Kent v. Dulles
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''Kent v. Dulles'', 357 U.S. 116 (1958), was a
landmark decision Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly u ...
of the
US Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point of ...
on the right to travel and passport restrictions as they relate to
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and rec ...
free speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The rights, right to freedom of expression has been ...
rights. It was the first case in which the U.S. Supreme Court made a distinction between the constitutionally protected
substantive due process Substantive due process is a principle in United States constitutional law that allows courts to establish and protect certain fundamental rights from government interference, even if only procedural protections are present or the rights are unen ...
''
freedom of movement Freedom of movement, mobility rights, or the right to travel is a human rights concept encompassing the right of individuals to travel from place to place within the territory of a country,Jérémiee Gilbert, ''Nomadic Peoples and Human Rights' ...
'' and the ''right to travel abroad'' (subsequently characterized as "right to international travel").


Background

From 1950 to 1955,
Rockwell Kent Rockwell Kent (June 21, 1882 – March 13, 1971) was an American painter, printmaker, illustrator, writer, sailor, adventurer and voyager. Biography Rockwell Kent was born in Tarrytown, New York. Kent was of English descent. He lived much of ...
repeatedly applied for passports in order to travel to Europe for pleasure, in order to paint, and to attend peace conferences. He was denied a
passport A passport is an official travel document issued by a government that contains a person's identity. A person with a passport can travel to and from foreign countries more easily and access consular assistance. A passport certifies the personal ...
because he was allegedly a
communist Communism (from Latin la, communis, lit=common, universal, label=none) is a far-left sociopolitical, philosophical, and economic ideology and current within the socialist movement whose goal is the establishment of a communist society, a s ...
and was alleged to have "a consistent and prolonged adherence to the
Communist Party A communist party is a political party that seeks to realize the socio-economic goals of communism. The term ''communist party'' was popularized by the title of ''The Manifesto of the Communist Party'' (1848) by Karl Marx and Friedrich Engels. A ...
line". He was told that he would not be issued a passport unless he submitted a non-communist affidavit, which he refused to do although he publicly disavowed party membership. Once he had exhausted his administrative appeals, his case became ripe for a constitutional challenge. Kent, represented by
Leonard Boudin Leonard B. Boudin (July 20, 1912 – November 24, 1989) was an American civil liberties attorney and left-wing activist who represented Daniel Ellsberg of Pentagon Papers fame and Dr. Benjamin Spock, the author of '' Baby and Child Care'', who ...
of the Emergency Civil Liberties Union, sued in U.S. District Court for
declaratory relief A declaratory judgment, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants. It is a form of legally binding preventive by which a party involved in an actual or possible legal ma ...
. The District Court granted
summary judgment In law, a summary judgment (also judgment as a matter of law or summary disposition) is a judgment entered by a court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes ...
against him. On appeal, Kent's case was heard with that of Dr. Walter Briehl, a
psychiatrist A psychiatrist is a physician who specializes in psychiatry, the branch of medicine devoted to the diagnosis, prevention, study, and treatment of mental disorders. Psychiatrists are physicians and evaluate patients to determine whether their sy ...
. When Briehl applied for a passport, the Director of the
Passport Office His Majesty's Passport Office (HMPO) is an agency of the Home Office in the United Kingdom. It provides British passport, passports for United Kingdom national, British nationals worldwide and was formed on 1 April 2006 as the Identity and Passp ...
asked him to supply an
affidavit An ( ; Medieval Latin for "he has declared under oath") is a written statement voluntarily made by an ''affiant'' or '' deponent'' under an oath or affirmation which is administered by a person who is authorized to do so by law. Such a statemen ...
with respect to his 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 it. The U.S. Court of Appeals for the District of Columbia Circuit heard the two cases en banc and affirmed the District Court by a divided vote.


Decision of the Supreme Court

The cases were heard on
writ of certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
. The Court reversed the Court of Appeals. ''Kent v. Dulles'' was the first case in which the U.S. 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 Amendment. It did not decide the extent to which this liberty can be curtailed. The Court was first concerned with the extent, if any, to which Congress had authorized its curtailment by the
U.S. Secretary of State The United States secretary of state is a member of the executive branch of the federal government of the United States and the head of the U.S. Department of State. The office holder is one of the highest ranking members of the president's Ca ...
. The Court found that the Secretary of State exceeded his authority by refusing to issue passports to Communists. It did not rule on the
constitutionality Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
of the law because the only law which Congress had passed expressly curtailing the movement of Communists across U.S. borders had yet to take effect. Six years later, the Court in '' Aptheker v. Secretary of State'', found that the law violated First Amendment principles and left unsettled the extent to which this liberty to travel can be curtailed.


Majority opinion

In a majority opinion written by Justice
William O. Douglas William Orville Douglas (October 16, 1898January 19, 1980) was an American jurist who served as an associate justice of the Supreme Court of the United States, who was known for his strong progressive and civil libertarian views, and is often ci ...
, the Court reviewed the history of the issuance and regulation of US passports, 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'', 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 Angevin law under
Magna Carta (Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the ...
, citing Article 42 in support of the right to travel as a "liberty" right. It referenced Chafee in ''Three Human Rights in the Constitution of 1787''. At that point the Court began to use the phrase "freedom of movement" as in "Freedom of movement is basic in our scheme of values", citing '' Crandall v. Nevada'' '' Williams v. Fears'', '' Edwards v. California'', and Vestal, ''Freedom of Movement'', 41 Iowa L.Rev. 6, 13-14, although 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'', 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'', ''
Cantwell v. Connecticut ''Cantwell v. Connecticut'', 310 U.S. 296 (1940), is a landmark court decision by the United States Supreme Court holding that the First Amendment's ''federal'' protection of religious free exercise incorporates via the Due Process Clause of t ...
'', and '' Niemotko v. Maryland'',. 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 Tom Clark 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 American national security both in wartime and during peace, pointing out that passport restrictions on Communists were first implemented shortly after the 1917
Russian Revolution The Russian Revolution was a period of Political revolution (Trotskyism), political and social revolution that took place in the former Russian Empire which began during the First World War. This period saw Russia abolish its monarchy and ad ...
and continued periodically 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 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 ''Common Sense'' is a 47-page pamphlet written by Thomas Paine in 1775–1776 advocating independence from Great Britain to people in the Thirteen Colonies. Writing in clear and persuasive prose, Paine collected various moral and political argu ...
. 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.


See also

* '' Eunique v. Powell'': 9th Circuit Court of Appeals case involving withholding passports based on overdue child support * '' Zemel v. Rusk''


References


External links

*
''Freedom to Travel Campaign v. Newcomb''
*''Three human rights in the Constitution of 1787'', Chafee, Zechariah 1956, University of Kansas Press (Lawrence) * {{DEFAULTSORT:Kent V. Dulles United States Supreme Court cases United States Supreme Court cases of the Warren Court United States substantive due process case law 1958 in United States case law World Peace Council Passports Communist Party USA litigation