Chief Justice and may it please the Court.

This case calls into question the constitutionality on an act of Congress.

The statute involved as part of Section 301 of the Immigration and Nationality Act.

This statute is set forth on page 45 and 46 of our brief.

Section 301 (a) (7) includes among those who are declared to be citizens of United States at birth.

Persons who are born abroad of one alien parent and of one citizen parent who has resided for a specified time in the United States.

Section 301 (b) provides that such persons that is person foreign born persons who derive their American Citizenship from one American parent, must come to the United States prior to their 23rd birthday and remain here continuously for five years, prior to reaching age 28 in order to retain their American citizenship.

Another Section of the code provides that absences from the United States of less than 12 months in the aggregate will not break the required continuity of the physical presence in the United States.

The facts in this case were stipulated and can be stated quite briefly.

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

His father is a native and citizen of Italy, although Bellei became an Italian citizen at birth and is an Italian citizen today.

He also acquired American citizenship at birth under the predecessor of Section 301 (a) (7), because his mother had been born and raised in the United States and was an American citizen.

Appellee resided in Italy from the time of his birth until recently, when he moved from Italy to England.

Prior to his 23rd birthday, he made four brief visits to United States, the longest of these being four months in duration.

On several occasions, when he applied for renewals of his United States passport, he was advised by American consul officials that he must satisfy the requirement of the period of continuous presence in the United States.

When the appellee did not heed these warnings and remained in Italy past his 24th birthday, his passport was canceled on the ground that he was no longer an American citizen.

Thereafter, the appellee instituted this suit for declaratory and injunctive relief premised on the contention of Section 301 (b) is unconstitutional.

A three-judge District Court sustained the appellee's claim to American citizenship, holding section 301 (b) unconstitutional on the authority of this Court's decisions in Schneider versus Rusk and Afroyim versus Rusk.

The government has appealed directly to this Court.

We argue in this case that the type of citizenship involved here is of an entirely different type than that involved in Schneider and Afroyim, that it owes it's existence entirely to legislative judgment and that the provision for it's termination is a reasonable exercise of the same authority by which appellee citizenship was created.

We contend further that a decision sustaining this statute would not undermine the principles on which this Court's previous decisions rested.

We build our argument on the following points.

First, there is no claim that Section 301 (b) is a penal law, either in its intent or in its effect.

Residents abroad is not a criminal or reprehensible act declared by the American government or by the American people.

The loss of citizenship is in no way intended to punish such absence from the United States.

Therefore, the principals which underlay this Court's decision in Mendoza Martinez are not applicable here.

Second, the laws of nationality under Section--

Justice William J. Brennan: Mr. Connolly, if the constitutional stand would have be that one can't lose citizenship without voluntarily giving it up, I take it this argument wouldn't hold, would it?

Mr. Joseph J. Connolly: Our case would be much more difficult, I would not --

Justice William J. Brennan: Well could you win it, if that were the case?

Mr. Joseph J. Connolly: I think we could make a contention that absence abroad of extremely long duration may indicate of voluntary relinquishment of American citizenship.

But then we would be struck with a counter argument, premised on Schneider that we would be distinguishing between this class of American -- unreasonably distinguishing between this class of American citizens and other citizens who require their citizenship --

Justice William J. Brennan: So that if a voluntary relinquishment were the standard you would probably --

Mr. Joseph J. Connolly: I think that that's right Mr. Justice.

Justice William J. Brennan: Yeah.

Mr. Joseph J. Connolly: And we're contending quite forcefully in this case that voluntary relinquishment is not necessarily the standard because of the like Fourteenth Amendment foundation.

Our second point is that the laws of nationality under Section 301 unlike the statute involved in Trote versus Dallas, does not create the risk of statelessness, which concerned Chief Justice Warren in that case.

The legislative history set out in our brief shows the Congress was concerned with the problem of dual nationality and the protection of persons abroad who held American citizenship for owing primary and permanent allegiance to another country.

To such persons, the laws of American citizenship does not result in statelessness.

They simply retain the citizenship of the country to which they have shown their principal attachment.

In this case, the appellee is, and always has been, a citizen of Italy.

Our third point, and this is a critical point of distinction between this case and the Court's recent precedence in the area is that the type of citizenship involved here does not derive any constitutional protection from the Fourteenth Amendment.

The majority of the Court in the Afroyim versus Rusk, found in first Section of the first sentence of the Fourteenth Amendment, a protection against involuntary expatriation for those persons whose citizenship was declared by that sentence.

The process by which the first sentence of the Fourteenth Amendment was held to include certain substantive guarantees and the type and scope of these guarantees are matters which I confess are not entirely clear to me.

But it does seem clear that whatever those rights may be, they are in guaranteed only to those persons whose citizenship is declared by the first sentence of the Fourteenth Amendment.

The first sentence of the Fourteenth Amendment reads, “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and other state wherein they reside.”

The appellee of course was not born in the United States.

There may be some questions whether he acquired his citizenship by naturalization although it is not pressed that contention.

We doubt whether Section 301 (a) (7) can be considered in naturalization statute as that term is used in the Fourteenth Amendment.

We can find no authority that the reconstruction Congress view the statutory acquisition of citizenship at birth as part of the naturalization process.

But even of it is assumed --

Justice William J. Brennan: But how -- what then should constitutional authority of Congress to make him an American citizen?

Mr. Joseph J. Connolly: Mr. Justice, that is not entirely clear.

The court below passed over the point in its opinion and in our brief we agreed that there was constitutional authority to grant this type of citizenship.

We suggest that that have might be premised on the naturalization clause and it might be premised upon the Congress' inherent powers, the legislative body of a sovereign to declare the classes of persons who will be considered as citizens.

My own research in the area leads me to conclude that the creation of this class of citizenship is in the exercise of an inherent power rather than the--

Justice William J. Brennan: Of course under that power could the Congress make every resident of Canada or every Canadian an American citizen really by legislation?

Mr. Joseph J. Connolly: It perhaps could.

The basis for my conclusion is that the Congress -- according to the English precedent where the use solely was the fundamental law of citizenship, but as I'll show later, was amended by the parliament in 1350 to provide for a limited grant of citizenship to children born of British nationals overseas.

That the English authorities viewed that as of the same order of creation of citizenship as the natural law of use solely, and that it wasn't considered to be part of the naturalization process which proceeded separately by separate statutes.

I believe that that was the approach which the founding fathers had in the Constitution that is to the extent that this power is existing in Congress, it exists as a natural incident of the sovereignty and there is very limited authority to cite for that.

The very first statute --

Justice William J. Brennan: That to suggest that instead of the first sentence of the Fourteenth Amendment, Congress might have enacted a statute which overruled the Dread Scott?

Mr. Joseph J. Connolly: I think so, the Civil Rights Act.

Chief Justice Warren E. Burger: Going back to your earlier quotation of the first sentence of the Fourteenth Amendment, do I understand your position to be that one who derives his citizenship, achieves his citizenship by being born in Italy as here with two American parents then residing in Italy has less in a way of protection than an Italian national who came over here and became a citizen by naturalization?

Mr. Joseph J. Connolly: Well, his citizenship would not be derived.

It would gain no protection from the first sentence of the Fourteenth Amendment.

Chief Justice Warren E. Burger: Well, then it follows from that, that it does have less rights?

Mr. Joseph J. Connolly: It does follow from that, that the --

Chief Justice Warren E. Burger: Does that seem rather anomalous?

Mr. Joseph J. Connolly: No Mr. Chief Justice, because the first section of the Fourteenth Amendment was designed to take care of a particular problem in the United States at that time in securing of the right of citizenship to the newly freed slaves and it since had been interpreted more broadly to have rights involving rights associated with the preservation of citizenship.

But insofar as the citizenship is to be created by the Congress in the exercise of its power to define citizens of the United States, then it must be admitted that that power has -- that included within that power is the authority to impose reasonable conditions upon that citizenship.

That power in Afroyim holds, perhaps was taken away in respect to the Fourteenth Amendment citizens by the Fourteenth Amendment but insofar as our constitutional principles are concerned, we argue that where the citizenship is created entirely by statute and in exercise of Congressional judgment, that reasonable conditions may be imposed.

Justice John M. Harlan: I'd like to go back to Mr. Justice Brennan's question of the constitutional source.

If there is now a constitutional authority for the issue on your case, would that warrant you?

Mr. Joseph J. Connolly: That's right.

We don't make that argument.

We do not argue that Congress lacks the authority to make adverse citizens of the United States, those who were born abroad.

Mr. Justice Brennan, just to complete my answer to your question, some limited authority for my proposition comes from the very first law containing this provision providing for grant of citizenship to children born abroad.

In that law, which was passed by the First Congress in 1790, it says that, “And the children of citizens of the United States, that maybe born beyond sea or out of the limits of the United States, shall be considered as natural born citizens.”

We suggest there was in the exercise of its naturalization authority under the Constitution.

Justice William J. Brennan: Were there any traditional challenges to that kind of legislation, before the adaption of the Fourteenth Amendment?

Mr. Joseph J. Connolly: I'm not aware of any Mr. Justice.

We take the position that even if it is assumed, that the appellee acquired his citizenship by naturalization, it still would not come within the Fourteenth Amendment.

This is so because he was neither naturalized in the Unites States nor was he subject to the jurisdiction of the United States when he acquired his citizenship.

The history of the amendment confirms when its language unmistakably contemplates that it was directed to events occurring in the United States.

This was well settled by what Mr. Justice Douglas has called, the historic decision in the United States versus Wong Kim Ark and I would like to quote certain passages from the opinion, this is 169 U.S., at 687.

“And from 1795, the provision of those Acts which granted citizenship to foreign born children of American parents, describes such children as born out of the limits and jurisdiction of the United States.”

Thus Congress, when dealing with the question of citizenship in that aspect, treated aliens residing in this country as “under the jurisdiction of the United States” an American parents residing abroad as “out of the jurisdiction of the United States.”

Passing onto page 688, this sentence of the Fourteenth Amendment is declaratory of existing rights, it's the first sentence of the Fourteenth Amendment and affirmative of existing law, as to each of the qualifications therein expressed, born in the United States, naturalized in the United States and subject to the jurisdiction thereof.

In short, as to everything relating to the acquisition of citizenship, by facts occurring within the limits of the United States, but it has not touched the acquisition of citizenship by being born abroad of American parents and has left that subject to be regulated as it had always been by Congress.

In the exercise of the power, conferred by the Constitution to establish a uniform rule of naturalization, so there is contrary suggestion by --

Justice William J. Brennan: So, it was thought that that was just a little support?

Mr. Joseph J. Connolly: There is support for the other proposition.

I expressed earlier as my own conclusion.

Justice William J. Brennan: Yes.

Justice Potter Stewart: Until the Fourteenth Amendment or put this away apart from the Fourteenth Amendment, there is nothing in the Constitution, is there, that purports to define citizenship of the United States?

Mr. Joseph J. Connolly: No, Mr. Justice.

Justice Potter Stewart: Or to explicitly confer power of the Congress?

Mr. Joseph J. Connolly: No, it is not exclusive --

Justice Potter Stewart: Not to rely on such power --

Mr. Joseph J. Connolly: -- except for the naturalization.

The citation from Wong Kim Ark leads to our fourth point.

That lacking any constitutional protection, the citizenship which appellee enjoyed is dependent entirely for its existence and its rights on congressional enactments.

Justice Hugo L. Black: On what?

Mr. Joseph J. Connolly: On congressional enactments.

This was established more than a hundred years ago by Mr. Horace Benny, in his study which is thrice been cited by this Court with approval, it appears in 2 American Law Register.

At common law, the foreign-born child of English citizens did not inherit the right of English citizenship and such a child was treated as an alien in England.

The first statute to remedy this was passed in 1350, the 25th year of the reign of Edward III.

That statute which granted citizenship at birth to a child born abroad of two English parents, and subsequent statutes on the same subject were construed strictly by the English courts.

This Court's decision is Montana versus Kennedy, decided nine years ago, puts to rest any notions that the rights of children born abroad to American parents are greater than what Congress has provided in its citizenship laws.

The petitioner in that case was born in Italy to an Italian father and an American mother in 1906, when the law provided for citizenship by inheritance only from American fathers.

Shortly after his birth, he was brought to the United States where he resided continuously for 50 years without ever been naturalized.

When the government sought to deport him as an alien, be brought an action for a declaratory judgment of the citizenship.

Eight justices of this Court held that he was not a citizen of theUnited States because he did not come literally within the grant of citizenship in the statute.

Surely, a federal common law where the Constitution afforded any rights of citizenship to the foreign born, they would have been exercised in favor of this man who had resided in this country for more than 50 years.

On the basis of the foregoing points, the primary question presented in our view is whether the Congress in the exercise of this power to grant citizenship to the foreign born children of American citizens, they condition that grant on the child's coming to live in the United States for a certain period.

Justice William J. Brennan: Well, Mr. Connolly, on that point, if you were right constitutionally in these situations, the congressional regulation, then what is the left of the argument of voluntary relinquishment in this situation?

Mr. Joseph J. Connolly: The voluntary relinquishment Mr. Justice in our view is inapplicable here.

That is not a test --

Justice William J. Brennan: And if that standard isn't a standard at all, it would apply on the constitutionally conferred citizenship?

Mr. Joseph J. Connolly: That is correct.

The legislative history of the requirement of five years continuous presence in the United States shows the Congress was concerned with the unsatisfactory status of persons abroad, having both American citizenship and citizenship in another country.

This was and it is today a legitimate concern.

The presence of American citizens abroad imposes on our government a duty to assure proper treatment of their persons and property.

The carrying out of this duty inevitably results in international conflicts with the other nation which also regards the individual as its citizens.

An examination of any of the several textbooks on nationality will reveal that there are many types of conflicts which may develop on matters such as reparations, protests, and claims for lawsuits, and it also would reveal that the fact that the law has not settled on the resolution of many of these conflicts.

These conflicts are to bar the language of Mr. Justice Brennan, serious problems, inevitably implicating nationality.

To continue with Mr. Justice Brennan's concurring opinion in Mendoza Martinez, “we have recognized the entanglements which may stem from dual allegiance, and have twice sustained statutes which provide for the loss of American citizenship upon the deliberate assumption of a foreign attachment.”

The Congress recognized that an unconditional granting of American citizenship solely because that one of the individual's parents was an American citizen, meant that our government would risk involvement in such international disputes on behalf of persons who had no attachment or allegiance to the United States.

This much, the court below also recognized.

It said, “There is an undeniable danger that children born and raised abroad, in a foreign home where English may never be spoken, school where English is not thought, celebrating foreign holidays with the family of the non-American parent, will have no meaningful connection with the United States, its culture or heritage.

It is a legitimate concern of Congress that those who bear American citizenship and receive its benefits have some nexus to the United States.”

Plus, the Congress decided that in continuing the grant of American citizenship, to foreign born persons to which the Fourteenth Amendment does not apply, it was desirable to reduce the risk that there would be class of citizens living permanently abroad having no attachment to the United States.

It sought to achieve this goal as it had done under the naturalization laws by requiring a period of residence in this country.

In light of the considerations which prompted in, we think that this requirement is entirely reasonable.

Chief Justice Warren E. Burger: What is the period of residence for an alien, is it five years?

Mr. Joseph J. Connolly: I believe it is five years, for naturalization.

Chief Justice Warren E. Burger: In other words, you're saying that it isn't too much to ask if an American citizen who is claiming derivative citizenship because he was born of an American parents in Europe or in somewhere else, ask him to do the same things that an alien must do?

Mr. Joseph J. Connolly: Yes, Mr. Chief Justice, something along that line.

It says that the same considerations which prompted Congress to require a period of residence in the United States for aliens, to make sure that they have some association with life in the Unites States, are the same considerations which prompted the Congress to enact this particular requirement and in this case, coupled with the fact that the presence of such people abroad imposes versions of the United States in it's diplomatic representations.

The final question then is whether Congress may constitutionally, make a residence requirement, a condition of the continuation of this statutory citizenship rather than the acquisition of the citizenship.

The Congress of course could have provided that children born abroad of one American parent shall become citizens after a period of residence in this country.

But this would have had unfortunate consequences during the child's minority when the American parent could not be rely on American diplomatic protection for his or her child.

It also would have created novel problems of status and rights when the child returned to this country in order to fulfill his residence requirement.

So the Congress would like to declare the minor child as citizen, but to condition the grant of lifetime citizenship, when the child's coming to the United States and residing here for a period of time.

This too we think was a reasonable decision by the Congress.

It did not violate the due process rights of the appellee and others affected by the statute.

Appellee had American diplomatic protection during his minority when he was dependent on his parents.

There was no contention that he suffered any disability or any prejudice by reason of being an American citizen during his minority.

When he came of age, the Congress in effect asked him the question that it properly could ask in granting citizenship to such persons.

Is your sole allegiance to the United States or is your allegiance to Italy where you were born and raised, where you went to school, where you worked and married?

The Congress asked only that he come to this country and be part of it's life for five years.

There is no reason apparent for the appellee's failure to do so other than that he was too deeply involved in activities in his homeland.

For us, there is no apparent reason why he should be able to command United States citizenship for the rest of his life.

May I reserve the remaining time for rebuttal?

Chief Justice Warren E. Burger: Very well, Mr. Connolly.

Argument of O. John Rogge

Mr. O. John Rogge: Mr. Chief Justice and may it please the Court.

In addition to the usual documents of this case, the Court should also have before it the briefs, amici curiae in one of which the American Bar Association has joined.

May I spend just a brief a moment on the facts?

Aldo Mario Bellei's mother was born and raised in Philadelphia where she stayed until she was 24 when she married Aldo Mario Bellei's father and moved within the Italy.

Her parents have remained in Philadelphia.

On five different occasions, Aldo Mario Bellei came to this country to visit his grandparents.

On the first two such occasions, he came on his mother's passport.

And on the second two such occasions, he came on his own passport.

The fifth occasion, our state department denied him a passport, this is when he wanted to come here with his bride to visit his grandparents and he did, but he did that on an Italian passport.

Aldo Mario Bellei has had his own United States passport as an American citizen for a period of 12 years.

He first got it as you will see from page 6 of the appendix on June 27, 1952, if you'll turn to page 11, you will find that it was renewed from time to time until February 11, 1964.

Now, the government comes along with the conditions subsequently imposed and seeks to take this way and I think this case presents the simple question, whether the Congress has the power with reference to an American citizen at birth to take away that citizenship without his voluntary renunciation and can do that consistent with the due process cause of the Fifth Amendment, that's what I think the issue is on this case.

And in answer to the question that you put, Mr. Chief Justice Burger, I think it is the government's position that two aliens coming over here, having a child born here and returning to their own country or the case of a person's naturalized over here with a minor child, that those children have greater rights than a person like Aldo Mario Bellei, who by Section 1993 of Revised Statutes and as amended by the Nationality Act of 1934 was given American citizenship at birth.

I think as a matter of act that Schneider against Ruck is precisely in point because Angelika Schneider never went through naturalization proceedings.

Her parents came over and were naturalized at an Act of Congress then said that she was an American citizen.

I cannot see what Schneider against Rusk is directly in point.

And then in that case, it was held at the fact that Angelika Schneider who had citizenship by statute, she could go abroad to Germany and stay there and the three-year residence requirement was declared unconstitutional.

I submit the same reasoning that in Schneider against Rusk compelled that provision to be held unconstitutional compels the Section that was attacked and held unconstitutional below which is the provision of the immigration of Nationality Act of 1952, is likewise unconstitutional.

The provision at the time that Aldo Mario Bellei was born, required that he come here for five years, immediately previous to his 18th birthday and unless within six months after the child's 21st birthday, he or she shall take both of allegiance to the United States of America.

Now, that Section was repealed by the Nationality Act of 1940, but that repeal had in it this proviso that the repeal shall not terminate nationality heretofore lawfully acquired.

So you have someone who has American citizenship at birth and Congress comes along in a condition subsequently enacted and says, he doesn't have it anymore.

Now, the government says, well, this thing about coming here for five years is really a small thing, it doesn't mean anything, it's a great hardship.

A child living with his parents, it would mean, if they wanted to give him an education, they would have to have quite a few thousand dollars to send him over here at that period of his life in order to acquire it.

It would draw a distinction between those who can afford to do this and those who can't.

Now, the government also takes the position that such a person has no meaningful connection with the United States.

Well, I submit that this country has changed in the past 40 years, where Americans living abroad have increased 20-fold from some hundred thousand a year to two million a year.

Chief Justice Warren E. Burger: Are those permanent residents you mean?

Mr. O. John Rogge: They're residing abroad, I mean they're not just travelers.

As a matter of fact, Mr. Dallas wrote a piece in which he was taking about the million in Europe to which they're added a million tourists, I'm not talking about tourists.

I'm not saying when you say permanently, Mr. Chief Justice, I mean they're residing there.

This is--

Chief Justice Warren E. Burger: Non-tourists?

Mr. O. John Rogge: They're non-tourists, yes.

In most of the big cities of the world, you have large chunks of America today.

Chief Justice Warren E. Burger: How many of those were military, does this record show?

Mr. O. John Rogge: I think about half are military, yes, half of the two million.

As a matter of fact, rather than worrying about having a meaningful connection with the United States, Europeans are worrying that we're Americanizing Europe.

A study was done, 25 families with American wives, all but two fathers spoke English.

There were 47 children there.

26 spoke English as the primary language or English and French with equal of fluency, only five spoke French.

I submit that we should regard these international children as a valuable asset of this country.

Justice William J. Brennan: Does this statute apply to the children -- of our military stations there?

Mr. O. John Rogge: This is another thing.

If a child is born of two American parents, then there is no problem, but if this Court should hold that this statute is constitutional, then another Congress can come along and say, “Children born of two American parents, we're going to take that citizenship away too” and I submit --

Justice William J. Brennan: Well, the answer of my question is “Yes, it does,” that this statute would on the proper facts applied, the children born to our military stations abroad?

Mr. O. John Rogge: If there were two American parents, I mean if the military abroad --

Justice William J. Brennan: Now take this situation.

Mr. O. John Rogge: In this situation --

Justice William J. Brennan: Where the American is in our military?

Justice William O. Douglas: An alien can be in our military?

Mr. O. John Rogge: It would have to be ultimately, the Immigration and Nationality Act as almost as complicated as Income Tax Laws.

I know this specific Section with which I'm dealing and I do know that the child born of two American parents, there is no problem.

It's the child born of one American parent of which there's a problem and in the provisions with which I'm familiar.

Justice William J. Brennan: What I was interested in talking about is if this statute is applicable and the one American parent is in our military and the child is born abroad, does this statute apply to affect that child's American citizenship, that's my question?

Mr. O. John Rogge: I almost feel like consulting the opposition.

I don't know [Laughter] Well, let me take Mr. Charles Gordon over here who does this all the time.

I almost say to Mr. Charles Gordon, does he know of an exception for that situation.

I don't.

But in connection with Your Honor's question, I do want to emphasize that if this statute is held constitutional then Congress has the follow some future session that come along and take away the American citizenship of a child born abroad of two American parents, on the government's interpretation here.

That's my point, that in today's world of United Nations and I haven't emphasized this but I think it is important that we should regard these children as an asset.

I mean, we now have diplomatic relations with over 100 foreign countries where members of more than 70 international organizations, we give military and economic assistance to over 50 foreign countries.

Our business enterprises have more than a hundred billion dollars invested abroad.

Justice John M. Harlan: Don't you think those are arguments that are a little bit strong that this policy arguments that they are unconstitutional?

Mr. O. John Rogge: On a due process question, I'd say yes Mr. Justice Harlan, but I also say this, I'm trying to meet the argument of the government where they think that these children are not an asset, that they're burden we should get rid off and they talk about no meaningful connection to the United States.

And I would like to counter that by saying that this is an asset that this country should welcome rather than say that they are burden.

Justice John M. Harlan: Well I didn't understand the government to be arguing that there.

Their argument is that this is irrational thing to do.

They might disagree on lots of times as I understand it is that depending on their mistakes is their argument is in their power?

Mr. O. John Rogge: Well, I'd say on that I don't think it's a rational thing for Congress to do, with reference to someone who has American citizenship at birth to come along with condition subsequently imposed.

In other words, the Aldo Mario Bellei got American citizenship in 1939 and he had it, at l east he had it until 1952 when the Immigration and Nationality Act came along and said that “Well, now you have got to come here and be here for five years between the ages of 14 and 28.”

And those early years are the years if he's in his own family context unless you're a child of wealthy parents, they can't afford to send him over here for education during that period.

This is a year when he goes to college.

The year when goes to college.

Chief Justice Warren E. Burger: Well is Congress entitled to think that it would be important for the person to go to college or spend those impressionable years in this country in order to lay a foundation for being a good citizen?

Mr. O. John Rogge: Well, I'd say that if that's what they have in mind, Congress has mistaken in today's world because --

Chief Justice Warren E. Burger: There might be as Justice Harlan's said, that's they have the right to make their own mistakes, but can we correct it assuming it's a mistake?

Mr. O. John Rogge: Under the Due Process Clause of the Fifth Amendment, yes. Because this is an unreasonable requirement, it's an unreasonable classification.

Chief Justice Warren E. Burger: Then we don't correct it, “because it's a mistake.”

We deal with it because it offends the Constitution?

Mr. O. John Rogge: Yes.

And my position is that this does violate the Due Process Clause of the Fifth Amendment and I think that Angelika Schneider against Rusk is directly in point and I think the Courts approach in Afroyim against Rusk is also important.

But as to the arguments that are made in the government brief that these children are a liability.

I think on the contrary, on the context of today's world where we make supersonic flights to Europe now for about six hours, and you may have colonies on Mars in the future century where you are -- where we are interdependent nations, I think we should regard these children as an asset.

Justice Byron R. White: Well Mr. Rogge, you said -- under your argument, would you reach the same result if Congress had said that children of American -- of one American parent born abroad will become a citizen, but only upon residing in this country for five years.

Mr. O. John Rogge: You put me a different case when you put it as a condition preceding, that's not this case.

In other words, if the Congress had said, Congress didn't say that, but if the Congress had said “These steps must be taken before you can become a citizen”, that's one thing.

Justice Byron R. White: So we could say you can't become a citizen until unless you come here for five years between the ages of 14 and 28?

Mr. O. John Rogge: I'd have more trouble with that case.

That would be a -- if were put as a condition preceding, I could concede it --

Justice Byron R. White: That wouldn't be irrational?

Mr. O. John Rogge: It wouldn't be irrational maybe, but that's not what Congress has done.

Justice Byron R. White: Well I know, but you're making the argument about rationality and I just, I have some troubles seeing differences between the cases in terms of rationality?

Chief Justice Warren E. Burger: This is what we require to the foreign born alien, isn't it?

The residents here for five years, except we don't pinpoint it as to age.

Mr. O. John Rogge: That's right.

Chief Justice Warren E. Burger: But is there a distinction because of the age factor on Justice White's question?

Mr. O. John Rogge: No, I think it's whether as condition to preceding or a condition subsequent.

The Congress had said that these children, and I may say Congress has long said that a Child born of an American father is a citizen at birth.

There hadn't been any problem about that or was ever questioned one way of the other and then when the statute was broadened to include American mothers, it was then that you got these conditions in here.

Chief Justice Warren E. Burger: But if there's any problem -- if you have any problem in answering Justice White's question on the constitutional side, then there is a problem which requiring foreign born nationals or aliens of another country to reside here five years before getting citizenship, is that --

Mr. O. John Rogge: I've said, I distinguished the two cases and Mr. Justice White was saying that -- by answer -- I thought I understood it that way, Mr. Justice White, but there was no distinction between the condition preceding on the condition subsequent, I think there is.

And I think, the Congress could very well, I mean I could go along with part of the premise, the Congress might have the power to say that a child born abroad of an American parent will not get citizenship unless they come here for five years as a condition precedent, but that is what Congress did here.

The Congress gave the citizenship, they were some conditions subsequent but even those were repealed.

Justice Byron R. White: But even if there isn't any difference between the two cases, you haven't lost their case yet?

I mean, let's assume it's wholly rational, it's still a question of summary power?

Mr. O. John Rogge: Yes, yes.

That's a simple question in this case and Congress consistent with the due process clause of the Fifth Amendment expatriate without consent.

Justice Potter Stewart: I see, but your argument is purely a due process argument, is it not?

Mr. O. John Rogge: Under the Fifth Amendment, yes.

Justice Potter Stewart: And it's therefore one of the rationality or --

Mr. O. John Rogge: Yes, it has to be the --

Justice Potter Stewart: Fundamental fairness?

Mr. O. John Rogge: Yes.

Justice Potter Stewart: That's it, fundamental fairness.

Mr. O. John Rogge: Mr. Justice Stewart, I have a great feeling for the concept of due process as fundamental fairness.

I know that Mr. Justice Black has had a problem with that, but the due process as Mr. Justice Frankfurter expounded it, as Mr. Justice Harlan would now expound it that it has to be consistent with fundamental fairness or the conscience of the time and to my mind --

Justice Hugo L. Black: Well, that is fundamental fairness according to five members of this Court?

Mr. O. John Rogge: Yes, yes [Laughter] if Your Honor please.

And as far as I'm concerned, I am prepared to take the judgment of what I think is one of the great institutions of the world to take the minds, the trained minds of the members of this body, sitting down at any particular time at a problem and coming to a conclusion and I'll be glad to abide, but I'll go one step further.

With that same concept, and the concept of this country as a maturing society, let us take for instance capital punishment, I have every confidence that someday in the future, if the world survived that this body is going to say that capital punishment violates due process.

Justice Hugo L. Black: But why do they have to say it if it does?

If capital punishment just violates, why do you hope that this Court would say it does someday, why don't you hope that that the Constitution will be amended in the normal constitutional way?

Mr. O. John Rogge: My concept of due process Mr. Justice Black, which I think goes back to the law of the land at Magna Carta and to Bracton who said that the King was under God and the Law, this concept which is an evolving concept, I think the majority of this Court can determine at any time and place what that due process cause means.

Justice Hugo L. Black: In other words, anything that they think fundamentally unfair is unconstitutional?

Mr. O. John Rogge: Yes.

Justice Hugo L. Black: What do you need with any other Constitution with that?

Mr. O. John Rogge: Well, this Court has done very well, under this Constitution and for my part, my admiration goes with it.

I am prepared to abide with what the majority of this Court says.

Comports with fundamental fairness, which in our Constitution in two clauses in the Fifth Amendment and in the Fourteenth is called due process.

Justice John M. Harlan: Is that a way to see what we decide [Laughter]

Mr. O. John Rogge: I'll still abide by that Mr. Justice Harlan.

Justice William J. Brennan: May I ask Mr. Rogge, do you rely to all on the first sentence of the Fourteenth Amendment?

Mr. O. John Rogge: No.

I'd have to say no.

I pitch mine on the Fifth Amendment, but I say this.

I think that --

Justice William J. Brennan: But what about I take it or doesn't, let me ask you, do you think that the question of voluntary relinquishment -- where do you get this, if you don't get it under the first sentence of the Fourteenth Amendment?

I gather this -- the basic constitutional authority here is the power of the Congress, to enact uniform naturalization laws.

Mr. O. John Rogge: Well, it's either that or you have one there on foreign relations.

I haven't gone into this because no body has challenged the constitutionality of the statute giving American citizens at birth to the child born abroad with an American parent.

Justice Byron R. White: Did you just say in your early argument is that the restriction is irrational and it's void?

Mr. O. John Rogge: Yes, under the Due Process Clause.

Justice William J. Brennan: Well, I thought you opened by saying something to us about “He could loose it except by voluntary relinquishment”?

Mr. O. John Rogge: Yes, yes.

Congress cannot expect--

Justice William J. Brennan: You don't make that argument based on the first sentence of the Fourteenth Amendment but just as part of your irrationality argument, is that it?

Mr. O. John Rogge: Due Process Clause of the Fifth Amendment.

Justice William J. Brennan: I see.

Mr. O. John Rogge: And I would add this.

I think that Angelika Schneider was just as much as statutory citizen as Aldo Mario Bellei, because she didn't go through any naturalization proceeding.

There was a statute which said, because her parents were naturalized, she was a citizen and what's the difference between that statute and the one which declared Aldo Mario Bellei a citizen at birth.

I think Schneider against Rusk is directly in point in this case.

Chief Justice Warren E. Burger: One difference was in the residence of the parents isn't there?

Schneider's parents were here?

Mr. O. John Rogge: Schneider's parents were here, yes, but there is also a provision with referenced to Aldo Mario Bellei's mother that she had to be here for ten years, at least five of which were after the age of 14.

There is also a residence requirement in 1993 as amended and it's 10 years.

Chief Justice Warren E. Burger: Thank you Mr. Rogge.

Mr. Connolly, do you have some more for us?

Rebuttal of Joseph J. Connolly

Mr. Joseph J. Connolly: Yes, Mr. Chief Justice.

Justice William J. Brennan: Mr. Connolly, would this reach a situation of the American parents who is in the military abroad?

Mr. Joseph J. Connolly: Mr. Gordon advices that the statute is applicable to the child of an American service men or women overseas, married to an alien?

Justice William J. Brennan: We must have a lot of situations like that I guess.

Mr. Joseph J. Connolly: Yes, there are those --

Justice William J. Brennan: A lot of American military men are marrying German girls and Koreans, everyone?

Mr. Joseph J. Connolly: But those situations provide no difficulty under this statute because in the ordinary course of the marriage and the development of the child, serviceman is rotated back to the United States, there's usually no intention in those cases to relinquish American residency as it was in this case.

Justice William O. Douglas: Some of them were discharged abroad and reside there.

Mr. Joseph J. Connolly: Yes, that's entirely possible but in the great majority of cases, they return back to the United States, the child is born and raised in the United States.

Chief Justice Warren E. Burger: You have about three minutes left Mr. Connolly.

Mr. Joseph J. Connolly: Sir?

Chief Justice Warren E. Burger: You have about three minutes left.

Mr. Joseph J. Connolly: Thank you sir.

Mr. Rogge I believe, certainly unintentionally left the impression that the requirement of presence in the United States was imposed on Mr. Bellei after a conferral of American citizenship on him at birth.

That is not quite accurate.

He received his American citizenship pursuant to Section 1993 of the Revised statutes as amended in 1934 and that's as the statute set forth in page 44 of our brief, and it does provide for a period of residence in the United States.

Indeed a more onerous period of residence in United States in present law under which Mr. Bellei's situation was tested because it must be accomplished by the age of 13 I believe.

Now, Mr. Rogge also misinterprets the government's position, if I may say, on the moral word, if you will, that he children who were born overseas and who are subject to the requirement of the statute.

We make no claim that these children cannot be good Americans, but we think that there is something much more to performing the duties of an American citizenship from watching American movies and American television overseas, and eating hotdogs and bubble gums.

And what Congress was looking for and what Congress had provided for by the period of residence in the United States was the assurance that these children, these young adults, wherever they reside for the rest of their lives and they could go back overseas and have no restrictions on them or whatsoever, would be persons who had some meaningful relationship to the United States, some ability, some personal understanding of how the institutions and people of the United States operate.

And some ability if necessary to contribute to the development of those institutions, a personal stake, in other words in the institutions and people of the United States.

Another point that I would like to make in the very few minutes that I have left, is that Mr. Rogge invoked considerations of a shrinking world, expanding notions of nationality, but these notions were encountered due to a developing trade and international law, which I'm not entirely familiar, but I've done some research on, which shows that because of the problem of duo nationality, international lawyers are struggling with the concept similar to that in our domestic conflict of laws of effective nationality as recognizing the persons may have citizenship in a number of states or usually two countries.

Where the rights of the citizens are to be asserted, the test is where the real and effective citizenship of the individual is and one exercise in this development is the article of the convention of the conflict of nationality laws in 1930 which I will not take time to read.

Another example is the decision of the Court of International Justice, in the Natobong case in 1955.

For those reasons Mr. Chief Justice, we submit that the judgment of the District Court should be reversed.

Chief Justice Warren E. Burger: Thank you Mr. Connolly.

The case is submitted.

Thank you Mr. Rogge.