Potter Stewart

“ The legislation now before us, on the other hand, is by its terms completely inapplicable to those guilty of draft evasion who have remained in the United States; it is exclusively aimed at those, whether or not ever criminally convicted, who have gone to or remained in another land to escape the duty of military service. Moreover, the conduct which the legislation reaches could never be equivocal in nature, but is always and clearly a 'refusal to perform this ultimate duty of American citizenship.' Trop v. ”

“ While such persons are liable to prosecution for violation of the Selective Service and Training Act of 1940, if and when they return to this country, it would seem proper that in addition they should lose their United States citizenship. Persons who are unwilling to perform their duty to their country and abandon it during its time of need are much less worthy of citizenship than are persons who become expatriated on any of the existing grounds. ”

“ As with any other exercise of congressional power, a law which imposes deprivation of citizenship, to be constitutionally valid, must bear a rational relationship to an affirmative power possessed by Congress under the Constitution. The appellants submit that in enacting this legislation, Congress could rationally have been drawing on any one of three sources of recognized constitutional power: the implied power to enact legislation for the effective conduct of foreign affairs; the express power to wage war, to raise armies, and to provide for the common defense ”

“ The question of whether or not a statute is punitive ultimately depends upon whether the disability it imposes is for the purpose of vengeance or deterrence, or whether the disability is but an incident to some broader regulatory objective. ”

“ To draw from the violation of a single such provision a presumption of expatriation, with its solemn consequences, is, I think, to engaged in irrationality so gross as to be constitutionally impermissible. [16]
It is clear from the record in this case that Court's sole purpose in leaving the United States in 1951 was to accept a position as a Research Fellow at the University of Cambridge, England. The record also makes clear that in 1946 Cort was called up under the Selective Service law, physically examined, and classified as 4F because of physical disability. ”

“ Machinery is provided whereby a person who is denied any right or privilege of citizenship on the ground that he has become expatriated may secure a judicial determination of his status; and if he is outside of the United States he is entitled to a certificate of identity which permits him to enter and remain in the United States until his status has been determined by the courts (Nationality Act of 1940, sec. 503; U.S.C., title 8, sec. 903) . ”

“ There is one more point to be made as to the substantive provisions of the legislation before us in these cases. Previous decisions have suggested that congressional exercise of the power to expatriate may be subject to a further constitutional restriction-a limitation upon the kind of activity which may be made the basis of denationalization. Withdrawal of citizenship is a drastic measure. Moreover, the power to expatriate endows government with authority to define and to limit the society which it represents and to which it is responsible. ”

“ In commenting on the nature of this kind of inquiry, the Court said in Flemming v. Nestor, 'We observe initially that only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground. Judicial inquiries into Congressional motives are at best a hazardous matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed. ”

“ Expatriation of those who leave or remain away from the United States with draft evasion as their purpose, the appellants say, might reasonably be attributed to a congressional belief that this was the only practical way to nip these potential international problems in the bud. ”

“ It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war.' See Lichter v. ”