Trop v. Dulles

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

No. 70 Argued: May 2, 1957 --- Decided: March 31, 1958
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 [p88] 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, [n1] 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. [p89]

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." [n2] The meaning of this phrase was not clear. [n3] 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. [n4] In 1944, the [p90] 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. [n5] 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, [n6] 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 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. [n7] Into this [p91] 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. [n8] 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. [n9] 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.

I

In Perez v. Brownell, supra, I expressed the principles that I believe govern the constitutional status of United [p92] 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 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 [p93] is not a weapon that the Government may use to express its displeasure at a citizen's conduct, however reprehensible that conduct may be. As long as a person does not voluntarily renounce or abandon his citizenship, and this petitioner has done neither, I believe his fundamental right of citizenship is secure. On this ground alone, the judgment in this case should be reversed.

II

Since a majority of the Court concluded in Perez v. Brownell that citizenship may be divested in the exercise of some governmental power, I deem it appropriate to state additionally why the action taken in this case exceeds constitutional limits, even under the majority's decision in Perez. The Court concluded in Perez that citizenship could be divested in the exercise of the foreign affairs power. In this case, it is urged that the war power is adequate to support the divestment of citizenship. But there is a vital difference between the two statutes that purport to implement these powers by decreeing loss of citizenship. The statute in Perez decreed loss of citizenship -- so the majority concluded -- to eliminate those international problems that were thought to arise by reason of a citizen's having voted in a foreign election. The statute in this case, however, is entirely different. Section 401(g) decrees loss of citizenship for those found guilty of the crime of desertion. It is essentially like Section 401(j) of the Nationality Act decreeing loss of citizenship for evading the draft by remaining outside the United States. [n10] This provision [p94] was also before the Court in Perez, but the majority declined to consider its validity. While Section 401(j) decrees loss of citizenship without providing any semblance of procedural due process whereby the guilt of the draft evader may be determined before the sanction is imposed, Section 401(g), the provision in this case, accords the accused deserter at least the safeguards of an adjudication of guilt by a court-martial.

The constitutional question posed by Section 401(g) would appear to be whether or not denationalization may be inflicted as a punishment, even assuming that citizenship may be divested pursuant to some governmental power. But the Government contends that this statute does not impose a penalty, and that constitutional limitations on the power of Congress to punish are therefore inapplicable. We are told this is so because a committee of Cabinet members, in recommending this legislation to the Congress, said it "technically is not a penal law." [n11] How simple would be the tasks of constitutional adjudication and of law generally if specific problems could be solved by inspection of the labels pasted on them! Manifestly, the issue of whether Section 401(g) is a penal law cannot be thus determined. Of course, it is relevant to know the classification employed by the Cabinet Committee that played such an important role in the preparation of the Nationality Act of 1940. But it is equally relevant to know that this very committee acknowledged that Section 401(g) was based on the provisions of the 1865 Civil War statute, which the committee itself termed "distinctly penal in character." [n12] Furthermore, the 1865 [p95] statute states in terms that deprivation of the rights of citizenship is "in addition to the other lawful penalties of the crime of desertion. . . ." [n13] And certainly it is relevant to know that the reason given by the Senate Committee on Immigration as to why loss of nationality under Section 401(g) can follow desertion only after conviction by court-martial was "because the penalty is so drastic." [n14] Doubtless even a clear legislative classification of a statute as "non-penal" would not alter the fundamental nature of a plainly penal statute. [n15] With regard to Section 401(g), the fact is that the views of the Cabinet Committee and of the Congress itself as to the nature of the statute are equivocal, and cannot possibly provide the answer to our inquiry. Determination of whether this statute is a penal law requires careful consideration.

In form, Section 401(g) appears to be a regulation of nationality. The statute deals initially with the status of nationality, and then specifies the conduct that will result in loss of that status. But surely form cannot provide the answer to this inquiry. A statute providing that "a person shall lose his liberty by committing bank robbery," though in form a regulation of liberty, would nonetheless be penal. Nor would its penal effect be altered by labeling it a regulation of banks or by arguing that there is a rational connection between safeguarding banks and imprisoning bank robbers. The inquiry must be directed to substance.

This Court has been called upon to decide whether or not various statutes were penal ever since 1798. Calder v. Bull, 3 Dall. 386. Each time a statute has been challenged as being in conflict with the constitutional prohibitions against bills of attainder and ex post facto [p96] laws, [n16] it has been necessary to determine whether a penal law was involved, because these provisions apply only to statutes imposing penalties. [n17] In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. [n18] If the statute imposes a disability for the purposes of punishment -- that is, to reprimand the wrongdoer, to deter others, etc. -- it has been considered penal. [n19] But a statute has been considered nonpenal if it imposes a disability not to punish, but to accomplish some other legitimate governmental purpose. [n20] The Court has recognized that any statute decreeing some adversity as a consequence of certain conduct may have both a penal and a nonpenal effect. The controlling nature of such statutes normally depends on the evident purpose of the legislature. The point may be illustrated by the situation of an ordinary felon. A person who commits a bank robbery, for instance, loses his right to liberty, and often his right to vote. [n21] If, in the exercise of the power to protect banks, both sanctions were imposed for the purpose of punishing bank robbers, the statutes authorizing both disabilities would be penal. But because the purpose of [p97] the latter statute is to designate a reasonable ground of eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise. [n22]

The same reasoning applies to Section 401(g). The purpose of taking away citizenship from a convicted deserter is simply to punish him. There is no other legitimate purpose that the statute could serve. Denationalization in this case is not even claimed to be a means of solving international problems, as was argued in Perez. Here, the purpose is punishment, and therefore the statute is a penal law.

It is urged that this statute is not a penal law, but a regulatory provision authorized by the war power. It cannot be denied that Congress has power to prescribe rules governing the proper performance of military obligations, of which perhaps the most significant is the performance of one's duty when hazardous or important service is required. But a statute that prescribes the consequence that will befall one who fails to abide by these regulatory provisions is a penal law. Plainly legislation prescribing imprisonment for the crime of desertion is penal in nature. If loss of citizenship is substituted for imprisonment, it cannot fairly be said that the use of this particular sanction transforms the fundamental nature of the statute. In fact, a dishonorable discharge with consequent loss of citizenship might be the only punishment meted out by a court-martial. During World War II, the threat of this punishment was explicitly communicated by the Army to soldiers in the field. [n23] If this statute taking away citizenship is a congressional exercise of the war power, then it cannot rationally be treated other than as a penal law, because it imposes the sanction of denationalization [p98] for the purpose of punishing transgression of a standard of conduct prescribed in the exercise of that power.

The Government argues that the sanction of denationalization imposed by Section 401(g) is not a penalty, because deportation has not been so considered by this Court. While deportation is undoubtedly a harsh sanction that has a severe penal effect, this Court has in the past sustained deportation as an exercise of the sovereign's power to determine the conditions upon which an alien may reside in this country. [n24] For example, the statute [n25] authorizing deportation of an alien convicted under the 1917 Espionage Act [n26] was viewed not as designed to punish him for the crime of espionage, but as an implementation of the sovereign power to exclude, from which the deporting power is derived. Mahler v. Eby, 264 U.S. 32. This view of deportation may be highly fictional, but even if its validity is conceded, it is wholly inapplicable to this case. No one contends that the Government has, in addition to the power to exclude all aliens, a sweeping power to denationalize all citizens. Nor does comparison to denaturalization eliminate the penal effect of denationalization in this case. Denaturalization is not imposed to penalize the alien for having falsified his application for citizenship; if it were, it would be a punishment. Rather, it is imposed in the exercise of the power to make rules for the naturalization of aliens. [n27] In short, the fact that deportation and denaturalization for fraudulent procurement of citizenship may be imposed for purposes other than punishment affords no [p99] basis for saying that, in this case, denationalization is not a punishment.

Section 401(g) is a penal law, and we must face the question whether the Constitution permits the Congress to take away citizenship as a punishment for crime. If it is assumed that the power of Congress extends to divestment of citizenship, the problem still remains as to this statute whether denationalization is a cruel and unusual punishment within the meaning of the Eighth Amendment. [n28] Since wartime desertion is punishable by death, there can be no argument that the penalty of denationalization is excessive in relation to the gravity of the crime. The question is whether this penalty subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the Eighth Amendment.

At the outset, let us put to one side the death penalty as an index of the constitutional limit on punishment. Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment -- and they are forceful -- the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty. But it is equally plain that the existence of the death penalty is not a license to the Government to devise any punishment short of death within the limit of its imagination.

The exact scope of the constitutional phrase "cruel and unusual" has not been detailed by this Court. [n29] But the [p100] basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, [n30] and the principle it represents can be traced back to the Magna Carta. [n31] The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U.S. 349. The Court recognized in that case that the words of the Amendment are not precise, [n32] and that their [p101] scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

We believe, as did Chief Judge Clark in the court below, [n33] that use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is, instead, the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights and, presumably, as long as he remained in this country, he would enjoy the limited rights of an alien, no country need do so, because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination [p102] at any time by reason of deportation. [n34] In short, the expatriate has lost the right to have rights.

This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. [n35] It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious. [n36]

The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. It is true that several countries prescribe expatriation in the event that their nationals engage in conduct in derogation of native allegiance. [n37] Even statutes of this sort are generally applicable primarily [p103] to naturalized citizens. But use of denationalization as punishment for crime is an entirely different matter. The United Nations' survey of the nationality laws of 84 nations of the world reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion. [n38] In this country, the Eighth Amendment forbids this to be done.

In concluding, as we do, that the Eighth Amendment forbids Congress to punish by taking away citizenship, we are mindful of the gravity of the issue inevitably raised whenever the constitutionality of an Act of the National Legislature is challenged. No member of the Court believes that, in this case the statute before us can be construed to avoid the issue of constitutionality. That issue confronts us, and the task of resolving it is inescapably ours. This task requires the exercise of judgment, not the reliance upon personal preferences. Courts must not consider the wisdom of statutes, but neither can they sanction as being merely unwise that which the Constitution forbids.

We are oath-bound to defend the Constitution. This obligation requires that congressional enactments be judged by the standards of the Constitution. The Judiciary has the duty of implementing the constitutional safeguards that protect individual rights. When the Government acts to take away the fundamental right of citizenship, the safeguards of the Constitution should be examined with special diligence.

The provisions of the Constitution are not time-worn adages or hollow shibboleths. They are vital, living principles that authorize and limit governmental powers in our Nation. They are the rules of government. When the constitutionality of an Act of Congress is challenged in this Court, we must apply those rules. If we [p104] do not, the words of the Constitution become little more than good advice.

When it appears that an Act of Congress conflicts with one of these provisions, we have no choice but to enforce the paramount commands of the Constitution. We are sworn to do no less. We cannot push back the limits of the Constitution merely to accommodate challenged legislation. We must apply those limits as the Constitution prescribes them, bearing in mind both the broad scope of legislative discretion and the ultimate responsibility of constitutional adjudication. We do well to approach this task cautiously, as all our predecessors have counseled. But the ordeal of judgment cannot be shirked. In some 81 instances since this Court was established, it has determined that congressional action exceeded the bounds of the Constitution. It is so in this case.

The judgment of the Court of Appeals for the Second Circuit is reversed, and the cause is remanded to the District Court for appropriate proceedings.

Reversed aid remanded.

1. 54 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. . . .

2. Act 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).

4. 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 our 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.

Mr. SHAUGHNESSY. Yes; it almost amounts to the same thing. It is a technical difference.

Mr. ALLEN. He is still an American citizen, but he has no rights

MR. SHAUGHNESSY. No rights of citizenship.

Hearings before the House Committee on Immigration and Naturalization on H.R. 2207, 78th Cong., 1st Sess. 2-3.

See also id. at 7: "Mr. ELMER. Is it not true that this loss of citizenship for desertion is a State matter, and that the Government has nothing to do with it?"

5. Act of January 20, 1944, 58 Stat. 4.

6. See S.Rep. No. 382, 78th Cong., 1st Sess. 1, 3; H.R.Rep. No. 302, 78th Cong., 1st Sess. 1; 89 Cong.Rec. 3241, 10135.

7. Articles of War 58, 41 Stat. 800; Article 85, Uniform Code of Military Justice, 10 U.S.C. (Supp. V) § 885; Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 637.

8. The Solicitor General stated in his argument that § 401(g) would apply to desertion from such camps.

9. United States ex rel. Toth v. Quarles, 350 U.S. 11"]350 U.S. 11; 350 U.S. 11; Reid v. Covert, 354 U.S. 1; Harmon . Brucker, 355 U.S. 579.

10. 54 Stat. 1168, as amended, 58 Stat. 746, 8 U.S.C. § 1481(a)(10):

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

* * * *

(j) Departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States.

11. Codification of the Nationality Laws of the United States, H.R. Comm.Print, Pt. 1, 76th Cong., 1st Sess. 68.

12. Ibid.

13. Act of March 3, 1965, 13 Stat. 487.

14. S.Rep. No. 2150, 76th Con., 3d Sess. 3.

15. United States v. Constantine, 296 U.S. 287, 294; United States v. La Franca, 282 U.S. 568, 572.

16. U.S.Const., Art. I, § 9, cl. 3; § 10, Cl. 1.

17. United States v. Lovett, 328 U.S. 303; Calder v. Bull, 3 Dall. 386.

18. Of course, the severity of the disability imposed, as well as all the circumstances surrounding the legislative enactment, are relevant to this decision. See generally Wormuth, Legislative Disqualifications as Bills of Attainder, 4 Vand.L.Rev. 603, 608-610; 64 Yale L.J. 712, 72-724.

19. E.g., United States v. Lovett, supra; Pierce v. Carskadon, 16 Wall. 234; Ex parte Garland, 4 Wall. 333; Cummings v. Missouri, 4 Wall. 277.

20. E.g., Mahler v. Eby, 264 U.S. 32; Hawker v. New York, 170 U.S. 189; Davis v. Beason, 133 U.S. 333; Murphy v. Ramsey, 114 U.S. 15.

21. See Gathings, Loss of Citizenship and Civil lights for Conviction of Crime, 43 Am.Pol.Sci.Rev. 1228.

22. Cf. Davis v. Beason, supra; Murphy v. Ramsey, supra.

23. See War Department Circular No. 273, 1942, Compilation of War Department General Orders, Bulletins and Circulars (Government Printing Office 1943) 343.

24. Mahler v. Eby, supra; Bugajewitz v. Adams, 228 U.S. 585; Fong Yue Ting v. United States, 149 U.S. 698.

25. Act of May 10, 1920, 41 Stat. 593.

26. Act of June 15, 1917, 40 Stat. 217.

27. See, e.g., Baumgartner v. United States, 322 U.S. 665; Schneiderman v. United States, 320 U.S. 118.

28. U.S.Const., Amend. VIII: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

29. See Louisiana ex rel. Francis v. Resweber, 329 U.S. 459; Weems v. United States, 217 U.S. 349; Howard v. Fleming, 191 U.S. 126; O'Neil v. Vermont, 144 U.S. 323; In re Kemmler, 136 U.S. 436; Wilkerson v. Utah, 99 U.S. 130.

30. 1 Wm. & Mary, 2d Sess. (1689), c. 2.

31. See 34 Minn.L.Rev. 134; 4 Vand.L.Rev. 680.

32. Whether the word "unusual" has any qualitative meaning different from "cruel" is not clear. On the few occasions this Court has had to consider the meaning of the phrase, precise distinctions between cruelty and unusualness do not seem to have been drawn. See Weems v. United States, supra; O'Neil v. Vermont, supra; Wilkerson v. Utah, supra. These cases indicate that the Court simply examines the particular punishment involved in light of the basic prohibition against inhuman treatment, without regard to any subtleties of meaning that might be latent in the word "unusual." But cf. In re Kemmler, supra, at 443; United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 430 (Brandeis, J., dissenting). If the word "unusual" is to have any meaning apart from the word "cruel," however, the meaning should be the ordinary one, signifying something different from that which is generally done. Denationalization, as a punishment, certainly meets this test. It was never explicitly sanctioned by this Government until 1940, and never tested against the Constitution until this day.

33.

Plaintiff appellant has cited to us and obviously relied on the masterful analysis of expatriation legislation set forth in the Comment, The Expatriation Act of 1954, 64 Yale L.J. 1164, 1189-1199. I agree with the author's documented conclusions therein that punitive expatriation of persons with no other nationality constitutes cruel and unusual punishment and is invalid as such. Since I doubt if I can add to the persuasive arguments there made, I shall merely incorporate by reference. In my faith, the American concept of man's dignity does not comport with making even those we would punish completely "stateless" -- fair game for the despoiler at home and the oppressor abroad, if indeed there is any place which will tolerate them at all.

239 F.2d 527, 530.

34. See discussion in Perez v. Brownell, ante p. 44, at 64.

35. See Study on Statelessness, U.N. Doc. No. E/1112; Seckler-Hudson, Statelessness: With Special Reference to the United States; Borchard, Diplomatic Protection of Citizens Abroad, §§ 262, 334.

36. The suggestion that judicial relief will be available to alleviate the potential rigors of statelessness assumes too much. Undermining such assumption is the still fresh memory of Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, where an alien, resident in this country for 25 years, returned from a visit abroad to find himself barred from this country and from all others to which he turned. Summary imprisonment on Ellis Island was his fate, without any judicial examination of the grounds of his confinement. This Court denied relief, and the intolerable situation was remedied after four years imprisonment only through executive action as a matter of grace. See N.Y. Times, Aug. 12, 1954, p 10, col. 4.

37. See Laws Concerning Nationality, U.N. Doc. No. ST/LEG SER.B/4 (1954).

38. Id. at 379 and 461. Cf. Nationality Law Of August 22, 1907, Art. 17(2) (Haiti), id. at 208.
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