SUPREME COURT OF THE UNITED STATES
356 U.S. 86
Trop v. Dulles
Argued: May 2, 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.
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. [p87]
MR. JUSTICE BLACK, whom MR. JUSTICE DOUGLAS joins, concurring.
While I concur in the opinion of THE CHIEF JUSTICE, there is one additional thing that needs to be said.
Even if citizenship could be involuntarily divested, I do not believe that the power to denationalize may be placed in the hands of military authorities. If desertion or other misconduct is to be a basis for forfeiting citizenship, guilt should be determined in a civilian court of justice, where all the protections of the Bill of Rights guard the fairness of the outcome. Such forfeiture should not rest on the findings of a military tribunal. Military courts may try soldiers and punish them for military offenses, but they should not have the last word on the soldier’s right to citizenship. The statute held invalid [p105] here not only makes the military’s finding of desertion final, but gives military authorities discretion to choose which soldiers convicted of desertion shall be allowed to keep their citizenship and which ones shall thereafter be stateless. Nothing in the Constitution or its history lends the slightest support for such military control over the right to be an American citizen.
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