356 U.S. 86 (1958), 70, Trop v. Dulles

Docket Nº:No. 70
Citation:356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630
Party Name:Trop v. Dulles
Case Date:March 31, 1958
Court:United States Supreme Court

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356 U.S. 86 (1958)

78 S.Ct. 590, 2 L.Ed.2d 630




No. 70

United States Supreme Court

March 31, 1958

Argued May 2, 1957

Restored to the calendar for reargument June 24, 1957

Reargued October 28-29, 1957




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.


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.

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

WARREN, J., lead opinion

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 court-martial 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

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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,1 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 [78 S.Ct. 592] 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.

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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."2 The meaning of this phrase was not clear.3 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.4 In 1944, the

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statute was further amended to provide that a convicted deserter would lose his citizenship only if he was dismissed from the service or dishonorably discharged.5 At the same time, it was provided that citizenship could be regained if the deserter was restored to active duty in wartime with the permission of the military authorities.

Though these amendments were added to ameliorate the harshness of the statute,6 their combined effect produces a result that poses far graver problems than the ones that were sought to be solved. Section 401(g), as amended, now gives the military authorities complete discretion to decide who among convicted deserters shall continue to be Americans and who shall be stateless. By deciding whether to issue and execute a dishonorable discharge and whether to allow a deserter to reenter the armed forces, the military becomes the arbiter of citizenship. And the domain given to it by Congress is not as narrow as might be [78 S.Ct. 593] supposed. Though the crime of desertion is one of the most serious in military law, it is by no no means a rare event for a soldier to be convicted of this crime. The elements of desertion are simply absence from duty plus the intention not to return.7 Into this

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category falls a great range of conduct, which may be prompted by a variety of motives -- fear, laziness, hysteria or any emotional imbalance. The offense may occur not only in combat, but also in training camps for draftees in this country.8 The Solicitor General informed the Court that, during World War II, according to Army estimates, approximately 21,000 soldiers and airmen were convicted of desertion and given dishonorable discharges by the sentencing courts-martial, and that about 7,000 of these were actually separated from the service, and thus rendered stateless when the reviewing authorities refused to remit their dishonorable discharges. Over this group of men, enlarged by whatever the corresponding figures may be for the Navy and Marines, the military has been given the power to grant or withhold citizenship. And the number of youths subject to this power could easily be enlarged simply by expanding the statute to cover crimes other than desertion. For instance, a dishonorable discharge itself might in the future be declared to be sufficient to justify forfeiture of citizenship.

Three times in the past three years, we have been confronted with cases presenting important questions bearing on the proper relationship between civilian and military authority in this country.9 A statute such as Section 401(g) raises serious issues in this area, but, in our view of this case, it is unnecessary to deal with those problems. We conclude that the judgment in this case must be reversed for the following reasons.


In Perez v. Brownell, supra, I expressed the principles that I believe govern the constitutional status of United

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States citizenship. It is my conviction that citizenship is not subject to the general powers of the National Government, and therefore cannot be divested in the exercise of those powers. The right may be voluntarily relinquished or abandoned either by express language or by language and conduct that show a renunciation of citizenship.

Under these principles, this petitioner has not lost his citizenship. Desertion in wartime, though it may merit the ultimate penalty, does not necessarily signify allegiance to a foreign state. Section 401(g) is not limited to cases of desertion to the enemy, and there is no such element in this case. This soldier committed a crime for which he should be and was punished, but he did not involve himself in any way with a foreign state. There was no dilution of his allegiance to this country. The fact that the desertion occurred on foreign soil is of no consequence. The Solicitor General acknowledged that forfeiture of citizenship would have occurred if the entire incident had transpired in this country.

Citizenship is not a license that expires upon misbehavior. The duties of citizenship are numerous, and the discharge of many of these obligations is essential to the security and wellbeing of the Nation. The citizen who fails to pay his taxes or to abide by the laws [78 S.Ct. 594] safeguarding the integrity of elections deals a dangerous blow to his country. But could a citizen be deprived of his nationality for evading these basic responsibilities of citizenship? In time of war, the citizen's duties include not only the military defense of the Nation, but also full participation in the manifold activities of the civilian ranks. Failure to perform any of these obligations may cause the Nation serious injury, and, in appropriate circumstances, the punishing power is available to deal with derelictions of duty. But citizenship is not lost every time a duty of citizenship is shirked. And the deprivation of citizenship

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is not a weapon that the Government may use to express its displeasure at a citizen's conduct,...

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