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The Palestine-Israel Conflict in the U.S. Courtroom
Afroyim’s lawyers fought the ruling, taking the case to federal district court and the Court of Appeals. Each judicial body affirmed the State Department’s decision. But on May 29, 1967, the Supreme Court, in a 5 to 4 decision, reversed the Perez decision and ruled that it was permissible for a U.S. citizen to vote in foreign elections. Moreover, the Court, with an entirely different approach to the loss of citizenship issue, rejected the presumption that the U.S. Government had the power of involuntary expatriation. No longer could the State Department revoke an American’s citizenship against an individual’s wishes. Instead, U.S. citizenship could be lost only if the individual voluntarily surrendered or abandoned it. The Court justified its decision by reasoning that the U.S. Constitution provided Congress with no specific authority to deprive a citizen of citizenship and that the 14th Amendment plainly stated all persons born or naturalized in the United States were U.S. citizens. In 1980, the Supreme Court reaffirmed and elaborated Afroyim, ruling that not only must an individual voluntarily relinquish his or her citizenship but that the relinquishment must be intended by the individual. However, the Court added that intent can be either expressed, e.g., words or oath, or implied, e.g., by “proven conduct.”37 Factors inferring but not concluding that an individual had voluntarily given up his citizenship would be: naturalization by a foreign government, taking an oath of allegiance to a foreign government, or serving in another country’s military government service, especially if such action was voluntarily. However, obligatory military service mitigates against the inference that a person voluntarily relinquished his citizenship. Israel presents a more perplexing legal problem because military service for its citizenry is mandatory and that, under the Law of Return, any Jew taking up residence in Israel automatically becomes an Israeli citizen. No oath or pledge of allegiance is required. Moreover, under Zionist ideology, the concept “Jewish people” constitutes a distinct and unique national entity regardless of where the Jewish person may reside. In other words, Zionism theoretically makes every Jew in the world a citizen of Israel.38 The U.S. Government and international law, however, has rejected Zionism’s supranational “Jewish people” argument. Whether or not Rabbi Kahane’s activities should be construed to mean that he has implicitly given up his U.S. citizenship is a determination still pending before the State Department. And because the situation of each individual is judged on a case-by-case basis, the outcome is unclear. Although participation in a foreign legislature has weighed heavily against the claimant in past cases, the fact that Moshe Arens had U.S. citizenship while serving as Israel’s ambassador to the United States never became a problem for the State Department. Either the department will have to discard the implicit relinquishment rule or carve out an exception for U.S.-Israeli citizens under expatriation procedures. Already, admitted former Immigration and Naturalization Service commissioner Castillo, “this U.S.-Israel relationship is a special situation.”39 The underlying political reality is that the protection of the rights, freedoms and privileges mandated by the U.S. Constitution is only onion-skin thin. Every court decision or legislative enactment empowering a government agency or a corporate entity to impinge upon an individual liberty strips away a protective membrane. Perhaps like war and the generals, democracy is too important to be left to the courts. The spirited willingness of the public to fight to protect their rights has long been recognized as the real mainstay of liberty and freedom. Said Judge Learned Hand: “Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it.” Indeed, in a real sense the Constitution is what the people make it. This unfortunately has the seeds of disaster for groups out of favor with the majority, such as those opposing present Israeli and U.S. policies toward the Middle East and/or who happen to be of Arab ethnic origin. In the short run, their only protection will be those courts willing to play their vital and historic role to uphold the freedoms embodied in the Constitution. The cases just discussed suggest that some courts have been reluctant to play that role in relation to the Middle East conflict. But in the long run, the defense of political rights is a political, not a legal, problem that must—like the Palestine/Israel conflict itself—be solved by political means.
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