William J. Brennan

“ 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. Clearly the severity of the penalty, in the case of a serious offense, is not enough to invalidate it where the nature of the penalty is rationally directed to achieve the legitimate ends of punishment.
The novelty of expatriation as punishment does not alone demonstrate its inefficiency. ”

“ If a foreign government objects, our answer should be conclusive — the voter is no longer one of ours. Harsh as the consequences may be to the individual concerned, Congress has ordained the loss of citizenship simultaneously with the act of voting because Congress might reasonably believe that, in these circumstances, there is no acceptable alternative to expatriation as a means of avoiding possible embarrassments to our relations with foreign nations. ”

“ It is difficult, indeed, to see how expatriation of the deserter helps wage war except as it performs that function when imposed as punishment. It is obvious that expatriation cannot in any wise avoid the harm apprehended by Congress. After the act of desertion, only [p110] punishment can follow, for the harm has been done. The deserter, moreover, does not cease to be an American citizen at the moment he deserts. Indeed, even conviction does not necessarily effect his expatriation, for dishonorable discharge is the condition precedent to loss of citizenship. ”

“ There can be no serious question that included in Congress' power to maintain armies is the power to deal with the problem of desertion, an act plainly destructive not only of the military establishment as such, but, more importantly, of the Nation's ability to wage war effectively. ”

“ Such penal methods seek to achieve the end, at once more humane and effective, that society should make every effort to rehabilitate the offender and restore him as a useful member of that society as society's own best protection. Of course, rehabilitation is but one of the several purposes of the penal law. Among other purposes are deterrents of the wrongful act by the threat of punishment and insulation of society from dangerous individuals by imprisonment or execution. ”

“ But, although it imposed expatriation entirely as an added punishment for crime, the 1865 Act did not expressly make conviction by court-martial a prerequisite to that punishment, as was the case with the conventional penalties. ”

“ In Perez v. Brownell, ante p. 44, also decided today, I agreed with the Court that there was no constitutional infirmity in § 401 (e) , which expatriates the citizen who votes in a foreign political election. ”