Expatriation Act of 1868: Natural Right and Citizenship Loss Today

The Expatriation Act of 1868 is a federal statute, signed on July 27, 1868, that declared the right to change one’s national allegiance a natural and inherent human right, guaranteed naturalized U.S. citizens the same diplomatic protection abroad as native-born citizens, and imposed a legal duty on the President to demand the release of Americans unjustly detained by foreign governments. It rejected the old European doctrine of perpetual allegiance, and its core principle, that citizenship is a voluntary bond, still governs how people lose U.S. nationality today.

Why Congress Passed the Act

The law grew out of a confrontation with Great Britain in the late 1860s. British common law held to the doctrine of perpetual allegiance: a person born a subject of the Crown remained one for life, no matter where they moved or what oath they later swore.¹ That doctrine collided with American practice when members of the Fenian Brotherhood, Irish-born men who had naturalized as U.S. citizens, were arrested in Ireland and charged with treason against the Queen. Britain treated them as British subjects. The United States treated them as Americans. If a foreign government could ignore a naturalization certificate and reclaim the person behind it, then naturalization in the United States meant very little.

Congress responded with a statute meant to settle the question in principle, not just resolve the immediate cases.

What the Act Says

Expatriation as a Natural Right

Section 1 opens with a declaration that the right of expatriation is “a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness.”² Congress did not frame the right as something the government was granting. It framed the right as something that already existed, and which the government was recognizing.

The same section turned that principle inward. Any “declaration, instruction, opinion, order, or decision” by a U.S. officer that denied, restricted, or questioned the right of expatriation was declared “inconsistent with the fundamental principles of this government.”² American officials could not obstruct someone shedding a prior allegiance to become a citizen. The country could not, in good faith, welcome immigrants under a theory of expatriation while denying that same theory to its own emigrants.

Equal Protection Abroad for Naturalized Citizens

Section 2 addressed the concrete problem behind the Fenian arrests. It required that naturalized citizens in foreign countries receive from the U.S. government “the same protection of persons and property that is accorded to native-born citizens in like situations and circumstances.”² No tiered citizenship. A naturalization certificate was to function as a complete shield against foreign claims of residual allegiance, and American diplomats were bound to treat it that way.

The President’s Duty to Demand Release

Sections 3 and 4 built a specific chain of obligation for the executive branch. Whenever a U.S. citizen was “unjustly deprived of his liberty by or under the authority of any foreign government,” the President was required to demand the reasons for the imprisonment.² The statute used the word “duty” and the directive “forthwith.” If the inquiry showed the detention violated the rights of American citizenship, the President had to demand release.

If the foreign government refused, the President was required to report immediately to Congress with all the facts and the details of the diplomatic proceedings. That transferred the next decision, which might involve powers the President did not hold alone, to the legislature, and it kept the executive from letting a case quietly disappear.

How Other Nations Responded

The Act did not stand alone. Around the same period the United States negotiated a series of bilateral agreements, the Bancroft Treaties, beginning with the North German Confederation in 1868, in which foreign governments agreed to recognize the transferred allegiance of naturalized U.S. citizens.

The most consequential response came from Britain itself. In 1870, Parliament passed a Naturalization Act that abandoned perpetual allegiance. During debate, members acknowledged that the old doctrine had “led to more than one war” and endorsed the position that “when a person voluntarily became naturalized in another country he should cease to be a British subject.”³ The doctrine that had triggered the American statute was, within two years, discarded by the government that had championed it.

The Question the Act Left Open

The Act declared the right of expatriation. It did not specify what counts as exercising that right, and it did not say whether the government could strip citizenship without the person’s consent.⁴ Nearly a century passed before the Supreme Court answered.

Afroyim v. Rusk (1967)

In Afroyim v. Rusk, the Court considered whether Congress could revoke a naturalized citizen’s citizenship for voting in a foreign election. It held that Congress could not. “Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof,” the majority wrote.⁵ The decision overruled Perez v. Brownell (1958), which had allowed Congress to treat certain acts as automatic grounds for loss.

The Court rested its reasoning on the Expatriation Act itself, observing that “the entire legislative history of the 1868 Act makes it abundantly clear that there was a strong feeling in the Congress that the only way the citizenship it conferred could be lost was by the voluntary renunciation or abandonment by the citizen himself.”⁵ The principle Congress declared in 1868 cut both ways. A person may choose to leave; the government cannot force them out.

Vance v. Terrazas (1980)

Vance v. Terrazas answered the evidentiary question Afroyim had raised: how does the government prove someone actually intended to give up citizenship? Laurence Terrazas, a dual U.S.-Mexican citizen, had signed a Mexican nationality application containing an express renunciation of U.S. citizenship. The State Department revoked his citizenship, and he sued.

The Court held that the government must prove two things: that the person voluntarily committed an expatriating act, such as swearing allegiance to a foreign state, and that they specifically intended to relinquish U.S. citizenship by doing so. Neither element alone suffices. The Court also accepted the preponderance-of-the-evidence standard for proving that intent.⁶ That two-part test still governs.

How the Principle Works in Modern Law

Losing Citizenship Under 8 U.S.C. § 1481

The current statute listing acts that can cause loss of U.S. nationality is 8 U.S.C. § 1481. Each act counts only if performed voluntarily and with the intent to relinquish nationality.⁷ The listed acts include:

Naturalizing in a foreign country after turning 18
Swearing allegiance to a foreign state after turning 18
Serving in a foreign military engaged in hostilities against the United States, or serving as an officer in any foreign military
Working for a foreign government in a position requiring an oath of allegiance or the acquisition of that country’s nationality
Formally renouncing citizenship before a U.S. diplomatic or consular officer abroad
Committing treason against the United States, if convicted

The statute carries a rebuttable presumption that any expatriating act was voluntary. Under Vance v. Terrazas, voluntariness by itself is not enough; the government must also show intent to give up citizenship.⁷

Formal Renunciation Today

Formal renunciation requires an in-person appearance at a U.S. embassy or consulate outside the United States. It cannot be done by mail, and it cannot be done inside the country. A consular officer conducts an interview to confirm the decision is voluntary and that the person understands the consequences. As of April 13, 2026, the State Department reduced the administrative fee for processing a Certificate of Loss of Nationality from $2,350 to $450.⁸

People who meet certain wealth, income, or tax-compliance thresholds may also face federal exit-tax consequences under separate provisions of the Internal Revenue Code. Those obligations sit alongside, not inside, the nationality statute.

The Duty to Protect, Modernized

The Act’s Section 3 duty, that the President must act when Americans are held abroad, now has a permanent institutional apparatus behind it. The Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act⁹ created a Special Presidential Envoy for Hostage Affairs, appointed by the President with Senate confirmation and holding the rank of ambassador, to lead diplomatic engagement in hostage and wrongful-detention cases.¹⁰ The law also established an interagency Hostage Recovery Fusion Cell and a Hostage Response Group, and it authorized visa and property-blocking sanctions against foreign individuals responsible for the unlawful detention of U.S. nationals.

Where the 1868 statute gave the President a duty to inquire, demand, and report, current law gives the executive branch a standing office, coordinated intelligence, and coercive tools. The premise is the same one Congress laid down in 1868: when a foreign government detains an American, the United States must respond.

1
Legal Information Institute. Development and Interpretation of the Doctrine of Expatriation
2
GovInfo. 15 Stat. 223 – An Act Concerning the Rights of American Citizens in Foreign States
3
UK Parliament. Naturalization Bill (No 18)
4
Legal Information Institute. Development of Expatriation Doctrine
5
Justia. Afroyim v. Rusk
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Justia. Vance v. Terrazas
7
Office of the Law Revision Counsel. 8 USC 1481 – Loss of Nationality by Native-Born or Naturalized Citizen
8
Federal Register. Schedule of Fees for Consular Services – Fee for Administrative Processing of Request for Certificate of Loss of Nationality of the United States
9
Congress.gov. Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act
10
Office of the Law Revision Counsel. 22 USC Chapter 23, Subchapter II – Hostage Recovery and Hostage-Taking Accountability