356 U.S. 86 (1958)
Albert Trop, a native-born American citizen, was serving as a private in the United States Army in French Morocco in 1944.1 On May 22 he escaped from a stockade at Casablanca where he had been confined following a previous breach of discipline.2
The next day Trop and a companion were walking along a road toward Rabat when an Army truck approached.3 Trop boarded the truck willingly and was turned over to military police, ending an absence of less than one day.4 A general court-martial convicted Trop of desertion in time of war in violation of the 58th Article of War.5
Trop was sentenced to three years at hard labor, forfeiture of all pay and allowances, reduction to the rank of private, and a dishonorable discharge.6 In 1952 Trop applied for a passport.7 The State Department denied the application on the ground that he had lost his citizenship under Section 401(g) of the Nationality Act of 1940 because of his conviction and dishonorable discharge for wartime desertion.8
Section 401(g) provided that a national of the United States shall lose his nationality by deserting the military or naval forces in time of war, provided he is convicted thereof by court-martial and as a result of such conviction is dishonorably discharged.9 Trop brought an action in the United States District Court for the Southern District of New York seeking a declaratory judgment that he remained a citizen.10 The District Court granted the Government's motion for summary judgment.11 The Court of Appeals for the Second Circuit affirmed, with Chief Judge Clark dissenting.12 The Supreme Court granted certiorari to review the case.13
Whether the petitioner has standing to challenge the constitutionality of Section 401(g) of the Nationality Act of 1940 on the ground that he was deprived of citizenship without due process of law?14
Yes. The petitioner's challenge to the constitutionality of § 401(g) is a claim that he has been deprived of his citizenship without due process of law.17 If his claim is sustained, he is a citizen; if it is denied, he is an alien.18 In either event, the claim is one that the petitioner is being deprived of his constitutional rights.19
The petitioner has standing to challenge the constitutionality of Section 401(g).20
Whether Section 401(g) of the Nationality Act of 1940, which provides for loss of nationality upon conviction by court-martial for desertion in time of war followed by dishonorable discharge, is unconstitutional?21
The Eighth Amendment forbids the infliction of cruel and unusual punishments.22 The total destruction of the individual's status in organized society is a form of punishment more primitive than torture.23 The severity of the penalty of denationalization is disproportionate to the gravity of the offense of desertion.24
Yes. The statute provides for the loss of citizenship by a native-born citizen as a consequence of conviction for a crime.25 It is therefore subject to the limitations that the Constitution imposes on penal statutes.26 The forfeiture of citizenship is a punishment within the meaning of the Eighth Amendment.27
The total destruction of the individual's status in organized society is a form of punishment more primitive than torture. It is the destruction of the individual's political existence.28 The severity of the penalty of denationalization is disproportionate to the gravity of the offense of desertion. Desertion is a serious crime, but it does not warrant the destruction of the individual's status as a citizen.29
The statute is not limited to those who desert in order to avoid combat.30 It applies to any soldier who, in the face of the enemy, deserts his post.31 The statute sweeps too broadly.32
Section 401(g) of the Nationality Act of 1940 is unconstitutional.33
Related opinions on this issue
Justice Black concurred in the result but added that even if citizenship could be involuntarily divested, the power to denationalize may not be placed in the hands of military authorities.34 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.35 Such forfeiture should not rest on the findings of a military tribunal.36
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.37 The statute held invalid 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.38 Nothing in the Constitution or its history lends the slightest support for such military control over the right to be an American citizen.39
Justice Brennan concurred in the judgment.40 He explained that expatriation of the deserter originated in the Act of 1865 when wholesale desertion and draftlaw violations seriously threatened the effectiveness of the Union armies.41 The 1865 Act expressly provided that expatriation was to be in addition to the other lawful penalties of the crime of desertion.42
Although it imposed expatriation entirely as an added punishment for crime, the 1865 Act did not expressly make conviction by court-martial a prerequisite.43 The Pennsylvania Supreme Court construed the statute so as to avoid constitutional difficulties, holding that loss of citizenship, like other penalties for desertion, followed only upon conviction by court-martial.44 This view was approved by this Court in Kurtz v. Moffitt.45
The present § 401(g) merely incorporates the 1865 provision.46 It is difficult to see how expatriation of the deserter helps wage war except as it performs that function when imposed as punishment.47 After the act of desertion, only punishment can follow, for the harm has been done.48
The deserter does not cease to be an American citizen at the moment he deserts.49 Even conviction does not necessarily effect his expatriation, for dishonorable discharge is the condition precedent to loss of citizenship.50 Therefore, if expatriation is made a consequence of desertion, it must stand together with death and imprisonment as a form of punishment.51
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.52 The novelty of expatriation as punishment does not alone demonstrate its inefficiency.53 It constitutes the very antithesis of rehabilitation.54
It will not insulate society from the deserter.55 As a deterrent device this sanction would appear of little effect.56 The requisite rational relation between this statute and the war power does not appear.57
Joined by Justices Burton, Clark, And Harlan
Justice Frankfurter, joined by Justices Burton, Clark, and Harlan, dissented.58 He maintained that the Court today holds that Congress may not provide that a native-born American who deserts the military forces in time of war and is convicted and dishonorably discharged shall lose his citizenship.5960 The Constitution confers upon Congress the power to establish a uniform rule of naturalization.61
This power includes the power to define the conditions under which citizenship may be lost.62 The statute in question is a reasonable exercise of this power.63 Desertion in time of war is a grave offense.64
It is not unreasonable for Congress to provide that one who commits such an offense shall lose his citizenship.65 The Court holds that the loss of citizenship is a punishment within the meaning of the Eighth Amendment.66 The loss of citizenship is a civil consequence, not a criminal punishment.67
The judgment should be affirmed.68
Whether denationalization for wartime desertion constitutes cruel and unusual punishment prohibited by the Eighth Amendment?69
The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.70 While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.71 The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.72
Yes. The exact scope of the constitutional phrase cruel and unusual has not been detailed by this Court.73 But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice.74 The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta.75
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.76 Use of denationalization as a punishment is barred by the Eighth Amendment.77
There may be involved no physical mistreatment, no primitive torture.78 There is instead the total destruction of the individual's status in organized society.79 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.80 The punishment strips the citizen of his status in the national and international political community.81
His very existence is at the sufferance of the country in which he happens to find himself.82 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.83 Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation.84 In short, the expatriate has lost the right to have rights.85
This punishment is offensive to cardinal principles for which the Constitution stands.86 It subjects the individual to a fate of ever-increasing fear and distress.87 The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.88 Only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion.89
In this country the Eighth Amendment forbids this to be done.90
Denationalization for wartime desertion constitutes cruel and unusual punishment prohibited by the Eighth Amendment.91
Whether Congress may divest a native-born citizen of nationality as a consequence of conviction for desertion under its war powers or its power to legislate concerning nationality?92
The power to regulate citizenship is not the power to destroy it.93 The statute in question is a penal statute.94 It provides for the loss of citizenship as a consequence of conviction for a crime.95 It is therefore subject to the limitations that the Constitution imposes on penal statutes. The war power is not a power to destroy the Constitution.96 The power to confer citizenship does not include the power to take it away as a punishment for crime.97
No. Citizenship is not a right that can be taken away by Congress at its pleasure.9899 It is a status that is conferred by the Constitution.100 The Fourteenth Amendment provides that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.101 This is a declaration that citizenship is a birthright.102
The Government relies on the power of Congress to legislate concerning nationality.103 But the power to regulate citizenship is not the power to destroy it.104 The statute in question is a penal statute. It provides for the loss of citizenship as a consequence of conviction for a crime.
It is therefore subject to the limitations that the Constitution imposes on penal statutes. The statute cannot be sustained as an exercise of the war powers of Congress.105 The war power is not a power to destroy the Constitution. The statute cannot be sustained as an exercise of the power of Congress to legislate concerning nationality.106
The power to confer citizenship does not include the power to take it away as a punishment for crime.
Congress may not divest a native-born citizen of nationality as a consequence of conviction for desertion under its war powers or its power to legislate concerning nationality.107