# 05 - Civil Rights and Equal Protection Cases 1950-1960 by United States Supreme Court

An episode of [Civil Rights and Equal Protection Cases 1950-1960](https://invisiblenetwork.ai/podcast/1815309543), 16 May 2025, 30 min.

Audio: https://dts.podtrac.com/redirect.mp3/api.spreaker.com/download/episode/66112990/05_civil_rights_and_equal_protection_cases_1950_1960_by_united_states_supreme_court.mp3

Journey into the heart of landmark Supreme Court decisions that shaped civil rights and equal protection in the United States during the transformative decade of 1950-1960, as concisely summarized by Kelli Robinson. This episode includes AI-generated content.

## Transcript

[0:02] Speaker 1: Trop Versus Dulles. This is a LibriVox recording. All LibriVox
[0:08] Speaker 1: recordings are in the public domain. For more information or
[0:12] Speaker 1: to volunteer, please visit LibriVox dot org. Recording by Kelly
[0:18] Speaker 1: Robinson in Birmingham, Alabama. Trop Versus Dulles an opinion of
[0:25] Speaker 1: the United States Supreme Court decided on March thirty first,
[0:29] Speaker 1: nineteen fifty eight. Please note this is a reading of
[0:34] Speaker 1: the opinion of the Court only for ease of listening.
[0:38] Speaker 1: This reading omits legal citations and footnotes found within the
[0:43] Speaker 1: text of the Court's opinion. Mister Chief Justice Warren announced
[0:48] Speaker 1: the judgment of the Court and delivered an opinion in
[0:52] Speaker 1: which mister Justice Black, Mister Justice Douglas, and mister Justice
[0:57] Speaker 1: Whittaker join the petitioner. In this case, a native born
[1:01] Speaker 1: American is declared to have lost his United States citizenship
[1:05] Speaker 1: and become stateless by reason of his conviction by court
[1:08] Speaker 1: martial for wartime desertion. As in Perez versus Brownell. The
[1:14] Speaker 1: issue before us is whether this forfeiture of citizenship comports
[1:18] Speaker 1: with the Constitution. The facts are not in dispute. In
[1:22] Speaker 1: nineteen forty four, petitioner was a private in the United
[1:25] Speaker 1: States Army serving in French Morocco. On May twenty second,
[1:30] Speaker 1: he escaped from a stockade at Casablanca, where he had
[1:33] Speaker 1: been confined following a previous breach of discipline. The next day,
[1:38] Speaker 1: Petitioner and a companion were walking along a road towards Robot,
[1:42] Speaker 1: in the general direction back to Casablanca, when an army
[1:46] Speaker 1: truck approached and stopped. A witnessed testified the petitioner boarded
[1:51] Speaker 1: the truck willingly and that no words were spoken. In Rabot.
[1:55] Speaker 1: Petitioner was turned over to military police. Thus and Petitioner's desertion.
[2:02] Speaker 1: He had been gone less than a day and had
[2:04] Speaker 1: willingly surrendered to an officer on an army vehicle while
[2:09] Speaker 1: he was walking back towards his base. He testified that
[2:12] Speaker 1: at the time he and his companion were picked up
[2:16] Speaker 1: by the army truck, we had decided to return to
[2:19] Speaker 1: the stockade. The going was tough, we had no money
[2:23] Speaker 1: to speak of, and at the time we were on
[2:25] Speaker 1: foot and we were getting cold and hungry. A general
[2:29] Speaker 1: court martial convicted Petitioner of desertion and sentenced him to
[2:33] Speaker 1: three years at hard labor, forfeiture of all pay and
[2:37] Speaker 1: allowances and a dishonorable discharge. In nineteen fifty two, petitioner
[2:43] Speaker 1: applied for a passport. His application was denied on the
[2:46] Speaker 1: ground that, under the provisions of section four oh one
[2:50] Speaker 1: G of the Nationality Act of nineteen forty, as amended,
[2:55] Speaker 1: he had lost his citizenship by reason of his conviction
[2:59] Speaker 1: and dishonorvunerable discharge for wartime desertion. In nineteen fifty five,
[3:04] Speaker 1: petitioner commenced this action in the District Court, seeking a
[3:09] Speaker 1: declaratory judgment that he is a citizen. The government's motion
[3:13] Speaker 1: for summary judgment was granted, and the Court of Appeals
[3:17] Speaker 1: for the Second Circuit affirmed. Chief Judge Clark, dissenting, we
[3:22] Speaker 1: granted cerciarari. Section four oh one G. The statute that
[3:27] Speaker 1: decrees the forfeiture of this petitioner's citizenship is based directly
[3:32] Speaker 1: on a Civil War statute which provided that a deserter
[3:36] Speaker 1: would lose his rights of citizenship. The meaning of this
[3:39] Speaker 1: phrase was not clear when the nineteen forty codification and
[3:44] Speaker 1: revision of the Nationality Laws was prepared. The Civil War
[3:48] Speaker 1: statute was amended to make it certain that what a
[3:51] Speaker 1: convicted deserter would lose was nationality itself. In nineteen forty four,
[3:57] Speaker 1: the statute was further amended to provide that a convicted
[4:00] Speaker 1: deserter would lose his citizenship only if he was dismissed
[4:04] Speaker 1: from the service or dishonorably discharged. At the same time,
[4:09] Speaker 1: it was provided that citizenship could be regained if the
[4:14] Speaker 1: deserter was restored to active duty in wartime would the
[4:18] Speaker 1: permission of the military authorities. Though these amendments were added
[4:23] Speaker 1: to ameliorate the harshness of the statute, their combined effect
[4:27] Speaker 1: produces a result that poses far graver problems than the
[4:31] Speaker 1: ones that were sought to be solved. Section four oh
[4:35] Speaker 1: one G is amended, now gives the military authorities complete
[4:39] Speaker 1: discretion to decide who among convicted deserters shall continue to
[4:44] Speaker 1: be Americans and who shall be stateless. By deciding whether
[4:48] Speaker 1: to issue and execute a dishonorable discharge and whether to
[4:53] Speaker 1: allow a deserter to re enter the armed forces, the
[4:56] Speaker 1: military becomes the arbiter of citizens ship, and the domain
[5:01] Speaker 1: given to it by Congress is not as narrow as
[5:04] Speaker 1: might be supposed. Though the crime of desertion is one
[5:08] Speaker 1: of the most serious in military law, it is by
[5:11] Speaker 1: no means a rare event for a soldier to be
[5:14] Speaker 1: convicted of this crime. The elements of desertion are simply
[5:18] Speaker 1: absence from duty plus the intention not to return. Into
[5:23] Speaker 1: this category falls a great range of conduct which may
[5:27] Speaker 1: be prompted by a variety of motives fear, laziness, hysteria,
[5:32] Speaker 1: or any emotional imbalance. The offense may occur not only
[5:36] Speaker 1: in combat, but also in training camps for draftees in
[5:40] Speaker 1: this country. The Solicitor General informed the Court that during
[5:44] Speaker 1: World War II, according to army estimates, approximately twenty one
[5:49] Speaker 1: thousand soldiers and airmen were convicted of desertion and given
[5:54] Speaker 1: dishonorable discharges by the sentencing court's martial, and that about
[5:59] Speaker 1: seven thousand of these were actually separated from the service
[6:03] Speaker 1: and thus rendered stateless when the reviewing authorities refused to
[6:08] Speaker 1: remit their dishonorable discharges. Over this group of men enlarged
[6:13] Speaker 1: by whatever the corresponding figures may be. For the Navy
[6:16] Speaker 1: and Marines, the military has been given the power to
[6:20] Speaker 1: grant or withhold citizenship, and the number of youths subject
[6:25] Speaker 1: to this power could easily be enlarged simply by expanding
[6:29] Speaker 1: the statute to cover crimes other than desertion. For instance,
[6:34] Speaker 1: a dishonorable discharge itself might in the future be declared
[6:37] Speaker 1: to be sufficient to justify forfeiture of citizenship. Three times
[6:43] Speaker 1: in the past three years we have been confronted with
[6:45] Speaker 1: cases presenting important questions bearing on the proper relationship between
[6:51] Speaker 1: civilian and military authority in this country. A statute such
[6:56] Speaker 1: as Section four oh one g raises serious issues in
[6:59] Speaker 1: this area, but in our view of this case, it
[7:02] Speaker 1: is unnecessary to deal with those problems. We conclude that
[7:06] Speaker 1: the judgment in this case must be reversed for the
[7:10] Speaker 1: following reasons. In Perez versus brownell, I express the principles
[7:16] Speaker 1: that I believe govern the constitutional status of United States citizenship.
[7:21] Speaker 1: It is my conviction that citizenship is not subject to
[7:25] Speaker 1: the general powers of the national government, and therefore cannot
[7:29] Speaker 1: be divested in the exercise of those powers. The right
[7:33] Speaker 1: may be voluntarily relinquished or abandoned, either by express language
[7:39] Speaker 1: or by language and conduct that show a renunciation of citizenship.
[7:44] Speaker 1: Under these principles, this petitioner has not lost his citizenship.
[7:50] Speaker 1: Desertion in wartime, though it may merit the ultimate penalty,
[7:54] Speaker 1: does not necessarily signify allegiance to a foreign state. Section
[8:00] Speaker 1: four oh one G is not limited to cases of
[8:03] Speaker 1: desertion to the enemy, and there is no such element
[8:07] Speaker 1: in this case. This soldier committed a crime for which
[8:11] Speaker 1: he should be and was punished, but he did not
[8:14] Speaker 1: involve himself in any way with a foreign state. There
[8:18] Speaker 1: was no dilution of his allegiance to this country. The
[8:22] Speaker 1: fact that the desertion occurred on foreign soil is of
[8:26] Speaker 1: no consequence. The Solicitor General acknowledged that forfeiture of citizenship
[8:32] Speaker 1: would have occurred if the entire incident had transpired in
[8:37] Speaker 1: this country. Citizenship is not a license that expires upon misbehavior.
[8:42] Speaker 1: The duties of citizenship are numerous, and the discharge of
[8:46] Speaker 1: many of these obligations is essential to the security and
[8:50] Speaker 1: well being of the nation. The citizen who fails to
[8:53] Speaker 1: pay his taxes or to abide by the laws safeguarding
[8:58] Speaker 1: the integrity of elections deals a dangerous blow to this country.
[9:03] Speaker 1: But could a citizen be deprived of his nationality for
[9:06] Speaker 1: evading these basic responsibilities of citizenship. In time of war,
[9:11] Speaker 1: the citizen's duties include not only the military defense of
[9:15] Speaker 1: the nation, but also a full participation in the manifold
[9:20] Speaker 1: activities of the civilian ranks. Failure to perform any of
[9:25] Speaker 1: these obligations may cause the nation serious injury, and in
[9:29] Speaker 1: appropriate circumstances, the punishing power is available to deal with
[9:34] Speaker 1: derelictions of duty. But citizenship is not lost every time
[9:39] Speaker 1: a duty of citizenship is shirked, and the deprivation of
[9:42] Speaker 1: citizenship is not a weapon that the government may use
[9:46] Speaker 1: to express its displeasure at a citizen's conduct. However reprehensible,
[9:51] Speaker 1: that conduct may be as long as a person does
[9:55] Speaker 1: not voluntarily renounce or abandon his citizenship, and the this
[10:00] Speaker 1: petitioner has done neither, I believe his fundamental right of
[10:04] Speaker 1: citizenship is secure. On this ground alone, the judgment in
[10:09] Speaker 1: this case should be reversed. Since a majority of the
[10:13] Speaker 1: Court concluded in Perez versus Brownell that citizenship may be
[10:17] Speaker 1: divested in the exercise of some governmental power, I deem
[10:22] Speaker 1: it appropriate to state, additionally, why the action taken in
[10:26] Speaker 1: this case exceeds constitutional limits even under the majority's decision
[10:31] Speaker 1: in Perez. The Court concluded in Perez that citizenship could
[10:36] Speaker 1: be divested in the exercise of the foreign affairs power.
[10:40] Speaker 1: In this case, it has urged that the war power
[10:43] Speaker 1: is adequate to support the divestment of citizenship. But there
[10:47] Speaker 1: is a vital difference between the two statutes that purport
[10:50] Speaker 1: to implement these powers by decreeing loss of citizenship. The
[10:55] Speaker 1: statute to in Perez decreed loss of citizenship, so the
[10:59] Speaker 1: majority concluded to eliminate those international problems that were thought
[11:04] Speaker 1: to arise by reason of a citizen's having voted in
[11:08] Speaker 1: a foreign election. The statute in this case, however, is
[11:11] Speaker 1: entirely different. Section four oh one G decrees loss of
[11:15] Speaker 1: citizenship for those found guilty of the crime of desertion.
[11:19] Speaker 1: It is essentially like section four oh one J of
[11:22] Speaker 1: the Nationality Act, decrering loss of citizenship for evading the
[11:26] Speaker 1: draft by remaining outside the United States. This provision was
[11:31] Speaker 1: also before the court in Perez, but the majority declined
[11:35] Speaker 1: to consider its validity. While section four oh one J
[11:38] Speaker 1: decrees loss of citizenship without providing any semblance of procedural
[11:43] Speaker 1: due process, whereby the guilt of the draft evader may
[11:47] Speaker 1: be determined before the sanction is imposed, section four oh
[11:51] Speaker 1: one G provision in this case accords the accused deserter
[11:55] Speaker 1: at least the safeguards of an adjudication of guilt by
[11:59] Speaker 1: a court martial. The constitutional question posed by section four
[12:03] Speaker 1: oh one G would appear to be whether or not
[12:06] Speaker 1: denationalization may be inflicted as a punishment, even assuming that
[12:10] Speaker 1: citizenship may be divested pursuant to some governmental power. But
[12:15] Speaker 1: the government contends that this statute does not impose a penalty,
[12:19] Speaker 1: and that constitutional limitations on the power of Congress to
[12:22] Speaker 1: punish are therefore inapplicable. We are told this is so
[12:26] Speaker 1: because a committee of Cabinet members, in recommending this legislation
[12:31] Speaker 1: to the Congress, said it technically is not a penal law.
[12:35] Speaker 1: How simple would be the tasks of constitutional adjudication and
[12:39] Speaker 1: of law generally if specific problems could be solved by
[12:43] Speaker 1: inspection of the labels pasted on them. Manifestly, the issue
[12:48] Speaker 1: of whether Section four o one G is a penal
[12:50] Speaker 1: law cannot be thus determined. Of course, it is relevant
[12:54] Speaker 1: to know the classification employed by the Cabinet committee that
[12:58] Speaker 1: played such an important role in the preparation of the
[13:01] Speaker 1: Nationality Act of nineteen forty. But it is equally relevant
[13:05] Speaker 1: to know that this very committee acknowledged that Section four
[13:08] Speaker 1: oh one G was based on the provisions of the
[13:11] Speaker 1: eighteen sixty five Civil War Statute, which the Committee itself
[13:16] Speaker 1: termed distinctly penal in character. Furthermore, the eighteen sixty five
[13:22] Speaker 1: Statute states in terms that deprivation of the rights of
[13:26] Speaker 1: citizenship is in addition to the other lawful penalties of
[13:31] Speaker 1: the crime of desertion. And certainly it is relevant to
[13:34] Speaker 1: know that the reason given by the Senate Committee on
[13:37] Speaker 1: Immigration as to why loss of nationality under section four
[13:41] Speaker 1: oh one G can follow desertion only after conviction by
[13:45] Speaker 1: court martial was because the penalty is so drastic. Doubtless,
[13:51] Speaker 1: even a clear legislative classification of a statute as non
[13:55] Speaker 1: penal would not alter the fundamental nature of a plainly
[13:59] Speaker 1: penal statute. With regard to Section four oh one G.
[14:03] Speaker 1: The fact is that the views of the Cabinet Committee
[14:07] Speaker 1: and of the Congress itself as to the nature of
[14:10] Speaker 1: the statute are equivocal and cannot possibly provide the answer
[14:15] Speaker 1: to our inquiry. Determination of whether this statute is a
[14:19] Speaker 1: penal law requires careful consideration. In form section four oh
[14:25] Speaker 1: one G appears to be a regulation of nationality. The
[14:29] Speaker 1: statute deals initially with the status of nationality and then
[14:33] Speaker 1: specifies the conduct that will result in loss of that status.
[14:38] Speaker 1: But surely form cannot provide the answer to this inquiry.
[14:43] Speaker 1: A statute providing that a person shall lose his liberty
[14:47] Speaker 1: by committing bank robbery, though in form a regulation of liberty,
[14:52] Speaker 1: would nonetheless be penal, Nor would its penal effect be
[14:56] Speaker 1: altered by labeling it a regulation of banks, or by
[15:01] Speaker 1: arguing that there is a rational connection between safeguarding banks
[15:06] Speaker 1: and imprisoning bank robbers. The inquiry must be directed to substance.
[15:11] Speaker 1: This Court has been called upon to decide whether or
[15:14] Speaker 1: not various statutes were penal. Ever since seventeen ninety eight.
[15:19] Speaker 1: Each time a statute has been challenged as being in
[15:22] Speaker 1: conflict with the constitutional prohibitions against bills of attainder and
[15:27] Speaker 1: ex post facto laws, it has been necessary to determine
[15:31] Speaker 1: whether a penal law was involved, because these provisions apply
[15:35] Speaker 1: only to statutes imposing penalties. In deciding whether or not
[15:40] Speaker 1: a law is penal, this Court has generally based its
[15:43] Speaker 1: determination upon the purpose of the statute. If the statute
[15:46] Speaker 1: imposes a disability for the purposes of punishment, that is,
[15:50] Speaker 1: to reprimand the wrongdoer to deter others, et cetera. It
[15:54] Speaker 1: has been considered penal, but a statute has been considered
[15:58] Speaker 1: non penal if it imposes a disability not to punish,
[16:04] Speaker 1: but to accomplish some other legitimate governmental purpose. The Court
[16:08] Speaker 1: has recognized that any statute decreeing some adversity as a
[16:12] Speaker 1: consequence of certain conduct may have both a penal and
[16:17] Speaker 1: a non penal effect. The controlling nature of such statutes
[16:21] Speaker 1: normally depends on the evident purpose of the legislature. The
[16:25] Speaker 1: point may be illustrated by the situation of an ordinary felon.
[16:29] Speaker 1: A person who commits a bank robbery, for instance, loses
[16:32] Speaker 1: his right to liberty and often his right to vote. If,
[16:36] Speaker 1: in the exercise of the power to protect banks, both
[16:40] Speaker 1: sanctions were imposed for the purpose of punishing bank robbers,
[16:44] Speaker 1: the statutes authorizing both disabilities would be penal, But because
[16:49] Speaker 1: the purpose of the latter statute is to designate a
[16:52] Speaker 1: reasonable ground of eligibility for voting, this law is sustained
[16:56] Speaker 1: as a non penal exercise of the power to reraction
[17:00] Speaker 1: regulate the franchise. The same reasoning applies to Section four
[17:04] Speaker 1: oh one g. The purpose of taking away citizenship from
[17:08] Speaker 1: a convicted deserter is simply to punish him. There is
[17:11] Speaker 1: no other legitimate purpose that the statute could serve. Denationalization
[17:15] Speaker 1: in this case is not even claimed to be a
[17:18] Speaker 1: means of solving international problems, as was argued in Perez. Here,
[17:23] Speaker 1: the purpose is punishment, and therefore the statute is a
[17:27] Speaker 1: penal law. It has urged that this statute is not
[17:30] Speaker 1: a penal law, but a regulatory provision authorized by the
[17:33] Speaker 1: war power. It cannot be denied that Congress has power
[17:36] Speaker 1: to prescribe rules governing the proper performance of military obligations,
[17:41] Speaker 1: of which perhaps the most significant is the performance of
[17:43] Speaker 1: one's duty when hazardous or important service is required. But
[17:48] Speaker 1: a statute that prescribes the consequence that will befall one
[17:52] Speaker 1: who fails to abide by these regulatory provisions is a
[17:55] Speaker 1: penal law. Plainly, legislation prescribing imprisonment for the c of
[18:00] Speaker 1: desertion is penal in nature. If loss of citizenship is
[18:04] Speaker 1: substituted for imprisonment, it cannot fairly be said that the
[18:08] Speaker 1: use of this particular sanction transforms the fundamental nature of
[18:13] Speaker 1: the statute. In fact, a dishonorable discharge with consequent loss
[18:17] Speaker 1: of citizenship might be the only punishment meted out by
[18:20] Speaker 1: a court martial. During World War II, the threat of
[18:24] Speaker 1: this punishment was explicitly communicated by the army to soldiers
[18:28] Speaker 1: in the field. If this statute taking away citizenship is
[18:33] Speaker 1: a congressional exercise of the war power, then it cannot
[18:36] Speaker 1: rationally be treated other than as a penal law, because
[18:40] Speaker 1: it imposes the sanction of denationalization for the purpose of
[18:45] Speaker 1: punishing transgression of a standard of conduct prescribed in the
[18:50] Speaker 1: exercise of that power. The Government argues that the sanction
[18:54] Speaker 1: of denationalization imposed by Section four oh one G is
[18:57] Speaker 1: not a penalty because deportation has not been so considered
[19:02] Speaker 1: by this Court. While deportation is undoubtedly a harsh sanction
[19:07] Speaker 1: that has a severe penal effect, this Court has in
[19:10] Speaker 1: the past sustained deportation as an exercise of the sovereign's
[19:14] Speaker 1: power to determine the conditions upon which an alien may
[19:17] Speaker 1: reside in this country. For example, the statute authorizing deportation
[19:22] Speaker 1: of an alien convicted under the nineteen seventeen Espionage Act
[19:27] Speaker 1: was viewed not as designed to punish him for the
[19:30] Speaker 1: crime of espionage, but as an implementation of the sovereign
[19:34] Speaker 1: power to exclude from which the deporting power is derived.
[19:39] Speaker 1: This view of deportation may be highly fictional, but even
[19:43] Speaker 1: if its validity is conceded, it is wholly inapplicable to
[19:47] Speaker 1: this case. No one contends that the government has, in
[19:51] Speaker 1: addition to the power to exclude all aliens, a sweeping
[19:55] Speaker 1: power to denationalize all citizens. Nor does compare denaturalization eliminate
[20:02] Speaker 1: the penal effect of denationalization. In this case, denaturalization is
[20:08] Speaker 1: not imposed to penalize the alien for having falsified his
[20:11] Speaker 1: application for citizenship. If it were, it would be a punishment. Rather,
[20:16] Speaker 1: it is imposed in the exercise of the power to
[20:18] Speaker 1: make rules for the naturalization of aliens. In short, the
[20:23] Speaker 1: fact that deportation and denaturalization for fraudulent procurement of citizenship
[20:30] Speaker 1: may be imposed for purposes other than punishment affords no
[20:34] Speaker 1: basis for saying that in this case denationalization is not
[20:39] Speaker 1: a punishment. Section four oh one g is a penal law,
[20:43] Speaker 1: and we must face the question whether the Constitution permits
[20:46] Speaker 1: the Congress to take away citizenship as a punishment for
[20:50] Speaker 1: a crime. If it is assumed that the power of
[20:53] Speaker 1: Congress extends to divestment of citizenship. The problem still remains
[20:59] Speaker 1: as to this status whether denationalization is a cruel and
[21:03] Speaker 1: unusual punishment within the meaning of the Eighth Amendment. Since
[21:07] Speaker 1: wartime desertion is punishable by death, there can be no
[21:11] Speaker 1: argument that the penalty of denationalization is excessive in relation
[21:16] Speaker 1: to the gravity of the crime. The question is whether
[21:19] Speaker 1: this penalty subjects the individual to a fate forbidden by
[21:23] Speaker 1: the principle of civilized treatment guaranteed by the Eighth Amendment.
[21:27] Speaker 1: At the outset, let us put to one side the
[21:30] Speaker 1: death penalty as an index of the constitutional limit on punishment.
[21:35] Speaker 1: Whatever the arguments may be against capital punishment, both on
[21:39] Speaker 1: moral grounds and in terms of accomplishing the purposes of punishment,
[21:44] Speaker 1: and they are forceful, the death penalty has been employed
[21:47] Speaker 1: throughout our history, and in a day when it is
[21:50] Speaker 1: still widely accepted, it cannot be said to violate the
[21:53] Speaker 1: constitutional concept of cruelty. But it is equally plain that
[21:57] Speaker 1: the existence of the death penalty is not a license
[22:01] Speaker 1: to the government to devise any punishment short of death
[22:04] Speaker 1: within the limit of its imagination. The exact scope of
[22:08] Speaker 1: the constitutional phrase cruel and unusual has not been detailed
[22:13] Speaker 1: by this Court, but the basic policy reflected in these
[22:16] Speaker 1: words is firmly established in the Anglo American tradition of
[22:20] Speaker 1: criminal justice. The phrase in our Constitution was taken directly
[22:25] Speaker 1: from the English Declaration of Rights of sixteen eighty eight,
[22:30] Speaker 1: and the principle it represents can be traced back to
[22:33] Speaker 1: the Magna Carta. The basic concept underlying the Eighth Amendment
[22:37] Speaker 1: is nothing less than the dignity of man. While the
[22:41] Speaker 1: state has the power to punish, the Amendment stands to
[22:44] Speaker 1: assure that this power be exercised within the limits of
[22:48] Speaker 1: civilized standards. Fines, imprisonment, and even execution may be imposed,
[22:55] Speaker 1: depending upon the enormity of the crime, but any technique
[22:59] Speaker 1: outsee side the bounds of these traditional penalties is constitutionally suspect.
[23:05] Speaker 1: This Court has had little occasion to give precise content
[23:09] Speaker 1: to the Eighth Amendment, and in an enlightened democracy such
[23:13] Speaker 1: as ours, this is not surprising. But when the Court
[23:17] Speaker 1: was confronted with the punishment for twelve years in irons
[23:21] Speaker 1: at hard and painful labor imposed for the crime of
[23:25] Speaker 1: falsifying public records, it did not hesitate to declare that
[23:29] Speaker 1: the penalty was cruel in its successiveness and unusual in
[23:34] Speaker 1: its character. The Court recognized in that case that the
[23:38] Speaker 1: words of the Amendment are not precise and that their
[23:41] Speaker 1: scope is not static. The Amendment must draw its meaning
[23:45] Speaker 1: from the evolving standards of decency that marked the progress
[23:49] Speaker 1: of a maturing society. We believe, as did Chief Judge
[23:54] Speaker 1: Clark in the court below, that use of denationalization as
[23:58] Speaker 1: a punishment is barred by the Eighth Amendment. There may
[24:02] Speaker 1: be involved no physical mistreatment, no primitive torture. There is
[24:07] Speaker 1: instead the total destruction of the individual status in organized society.
[24:12] Speaker 1: It is a form of punishment more primitive than torture,
[24:16] Speaker 1: for it destroys for the individual the political existence that
[24:20] Speaker 1: was centuries in the development. The punishment strips the citizen
[24:24] Speaker 1: of his status in the national and international political community.
[24:29] Speaker 1: His very existence is at the sufferance of the country
[24:33] Speaker 1: in which he happens to find himself. While any one
[24:37] Speaker 1: country may accord him some rights, and presumably as long
[24:40] Speaker 1: as he remained in this country, he would enjoy the
[24:43] Speaker 1: limited rights of an alien. No country need do so,
[24:48] Speaker 1: because he is stateless. Furthermore, his enjoyment of even the
[24:52] Speaker 1: limited rights of an alien might be subject to termination
[24:55] Speaker 1: at any time by reason of deportation. In short, the
[25:00] Speaker 1: expatriate has lost the right to have rights. This punishment
[25:04] Speaker 1: is offensive to cardinal principles for which the Constitution stands.
[25:09] Speaker 1: It subjects the individual to a fate of ever increasing
[25:12] Speaker 1: fear and distress. He knows not what discriminations may be
[25:16] Speaker 1: established against him, what proscriptions may be directed against him,
[25:21] Speaker 1: and when and for what cause his existence in his
[25:24] Speaker 1: native land may be terminated. He may be subject to banishment,
[25:28] Speaker 1: a fate universally decried by civilized people. He is stateless,
[25:33] Speaker 1: a condition deplored in the international community of democracies. It
[25:38] Speaker 1: is no answer to suggest that all the disastrous consequences
[25:42] Speaker 1: of this fate may not be brought to bear on
[25:45] Speaker 1: a stateless person. The threat makes the punishment obnoxious. The
[25:50] Speaker 1: civilized nations of the world are in virtual unanimity that
[25:55] Speaker 1: statelessness is not to be imposed as punishment for crime.
[26:00] Speaker 1: It is true that several countries prescribe expatriation in the
[26:04] Speaker 1: event that their nationals engage in conduct and derogation of
[26:09] Speaker 1: native allegiance. Even statutes of this sort are generally applicable
[26:14] Speaker 1: primarily to naturalized citizens, but use of denationalization as punishment
[26:20] Speaker 1: for crime is an entirely different matter. The United Nations
[26:24] Speaker 1: survey of the nationality laws of eighty four nations of
[26:28] Speaker 1: the world reveals that only two countries, the Philippines and Turkey,
[26:33] Speaker 1: impose denationalization as a penalty for desertion. In this country,
[26:38] Speaker 1: the Eighth Amendment forbids that to be done. In concluding,
[26:41] Speaker 1: as we do that the Eighth Amendment forbids Congress to
[26:44] Speaker 1: punish by taking away citizenship, we are mindful of the
[26:48] Speaker 1: gravity of the issue inevitably raised whenever the constitutionality of
[26:53] Speaker 1: an act of the national legislature is challenged. No member
[26:57] Speaker 1: of the Court believes that in this case the sad
[27:00] Speaker 1: statute before us can be construed to avoid the issue
[27:04] Speaker 1: of constitutionality. That issue confronts us, and the task of
[27:08] Speaker 1: resolving it is inescapably ours. This task requires the exercise
[27:13] Speaker 1: of judgment, not the reliance upon personal preferences. Courts must
[27:18] Speaker 1: not consider the wisdom of statutes, but neither can they
[27:22] Speaker 1: sanction as being merely unwise, that which the Constitution forbids.
[27:28] Speaker 1: We are both bound to defend the constitution. The obligation
[27:32] Speaker 1: requires that Congressional enactments be judged by the standards of
[27:36] Speaker 1: the Constitution. The judiciary has the duty of implementing the
[27:40] Speaker 1: constitutional safeguards that protect individual rights. When the government acts
[27:46] Speaker 1: to take away the fundamental right of citizenship. The safeguards
[27:50] Speaker 1: of the Constitution should be examined with special diligence. The
[27:55] Speaker 1: provisions of the Constitution are not time worn adages or
[28:00] Speaker 1: hollow shibliths. They are vital, living principles that authorize and
[28:05] Speaker 1: limit governmental powers in our nation. They are the rules
[28:08] Speaker 1: of government. When the constitutionality of an Act of Congress
[28:13] Speaker 1: is challenged in this court, we must apply those rules.
[28:17] Speaker 1: If we do not, the words of the Constitution become
[28:20] Speaker 1: little more than good advice. When it appears that an
[28:24] Speaker 1: Act of Congress conflicts with one of those provisions, we
[28:28] Speaker 1: have no choice but to enforce the paramount commands of
[28:32] Speaker 1: the Constitution. We are sworn to do no less. We
[28:36] Speaker 1: cannot push back the limits of the Constitution merely to
[28:40] Speaker 1: accommodate challenged legislation. We must apply those limits as the
[28:45] Speaker 1: Constitution prescribes them. Bearing in mind both the broad scope
[28:50] Speaker 1: of legislative discretion and the ultimate responsibility of constitutional adjudication,
[28:57] Speaker 1: we do well to approach this task cautiously, as all
[29:01] Speaker 1: our predecessors have counseled, but the ordeal of judgment cannot
[29:06] Speaker 1: be shirked. In some eighty one instances since this Court
[29:10] Speaker 1: was established, it has determined that congressional action exceeded the
[29:15] Speaker 1: bounds of the Constitution. It is so in this case.
[29:20] Speaker 1: The judgment of the Court of Appeals for the Second
[29:22] Speaker 1: Circuit is reversed, and the cause is remanded to the
[29:27] Speaker 1: district Court for appropriate proceedings. Reversed and remanded end of
[29:34] Speaker 1: trop versus Dulles, an opinion of the United States Supreme
[29:39] Speaker 1: Court

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