Early policies

The Expatriation Act of 1868 did not explicitly create any procedure by which a U.S. citizen might exercise his or her right to give up citizenship. Existing law — namely, the Enrollment Act of 1865 § 21^[13] — provided only two grounds for loss of citizenship, those being draft evasion and desertion.^[11][14] The Bancroft Treaties also had provisions that naturalized U.S. citizens would be deemed to have renounced their U.S. citizenship and resumed their original citizenship if they returned to their native countries and remained there for a certain period of time. Finally, in 1873, Attorney-General George Henry Williams wrote that "the affirmation by Congress, that the right of expatriation is 'a natural and inherent right in all people' includes citizens of the United States as well as others, and the executive should give to it that comprehensive effect." However, William's statement was mostly used to justify the denaturalization of naturalized U.S. citizens.^[15] In general, a naturalized American who took up a position in the government or military of his native country was considered to have given up his U.S. citizenship and resumed his original one; however, naturalized Americans who did these same acts in other countries which were not their native countries were seen as having given up their right to U.S. protection, but not to U.S. citizenship itself. In particular, the State Department did not consider that mere establishment of non-U.S. domicile was sufficient grounds for revoking U.S. citizenship.^[16]

There would be no legislation regarding grounds for loss of U.S. citizenship by native-born citizens until the Expatriation Act of 1907 (34 Stat. 1228).^[11][14] Before then, the State Department and the courts seemed to agree that the only act which would cause a native-born citizen to lose U.S. citizenship was voluntary acquisition of citizen or subject status in a foreign state.^[17] Even foreign military service was not necessarily held to result in loss of U.S. citizenship; the precedent pointed out by Thomas F. Bayard, Secretary of State during the late 1880s, was that the U.S. did not consider the French who joined the American Revolution to have thus acquired U.S. citizenship. Similarly, voting in a foreign election was not held as definitive evidence of intent to give up citizenship, in the absence of an express acquisition of foreign citizenship and renunciation of the U.S. one.^[18] However, the Expatriation Act of 1907 and subsequent legislation would thenceforth broaden the number of actions which, if undertaken voluntarily, would be considered by the U.S. government to prove the intent to lose U.S. citizenship.^[19]

Later case law

In the 1950 case Savorgnan v. United States, the Supreme Court held that a woman who applied for Italian citizenship by virtue of her marriage to her husband had voluntarily given up her U.S. citizenship. Associate Justice Harold Hitz Burton wrote that:^[20]

Traditionally the United States has supported the right of expatriation as a natural and inherent right of all people. Denial, restriction, impairment or questioning of that right was declared by Congress, in 1868, to be inconsistent with the fundamental principles of this Government. From the beginning, one of the most obvious and effective forms of expatriation has been that of naturalization under the laws of another nation. However, due to the common-law prohibition of expatriation without the consent of the sovereign, our courts hesitated to recognize expatriation of our citizens, even by foreign naturalization, without the express consent of our Government. Congress finally gave its consent upon the specific terms stated in the Citizenship Act of 1907 and in its successor, the Nationality Act of 1940. Those Acts are to be read in the light of the declaration of policy favoring freedom of expatriation which stands unrepealed.

And, in his footnote:

The above language [i.e. the preamble of the Expatriation Act, which he quoted], when enacted, was intended to apply especially to immigrants into the United States. It sought to emphasize the natural and inherent right of such people to expatriate themselves from their native nationalities. It sought also to secure for them full recognition of their newly acquired American citizenship. The language is also broad enough to cover, and does cover, the corresponding natural and inherent right of American citizens to expatriate themselves.

In the 1957 case Briehl v. Dulles, the Court of Appeals for the DC Circuit held that the Department of State could lawfully deny issuance of a United States passport to an applicant who refused to execute an affidavit regarding his political affiliations. However, in a dissenting opinion, Judge David L. Bazelon argued that "[s]ince expatriation is today impossible without leaving the country, the policy expressed by Congress in 1868 and never repealed precludes a reading of the passport and travel control statutes which would permit the Secretary of State to prevent citizens from leaving". Chief Judge Henry White Edgerton concurred with Bazelon's opinion.^[21]

Congress's power to legislate for implicit expatriation of Americans was later heavily restricted by the 1967 case Afroyim v. Rusk, which concluded that natural-born Americans cannot be deprived of citizenship by any means except a voluntary renunciation in the presence of a consular official. Associate Justice Hugo Black's majority opinion extensively discussed the Expatriation Act of 1868, including the history of proposed amendments to it.^[22]