The 1967 case of Afroyim v. Rusk is playing a major role in the life of “Americans abroad”. (This is the Supreme Court decision that establishes that Congress cannot simple “strip people of U.S. citizenship” without their consent. I wrote about the possible impact of Afroyim on the treatment of Americans abroad in an earlier post. There is a strong consensus that Americans abroad are being forced to renounce their citizenship. Yet, in Afroyim, Justice Black reminds us that:
Citizenship is no light trifle 268*268 to be jeopardized any moment Congress decides to do so under the name of one of its general or implied grants of power. In some instances, loss of citizenship can mean that a man is left without the protection of citizenship in any country in the world—as a man without a country. Citizenship in this Nation is a part of a co-operative affair. Its citizenry is the country and the country is its citizenry. The very nature of our free government makes it completely incongruous to have a rule of law under which a group of citizens temporarily in office can deprive another group of citizens of their citizenship. We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.
As of late there there has been some discussion of a legal challenge to citizenship-based taxation (or at least aspects of it) by using the 14th amendment arguments. I suggest that the above quote from Justice Black’s decision should be a leading part of the that challenge.
The argument would be:
1. Maybe citizenship-based taxation is NOT unconstitutional per se; but
2. The rules that U.S. government is imposing (under the guise of citizenship-based taxation) are forcing people to renounce U.S. citizenship and are therefore unconstitutional.
The lawyer representing Afroyim (at least in the early stages was Nanette Dembitz. Nanette Dembitz was a niece of Justice Louis Brandeis. Interestingly the impact of Justice Brandeis and people like Nanette Dembitz – who recognized the importance of the individual – carry on today.
There doesn’t appear to have been research done of Brandeis lately, but I have found 3 Brandeis-related items worth relating.
Another Brandeis relative on the bench
My colleague Kurt Metzmeier is a collector of, among other things, political campaign buttons, and as a result found this button on eBay:
Nanette Dembitz was the daughter of Abraham Lincoln Dembitz, who was the son of Louis D. Brandeis’ beloved uncle Lewis Dembitz. This would have made her Brandeis’ second cousin (according to the New York Times anyway–genealogy is completely beyond me.) Like Brandeis and his daughter Susan, Nanette also went to law school, graduating from Columbia in 1938. Like many other women law school graduates of the time, she had difficulty finding a job at first, but she persevered, eventually becoming a judge in the Family Court in Manhattan, where she became known for her outspoken and sometimes very liberal views. The…
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