The Expatriation Decisions: A Study in Constitutional Improvisation and the Uses of History

On February 18, 1963, in the cases of Francisco Mendoza-Martinez and Joseph Henry Cort, the Supreme Court struck down as unconstitutional a provision of the nationality code which said that “departing from or remaining outside of the jurisdiction of the United States” during wartime or a period of national emergency “for the purpose of evading or avoiding training and service in the land or naval forces of the United States” created in effect an irrebuttable presumption of a voluntary decision to expatriate, i.e., to extinguish one's American nationality. The reader who winces at this convoluted formulation should brace himself: worse is yet to come. Indeed, it would be hard to discover an area of American public law in which the premises and logic of action have been so absurdly attenuated, or in which the historical record has been so flagrantly distorted. (Unless it is in the similar area of denaturalization, which is excluded from discussion here.)