U.S. Supreme Court Trop v. Dulles, 356 U.S.
86 (1958) Trop v. Dulles No. 70 Argued May 2, 1957 Restored to the calendar for
reargument June 24, 1957 Reargued October 28-29,
1957 Decided March 31,
1958 356 U.S.
86 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT Syllabus 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. 356 U. S.
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. 356 U. S.
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. 356 U. S.
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. 356 U. S.
104 -105.

															MR. JUSTICE BRENNAN, while agreeing with the Court, in Perez
v. Brownell, ante, p. 356
U. S. 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. 356 U. S.
105 -114. Page 356 U. S. 87 For dissenting opinion of MR. JUSTICE FRANKFURTER, joined by MR.
JUSTICE BURTON, MR. JUSTICE CLARK and MR. JUSTICE HARLAN, see
post, p. 356 U. S.
114 .

															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. 356 U. S. 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 Page 356 U. S. 88 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, [ Footnote 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 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. Page 356 U. S. 89 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." [ Footnote 2 ] The
meaning of this phrase was not clear. [ Footnote 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. [ Footnote
4 ] In 1944, the Page 356 U. S. 90 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. [ Footnote 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, [ Footnote 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 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. [ Footnote
7 ] Into this Page 356 U. S. 91 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. [ Footnote 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. [ Footnote 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. I In Perez v. Brownell, supra, I expressed the principles
that I believe govern the constitutional status of United Page 356 U. S. 92 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 Page 356 U. S. 93 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. [ Footnote 10 ] This provision Page 356 U. S. 94 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." [ Footnote 11 ] 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." [ Footnote 12 ] Furthermore, the 1865 Page 356 U. S. 95 statute states in terms that deprivation of the rights of
citizenship is "in addition to the other lawful penalties of the
crime of desertion. . . ." [ Footnote 13 ] 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." [ Footnote 14 ]
Doubtless even a clear legislative classification of a statute as
"non-penal" would not alter the fundamental nature of a plainly
penal statute. [ Footnote 15 ]
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 Page 356 U. S. 96 laws, [ Footnote 16 ] it
has been necessary to determine whether a penal law was involved,
because these provisions apply only to statutes imposing penalties.
[ Footnote 17 ] In deciding
whether or not a law is penal, this Court has generally based its
determination upon the purpose of the statute. [ Footnote 18 ] 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. [ Footnote 19 ] But a
statute has been considered nonpenal if it imposes a disability not
to punish, but to accomplish some other legitimate governmental
purpose. [ Footnote 20 ] 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. [ Footnote 21 ] 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 Page 356 U. S. 97 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. [ Footnote 22 ]

															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. [ Footnote 23 ] 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 Page 356 U. S. 98 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. [ Footnote 24 ] For example, the statute [ Footnote 25 ] authorizing deportation of an
alien convicted under the 1917 Espionage Act [ Footnote 26 ] 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. [ Footnote 27 ] In short, the fact that deportation and
denaturalization for fraudulent procurement of citizenship may be
imposed for purposes other than punishment affords no Page 356 U. S. 99 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. [ Footnote 28 ]
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. [ Footnote 29 ] But the Page 356 U. S. 100 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, [ Footnote
30 ] and the principle it represents can be traced back to the
Magna Carta. [ Footnote 31 ]
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, [ Footnote 32 ]
and that their Page 356 U. S. 101 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,
[ Footnote 33 ] 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 Page 356 U. S. 102 at any time by reason of deportation. [ Footnote 34 ] 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. [ Footnote
35 ] 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. [ Footnote 36 ]

															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. [ Footnote 37 ]
Even statutes of this sort are generally applicable primarily Page 356 U. S. 103 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. [ Footnote 38 ] 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 Page 356 U. S. 104 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. [ Footnote 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. . . ."

															[ Footnote 2 ]

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

															[ Footnote 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).

															[ Footnote 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?"

															[ Footnote 5 ]

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

															[ Footnote 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.

															[ Footnote 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.

															[ Footnote 8 ]

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

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

															[ Footnote 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."

															[ Footnote 11 ]

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

															[ Footnote 12 ] Ibid. [ Footnote 13 ]

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

															[ Footnote 14 ]

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

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

															[ Footnote 16 ]

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

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

															[ Footnote 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.

															[ Footnote 19 ] E.g., United States v. Lovett, supra; 83 U.
S. Carskadon, 16 Wall. 234; Ex parte
Garland , 4 Wall. 333; Cummings
v. Missouri , 4 Wall. 277.

															[ Footnote 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 .

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

															[ Footnote 22 ] Cf. Davis v. Beason, supra; Murphy v. Ramsey,
supra. [ Footnote 23 ] See War Department Circular No. 273, 1942, Compilation
of War Department General Orders, Bulletins and Circulars
(Government Printing Office 1943) 343.

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

															[ Footnote 25 ]

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

															[ Footnote 26 ]

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

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

															[ Footnote 28 ]

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

															[ Footnote 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 .

															[ Footnote 30 ]

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

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

															[ Footnote 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 136 U. S. 443 ; United States ex rel. Milwaukee Social Democratic Publishing
Co. v. Burleson, 255 U. S. 407 , 255 U. S. 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.

															[ Footnote 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.

															[ Footnote 34 ] See discussion in Perez v. Brownell, ante p. 356 U. S. 44 , at 356 U. S.
64 .

															[ Footnote 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.

															[ Footnote 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.

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

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

															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 Page 356 U. S. 105 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.

															MR. JUSTICE BRENNAN, concurring.

															In Perez v. Brownell, ante p. 356 U. S. 44 , also
decided today, I agreed with the Court that there was no
constitutional infirmity in § 401(e), which expatriates the citizen
who votes in a foreign political election. I reach a different
conclusion in this case, however, because I believe that § 401(g),
which expatriates the wartime deserter who is dishonorably
discharged after conviction by court-martial, lies beyond Congress'
power to enact. It is, concededly, paradoxical to justify as
constitutional the expatriation of the citizen who has committed no
crime by voting in a Mexican political election, yet find
unconstitutional a statute which provides for the expatriation of a
soldier guilty of the very serious crime of desertion in time of
war. The loss of citizenship may have as ominous significance for
the individual in the one case as in the other. Why then does not
the Constitution prevent the expatriation of the voter, as well as
the deserter?

															Here, as in Perez v. Brownell, we must inquire whether
there exists a relevant connection between the particular
legislative enactment and the power granted to Congress by the
Constitution. The Court there held that such a relevant connection
exists between the power to maintain relations with other sovereign
nations and the power to expatriate the American who votes in a
foreign election. (1) Within the power granted to Congress to
regulate the conduct of foreign affairs lies the power to deal with
evils which might obstruct or embarrass our diplomatic Page 356 U. S. 106 interests. Among these evils, Congress might believe, is that of
voting by American citizens in political elections of other
nations. [ Footnote 2/1 ] Whatever
the realities of he situation, many foreign nations may well view
political activity on the part of Americans, even if lawful, as
either expressions of official American positions or else as
improper meddling in affairs not their own. In either event, the
reaction is liable to be detrimental to the interests of the United
States. (2) Finding that this was an evil which Congress was
empowered to prevent, the Court concluded that expatriation was a
means reasonably calculated to achieve this end. Expatriation, it
should be noted, has the advantage of acting automatically, for the
very act of casting the ballot is the act of denationalization,
which could have the effect of cutting off American responsibility
for the consequences. If a foreign government objects, our answer
should be conclusive -- the voter is no longer one of ours. Harsh
as the consequences may be to the individual concerned, Congress
has ordained the loss of citizenship simultaneously with the act of
voting because Congress might reasonably believe that, in these
circumstances, there is no acceptable alternative to expatriation
as a means of avoiding possible embarrassments to our relations
with foreign nations. [ Footnote
2/2 ] And where Congress has determined that considerations of
the highest national importance indicate a course of action for
which an adequate Page 356 U. S. 107 substitute might rationally appear lacking, I cannot say that
this means lies beyond Congress' power to choose. Cf. Korematsu
v. United States, 323 U. S. 214 .

															In contrast to § 401(e), the section with which we are now
concerned, § 401(g), draws upon the power of Congress to raise and
maintain military forces to wage war. No pretense can here be made
that expatriation of the deserter in any way relates to the conduct
of foreign affairs, for this statute is not limited in its effects
to those who desert in a foreign country or who flee to another
land. Nor is this statute limited in its application to the
deserter whose conduct imports "elements of an allegiance to
another country in some measure, at least, inconsistent with
American citizenship." Perez v. Brownell, supra, at 356 U. S. 61 .
The history of this provision, indeed, shows that the essential
congressional purpose was a response to the needs of the military
in maintaining discipline in the armed forces, especially during
wartime. There can be no serious question that included in
Congress' power to maintain armies is the power to deal with the
problem of desertion, an act plainly destructive not only of the
military establishment as such, but, more importantly, of the
Nation's ability to wage war effectively. But granting that
Congress is authorized to deal with the evil of desertion, we must
yet inquire whether expatriation is a means reasonably calculated
to achieve this legitimate end, and thereby designed to further the
ultimate congressional objective -- the successful waging of
war.

															Expatriation of the deserter originated in the Act of 1865, 13
Stat. 490, when wholesale desertion and draft law violations
seriously threatened the effectiveness of the Union armies.
[ Footnote 2/3 ] The 1865 Act
expressly provided Page 356 U. S. 108 that expatriation was to be "in addition to the other lawful
penalties of the crime of desertion. . . ." This was emphasized in
the leading case under the 1865 Act, Huber v. Reily, 53
Pa. 112, decided by the Pennsylvania Supreme Court little more than
a year after passage of the Act. The court said that

															"Its avowed purpose is to add to the penalties which the law had
previously affixed to the offence of desertion from the military or
naval service of the United States, and it denominates the
additional sanctions provided as penalties." Id. at 114-115.

															But, although it imposed expatriation entirely as an added
punishment for crime, the 1865 Act did not expressly make
conviction by court-martial a prerequisite to that punishment, as
was the case with the conventional penalties. The Pennsylvania
Supreme Court felt that Huber was right in contending that this was
a serious constitutional objection:

															"[T]he act proposes to inflict pains and penalties upon
offenders before and without a trial and conviction by due process
of law, and . . . it is therefore prohibited by the Bill of
Rights."

															53 Pa. at 115. The court, however, construed the statute so as
to avoid these constitutional difficulties, holding that loss of
citizenship, like other penalties for desertion, followed only upon
conviction by court-martial.

															This view of the 1865 Act was approved by this Court in Kurtz v. Mott, 115 U. S. 487 , 115 U. S. 501 ,
and, as noted there, the same view "has been uniformly held by the
civil courts as well as by the military authorities." See
McCafferty v. Guyer, 59 Pa. 109; State v. Symonds, 57
Me. 148; Gotcheus v. Matheson, 58 Barb. (N.Y.) 152; 2
Winthrop, Military Law and Precedents (2d ed. 1896), 1001.
[ Footnote 2/4 ] Of Page 356 U. S. 109 particular significance, moreover, is the fact that the Congress
has confirmed the correctness of the view that it purposed
expatriation of the deserter solely as additional punishment. The
present § 401(g) merely incorporates the 1865 provision in the
codification which became the 1940 Nationality Act. [ Footnote 2/5 ] But now there is expressly
stated what was omitted from the 1865 Act, namely, that the
deserter shall be expatriated "if and when he is convicted thereof
by court martial. . . ." 54 Stat. 1169, as amended, 8 U.S.C. §
1481(a)(8). [ Footnote 2/6 ]

															It is difficult, indeed, to see how expatriation of the deserter
helps wage war except as it performs that function when imposed as
punishment. It is obvious that expatriation cannot in any wise
avoid the harm apprehended by Congress. After the act of desertion,
only Page 356 U. S. 110 punishment can follow, for the harm has been done. The deserter,
moreover, does not cease to be an American citizen at the moment he
deserts. Indeed, even conviction does not necessarily effect his
expatriation, for dishonorable discharge is the condition precedent
to loss of citizenship. Therefore, if expatriation is made a
consequence of desertion, it must stand together with death and
imprisonment -- as a form of punishment.

															To characterize expatriation as punishment is, of course, but
the beginning of critical inquiry. As punishment, it may be
extremely harsh, but the crime of desertion may be grave indeed.
However, the harshness of the punishment may be an important
consideration where the asserted power to expatriate has only a
slight or tenuous relation to the granted power. In its material
forms, no one can today judge the precise consequences of
expatriation, for, happily, American law has had little experience
with this status, and it cannot be said hypothetically to what
extent the severity of the status may be increased consistently
with the demands of due process. But it can be supposed that the
consequences of greatest weight, in terms of ultimate impact on the
petitioner, are unknown and unknowable. [ Footnote 2/7 ] Indeed, in truth, he may live out his life
with but minor inconvenience. He may perhaps live, work, marry,
raise a family, and generally experience a satisfactorily happy
life. Nevertheless it cannot be denied that the impact of
expatriation -- especially where statelessness is the upshot -- may
be severe. Expatriation, in this respect, constitutes an Page 356 U. S. 111 especially demoralizing sanction. The uncertainty, and the
consequent psychological hurt, which must accompany one who becomes
an outcast in his own land must be reckoned a substantial factor in
the ultimate judgment.

															In view of the manifest severity of this sanction, I feel that
we should look closely at its probable effect to determine whether
Congress' imposition of expatriation as a penal device is justified
in reason. Clearly the severity of the penalty, in the case of a
serious offense, is not enough to invalidate it where the nature of
the penalty is rationally directed to achieve the legitimate ends
of punishment.

															The novelty of expatriation as punishment does not alone
demonstrate its inefficiency. In recent years, we have seen such
devices as indeterminate sentences and parole added to the
traditional term of imprisonment. Such penal methods seek to
achieve the end, at once more humane and effective, that society
should make every effort to rehabilitate the offender and restore
him as a useful member of that society as society's own best
protection. Of course, rehabilitation is but one of the several
purposes of the penal law. Among other purposes are deterrents of
the wrongful act by the threat of punishment and insulation of
society from dangerous individuals by imprisonment or execution.
What, then, is the relationship of the punishment of expatriation
to these ends of the penal law? It is perfectly obvious that it
constitutes the very antithesis of rehabilitation, for instead of
guiding the offender back into the useful paths of society, it
excommunicates him and makes him, literally, an outcast. I can
think of no more certain way in which to make a man in whom,
perhaps, rest the seeds of serious anti-social behavior more likely
to pursue further a career of unlawful activity than to place on
him the stigma of the derelict, uncertain of many of his basic
rights. Similarly, it must be questioned whether expatriation Page 356 U. S. 112 can really achieve the other effects sought by society in
punitive devices. Certainly it will not insulate society from the
deserter, for, unless coupled with banishment, the sanction leaves
the offender at large. And, as a deterrent device, this sanction
would appear of little effect, for the offender, if not deterred by
thought of the specific penalties of long imprisonment or even
death, is not very likely to be swayed from his course by the
prospect of expatriation. [ Footnote
2/8 ] However insidious and demoralizing may be the actual
experience of statelessness, its contemplation in advance seems
unlikely to invoke serious misgiving, for none of us yet knows its
ramifications.

															In the light of these considerations, it is understandable that
the Government has not pressed its case on the basis of
expatriation of the deserter as punishment for his crime. Rather,
the Government argues that the necessary nexus to the granted power
is to be found in the idea that legislative withdrawal of
citizenship is justified in this case because Trop's desertion
constituted a refusal to perform one of the highest duties of
American citizenship -- the bearing of arms in a time of desperate
national peril. It cannot be denied that there is implicit in this
a certain rough justice. He who refuses to act as an American
should no longer be an American -- what could be fairer? But I
cannot see that this is anything other than forcing retribution
from the offender -- naked vengeance. But many acts of desertion
certainly fall far short of a "refusal to perform this ultimate
duty of American citizenship." Page 356 U. S. 113 Desertion is defined as "absence without leave accompanied by
the intention not to return." Army Manual for Courts-Martial (1928)
142. The offense may be quite technical, as where an officer,

															"having tendered his resignation and prior to due notice of the
acceptance of the same, quits his post or proper duties without
leave and with intent to absent himself permanently therefrom. . .
."

															Article of War 28 (1920), 41 Stat. 792. Desertion is also
committed where a soldier, without having received a regular
discharge, reenlists in the same or another service. The youngster,
for example, restive at his assignment to a supply depot, who runs
off to the front to be in the fight, subjects himself to the
possibility of this sanction. Yet the statute imposes the penalty
coextensive with the substantive crime. Since many acts of
desertion thus certainly fall far short of a "refusal to perform
this ultimate duty of American citizenship," it stretches the
imagination excessively to establish a rational relation of mere
retribution to the ends purported to be served by expatriation of
the deserter. I simply cannot accept a judgment that Congress is
free to adopt any measure at all to demonstrate its displeasure and
exact its penalty from the offender against its laws.

															It seems to me that nothing is solved by the uncritical
reference to service in the armed forces as the "ultimate duty of
American citizenship." Indeed, it is very difficult to imagine, on
this theory of power, why Congress cannot impose expatriation as
punishment for any crime at all -- for tax evasion, for bank
robbery, for narcotics offenses. As citizens, we are also called
upon to pay our taxes and to obey the laws, and these duties appear
to me to be fully as related to the nature of our citizenship as
our military obligations. But Congress' asserted power to
expatriate the deserter bears to the war powers precisely the same
relation as its power to expatriate the tax evader would bear to
the taxing power. Page 356 U. S. 114 I therefore must conclude that § 401(g) is beyond the power of
Congress to enact. Admittedly Congress' belief that expatriation of
the deserter might further the war effort may find some -- though
necessarily slender -- support in reason. But here, any substantial
achievement, by this device, of Congress' legitimate purposes under
the war power seems fairly remote. It is at the same time
abundantly clear that these ends could more fully be achieved by
alternative methods not open to these objections. In the light of
these factors, and conceding all that I possibly can in favor of
the enactment, I can only conclude that the requisite rational
relation between this statute and the war power does not appear --
for, in this relation, the statute is not "really calculated to
effect any of the objects entrusted to the government . . . ," M'Culloch v.
Maryland , 4 Wheat. 316, 17 U. S. 423 --
and therefore that § 401(g) falls beyond the domain of
Congress.

															[ Footnote 2/1 ]

															Some indication of the problem is to be seen in the joint
resolutions introduced in both houses of Congress to exempt the two
or three thousand Americans who allegedly lost their citizenship by
voting in certain Italian elections. See S.J.Res. 47 and
H.J.Res. 30, 239, 375, 81st Cong., 1st Sess. All proposed "to
suspend the operation of section 401(e) of the Nationality Act of
1940 in certain cases." See also H.R. 6400, 81st Cong.,
1st Sess.

															[ Footnote 2/2 ] Perez v. Brownell did not raise questions under the
First Amendment, which, of course, would have the effect in
appropriate cases of limiting congressional power otherwise
possessed.

															[ Footnote 2/3 ]

															A good description of the extent of the problem raised by
desertions from the Union armies, and of the extreme measures taken
to combat the problem, will be found in Pullen, The Twentieth
Maine. A Volunteer Regiment of the Civil War (1957).

															[ Footnote 2/4 ]

															The opinion in Huber v. Reily, which was written by Mr.
Justice Strong, later a member of this Court, suggested, if it did
not hold, that the statutes and considerations of due process
required that expatriation, to be accomplished, should be
specifically included by the court-martial as part of the sentence. See 53 Pa. at 119-120. The court-martial, under military
law, adjudges both guilt and the extent of initial sentence. Jackson v. Taylor, 353 U. S. 569 , 353 U. S.
574 -575, and see Article of War 58 (1920), 41
Stat. 800. However, it has not been the practice specifically to
include expatriation as part of the sentence. 2 Winthrop, Military
Law and Precedents (2d ed. 1896), 1001.

															[ Footnote 2/5 ]

															The provision was limited in 1912 to desertion in time of war,
37 Stat. 356, but otherwise was not revised until carried into the
Nationality Act of 1940, 54 Stat. 1169. It was, however, first
codified as part of the laws concerning citizenship as § 1998 of
the 1874 Revised Statutes.

															[ Footnote 2/6 ]

															The reason for the addition of the proviso is stated in a
report, Codification of the Nationality Laws of the United States,
H.R. Comm.Print, Pt. 1, 76th Cong., 1st Sess., prepared at the
request of the President by the Secretary of State, the Attorney
General, and the Secretary of Labor, proposing a revision and
codification of the nationality laws:

															"The provisions of sections 1996 and 1998 of the Revised
Statutes are distinctly penal in character. They must, therefore,
be construed strictly, and the penalties take effect only upon
conviction by a court martial ( Huber v. Reilly, 1866, 53
Penn.St. 112; Kurtz v. Moffitt, 1885, 115 U. S.
487 )." Id. at 68.

															The reference later in the report that § 401 "technically is not
a penal law" is to the section as a whole, and not to subdivision
(g).

															[ Footnote 2/7 ]

															Adjudication of hypothetical and contingent consequences is
beyond the function of this Court, and the incidents of
expatriation are altogether indefinite. Nonetheless, this very
uncertainty of the consequences makes expatriation as punishment
severe.

															It is also unnecessary to consider whether the consequences
would be different for the citizen expatriated under another
section than § 401(g).

															[ Footnote 2/8 ]

															A deterrent effect is certainly conjectural when we are told
that, during World War II, as many as 21,000 soldiers were
convicted of desertion and sentenced to be dishonorably discharged.
From the fact that the reviewing authorities ultimately remitted
the dishonorable discharges in about two-thirds of these cases it
is possible to infer that the military itself had no firm belief in
the deterrent effects of expatriation.

															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 Page 356 U. S. 115 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, [ Footnote 3/1 ] 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. Page 356 U. S. 116 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 Page 356 U. S. 117 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," [ Footnote 3/2 ] 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 Page 356 U. S. 118 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 Page 356 U. S. 119 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 , 353 U. S. 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 Page 356 U. S. 120 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 , 275 U. S. 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 Page 356 U. S. 121 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 , 290 U. S.
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 , 320 U. S.
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 , 197 U. S. 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 Page 356 U. S. 122 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 Page 356 U. S. 123 from a proceeding conducted in accordance with all of the
relevant constitutional safeguards. [ Footnote 3/3 ]

															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 Page 356 U. S. 124 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 , 320 U. S. 122 .
However, like denaturalization, see Klapprott v. United
States, 335 U. S. 601 , 335 U. S. 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 , 149 U. S. 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 Page 356 U. S. 125 and responsibly relied [ Footnote
3/4 ] and as established by Congress in the legislation before
the Court, [ Footnote 3/5 ] 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 Page 356 U. S. 126 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. [ Footnote 3/6 ] 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" [ Footnote 3/7 ] 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 Page 356 U. S. 127 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 , 217 U. S. 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 , 277 U. S.
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? Page 356 U. S. 128 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.

															[ Footnote 3/1 ]

															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).

															[ Footnote 3/2 ]

															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.

															[ Footnote 3/3 ]

															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:

															"If any person who claims a right or privilege as a national of
the United States is denied such right or privilege by any
Department or agency, or executive official thereof, upon the
ground that he is not a national of the United States, such person,
regardless of whether he is within the United States or abroad, may
institute an action against the head of such Department or agency
in the District Court of the United States for the District of
Columbia or in the district court of the United States for the
district in which such person claims a permanent residence for a
judgment declaring him to be a national of the United States. . .
."

															54 Stat. 1137, 1171, now § 360 of the Immigration and
Nationality Act of 1952, 66 Stat. 163, 273, 8 U.S.C. § 1503. In
such a proceeding, it is open to a person who, like petitioner, is
alleged to have been expatriated under § 401(g) of the 1940 Act to
show, for example, that the court-martial was without jurisdiction
(including observance of the requirements of due process) or that
the individual, by his restoration to active duty after conviction
and discharge, regained his citizenship under the terms of the
proviso in § 401(g), supra. [ Footnote 3/4 ]

															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.

															[ Footnote 3/5 ]

															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. [ Footnote 3/6 ]

															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 , 231 U. S. 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).

															[ Footnote 3/7 ] See note 2 supra.