Can a Citizen Be Sovereign?

Since the Rights of Man were proclaimed to be “inalienable,” irreducible to and undeducible from other right or laws, . . . man appeared as the only sovereign in matters of law as the people was proclaimed the only sovereign in matters of government.

—Hannah Arendt1

Targeted killings by drone strikes ordered by the Obama administration have provoked vigorous debate in the United States about the power the executive holds to order the killing of enemy combatants without due process. However, questions regarding the U.S. administration’s use of drones draw much of their potency from the fact that a number of these targeted persons are, irrevocably, American citizens. If the president could have stripped an American of his citizenship and then authorized his death as a foreign combatant, such an act might have eluded public debate.

The home secretary of the United Kingdom has, since 2006, revoked the nationality of at least fifty-three Britons as part of program targeting UK citizens allegedly linked to militant or terrorist groups.2 Some of these individuals have subsequently been killed by drone attacks, all without provoking any public reaction in the United Kingdom. What is legally possible today in the United Kingdom—to denationalize a citizen if he has done anything “seriously prejudicial to the vital interests” of the state—was a long-standing government right in the United States. This authority was lost in 1967 when the Supreme Court handed down its decision in Afroyim v. Rusk, which ensured that an absolute protection existed for American citizens against forced expatriation.

Both before and during World War II, the Soviet Union and Nazi Germany had rendered hundreds of thousands of their citizens stateless. Since the beginning of the twentieth century, the victorious democracies had also denaturalized some of their own citizens. However, these two categories of denaturalization and of denationalization can be distinguished by their nature.3 The scope of the democratic varieties is strictly limited by law to certain specific situations or crimes, whereas there is no limitation to authoritarian denaturalization, based on a totally discretionary power. In the case of democratic denaturalization, an external control to governmental action, located in the hands of a judiciary power, limits its scope and impact. Regarding democratic denaturalization, there is often a self-restriction of action by the executive: despite the fact that many naturalizations could fall within the limited scope of the denaturalization law and jurisprudence, the executive power tended (in the United States from 1909 until 1942 and in France since 1927) to self-limit its actions.4 On the contrary, under authoritarian rule, denaturalization action by the executive tends to go to the limit of the “laws.” Yet democratic denationalization categories lead to the same consequence for the subject individual (that is to say, the deprivation of citizenship) and did so during the years after World War II.

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About Patrick Weil

Patrick Weil is a senior research fellow at the French National Research Center at the University of Paris 1 (Panthéon-Sorbonne) and a visiting professor of law at Yale Law School. Professor Weil's work focuses on comparative citizenship, immigration, and church-state law and policy. His most recent books are Le sens de la République, (with Nicolas Truong, Paris Gallimard-Folio, 2016) and The Sovereign Citizen: Denaturalization and the Origins of the American Republic (Pennsylvania, 2013). Among his other recent publications are "Citizenship, Passports, and the Legal Identity of Americans: Edward Snowden and Others Have a Case in the Courts,'' Yale Law Journal Forum 123 (2014); ''Headscarf versus Burqa: Two French Bans with Different Meanings,'' in Constitutional Secularism in an Age of Religious Revival, ed. Susanna Mancini and Michel Rosenfeld (Oxford, 2014); and ''From Conditional to Secured and Sovereign: The New Strategic Link Between the Citizen and the Nation-State in a Globalized World,'' International Journal of Constitutional Law (2011).