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Vol. III, No. 3
April, 1958

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Expatriation Statutes

The Supreme Court on March 31, in a pair of five to four decisions, passed on the constitutionality of two of the expatriation sections of the Nationality Act of 1940. The Court:

A. Held § 40(g) of the Act to be unconstitutional. That section provides that a citizen shall lose his citizenship if he deserts the military forces of the United States in time of war and is dishonorably discharged from the Armed Forces. (Trop, 358.1.)

B. Held § 40(e) of the Act to be constitutional. That section provides that a citizen shall lose his citizenship if he voluntarily votes in a political election in a foreign country. (Perez, 358.7.)

Chief Justice Warren wrote the majority opinion in Trop and the principal dissent in Perez. Justice Frankfurter wrote the majority opinion in Perez and the dissent in Trop. The difference in the result of the two cases was accounted for by the fact that Justice Brennan voted to affirm in Perez and to reverse in Trop. In the latter case he wrote a concurring opinion explaining his view as to the differences in the two cases. The statute in Perez, he felt, was constitutional because there was "a relevant connection between the particular legislative enactment and the power granted to Congress by the Constitution * * * to regulate the conduct of foreign affairs." No similar consideration was found, he said, in Trop.

Chief Justice Warren felt that both statutes were unconstitutional. "Citizenship", he said, "is not subject to the general powers of the National Government and therefore cannot be divested in the exercise of those powers." There was, in neither case, any showing of an intent to relinquish citizenship voluntarily. Furthermore, he felt the penalty of loss of nationality constituted cruel and unusual punishment, particularly in the case of Trop. Perez had resided for many years in Mexico and the fact that he voted there may indicate the acquisition of Mexican citizenship. But Trop had certainly not acquired any other citizenship by his conduct, and he was threatened with the anomalous status of a man without any nationality at all, with "the total destruction of * * * status in organized society." This, said the Chief Justice, "is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the making * * * [T]he expatriate has lost the right to have rights."

And see the Court's decisions in Nishikawa, 358.6, and Mendoza-Martinez, 358.8.

Summary Punishment for Contempt

The Supreme Court on March 31, 1958, in a five to four decision, affirmed the conviction of Green and Winston for contempt of court (411.2). The petitioners, defendants who had been convicted in the first Smith Act case, had failed to surrender after the Supreme Court decision in the Dennis case. They surrendered voluntarily in 1956. They were convicted of contempt of court and sentenced to three years in a summary proceeding, before a court without a jury.

Four opinions were written by the Court. The majority opinion by Justice Harlan held that the federal courts, for one hundred fifty years had punished contempt summarily, and he found little historical evidence to cast doubt on the power of a court to so proceed. Justice Frankfurter concurred with the majority stating that "from the foundation of the United States the constitutionality of the power to punish for contempt without the intervention of a jury has not been doubted."

The principal dissent was written by Justice Black, joined in by Chief Justice Warren and Justice Douglas. The opinion analyzed the historical power of courts to punish for contempt and pointed to the fact that since the adoption of the Constitution the contempt power "has undergone an incredible transformation and growth, slowly at first and then with increasing acceleration, until it has become a powerful and pervasive device for the enforcement of the criminal law." Thus it is no longer "a petty, insignificant part of our law, involving the use of trivial penalties to preserve order in the courtroom." On the contrary, "It has become a common device for bypassing the constitutionally prescribed safeguards of the regular criminal law." Such tremendous power, vested in a judge without the protection of an indictment by a grand jury, or a trial by a petit jury, is contrary to the spirit of the Constitution and totally unjustified historically.

There is no reason, said Justice Black, why contempt should not be punished in the same way as all other crimes and the mere fact that the federal courts have been treating it otherwise for many years is no reason for continuing an unsound practice. "Indeed", he said, "the Court has a special responsibility where questions of constitutional law are involved to review its decisions from time to time and * * * to refuse to follow erroneous precedents."

Justice Brennan wrote a separate dissent, arguing that the evidence was not sufficient to establish beyond a reasonable doubt the petitioners' guilt.

And see the Court's decision in Brown, 333.2.

Army Discharges Held Invalid

The Supreme Court, in an eight to one per curiam decision on March 3, 1958, upset the Army's procedure in granting undesirable discharges to members of the Armed Forces for pre-induction political conduct (Harmon, 253.4; Abramowitz, 253.6).

The Solicitor General had, in argument before the Court, admitted that its regulations were invalid insofar as they purported to make the nature of the discharge dependent on the pre-induction activities of the inductee. The only issue before the Court, therefore, was whether the courts had jurisdiction to review the action of the Army in granting discharges. The Court held that "judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers." The Court agreed with the Solicitor General that a military discharge was to be based exclusively on the character of military service. Mr. Justice Clark dissented.