. After finding that Section 401(g) of the amended Act was penal in nature, since it punished convicted deserters with denationalization, the Court held that expatriation was barred by the Eighth Amendment as a cruel and unusual penal remedy.

). Citizenship is not subject to the general powers of the National Government, and therefore cannot be divested in the exercise of those powers. The requirement was drawn from the Due Process Clause of the Fifth Amendment to the Constitution. We had no money to speak of, and at the time, we were on foot and we were getting cold and hungry.".

5 Calder v. Bull, 3 Dall. [ [356

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.

[

", "Mr. ALLEN. 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."   In this case, it is urged that the war power is adequate to support the divestment of citizenship.

Schneiderman v. United States, 320 U. S. 118, 320 U. S. 122.

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. 792. 6 substitute might rationally appear lacking, I cannot say that this means lies beyond Congress' power to choose.

8 Yet the statute imposes the penalty coextensive with the substantive crime. United States v. Lovett, 328 U. S. 303; Calder v. Bull, 3 Dall. he had lost his citizenship by reason of his conviction and dishonorable discharge for wartime desertion. U.S. 349 ", "Mr. SHAUGHNESSY. After the act of desertion, only We are oath-bound to defend the Constitution. 4. E. g., 1 (6), Philippine Commonwealth Act No.

The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. U.S. 491 .

 

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.

See McCafferty v. Guyer, 59 Pa. 109; State v. Symonds, 57 Me. No. Doc., supra, at 379; see Borchard, Diplomatic Protection of Citizens Abroad, 730.

282 U.S. 407, 430

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. [ 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 . Footnote 20 25, 60-62. Footnote 9 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. 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.

Administratively, the phrase "rights of citizenship" was apparently taken to mean "citizenship." [356 Expatriation, in this respect, constitutes an. [Footnote 37] Even statutes of this sort are generally applicable primarily.

In short, denationalization, when attached to the offense

Except as limited in 1912 to desertion in time of war, 37 Stat. Rev. Nothing in the Constitution or its history lends the slightest support for such military control over the right to be an American citizen. If he is convicted [of desertion] by court-martial in time of war, he loses his citizenship? But surely form cannot provide the answer to this inquiry. There is a difference between losing citizenship and losing civil rights. In 1952 petitioner applied for a passport.

Rather, it is imposed in the exercise of the power to make rules for the naturalization of aliens. Winthrop, Military Law and Precedents (2d ed., Reprint 1920), 647. Since none of petitioner's nonconstitutional grounds for reversal can be sustained, his claim of unconstitutionality must be faced.
] 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 2/7] Indeed, in truth, he may live out his life with but minor inconvenience. Under these principles, this petitioner has not lost his citizenship.

basis for saying that in this case denationalization is not a punishment. . U.S. 86, 125] 38.

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.

In short, the expatriate has lost the right to have rights. Pol. 2 . When one is convicted of a felony and is sent to the penitentiary, one loses his citizenship. But cf.

    ] 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.

The statute in this case, however, is entirely different. If a foreign government objects, our answer should be conclusive - the voter is no longer one of ours. U.S. 698 U.S. 333 But there is a vital difference between the two statutes that purport to implement these powers by decreeing loss of citizenship. 350

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. 1896), 1001. See Study on Statelessness, U.N. Doc. Please try again. ] U.S. [Footnote 7] Into this. 345

Why then does not the Constitution prevent the expatriation of the voter, as well as the deserter? 4. 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. 382, 78th Cong., 1st Sess. This view of deportation may be highly fictional, but even if its validity is conceded, it is wholly inapplicable to this case. But it is not entirely clear, however, that the Congress fully appreciated the fact that Section 401(g) rendered a convicted deserter stateless.

Comm.Print, Pt.

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.

." 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. E/1112; Seckler-Hudson, Statelessness: With Special Reference to the United States; Borchard, Diplomatic Protection of Citizens Abroad, 262, 334.

We conclude that the judgment in this case must be reversed for the following reasons. 32 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. [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. During World War II, the threat of this punishment was explicitly communicated by the Army to soldiers in the field. ] See note 2, supra. ] See discussion in Perez v. Brownell, ante, p. 44, at 64. Comm.Print, Pt.

[Footnote 18] If the statute imposes a disability for the purposes of punishment -- that is, to reprimand the wrongdoer, to deter others, etc. 4, 8 U.S.C.

17

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?". In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. We cannot push back the limits of the Constitution merely to accommodate challenged legislation. 3 And the number of youths subject to this power could easily be enlarged simply by expanding the statute to cover crimes other than desertion. 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. substitute might rationally appear lacking, I cannot say that this means lies beyond Congress' power to choose.

While I concur in the opinion of THE CHIEF JUSTICE, there is one additional thing that needs to be said. 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.
Determination of whether this statute is a penal law requires careful consideration.


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