44

Memorandum of WHITTAKER, J.

tions in the United States until 1928 as the dissenting opinion of THE CHIEF JUSTICE observes. Where that is so-and this record fails to show that petitioner's act of voting in a political election in Mexico in 1946 was not entirely lawful under the law of that state-such legalized voting by an American citizen cannot reasonably be said to be fraught with danger of embroiling our Government in an international dispute or of embarrassing it in the conduct of foreign affairs, nor, I believe, can such an act-entirely legal under the law of the foreign statebe reasonably said to constitute an abandonment or any division or dilution of allegiance to the United States. Since these are my convictions, I dissent from the majority's opinion and join in so much of the dissenting opinion of THE CHIEF JUSTICE as expresses the view that the act of a citizen of the United States in voting in a foreign political election which is legally open to aliens under the law of that state cannot reasonably be said to constitute abandonment or any division or dilution of allegiance to the United States.

This leaves open the question presented respecting the constitutionality of § 401 (j), but inasmuch as the majority have found it unnecessary to adjudicate the constitutionality of that section in this case, it would be wholly fruitless for me now to reach a conclusion on that question, and I neither express nor imply any views upon it. Limiting myself to the issue decided by the majority, I dissent.

TROP v. DULLES, SECRETARY OF STATE, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 70. Argued May 2, 1957.-Restored to the calendar for reargument June 24, 1957.-Reargued October 28-29, 1957-Decided March 31, 1958.

At least as applied in this case to a native-born citizen of the United States who did not voluntarily relinquish or abandon his citizenship or become involved in any way with a foreign nation, § 401 (g) of the Nationality Act of 1940, as amended, which provides that a citizen "shall lose his nationality" by "deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as a result of such conviction is dismissed or dishonorably discharged from the service," is unconstitutional. Pp. 87-114.

239 F. 2d 527, reversed.

THE CHIEF JUSTICE, in an opinion joined by MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS and MR. JUSTICE WHITTAKER, concluded that:

1. Citizenship is not subject to the general powers of the National Government and therefore cannot be divested in the ~exercise of those powers. Pp. 91–93.

2. Even if citizenship could be divested in the exercise of some governmental power, § 401 (g) violates the Eighth Amendment, because it is penal in nature and prescribes a "cruel and unusual" punishment. Pp. 93–104.

MR. JUSTICE BLACK, in an opinion joined by MR. JUSTICE DOUGLAS, concurred in the opinion of THE CHIEF JUSTICE and expressed the view that, even if citizenship could be involuntarily divested, the power to denationalize may not be placed in the hands of military authorities. Pp. 104-105.

MR. JUSTICE BRENNAN, while agreeing with the Court, in Perez v. Brownell, ante; p. 44, that there is no constitutional infirmity in § 401 (e) which expatriates the citizen who votes in a foreign political election, concluded in this case that § 401 (g) lies beyond the power of Congress to enact. Pp. 105–114.

86.

Opinion of WARREN, C. J.

For dissenting opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE BURTON, MR. JUSTICE CLARK and MR. JUSTICE HARLAN, see post, p. 114..

Osmond K. Fraenkel argued the cause and filed the briefs for petitioner.

Oscar H. Davis argued the cause for respondents on the original argument, and Solicitor General Rankin on the reargument. With them on the briefs were Warren Olney, III, then Assistant Attorney General, and J. F. Bishop. Beatrice Rosenberg was also with them on the brief on the reargument.

MR. CHIEF JUSTICE WARREN announced the judgment of the Court and delivered an opinion, in which MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE WHITTAKER join.

The petitioner in this case, a native-born American, is declared to have lost his United States citizenship and become stateless by reason of his conviction by courtmartial for wartime desertion. As in Perez v. Brownell, ante, p. 44, the issue before us is whether this forfeiture of citizenship comports with the Constitution.

The facts are not in dispute. In 1944 petitioner was a private in the United States Army, serving in French Morocco. On May 22, he escaped from a stockade at Casablanca, where he had been confined following a previous breach of discipline. The next day petitioner and a companion were walking along a road towards Rabat, in the general direction back to Casablanca, when an Army truck approached and stopped. A witness testified that petitioner boarded the truck willingly and that no words were spoken. In Rabat petitioner was turned over to military police. Thus ended petitioner's "desertion." He had been gone less than a day and had willingly surrendered to an officer on an Army vehicle while he was walking back towards his base. He testified that at the

Opinion of WARREN, C. J.

356 U.S.

time he and his companion were picked up by the Army truck, "we had decided to return to the stockade. The going was tough. We had no money to speak of, and at the time we were on foot and we were getting cold and hungry." A general court-martial convicted petitioner of desertion and sentenced him to three years at hard labor, forfeiture of all pay and allowances and a dishonorable discharge.

In 1952 petitioner applied for a passport. His application was denied on the ground that under the provisions of Section 401 (g) of the Nationality Act of 1940, as amended,' he had lost his citizenship by reason of his conviction and dishonorable discharge for wartime desertion. In 1955 petitioner commenced this action in the District Court, seeking a declaratory judgment that he is a citizen. The Government's motion for summary judgment was granted, and the Court of Appeals for the Second Circuit affirmed, Chief Judge Clark dissenting. 239 F. 2d 527. We granted certiorari. 352 U. S. 1023.

154 Stat. 1168, 1169, as amended, 58 Stat. 4, 8 U. S. C. § 1481 (a) (8):

"A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by:

"(g). Deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged from the service of such military or naval forces: Provided, That notwithstanding loss of nationality or citizenship or civil or political rights under the terms of this or previous Acts by reason of desertion committed in time of war, restoration to active duty with such military or naval forces in time of war or the reenlistment or induction of such a person in time of war with permission of competent military or naval authority, prior or subsequent to the effective date of this Act, shall be deemed to have the immediate effect of restoring such nationality or citizenship and all civil and political rights heretofore or hereafter so lost and of removing all civil and political disabilities resulting therefrom . . . ."

86

Opinion of WARREN, C. J.

2

Section 401 (g), the statute that decrees the forfeiture of this petitioner's citizenship, is based directly on a Civil War statute, which provided that a deserter would lose his "rights of citizenship." The meaning of this phrase was not clear. When the 1940 codification and revision of the nationality laws was prepared, the Civil War statute was amended to make it certain that what a convicted deserter would lose was nationality itself. In 1944 the

2Act of March 3, 1865, 13 Stat. 487, 490.

3 See Roche, The Loss of American Nationality-The Development of Statutory Expatriation, 99 U. of Pa. L. Rev. 25, 60-62. Administratively the phrase "rights of citizenship" was apparently taken to mean "citizenship." See Foreign Relations 1873, H. R. Exec. Doc. No. 1, 43d Cong., 1st Sess., Pt. 1, Vol. II, p. 1187 (view of Secretary of State Fish); H. R. Doc. No. 326, 59th Cong., 2d Sess. 159 (State Department Board); Hearings before the House Committee on Immigration and Naturalization on H. R. 6127, 76th Cong., 1st Sess. 132-133 (testimony of Richard Flournoy, State Department representative).

Hearings, at 133.

But it is not entirely clear, however, that the Congress fully appreciated the fact that Section 401 (g) rendered a convicted deserter stateless. In this regard, the following colloquy, which occurred during hearings in 1943 before the House Committee on Immigration and Naturalization between Congressmen Allen and Kearney, members of the Committee, and Edward J. Shaughnessy, then Deputy Commissioner of Immigration, is illuminating:

"Mr. ALLEN. If he is convicted [of desertion] by court martial in time of war, he loses his citizenship?

"Mr. SHAUGHNESSY. That is correct.

"Mr. ALLEN. In other words, that is the same thing as in cur civil courts. When one is convicted of a felony and is sent to the penitentiary, one loses his citizenship.

"Mr. SHAUGHNESSY. He loses his rights of citizenship.

"Mr. KEARNEY. There is a difference between losing citizenship and losing civil rights.

"Mr. SHAUGHNESSY. He loses his civil rights, not his citizenship. Here he loses his citizenship.

"Mr. ALLEN. He loses his rights derived from citizenship..

[Footnote 4 continued on p. 90.]

458778 0-58-10