549. Doc., supra, at 379; see Borchard, Diplomatic Protection of Citizens Abroad, 730.
787, 800, does not mention the fact that one convicted of that offense in wartime should suffer the loss of his citizenship. The controlling nature of such statutes normally depends on the evident purpose of the legislature.
The provision was 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. But we are sitting in judgment not on the military, but on Congress. 106 of June 2, 1947, U.N.Doc., supra, at 379; see Borchard, Diplomatic Protection of Citizens Abroad, 730. When the nationality laws of the United States were revised and codified as the Nationality Act of 1940, 54 Stat. 'Mr.
'12 Furthermore, the 1865 statute states in terms that deprivation of the rights of citizenship is 'in addition to the other lawful penalties of the crime of desertion * * *. 148, and was referred to approvingly by this Court in 1885 in Kurtz v. Moffitt, 115 U.S. 487, 6 S.Ct. 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 from a proceeding conducted in accordance with all of the relevant constitutional safeguards.3. 358, 362, 49 L.Ed.
PRINTED FROM OXFORD REFERENCE (www.oxfordreference.com). Schneiderman v. United States, 320 U.S. 118, 122. In Trop v. Dulles, 356 U.S. 86 (1958), a 5-4 U.S. Supreme Court invalidated a federal statute that authorized the revocation of citizenship of someone born in the United States based on his desertion from the armed forces as a soldier. See McCafferty v. Guyer, 59 Pa. 109; State v. Symonds, 57 Me. 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. Presumably a denationalized person becomes an alien vis-a-vis the United States. Admittedly Congress' belief that expatriation of the deserter might further the war effort may find some—though necessarily slender—support in reason. 58, supra; § 6, Art. 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.'.
Shortly after its enactment, the 1865 provision received an important interpretation in Huber v. Reily, 53 Pa. 112 (1866). & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct.
Why then does not the Constitution prevent the expatriation of the voter as well as the deserter?
458, without discussion of its rationale. Francis v. Resweber, 329 U.S. 459, 67 S.Ct.
See Study on Statelessness, U.N.Doc.
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. Since I doubt if I can add to the persuasive arguments there made, I shall merely incorporate by reference.
1333, 1335, 87 L.Ed.
Though these amendments were added to ameliorate the harshness of the statute,6 their combined effect produces a result that poses far graver problems than the ones that were sought to be solved. 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. 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.
The fact that the desertion occurred on foreign soil is of no consequence. 1137, 1171, now § 360 of the Immigration and Nationality Act of 1952, 66 Stat.
It is true that several countries prescribe expatriation in the event that their nationals engage in conduct in derogation of native allegiance.37 Even statutes of this sort are generally applicable primarily to naturalized citizens. We had no money to speak of, and at the time we were on foot and we were getting cold and hungry.' What if you decided to fight a littering ticket, and the judge found you guilty and gave you six months in jail?
(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 interests. 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 * * *.' Desertion is also committed where a soldier, without having received a regular discharge, re-enlists in the same or another service. 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."
But citizenship is not lost every time a duty of citizenship is shirked. 568, 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. 134; 4 Vand.L.Rev. 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.
Shaughnessy. 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. That issue confronts us, and the task of resolving it is inescapably ours. 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. Art. '2 The meaning of this phrase was not clear.3 When the 1940 codification and revision of the nationality laws was prepared, the Civil War statute was amended to make it certain that what a convicted deserter would lose was nationality itself.4 In 1944 the statute was further amended to provide that a convicted deserter would lose his citizenship only if he was dismissed from the service or dishonorably discharged.5 At the same time it was provided that citizenship could be regained if the deserter was restored to active duty in wartime with the permission of the military authorities. 352 U.S. 1023, 77 S.Ct. The exact scope of the constitutional phrase 'cruel and unusual' has not been detailed by this Court.29 But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. Perez v. Brownell, supra, 356 U.S. 61, 78 S.Ct. 47.
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. Codification of the Nationality Laws of the United States, H.R. Holmes, Speeches, 102. 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, Compilation of War Department General Orders, Bulletins, and Circulars (Government Printing Office 1943) 343. There may be involved no physical mistreatment, no primitive torture.
See War Department Circular No. 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. Art. 276; Ex parte Garland, 4 Wall.
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.
He who refuses to act as an American should no longer be an American—what could be fairer? 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.
The Solicitor General acknowledged that forfeiture of citizenship would have occurred if the entire incident had transpired in this country.
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. 163, 273, 8 U.S.C.
Should the armed forces have ceased discharging wartime deserters because Congress attached the consequence it did to their performance of that responsibility?