Perez v. Brownell/Dissent Whittaker

by Charles Evans Whittaker

Memorandum of Mr. Justice WHITTAKER.

Though I agree with the major premise of the majority's opinion-that Congress may expatriate a citizen for an act which it may reasonably find to be fraught with danger of embroiling our Government in an international dispute or of embarrassing it in the conduct of foreign affairs-I cannot agree with the result reached, for it seems plain to me that § 401(e) is too broadly written to be sustained upon that ground. That section, so far as here pertinent, expatriates an American citizen simply for 'voting in a political election in a foreign state.' Voting in a political election in a particular foreign state may be open to aliens under the law of that state, as it was in presidential elections in the United States until 1928 as the dissenting opinion of The Chief Justice observes. Where that is so-and this record fails to show that petitioner's act of voting in a political election in Mexico in 1946 was not entirely lawful under the law of that state such legalized voting by an American citizen cannot reasonably be said to be fraught with danger of embroiling our Government in an international dispute or of embarrassing it in the conduct of foreign affairs, nor, I believe, can such an act-entirely legal under the law of the foreign state-be reasonably said to constitute an abandonment or any division or dilution of allegiance to the United States. Since these are my convictions, I dissent from the majority's opinion and join in so much of the dissenting opinion of The Chief Justice as expresses the view that the act of a citizen of the United States in voting in a foreign political election which is legally open to aliens under the law of that state cannot reasonably be said to constitute abandonment or any division or dilution of allegiance to the United States.

This leaves open the question presented respecting the constitutionality of § 401(j), but inasmuch as the majority have found it unnecessary to adjudicate the constitutionality of that section in this case, it would be wholly fruitless for me now to reach a conclusion on that question, and I neither express nor imply any views upon it. Limiting myself to the issue decided by the majority, I dissent.