Both District and Second Circuit Court of Appeals rejected Trop's claim
Holding
At least as applied in this case to a native-born citizen of the United States who did not voluntarily relinquish or abandon his citizenship or become involved in any way with a foreign nation, § 401(g) of the Nationality Act of 1940, as amended, which provides that a citizen "shall lose his nationality" by deserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as a result of such conviction is dismissed or dishonorably discharged from the service, is unconstitutional.
The Supreme Court reversed. The decision, written by Chief JusticeEarl Warren, cited Perez v. Brownell. In Perez the Court had held that citizenship could be divested in the exercise of the foreign affairs power. However, "denationalization as a punishment is barred by the Eighth Amendment," describing it as "a form of punishment more primitive than torture" as it inflicts the "total destruction of the individual's status in organized society." Further, the Court declared that the Eighth Amendment's meaning of cruel and unusual must change over time and "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society".
Noting that "the civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime”, the Court says that some countries allow expatriation of naturalized citizens who "engage in conduct in derogation of native allegiance".
Dissenting, Justice Felix Frankfurter noted that desertion from the military can be punished by the death penalty, leading him to ask, "Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?". Frankfurter notes a case was decided that very day upholding loss of citizenship as a consequence of marrying a foreigner. He say it is "incongruous" for loss of citizenship to be "cruel and unusual" only when imposed as a consequence for criminal conduct.
Notelist
^A 1944 amendment modified the Act such that a deserter would lose his citizenship only if, on these grounds, he had been dishonorably discharged or dismissed from the military.