Kent v. Dulles
Encyclopedia
Kent v. Dulles
357 U.S. 116 (1958) is a landmark case on the right to travel and passport restrictions as they relate to First Amendment
free speech rights. It is the first case in which the US Supreme Court makes a distinction between the constitutionally protected substantive due process
freedom of movement
and the right to travel abroad (subsequently characterized as "right to international travel," see also Califano v. Aznavorian
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=439&invol=170 relative to area restrictions/foreign policy, e.g., travel to Cuba and Haig v. Agee
relative to personal restrictions/national security.)
wanted to travel to England
and attend a meeting of the "World Council of Peace" in Helsinki
, Finland
. His passport
was denied because he was a Communist
, and had "a consistent and prolonged adherence to the Communist Party
line." Thereupon, Kent sued in the District Court for declaratory relief
. The District Court granted summary judgment
against him.
On appeal, Kent's case had remained unknown and unsolved as a result of his psychiatrist. When Briehl applied for a passport, the Director of the Passport Office asked him to supply an affidavit
covering membership in the Communist Party. Briehl, like Kent, refused. His application for a passport was tentatively disapproved. Briehl filed his complaint in the District Court, which held that his case was indistinguishable from Kent's and dismissed the complaint.
The Court of Appeals heard the two cases en banc, and affirmed the District Court by a divided vote. 101 U.S.App.D.C. 278, 239, 248 F.2d 600, 561.
. It did not decide the extent to which this liberty right can be curtailed. The Court was first concerned with the extent, if any, to which Congress had authorized its curtailment by the Secretary of State. The Court found that the Secretary of State exceeded its authority by refusing to issue passports to Communists.
It did not rule on the constitutionality
of the law because the only law which Congress had passed expressly curtailing the movement of Communists across US borders had not yet become effective. Six years later the Court ruled on constitutionality in Aptheker v. Secretary of State
http://openjurist.org/378/us/500, finding the law unconstitutional for First Amendment concerns, leaving unsettled the extent to which this liberty right to travel can be curtailed.
The Court then surveyed Anglo-Saxon law under the Magna Carta
, citing Article 42 in support of the right to travel as a "liberty" right. It went on to reference Chafee in Three Human Rights in the Constitution of 1787. It is here the Court begins to use the phrase "freedom of movement" as when it states "Freedom of movement is basic in our scheme of values," citing Crandall v. Nevada
, 6 Wall. 35, 44; Williams v. Fears, 179 U.S. 270, 274; Edwards v. California
, 314 U.S. 160 and Vestal, Freedom of Movement, 41 Iowa L.Rev. 6, 13-14, although notably all the cases it cited involved interstate travel. The Court concluded that although "Freedom to travel is, indeed, an important aspect of the citizen's "liberty" it need not decide the extent to which it can be curtailed because it was first concerned with the extent, if any, to which Congress had authorized its curtailment.
It reviewed prior administrative practice, noting that the power of the Secretary of State over the issuance of passports is expressed in broad terms, but long exercised quite narrowly. Historically, the cases of refusal of passports generally fell into two categories. First was the question pertinent to the citizenship of the applicant and his allegiance to the United States. Second was the question whether the applicant was participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United States. It considered wartime measures, citing Korematsu v. United States
, 323 U.S. 214, for the proposition that the government could exclude citizens from their homes and restrict their freedom of movement only on a showing of "the gravest imminent danger to the public safety." It found that although there were scattered rulings of the State Department concerning Communists, they were not consistently of one pattern.
The Court concluded that although the issuance of a passport carries some implication of intention to extend the bearer diplomatic protection, its crucial function is control over exit and that the right of exit is a personal right included within the word "liberty" as used in the Fifth Amendment. It found that when that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests, citing Panama Refining Co. v. Ryan
, 293 U.S.
388, 420-430. Cf. Cantwell v. Connecticut
, 310 U.S. 296, 307; and Niemotko v. Maryland
,
340 U.S. 268, 271 and that where activities or enjoyment natural and often necessary to the wellbeing of an American citizen, such as travel, are involved, the Court will construe narrowly all delegated powers that curtail or dilute them. Consequently it found that § 1185 and § 211a did not delegate to the Secretary the kind of authority exercised in this case.
with Justices Burton, Harlan and Whitaker concurring. The minority argued that historically Congress meant the Secretary to deny passports to those whose travel abroad would be contrary to our national security both in wartime and during peace, pointing out that passport restrictions on Communists were first implemented shortly after the 1917 Russian Revolution and continued on and off until 1952.
It felt an even more serious error of the majority was its determination that the Secretary's wartime use of his discretion was wholly irrelevant in determining what discretionary practices were approved by Congress in enactment of § 215. It was not a case of judging what may be done in peace by what has been done in war. Were it a time of peace, there might very well have been no problem for the Court to decide, since petitioners then would not need a passport to leave the country. The wartime practice may be the only relevant one, for the discretion with which the Court was concerned was discretionary control over international travel. Only in times of war and national emergency has a passport been required to leave or enter the country, and hence only in such times has passport power necessarily meant power to control travel.
It faulted the majority's assertion that the passport denials here were beyond the pale of congressional authorization because they do not involve grounds either of allegiance or criminal activity. It argued that neither of the of the propositions set out by the majority - (1) that the Secretary's denial of passports in peacetime extended to only two categories of cases, those involving allegiance and those involving criminal activity, and (2) that the Secretary's wartime exercise of his discretion, while admittedly more restrictive, had no relevance to the practice which Congress could have been said to have approved in 1952 - had any validity: the first was contrary to fact, and the second to common sense.
On this multiple basis, then, Judge Clark was constrained to disagree with the majority as to the authority of the Secretary to deny petitioners' applications for passports and would affirm on the issue of the Secretary's authority to require the affidavits involved in this case. He did not reach any constitutional questions, delegating to the majority's resolution of the authority question, the inability to rule on the constitutional issues raised by petitioners relating to claimed unlawful delegation of legislative power, violation of free speech and association under the First Amendment, and violation of international travel under the Fifth Amendment.
John Foster Dulles
John Foster Dulles served as U.S. Secretary of State under President Dwight D. Eisenhower from 1953 to 1959. He was a significant figure in the early Cold War era, advocating an aggressive stance against communism throughout the world...
357 U.S. 116 (1958) is a landmark case on the right to travel and passport restrictions as they relate to First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
free speech rights. It is the first case in which the US Supreme Court makes a distinction between the constitutionally protected substantive due process
Substantive due process
Substantive due process is one of the theories of law through which courts enforce limits on legislative and executive powers and authority...
freedom of movement
Freedom of movement
Freedom of movement, mobility rights or the right to travel is a human right concept that the constitutions of numerous states respect...
and the right to travel abroad (subsequently characterized as "right to international travel," see also Califano v. Aznavorian
Califano v. Aznavorian
Califano v. Aznavorian, 439 U.S. 170 , is a US Supreme Court case involving denial of Social Security Benefits to recipients while they are abroad and the Fifth Amendment due process right to international travel.-Opinion of the Court:...
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=439&invol=170 relative to area restrictions/foreign policy, e.g., travel to Cuba and Haig v. Agee
Haig v. Agee
Haig v. Agee, 453 U.S. 280 , is a U.S. Supreme Court case involving Congressional delegation of authority over control of passports and the right to international travel. Philip Agee was an ex-Central Intelligence Agency agent living in West Germany who in 1974 declared a "campaign to fight the U.S...
relative to personal restrictions/national security.)
Background
Rockwell KentRockwell Kent
Rockwell Kent was an American painter, printmaker, illustrator, and writer.- Biography :Rockwell Kent was born in Tarrytown, New York, the same year as fellow American artists George Bellows and Edward Hopper...
wanted to travel to England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
and attend a meeting of the "World Council of Peace" in Helsinki
Helsinki
Helsinki is the capital and largest city in Finland. It is in the region of Uusimaa, located in southern Finland, on the shore of the Gulf of Finland, an arm of the Baltic Sea. The population of the city of Helsinki is , making it by far the most populous municipality in Finland. Helsinki is...
, Finland
Finland
Finland , officially the Republic of Finland, is a Nordic country situated in the Fennoscandian region of Northern Europe. It is bordered by Sweden in the west, Norway in the north and Russia in the east, while Estonia lies to its south across the Gulf of Finland.Around 5.4 million people reside...
. His passport
Passport
A passport is a document, issued by a national government, which certifies, for the purpose of international travel, the identity and nationality of its holder. The elements of identity are name, date of birth, sex, and place of birth....
was denied because he was a Communist
Communism
Communism is a social, political and economic ideology that aims at the establishment of a classless, moneyless, revolutionary and stateless socialist society structured upon common ownership of the means of production...
, and had "a consistent and prolonged adherence to the Communist Party
Communist party
A political party described as a Communist party includes those that advocate the application of the social principles of communism through a communist form of government...
line." Thereupon, Kent sued in the District Court for declaratory relief
Declaratory relief
Declaratory relief is a judge's determination of the parties' rights under a contract or a statute, often requested in a lawsuit over a contract. In theory, an early resolution of legal rights will resolve some or all of the other issues in the matter....
. The District Court granted summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
against him.
On appeal, Kent's case had remained unknown and unsolved as a result of his psychiatrist. When Briehl applied for a passport, the Director of the Passport Office asked him to supply an affidavit
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
covering membership in the Communist Party. Briehl, like Kent, refused. His application for a passport was tentatively disapproved. Briehl filed his complaint in the District Court, which held that his case was indistinguishable from Kent's and dismissed the complaint.
The Court of Appeals heard the two cases en banc, and affirmed the District Court by a divided vote. 101 U.S.App.D.C. 278, 239, 248 F.2d 600, 561.
Decision of the Supreme Court
The cases were heard on writ of certiorari. 355 U.S. 881. The Court reversed on a split decision. Kent v Dulles is the first case in which the US Supreme Court ruled that the right to travel is a part of the "liberty" of which the citizen cannot be deprived without due process of law under the Fifth AmendmentFifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
. It did not decide the extent to which this liberty right can be curtailed. The Court was first concerned with the extent, if any, to which Congress had authorized its curtailment by the Secretary of State. The Court found that the Secretary of State exceeded its authority by refusing to issue passports to Communists.
It did not rule on the constitutionality
Constitutionality
Constitutionality is the condition of acting in accordance with an applicable constitution. Acts that are not in accordance with the rules laid down in the constitution are deemed to be ultra vires.-See also:*ultra vires*Company law*Constitutional law...
of the law because the only law which Congress had passed expressly curtailing the movement of Communists across US borders had not yet become effective. Six years later the Court ruled on constitutionality in Aptheker v. Secretary of State
Aptheker v. Secretary of State
Aptheker v. Secretary of State 378 U.S. 500 is a landmark case on the right to travel and passport restrictions as they relate to Fifth Amendment due process rights and First Amendment free speech, freedom of assembly and freedom of association rights...
http://openjurist.org/378/us/500, finding the law unconstitutional for First Amendment concerns, leaving unsettled the extent to which this liberty right to travel can be curtailed.
Majority Opinion
In a majority opinion written by Justice Douglas, the Court spent a great deal of its energy reviewing the history of the US passport and the regulation thereof, noting that the passport is "a document which, from its nature and object, is addressed to foreign powers; purporting only to be a request that the bearer of it may pass safely and freely, and is to be considered rather in the character of a political document by which the bearer is recognized in foreign countries as an American citizen" citing Urtetiqui v. D'Arbel, 9 Pet. 692, 699 (1835) and that except in wartime "for most of our history, a passport was not a condition to entry or exit" concluding that the issuance of passports is "a discretionary act" on the part of the Secretary of State.The Court then surveyed Anglo-Saxon law under the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
, citing Article 42 in support of the right to travel as a "liberty" right. It went on to reference Chafee in Three Human Rights in the Constitution of 1787. It is here the Court begins to use the phrase "freedom of movement" as when it states "Freedom of movement is basic in our scheme of values," citing Crandall v. Nevada
Crandall v. Nevada
Crandall v. Nevada, 73 U.S. 35 was a U.S. Supreme Court case which established that a state cannot inhibit a person from leaving the state by taxing them. The opinion of the Court was written by Justice Miller. Chief Justice Chase and Justice Clifford concurred."But if the government has these...
, 6 Wall. 35, 44; Williams v. Fears, 179 U.S. 270, 274; Edwards v. California
Edwards v. California
Edwards v. People of State of California, was a United States Supreme Court case where a California law prohibiting the bringing of a non-resident "indigent person" into the state was struck down as unconstitutional....
, 314 U.S. 160 and Vestal, Freedom of Movement, 41 Iowa L.Rev. 6, 13-14, although notably all the cases it cited involved interstate travel. The Court concluded that although "Freedom to travel is, indeed, an important aspect of the citizen's "liberty" it need not decide the extent to which it can be curtailed because it was first concerned with the extent, if any, to which Congress had authorized its curtailment.
It reviewed prior administrative practice, noting that the power of the Secretary of State over the issuance of passports is expressed in broad terms, but long exercised quite narrowly. Historically, the cases of refusal of passports generally fell into two categories. First was the question pertinent to the citizenship of the applicant and his allegiance to the United States. Second was the question whether the applicant was participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United States. It considered wartime measures, citing Korematsu v. United States
Korematsu v. United States
Korematsu v. United States, 323 U.S. 214 , was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War II....
, 323 U.S. 214, for the proposition that the government could exclude citizens from their homes and restrict their freedom of movement only on a showing of "the gravest imminent danger to the public safety." It found that although there were scattered rulings of the State Department concerning Communists, they were not consistently of one pattern.
The Court concluded that although the issuance of a passport carries some implication of intention to extend the bearer diplomatic protection, its crucial function is control over exit and that the right of exit is a personal right included within the word "liberty" as used in the Fifth Amendment. It found that when that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests, citing Panama Refining Co. v. Ryan
Panama Refining Co. v. Ryan
Panama Refining Co. v. Ryan, 293 U.S. 388 , also known as the Hot Oil case, was a case in which the United States Supreme Court ruled unconstitutional the Roosevelt Administration's prohibition of interstate and foreign trade in petroleum goods produced in excess of state quotas—the "hot oil"...
, 293 U.S.
388, 420-430. Cf. Cantwell v. Connecticut
Cantwell v. Connecticut
Cantwell v. Connecticut, 310 U.S. 296 , was a United States Supreme Court decision that incorporated the First Amendment's protection of religious free exercise.-Background:...
, 310 U.S. 296, 307; and Niemotko v. Maryland
Niemotko v. Maryland
Niemotko v. Maryland, 340 U.S. 268 , was a case in which the Supreme Court of the United States held that the city of Havre de Grace, Maryland had violated the free exercise of Niemotko's religion by not issuing a permit for him and his religious group to meet in a public park when other religious...
,
340 U.S. 268, 271 and that where activities or enjoyment natural and often necessary to the wellbeing of an American citizen, such as travel, are involved, the Court will construe narrowly all delegated powers that curtail or dilute them. Consequently it found that § 1185 and § 211a did not delegate to the Secretary the kind of authority exercised in this case.
Dissent
The minority opinion was written by Justice ClarkTom C. Clark
Thomas Campbell Clark was United States Attorney General from 1945 to 1949 and an Associate Justice of the Supreme Court of the United States .- Early life and career :...
with Justices Burton, Harlan and Whitaker concurring. The minority argued that historically Congress meant the Secretary to deny passports to those whose travel abroad would be contrary to our national security both in wartime and during peace, pointing out that passport restrictions on Communists were first implemented shortly after the 1917 Russian Revolution and continued on and off until 1952.
It felt an even more serious error of the majority was its determination that the Secretary's wartime use of his discretion was wholly irrelevant in determining what discretionary practices were approved by Congress in enactment of § 215. It was not a case of judging what may be done in peace by what has been done in war. Were it a time of peace, there might very well have been no problem for the Court to decide, since petitioners then would not need a passport to leave the country. The wartime practice may be the only relevant one, for the discretion with which the Court was concerned was discretionary control over international travel. Only in times of war and national emergency has a passport been required to leave or enter the country, and hence only in such times has passport power necessarily meant power to control travel.
It faulted the majority's assertion that the passport denials here were beyond the pale of congressional authorization because they do not involve grounds either of allegiance or criminal activity. It argued that neither of the of the propositions set out by the majority - (1) that the Secretary's denial of passports in peacetime extended to only two categories of cases, those involving allegiance and those involving criminal activity, and (2) that the Secretary's wartime exercise of his discretion, while admittedly more restrictive, had no relevance to the practice which Congress could have been said to have approved in 1952 - had any validity: the first was contrary to fact, and the second to common sense.
On this multiple basis, then, Judge Clark was constrained to disagree with the majority as to the authority of the Secretary to deny petitioners' applications for passports and would affirm on the issue of the Secretary's authority to require the affidavits involved in this case. He did not reach any constitutional questions, delegating to the majority's resolution of the authority question, the inability to rule on the constitutional issues raised by petitioners relating to claimed unlawful delegation of legislative power, violation of free speech and association under the First Amendment, and violation of international travel under the Fifth Amendment.