# Trop v. Dulles/Dissent Frankfurter

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Black Brennan
* Dissenting Opinion Frankfurter
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON, MR. JUSTICE CLARK and MR. JUSTICE HARLAN join, dissenting.
Petitioner was born in Ohio in 1924. While in the Army serving in French Morocco in 1944, he was tried by a general court-martial and found guilty of having twice escaped from confinement, of having been absent without leave, and of having deserted and remained in desertion for one day. He was sentenced to a dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three years. He subsequently returned to the United States. In 1952, he applied for a passport; this application was denied by the State Department on the ground that petitioner had lost his citizenship as a result of his conviction of and dishonorable discharge for desertion from the Army in time of war. The Department relied upon § 401 of the [p115] Nationality Act of 1940, 54 Stat. 1137, 1168, as amended by the Act of January 20, 1944, 58 Stat. 4, which provided, in pertinent part, that
    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. . . .
In 1955, petitioner brought suit in a United States District Court for a judgment declaring him to be a national of the United States. The Government's motion for summary judgment was granted, and petitioner's denied. [p116] The Court of Appeals for the Second Circuit affirmed, one judge dissenting. 239 F.2d 527.
At the threshold, the petitioner suggests constructions of the statute that would avoid consideration of constitutional issues. If such a construction is precluded, petitioner contends that Congress is without power to attach loss of citizenship as a consequence of conviction for desertion. He also argues that such an exercise of power would violate the Due Process Clause of the Fifth Amendment to the Constitution and the prohibition against cruel and unusual punishments in the Eighth Amendment.
The subsection of § 401 of the Nationality Act of 1940, as amended, making loss of nationality result from a conviction for desertion in wartime is a direct descendant of a provision enacted during the Civil War. One section of
    An Act to amend the several Acts heretofore passed to provide for the Enrolling and Calling out [of] the National Forces, and for other Purposes,
13 Stat. 487, 490, approved on March 3, 1865, provided that, "in addition to the other lawful penalties of the crime of desertion from the military or naval service," all persons who desert such service
    shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship and their rights to become citizens. . . .
Except as limited in 1912 to desertion in time of war, 37 Stat. 356, the provision remained in effect until absorbed into the Nationality Act of 1940. 54 Stat. 1137, 1169, 1172. Shortly after its enactment, the 1865 provision received an important interpretation in Huber v. Reily, 53 Pa. 112 (1866). There, the Supreme Court of Pennsylvania, in an opinion by Mr. Justice Strong, later of this Court, held that the disabilities of the 1865 Act could attach only after the individual had been convicted of desertion by a court-martial. The requirement was drawn from the Due Process Clause of the Fifth Amendment to the Constitution. 53 Pa. at 116-118. This interpretation was [p117] followed by other courts, e.g., State v. Symonds, 57 Me. 148, and was referred to approvingly by this Court in 1885 in Kurtz v. Moffitt, 115 U.S. 487, without discussion of its rationale.
When the nationality laws of the United States were revised and codified as the Nationality Act of 1940, 54 Stat. 1137, there was added to the list of acts that result in loss of American nationality,
    Deserting the military or naval service of the United States in time of war, provided he [the deserter] is convicted thereof by a court martial.
§ 401(g), 54 Stat. 1169. During the consideration of the Act, there was substantially no debate on this provision. It seems clear, however, from the report of the Cabinet Committee that had recommended its adoption that nothing more was intended in its enactment than to incorporate the 1865 provision into the 1940 codification, at the same time making it clear that nationality, and not the ambiguous "rights of citizenship," was to be lost, and that the provision applied to all nationals. Codification of the Nationality Laws of the United States, H.R. Comm.Print, Pt. 1, 76th Cong., 1st Sess. 68.
In 1944, at the request of the War Department, Congress amended § 401(g) of the 1940 Act into the form in which it was when applied to the petitioner; this amendment required that a dismissal or dishonorable discharge result from the conviction for desertion before expatriation should follow, and provided that restoration of a deserter to active duty during wartime should have the effect of restoring his citizenship. 58 Stat. 4. It is abundantly clear from the debate and reports that the [p118] sole purpose of this change was to permit persons convicted of desertion to regain their citizenship and continue serving in the armed forces, H.R.Rep. No. 302, 78th Cong., 1st Sess. l; S.Rep. No. 382, 78th Cong., 1st Sess. 1; 89 Cong.Rec. 10135. Because it was thought unreasonable to require persons who were still in the service to fight and perhaps die for the country when they were no longer citizens, the requirement of dismissal or dishonorable discharge prior to denationalization was included in the amendment. See S.Rep. No. 382, supra at 3; 89 Cong.Rec. 3241.
Petitioner advances two possible constructions of § 401(g) that would exclude him from its operation and avoid constitutional determinations. It is suggested that the provision applies only to desertion to the enemy, and that the sentence of a dishonorable discharge, without the imposition of which a conviction for desertion does not have an expatriating effect, must have resulted from a conviction solely for desertion. There is no support for the first of these constructions in a fair reading of § 401(g) or in its congressional history. Rigorously as we are admonished to avoid consideration of constitutional issues if statutory disposition is available, it would do violence to what this statute compellingly conveys to draw from it a meaning other than what it spontaneously reveals.
Section 401(g) imposes expatriation on an individual for desertion
    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. . . .
Petitioner's argument is that the dishonorable discharge must be solely "the result of such conviction," and that § 401(g) is therefore not applicable to him, convicted as he was of escape from confinement and absence without leave, in addition to desertion. Since the invariable practice in military trials [p119] is and has been that related offenses are tried together with but a single sentence to cover all convictions, see Jackson v. Taylor, 353 U.S. 569, 574, the effect of the suggested construction would be to force a break with the historic process of military law for which Congress has not in the remotest way given warrant. The obvious purpose of the 1944 amendment, requiring dishonorable discharge as a condition precedent to expatriation, was to correct the situation in which an individual who had been convicted of desertion, and who had thus lost his citizenship, was kept on duty to fight and sometimes die "for his country which disowns him." Letter from Secretary of War to Chairman, Senate Military Affairs Committee, S.Rep. No. 382, 78th Cong., 1st Sess. 3. There is not a hint in the congressional history that the requirement of discharge was intended to make expatriation depend on the seriousness of the desertion, as measured by the sentence imposed. If we are to give effect to the purpose of Congress in making a conviction for wartime desertion result in loss of citizenship, we must hold that the dishonorable discharge, in order for expatriation to follow, need only be "the result of" conviction for one or more offenses among which one must be wartime desertion.
Since none of petitioner's nonconstitutional grounds for reversal can be sustained, his claim of unconstitutionality must be faced. What is always basic when the power of Congress to enact legislation is challenged is the appropriate approach to judicial review of congressional legislation. All power is, in Madison's phrase, "of an encroaching nature." Federalist, No. 48 (Earle ed.1937), at 321. Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint. When the power of Congress to pass a statute is challenged, the function [p120] of this Court is to determine whether legislative action lies clearly outside the constitutional grant of power to which it has been, or may fairly be, referred. In making this determination, the Court sits in judgment on the action of a coordinate branch of the Government while keeping unto itself — as it must, under our constitutional system — the final determination of its own power to act. No wonder such a function is deemed "the gravest and most delicate duty that this Court is called on to perform." Holmes, J., in Blodgett v. Holden, 275 U.S. 142, 148 (separate opinion). This is not a lip-serving platitude.
Rigorous observance of the difference between limits of power and wise exercise of power — between questions of authority and questions of prudence — requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.
One of the principal purposes in establishing the Constitution was to "provide for the common defence." To that end, the States granted to Congress the several powers of Article I, Section 8, clauses 11 to 14 and 18, compendiously described as the "war power." Although these specific grants of power do not specifically enumerate every factor relevant to the power to conduct war, there is no limitation upon it (other than what the Due Process [p121] Clause commands). The scope of the war power has been defined by Chief Justice Hughes in Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 426:
    [T]he war power of the Federal Government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation.
See also Chief Justice Stone's opinion in Hirabayashi v. United States, 320 U.S. 81, 93.
Probably the most important governmental action contemplated by the war power is the building up and maintenance of an armed force for the common defense. Just as Congress may be convinced of the necessity for conscription for the effective conduct of war, Selective Draft Law Cases, 245 U.S. 366, Congress may justifiably be of the view that stern measures — what to some may seem overly stern — are needed in order that control may be had over evasions of military duty when the armed forces are committed to the Nation's defense, and that the deleterious effects of those evasions may be kept to the minimum. Clearly Congress may deal severely with the problem of desertion from the armed forces in wartime; it is equally clear — from the face of the legislation and from the circumstances in which it was passed — that Congress was calling upon its war powers when it made such desertion an act of expatriation. Cf. Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 647.
Possession by an American citizen of the rights and privileges that constitute citizenship imposes correlative obligations, of which the most indispensable may well be "to take his place in the ranks of the army of his country and risk the chance of being shot down in its defense," Jacobson v. Massachusetts, 197 U.S. 11, 29. Harsh as this may sound, it is no more so than the actualities to which it responds. Can it be said that there is no [p122] rational nexus between refusal to perform this ultimate duty of American citizenship and legislative withdrawal of that citizenship? Congress may well have thought that making loss of citizenship a consequence of wartime desertion would affect the ability of the military authorities to control the forces with which they were expected to fight and win a major world conflict. It is not for us to deny that Congress might reasonably have believed the morale and fighting efficiency of our troops would be impaired if our soldiers knew that their fellows who had abandoned them in their time of greatest need were to remain in the communion of our citizens.
Petitioner urges that imposing loss of citizenship as a "punishment" for wartime desertion is a violation of both the Due Process Clause of the Fifth Amendment and the Eighth Amendment. His objections are that there is no notice of expatriation as a consequence of desertion in the provision defining that offense, that loss of citizenship as a "punishment" is unconstitutionally disproportionate to the offense of desertion, and that loss of citizenship constitutes "cruel and unusual punishment."
The provision of the Articles of War under which petitioner was convicted for desertion, Art. 58, Articles of War, 41 Stat. 787, 800, does not mention the fact that one convicted of that offense in wartime should suffer the loss of his citizenship. It may be that stating all of the consequences of conduct in the statutory provision making it an offense is a desideratum in the administration of criminal justice; that can scarcely be said — nor does petitioner contend that it ever has been said — to be a constitutional requirement. It is not for us to require Congress to list in one statutory section not only the ordinary penal consequences of engaging in activities therein prohibited, but also the collateral disabilities that follow, by operation of law, from a conviction thereof duly resulting [p123] from a proceeding conducted in accordance with all of the relevant constitutional safeguards.
Of course, an individual should be apprised of the consequences of his actions. The Articles of War put petitioner on notice that desertion was an offense and that, when committed in wartime, it was punishable by death. Art. 58, supra. Expatriation automatically followed by command of the Nationality Act of 1940, a duly promulgated Act of Congress. The War Department appears to have made every effort to inform individual soldiers of the gravity of the consequences of desertion; its Circular No. 273 of 1942 pointed out that convictions for desertion were punishable by death, and would result in "forfeiture of the rights of citizenship," and it instructed unit commanders to
    explain carefully to all [p124] personnel of their commands [certain Articles of War, including Art. 58] . . . and emphasize the serious consequences which may result from their violation.
Compilation of War Department General Orders, Bulletins, and Circulars (Government Printing Office 1943) 343. That Congress must define in the rubric of the substantive crime all the consequences of conduct it has made a grave offense, and that it cannot provide for a collateral consequence, stern as it may be, by explicit pronouncement in another place on the statute books, is a claim that hardly rises to the dignity of a constitutional requirement. Petitioner contends that loss of citizenship is an unconstitutionally disproportionate "punishment" for desertion, and that it constitutes "cruel and unusual punishment" within the scope of the Eighth Amendment. Loss of citizenship entails undoubtedly severe — and, in particular situations, even tragic — consequences. Divestment of citizenship by the Government has been characterized, in the context of denaturalization, as "more serious than a taking of one's property, or the imposition of a fine or other penalty." Schneiderman v. United States, 320 U.S. 118, 122. However, like denaturalization, see Klapprott v. United States, 335 U.S. 601, 612, expatriation under the Nationality Act of 1940 is not "punishment" in any valid constitutional sense. Cf. Fong Yue Ting v. United States, 149 U.S. 698, 730. Simply because denationalization was attached by Congress as a consequence of conduct that it had elsewhere made unlawful, it does not follow that denationalization is a "punishment," any more than it can be said that loss of civil rights as a result of conviction for a felony, see Gathings, Loss of Citizenship and Civil Rights for Conviction of Crime, 43 Am.Pol.Sci.Rev. 1228, 1233, is a "punishment" for any legally significant purposes. The process of denationalization, as devised by the expert Cabinet Committee on which Congress quite properly [p125] and responsibly relied and as established by Congress in the legislation before the Court, was related to the authority of Congress, pursuant to its constitutional powers, to regulate conduct free from restrictions that pertain to legislation in the field technically described as criminal justice. Since there are legislative ends within the scope of Congress' war power that are wholly consistent with a "non-penal" purpose to regulate the military forces, and since there is nothing on the face of this legislation or in its history to indicate that Congress had a contrary purpose, there is no warrant for this Court's labeling the disability imposed by § 401(g) as a "punishment."
Even assuming, arguendo, that § 401(g) can be said to impose "punishment," to insist that denationalization is "cruel and unusual" punishment is to stretch that concept beyond the breaking point. It seems scarcely arguable that loss of citizenship is within the Eighth Amendment's prohibition because disproportionate to an offense that is capital and has been so from the first year of Independence. Art. 58, supra; § 6, Art. 1, Articles of War of 1776, 5 J.Cont.Cong. (Ford ed.1906) 792. Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death? The seriousness of abandoning one's country when it is in the grip of mortal conflict precludes denial [p126] to Congress of the power to terminate citizenship here, unless that power is to be denied to Congress under any circumstance.
Many civilized nations impose loss of citizenship for indulgence in designated prohibited activities. See generally Laws Concerning Nationality, U.N. Doc. No. ST/LEG/SER.B/4 (1954). Although these provisions are often, but not always, applicable only to naturalized citizens, they are more nearly comparable to our expatriation law than to our denaturalization law. Some countries have made wartime desertion result in loss of citizenship — native-born or naturalized. E.g., § 1(6), Philippine Commonwealth Act No. 63 of Oct. 21, 1936, as amended by Republic Act No. 106 of June 2, 1947, U.N. Doc., supra, at 379; see Borchard, Diplomatic Protection of Citizens Abroad, 730. In this country, desertion has been punishable by loss of at least the "rights of citizenship" since 1865. The Court today reaffirms its decisions (Mackenzie v. Hare, 239 U.S. 299; Savorgnan v. United States, 338 U.S. 491) sustaining the power of Congress to denationalize citizens who had no desire or intention to give up their citizenship. If loss of citizenship may constitutionally be made the consequence of such conduct as marrying a foreigner, and thus certainly not "cruel and unusual," it seems more than incongruous that such loss should be thought "cruel and unusual" when it is the consequence of conduct that is also a crime. In short, denationalization, when attached to the offense [p127] of wartime desertion, cannot justifiably be deemed so at variance with enlightened concepts of "humane justice," see Weems v. United States, 217 U.S. 349, 78, as to be beyond the power of Congress, because constituting a "cruel and unusual" punishment within the meaning of the Eighth Amendment.
Nor has Congress fallen afoul of that prohibition because a person's post-denationalization status has elements of unpredictability. Presumably a denationalized person becomes an alien vis-a-vis the United States. The very substantial rights and privileges that the alien in this country enjoys under the federal and state constitutions puts him in a very different condition from that of an outlaw in fifteenth-century England. He need not be in constant fear lest some dire and unforeseen fate be imposed on him by arbitrary governmental action — certainly not "while this Court sits" (Holmes, J., dissenting in Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U.S. 218, 223). The multitudinous decisions of this Court protective of the rights of aliens bear weighty testimony. And the assumption that brutal treatment is the inevitable lot of denationalized persons found in other countries is a slender basis on which to strike down an Act of Congress otherwise amply sustainable.
It misguides popular understanding of the judicial function and of the limited power of this Court in our democracy to suggest that, by not invalidating an Act of Congress, we would endanger the necessary subordination of the military to civil authority. This case, no doubt, derives from the consequence of a court-martial. But we are sitting in judgment not on the military, but on Congress. The military merely carried out a responsibility with which they were charged by Congress. Should the armed forces have ceased discharging wartime deserters because Congress attached the consequence it did to their performance of that responsibility? [p128]
This legislation is the result of an exercise by Congress of the legislative power vested in it by the Constitution, and of an exercise by the President of his constitutional power in approving a bill and thereby making it "a law." To sustain it is to respect the actions of the two branches of our Government directly responsive to the will of the people and empowered under the Constitution to determine the wisdom of legislation. The awesome power of this Court to invalidate such legislation, because in practice it is bounded only by our own prudence in discerning the limits of the Court's constitutional function, must be exercised with the utmost restraint. Mr. Justice Holmes, one of the profoundest thinkers who ever sat on this Court, expressed the conviction that
    I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.
Holmes, Speeches, 102. He did not, of course, deny that the power existed to strike down congressional legislation, nor did he shrink from its exercise. But the whole of his work during his thirty years of service on this Court should be a constant reminder that the power to invalidate legislation must not be exercised as if, either in constitutional theory or in the art of government, it stood as the sole bulwark against unwisdom or excesses of the moment.

## Notes

* ↑ . The substance of this provision now appears in § 349(a)(8) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 268, 8 U.S.C. § 1481(a)(8).
* ↑ . The precise meaning of this phrase has never been clear, see Roche, The Loss of American Nationality — The Development of Statutory Expatriation, 99 U. of Pa.L.Rev. 25, 61-62. It appears, however, that the State Department regarded it to mean loss of citizenship, see, e.g., Hearings before the House Committee on Immigration and Naturalization on H.R. 6127, 76th Cong., 1st Sess. 38.
* ↑ . It should be noted that a person cannot be deprived of his citizenship merely on the basis of an administrative finding that he deserted in wartime, or even with finality on the sole basis of his having been dishonorably discharged as a result of a conviction for wartime desertion. Section 503 of the Nationality Act of 1940 provides:
* ↑ . The report of that Committee stated that the provision in question "technically is not a penal law." Codification of the Nationality Laws of the United States, supra, at 68. In their letter to the President covering the report, the Committee stated that none of the loss of nationality provisions was "designed to be punitive. . . ." Id. at VII.
* ↑ . There is no basis for finding that the Congress that enacted this provision regarded it otherwise than as part of the clearly nonpenal scheme of "acts of expatriation" represented by § 401 of the Nationality Act of 1940, supra.
* ↑ . In the United States, denaturalization is based exclusively on the theory that the individual obtained his citizenship by fraud, see Luria v. United States, 231 U.S. 9, 24; the laws of many countries making naturalized citizens subject to expatriation for grounds not applicable to natural-born citizens do not relate those grounds to the actual naturalization process. E.g., British Nationality Act, 1948, 11 & 12 Geo. VI, c. 56, § 20(3).
* ↑ . See note 2, supra.