Trop v. Dulles (1958)

For an Indian administrative-law student, Trop v Dulles matters mainly for its dissent. Justice Frankfurter's opinion contains a famous warning about the courts' own power: "Judicial power is not immune against this human weakness." The Supreme Court of India quoted it in Asif Hameed v State of J&K (1989), in explaining that the only check on the judiciary's power is its own self-restraint. That is why the case appears in Unit 1, where you study separation of powers and the limits of judicial review.

The case is also a good illustration of the two sides of the debate on judicial review:

• the plurality (Warren CJ): courts cannot sanction what the Constitution forbids, and must not shirk "the ordeal of judgment";
• the dissent (Frankfurter J): courts must keep to the difference between the limits of power and the wisdom of its exercise, and use the power to strike down statutes with "the utmost restraint".

In 1944 Trop, a native-born American, was a private in the US Army in French Morocco. He escaped from a stockade at Casablanca where he was confined for an earlier breach of discipline. The next day he boarded an Army truck willingly and was handed over to military police. "He had been gone less than a day". A general court-martial convicted him of desertion and sentenced him to three years' hard labour, forfeiture of pay and a dishonourable discharge.

In 1952 he applied for a passport. It was refused on the ground that under § 401(g) of the Nationality Act 1940, as amended, he had lost his citizenship because of his conviction and dishonourable discharge for wartime desertion. He sued for a declaration that he was a citizen. The District Court gave summary judgment for the Government and the Court of Appeals for the Second Circuit affirmed, Chief Judge Clark dissenting.

1. Can Congress take away the citizenship of a native-born citizen who has not voluntarily given it up?
2. Is § 401(g) a penal law, and if so, is loss of citizenship a "cruel and unusual" punishment forbidden by the Eighth Amendment?
3. (Dissent) How far should the Court go in striking down an Act of Congress?

The judgment of the Court of Appeals was reversed and the case sent back to the District Court. At least as applied to this petitioner, § 401(g) was unconstitutional.

Warren CJ (plurality): citizenship cannot be taken away as a punishment

First ground. In Warren CJ's view, "citizenship is not subject to the general powers of the National Government, and therefore cannot be divested in the exercise of those powers." It may be given up voluntarily, but Trop had not done so: he committed a crime but "did not involve himself in any way with a foreign state." In a well-known line: "Citizenship is not a license that expires upon misbehavior."

Second ground. Even if citizenship could be taken away under some power, § 401(g) was a penal law. The label does not decide this: "How simple would be the tasks of constitutional adjudication and of law generally if specific problems could be solved by inspection of the labels pasted on them!" The test is the statute's purpose, and "The purpose of taking away citizenship from a convicted deserter is simply to punish him."

As a punishment, denationalisation was cruel and unusual. "The basic concept underlying the Eighth Amendment is nothing less than the dignity of man." The words of the Amendment are not fixed: "The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Loss of citizenship involved "the total destruction of the individual's status in organized society"; "In short, the expatriate has lost the right to have rights."

The plurality also noted a concern about power: as amended, § 401(g) "now gives the military authorities complete discretion to decide who among convicted deserters shall continue to be Americans and who shall be stateless."

Warren CJ on the duty of judicial review

The plurality was conscious of the gravity of striking down an Act of Congress. But "This task requires the exercise of judgment, not the reliance upon personal preferences. Courts must not consider the wisdom of statutes, but neither can they sanction as being merely unwise that which the Constitution forbids." And: "We do well to approach this task cautiously, as all our predecessors have counseled. But the ordeal of judgment cannot be shirked."

Frankfurter J (dissent): the only restraint on judges is self-restraint

The dissent would have upheld § 401(g). It began with the proper approach to judicial review of legislation. Quoting Madison that all power is "of an encroaching nature", Frankfurter J wrote: "Judicial power is not immune against this human weakness. 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."

He stressed the difference between the limits of power and the wisdom of its exercise: "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. But it is not the business of this Court to pronounce policy." The Court "must observe a fastidious regard for limitations on its own power", and "That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do."

On the merits, the dissent held that the disability was not shown to be a punishment, and that even if it were, calling it cruel and unusual was "to stretch that concept beyond the breaking point", since desertion in wartime was a capital offence. The dissent ended by saying the power to invalidate legislation "must be exercised with the utmost restraint", and must not be used as if "it stood as the sole bulwark against unwisdom or excesses of the moment."

The plurality holding: § 401(g), which took away the citizenship of a native-born citizen convicted of wartime desertion, was a penal law. Denationalisation as a punishment is barred by the Eighth Amendment, which draws its meaning from "the evolving standards of decency that mark the progress of a maturing society." The plurality also held that citizenship cannot be taken away in the exercise of the general powers of government unless it is voluntarily given up.

Note: only four Justices joined the plurality opinion. Justice Brennan wrote separately; the syllabus records his conclusion that § 401(g) "lies beyond the power of Congress to enact".

• Separation of powers / judicial restraint: Is judicial review subject to any limits? Discuss the doctrine of judicial self-restraint. Quote Frankfurter J: "Judicial power is not immune against this human weakness", and "the only restraint upon it is self-restraint". Link it to Asif Hameed v State of J&K (1989), where the Supreme Court of India quoted this dissent.
• Balance your answer: set Frankfurter J's warning against Warren CJ's reply that courts "must not consider the wisdom of statutes, but neither can they sanction as being merely unwise that which the Constitution forbids." A good answer shows that restraint does not mean giving up the duty of review.
• Wisdom v legality: use the dissent's distinction between "questions of authority and questions of prudence" to explain why courts review the legality of action, not its merits.
• Always say that this is a US Supreme Court decision, and that the passage Indian courts rely on comes from a dissent.