[[The Court’s holding has caused some confusion. Mr. Bellei was not born in the United States and thus there is no difficulty on that count. However, the assertion that the amendment did not protect him because he was not naturalized in the United States needed clarification.
The difficulty in fitting Mr. Bellei under the fourteenth amendment umbrella arose because he was not born or naturalized in the United States.
Justice Black had written the majority opinion in Afroyim and he was not content to see the majority in Bellei tamper with the concept of fourteenth-amendment citizenship. Yet he did not do very well in relying on the amendment’s legislative history to support his contention. The citizenship clause originally covered all those “born in the United States or naturalized by the laws thereof.” n150 Its final version was changed to reflect the current wording. Despite this, Justice Black believed that the clause was intended to have the same scope. The phrase “naturalized by the laws thereof” did not impose any territorial restrictions but it was replaced by language, “naturalized in,” which certainly did. This seemed to be an insurmountable hurdle for him. There was little that he could do to explain this curious linguistic change.
On the other hand, the pronouncement in Afroyim that “the [f]ourteenth [a]mendment 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,” n151 could not be easily dismissed. It was obvious to Justice Black that the Bellei Court did not accept the broad sweep of Afroyim or that the amendment did not really protect every citizen. n152 The Bellei Court deprived a citizen of his citizenship without his assent and Justice Black reiterated his Afroyim position that a citizen must intend or desire to give up his citizenship. n153 Without saying as much, the Court retreated from the concept of protection for all citizens, limiting the Afroyim principle to those citizens who could bring themselves within the citizenship clause. n154
The Bellei Court did not give any indication that Afroyim was overruled, thus in effect leaving some lingering doubts about the congressional power of expatriation.
Although the Court has prescribed the element of intent for expatriation to occur, the difficulty arises in ascertaining when that requirement is met. The individual’s problem lies in trying to take advantage of other opportunities, while at the same time maintaining enough contacts with the United States and avoiding the renunciation of his current citizenship.
The constitutional requirements for expatriation have proved difficult for the government. There must be proof that the individual took a conscious step to forfeit his citizenship rather than an indication that he believed his citizenship to be in danger.]]
http://famguardian.org/PublishedAuthors/LawReviews/HowardLawJrnl/ExpatAndAmerCit.htm
one can not confer citizenship on a person who’s citizenship is already conferred to them via descent jus sanguinis- A statute can only set requirements needed in order for that person to retain their citizenship status- if those conditions are not met, the courts have unfairly decided in the past that it is an act of ‘intent to expatriate’- recent court cases have made it much harder for a court to determine intent- and rightfully so because to do otherwise would violate a person’s voluntary decision to retain citizenship when the person has done nothing to indicate they wish to voluntarily give up that right to citizenship
Congress is fully within it’s power to set conditions on citizenship retention- however, it does not grant citizenship- it simply sets the conditions which must be followed in order to retain that citizenship already afforded by right of birthright-