source: Caselaw Access Project

author: Mr. Justice White Mr. Justice Harlan,

license: Public Domain

text:
    HILL v. CALIFORNIA
    No. 51.
    Argued January 19, 1970
    Reargued October 21, 1970
    Decided April 5, 1971

      White, J., delivered the opinion of the Court, in which Burger, C. J., and BrennaN, Stewart, and Blackmun, JJ., joined. Black, J., concurred in the result. HarlaN, J., filed a concurring and dissenting opinion, in which Marshall,' J., joined, post, p. 806. Douglas, J., took no part in the consideration or decision of this case.

      Joseph Amato, appointed by the Court, 396 U. S. 999, reargued the cause for petitioner.

      Ronald M. George, Deputy Attorney General of California, reargued the cause for respondent. With him on the brief were Thomas C. Lynch, Attorney General, and William E. James, Assistant Attorney General.

      Keith C. Monroe filed a brief for the Orange County Criminal Courts Bar Association et al. as amici curiae urging reversal. Duke W. Dunbar, Attorney General, pro se, and John P. Moore, Deputy Attorney General, filed a brief for the Attorney General of Colorado et al. as amici curiae.

   Mr. Justice White

delivered the opinion of the Court.

On June 4, 1966, four armed men robbed a residence in Studio City, California. On June 5, Alfred Baum and Richard Bader were arrested for possession of narcotics; at the time of their arrest, they were driving petitioner Hill’s car, and a search of the car produced property stolen in the Studio City robbery the day before. Bader and Baum both admitted taking part in the June 4 robbery, and both implicated Hill. Bader told the police that he was sharing an apartment with Hill at 9311 Sepulveda Boulevard. He also stated that the guns used in the robbery and other stolen property were in the apartment. On June 6, Baum and Bader again told the police that Hill had been involved in the June 4 robbery.

One of the investigating officers then checked official records on Hill, verifying his prior association with Bader, his age and physical description, his address, and the make of his car. The information the officer uncovered corresponded with the general descriptions by the robbery victims and the statements made by Baum and Bader.

Hill concedes that this information gave the police probable cause to arrest him, and the police undertook to do so on June 6. Four officers went to the Sepulveda Boulevard apartment, verified the address, and knocked. One of the officers testified: “The door was opened and a person who fit the description exactly of Archie Hill, as I had received it from both the cards and from Baum and Bader, answered the door. ... We placed him under arrest for robbery.”

The police had neither an arrest nor a search warrant. After arresting the man who answered the door, they asked him whether he was Hill and where the guns and stolen goods were. The arrestee replied that he was not Hill, that his name was Miller, that it was Hill’s apartment and that he was waiting for Hill. He also claimed that he knew nothing about any stolen property or guns, although the police testified that an automatic pistol and a clip of ammunition were lying in plain view on a coffee table in the living room where the arrest took place. The arrestee then produced identification indicating that he was in fact Miller, but the police were unimpressed and proceeded to search the apartment— living room, bedroom, kitchen area, and bath — for a period which one officer described as “a couple of hours.”

During the course of the search, the police seized several items: rent receipts and personal correspondence bearing Hill’s name from a dresser drawer in the bedroom; a starter pistol, two switchblade knives, a camera and case stolen in the Studio City robbery, and two hood-masks made from white T-shirts, all from the bedroom; a .22-caliber revolver from under the living room sofa; and two pages of petitioner Hill’s diary from a bedroom dresser drawer.

On October 20, 1966, Hill was found guilty of robbery on the basis of evidence produced at the preliminary hearing and the trial. Eyewitnesses to the robbery were unable to identify Hill; the only substantial evidence of his guilt consisted of the items seized in the search of his apartment. In sustaining the admissibility of the evidence, the trial judge ruled that the arresting officers had acted in the good-faith belief that Miller was in fact Hill. The District Court of Appeal agreed that the officers acted in good faith and that the arrest of Miller was valid but nonetheless thought the incident search of Hill’s apartment unreasonable under the Fourth Amendment. 67 Cal. Rptr. 389 (1968). The California Supreme Court in turn reversed, sustaining both the arrest and the search. 69 Cal. 2d 550, 446 P. 2d 521 (1968). We granted certiorari, 396 U. S. 818 (1969), and now affirm the judgment of the California Supreme Court.

I

Petitioner argues that Chimel v. California, 395 U. S. 752 (1969), decided after his conviction was affirmed by the California Supreme Court, should be applied to his case, which is before us on direct review. Chimel narrowed the permissible scope of searches incident to arrest, but in Williams v. United States and Elkanich v. United States, ante, p. 646, we held Chimel inapplicable to searches occurring before the date of decision in that case — regardless of whether a case was still on direct review when Chimel was decided, see Williams, supra, or whether a Chimel challenge was asserted in a subsequent collateral attack on a conviction. See Elkanich, supra. We also stated that in light of past decisions there was no difference in constitutional terms between state and federal prisoners insofar as retroactive application to their cases of a new interpretation of the Bill of Rights is concerned. Ante, at 656. The search of Hill's apartment, permissible in scope under pre-Chimel standards, will not be retrospectively invalidated because of that decision.

II

Based on our own examination of the record, we find no reason to disturb either the findings of the California courts that the police had probable cause to arrest Hill and that the arresting officers had a reasonable, good-faith belief that the arrestee Miller was in fact Hill, or the conclusion that “[w]hen the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest.” 69 Cal. 2d, at 553, 446 P. 2d, at 523. The police unquestionably had probable cause to arrest Hill; they also had his address and a verified description. The mailbox at the indicated address listed Hill as the occupant of the apartment. Upon gaining entry to the apartment, they were confronted with one who fit the description of Hill received from various sources. That person claimed he was Miller, not Hill. But aliases and false identifications are not uncommon. Moreover, there was a lock on the door and Miller’s explanation for his mode of entry was not convincing. He also denied knowledge of firearms in the apartment although a pistol and loaded ammunition clip were in plain view in the room. The upshot was that the officers in good faith believed Miller was Hill and arrested him. They were quite wrong as it turned out, and subjective good-faith belief would not in itself justify either the arrest or the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers’ mistake was understandable and the arrest a reasonable response to the situation facing them at the time.

Nor can we agree with petitioner that however valid the arrest of Miller, the subsequent search violated the Fourth Amendment. It is true that Miller was not Hill ; nor did Miller have authority or control over the premises, although at the very least he was Hill’s guest. But the question is not what evidence would have been admissible against Hill (or against Miller for that matter) if the police, with probable cause to arrest Miller, had arrested him in Hill’s apartment and then carried out the search at issue. Here there was probable cause to arrest Hill and the police arrested Miller in Hill’s apartment, reasonably believing him to be Hill. In these circumstances the police were entitled to do what the law would have allowed them to do if Miller had in fact been Hill, that is, to search incident to arrest and to seize evidence of the crime the police had probable cause to believe Hill had committed. When judged in accordance with “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,” Brinegar v. United States, 338 U. S. 160, 175 (1949), the arrest and subsequent search were reasonable and valid under the Fourth Amendment.

Ill

Finally, in his brief in this Court, petitioner argues that the admission in evidence of the two pages of his diary — ■ pages which contained what amounted to a confession of the robbery — violated the Fifth Amendment under Boyd v. United States, 116 U. S. 616 (1886). Counsel for Hill conceded at oral argument that the Fifth Amendment issue was not raised at trial. Nor was the issue raised, briefed, or argued in the California appellate courts. The petition for certiorari likewise ignored it. In this posture of the case, the question, although briefed and argued here, is not properly before us. In Cardinale v. Louisiana, 394 U. S. 437 (1969), certiorari was granted to consider the constitutionality of a Louisiana statute, but at oral argument it developed that the federal question had never been raised, preserved, or passed upon in the state courts. Relying on a long line of cases, we dismissed the writ for want of jurisdiction. 394 U. S., at 439. In addition, we stated that there were sound policy reasons for adhering to such a rule. In the context of that case, we indicated the desirability of allowing state courts to pass first on the constitutionality of state statutes in light of a federal constitutional challenge; this assures both an adequate record and that the States have first opportunity to provide a definitive interpretation of their statutes. We also indicated that a federal habeas corpus remedy might remain if no state procedure for raising the issue was available following dismissal of the writ. These considerations are no less applicable in this case. We therefore do not reach the Fifth Amendment question and affirm the judgment of the Supreme Court of California.

It is so ordered.

Mr. Justice Black concurs in the result.

Mr. Justice Douglas took no part in the consideration or the decision of this case.

Mr. Justice Harlan,

whom Mr. Justice Marshall joins, concurring in part and dissenting in part.

I agree with the Court’s opinion except for its conclusion that the Chimel case is not to be applied to this one.

Two Terms ago, in Chimel v. California, 395 U. S. 752 (1969), we held that a search without a warrant, but incident to a lawful arrest, must be narrowly confined in scope if it is to pass constitutional muster. In such circumstances, we said:

“There is ample justification ... for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
“There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The ‘adherence to judicial processes’ mandated by the Fourth Amendment requires no less.” 395 U. S., at 763 (footnote omitted).

The search here involved, fully described in the Court’s opinion, plainly exceeded the bounds set forth in Chimel. The State contends that the search here was consistent with Chimel because conducted in the evening when it was not possible to obtain a search warrant. Whatever validity such a limiting principle might have in other contexts, it certainly cannot properly be invoked here. Baum and Bader had implicated Hill at least 24 hours prior to the search of Hill’s apartment. Moreover, the State does not explain why it would not have been possible to observe the apartment after the mistaken arrest of Miller as Hill and then test before a magistrate the validity of their belief that they had probable cause for the issuance of a warrant authorizing a complete search of the apartment.

Because I believe this case reveals an obvious violation of Chimel and because I consider we are duty bound to apply the principles there enunciated to cases, like this one, before us on direct review, see my separate opinion in Mackey v. United States (and companion cases), ante, p. 675, decided today, I am compelled to cast my vote for reversal of the judgment of the Supreme Court of California.

       All of these items, except the rent receipts and correspondence, were later introduced in evidence at the preliminary examination involving Baum, Bader, and Hill. A radio stolen in the Studio City robbery was also introduced, since it was found in Hill’s car when Baum and Bader were arrested. Finally, the State introduced two handwriting exemplars executed by petitioner Hill after his arrest. Although the rent receipts and personal correspondence were not introduced in evidence, one of the officers who participated in the arrest and search at the Hill apartment testified that in the same drawer where he found the diary pages “there were rent receipts, numerous stack of rent receipts at this particular apartment, made out to Archie Hill, and there were several other pieces of paper, correspondence, notes from girls, and so forth, all to an Archie or an Archie Hill.” No objection was offered to this testimony.
      Thereafter, petitioner’s case was severed from that of Baum and Bader. Hill waived a jury and submitted the case for trial on the transcript of the preliminary hearing and the exhibits there introduced. The State called one additional witness at trial — Officer Gastaldo — who gave a more complete version of the investigation of the robbery and of the arrest of the man who turned out to be Miller. The two diary pages seized in Hill’s apartment contained what was in effect a full confession of his participation in the Studio City robbery. The additional testimony of Officer Gastaldo was critical in establishing the legality of the arrest and subsequent search. After hearing this testimony, the trial judge denied petitioner’s motion to suppress the items seized, including, of course, the diary pages. Hill presented no further evidence at trial, and was found guilty as charged. A motion for a new trial was subsequently denied, and petitioner’s appeals in the California courts followed.
      In his brief in this Court, petitioner attacks the admission of the diary pages on a ground never advanced below. For the reasons expressed in Part III of this opinion, we do not rule upon these contentions.

       See n. 1, supra.

       The trial judge stated:

        “1 have fully reviewed the evidence. I have determined that the officer in good faith believed that the defendant, or that the person who was arrested — not the defendant in this case — was believed by the officer in good faith to be Mr. Hill, and that whether or not this document consisting of two pages of the private diary of Mr. Hill should be admitted depends on whether or not at the time of the arrest and the search of the premises, the officer acted in good faith.”

       Justice Ford stated:
      “While the doctrine of probable cause assures a balance between the rights of the individual and those of the government with respect to the matter of arrest, the constitutional protection against unreasonable searches, particularly of a person’s home, would be less than complete if a plenary search could be justified as incident to an arrest of a person mistakenly believed by an officer to be in immediate charge of the premises. Such a case is not one where the right of privacy must reasonably yield to the right of search.” 67 Cal. Rptr., at 391.

       The California Supreme Court relied on People v. Kitchens, 46 Cal. 2d 260, 263-264, 294 P. 2d 17, 19-20 (1956); People v. Miller, 193 Cal. App. 2d 838, 14 Cal. Rptr. 704 (1961), and People v.
        Campos, 184 Cal. App. 2d 489, 7 Cal. Rptr. 513 (1960). See also People v. Lopez, 269 Cal. App. 2d 461, 468 n. 2, 74 Cal. Rptr. 740, 744 n. 2 (1969) (dictum).

       At the preliminary hearing and trial, the only disparities in description established were that Miller was two inches taller and 10 pounds heavier than Hill.

       In denying the motion to suppress, the trial judge took judicial notice of the fact “that those who are apprehended and are arrested many times attempt to avoid arrest by giving false identification.”

       Petitioner points out that the officers had no idea how Miller gained access to the Hill apartment, and asserts that it was improper for them to assume that he was lawfully there. It is undisputed that Miller was the only occupant of the apartment. One of the officers testified that there was a lock on the door and that he had asked Miller how he had gotten into the apartment; Miller made no specific reply, except to reiterate that he had come in and was waiting for Hill, the tenant.

       Petitioner also claims that it was unreasonable for the officers to disregard Miller’s proffered identification. However, Miller’s answer to the question about firearms could reasonably be regarded as evasive, and his subsequent production of identification as therefore entitled to little weight. Petitioner stresses that Miller was subsequently booked in his own name when taken to the station house, arguing that this demonstrates that the officers’ belief that Miller was Hill was unreasonable. However, the trial judge found that the arresting officer was not responsible for the booking procedures under which Miller would be booked under whatever name he gave at the station house. This conclusion is buttressed by the fact that Miller was not released from custody for a day and a half, after a thorough check of his identification revealed that he had in fact told the truth about his identity, despite his evasiveness in dealing with the officers at the apartment.

       Tr. of Oral Rearg. 34-35.


author: Mr. Justice Marshall

text:
    REWIS et al. v. UNITED STATES
    No. 5342.
    Argued January 19, 1971
    Decided April 5, 1971
    Marshall, J., delivered the opinion of the Court, in which all members joined except White, J., who took no part in the decision of the case.

      Albert J. Datz argued the cause and filed briefs for petitioners.

      Sidney M. Olazer argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Michael G. Kelly.

   Mr. Justice Marshall

delivered the opinion of the Court.

In this case, petitioners challenge their convictions under the Travel Act, 18 U. S. C. § 1952, which prohibits interstate travel in furtherance of certain criminal activity. Although the United States Court of Appeals for the Fifth Circuit narrowed an expansive interpretation of the Act, the Court of Appeals affirmed petitioners’ convictions. For the reasons stated below, we reverse.

Petitioners, James Rewis and Mary Lee Williams, were convicted along with two other defendants in the United States District Court for the Middle District of Florida. Their convictions arose from a lottery, or numbers operation, which petitioners admittedly ran in Yulee, Florida, a small community located a few miles south of the Georgia-Florida state line. Petitioners are Florida residents, and there is no evidence that they at any time crossed state lines in connection with the operation of their lottery. The other two convicted defendants are Georgia residents who traveled from their Georgia homes to place bets at petitioners’ establishment in Yulee.

The District Court instructed the jury that mere bettors in a lottery violated Florida law, and that if the bettors traveled interstate for the purpose of gambling, they also violated the Travel Act. Presumably referring to petitioners, the District Court further charged that a defendant could be found guilty under the aiding and abetting statute, 18 U. S. C. § 2, without proof that he personally performed every act constituting the charged offense. On appeal, the Fifth Circuit held that § 1952 did not make it a federal crime merely to cross a state line for the purpose of placing a bet and reversed the convictions of the two Georgia residents because the evidence presented at trial was insufficient to show that they were anything other than customers of the gambling operation. However, the Court of Appeals upheld petitioners’ convictions on the ground that operators of gambling establishments are responsible for the interstate travel of their customers. 418 F. 2d 1218, 1222.

We agree with the Court of Appeals that it cannot be said, with certainty sufficient to justify a criminal conviction, that Congress intended that interstate travel by mere customers of a gambling establishment should violate the Travel Act. But we are unable to conclude that conducting a gambling operation frequented by out-of-state bettors, by itself, violates the Act. Section 1952 prohibits interstate travel with the intent to “promote, manage, establish, carry on, or facilitate” certain kinds of illegal activity; and the ordinary meaning of this language suggests that the traveler’s purpose must involve more than the desire to patronize the illegal activity. Legislative history of the Act is limited, but does reveal that § 1952 was aimed primarily at organized crime and, more specifically, at persons who reside in one State while operating or managing illegal activities located in another. In addition, we are struck by what Congress did not say. Given the ease with which citizens of our Nation are able to travel and the existence of many multi-state metropolitan areas, substantial amounts of criminal activity, traditionally subject to state regulation, are patronized by out-of-state customers. In such a context, Congress would certainly recognize that an expansive Travel Act would alter sensitive federal-state relationships, could overextend limited federal police resources, and might well produce situations in which the geographic origin of customers, a matter of happenstance, would transform relatively minor state offenses into federal felonies. It is not for us to weigh the merits of these factors, but the fact that they are not even discussed in the legislative history of § 1952 strongly suggests that Congress did not intend that the Travel Act should apply to criminal activity solely because that activity is at times patronized by persons from another State. In short, neither statutory language nor legislative history supports such a broad-ranging interpretation of § 1952. And even if this lack of support were less apparent, ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity, Bell v. United States, 349 U. S. 81, 83 (1955).

The Government concedes as much, but offers an alternative construction of the Travel Act — that the Act is violated whenever the operator of an illegal establishment can reasonably foresee that customers will cross state lines for the purpose of patronizing the illegal operation or whenever the operator actively seeks to attract business from another State. The first half of this proposed interpretation — reasonable foreseeability of interstate patronage — does not merit acceptance. Whenever individuals actually cross state fines for the purpose of patronizing a criminal establishment, it will almost always be reasonable to say that the operators of the establishment could have foreseen that some of their customers would come from out of State. So, for practical purposes, this alternative construction is almost as expansive as interpretations that we have already rejected. In addition, there is little, if any, evidence that Congress intended that foreseeability should govern criminal liability under § 1952.

There may, however, be greater support for the second half of the Government’s proposed interpretation — that active encouragement of interstate patronage violates the Act. Of course, the conduct deemed to constitute active encouragement must be more than merely conducting the illegal operation; otherwise, this interpretation would only restate other constructions which we have rejected. Still, there are cases in which federal courts have correctly applied § 1952 to those individuals whose agents or employees cross state fines in furtherance of illegal activity, see, e. g., United States v. Chambers, 382 F. 2d 910, 913-914 (CA6 1967); United States v. Barrow, 363 F. 2d 62, 64-65 (CA3 1966), cert. denied, 385 U. S. 1001 (1967); United States v. Zizzo, 338 F. 2d 577, 580 (CA7 1964), cert. denied, 381 U. S. 915 (1965), and the Government argues that the principles of those decisions should be extended to cover persons who actively seek interstate patronage. Although we are cited to no cases that have gone so far and although much of what we have said casts substantial doubt on the Government’s broad argument, there may be occasional situations in which the conduct encouraging interstate patronage so closely approximates the conduct of a principal in a criminal agency relationship that the Travel Act is violated. But we need not rule on this part of the Government’s theory because it is not the interpretation of § 1952 under which petitioners were convicted. The jury was not charged that it must find that petitioners actively sought interstate patronage. And we are not informed of any action by petitioners, other than actually conducting their lottery, that was designed to attract out-of-state customers. As a result, the Government’s proposed interpretation. of the Travel Act cannot be employed to uphold these convictions.

Reversed.

Mr. Justice White took no part in the decision of this case.

       Title 18 U. S. C. § 1952 (1964 ed. and Supp. V) provides:
      “(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to—
      “(1) distribute the proceeds of any unlawful activity; or
      “(2) commit any crime of violence to further any unlawful activity; or
      “(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
      “and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
      “(b) As used in this section ‘unlawful activity’ means (1) any business enterprise involving gambling, liquor on which the Federal ■excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.”

       Petitioners were convicted of eight substantive -violations under § 1952 and of conspiracy to violate the section. Petitioner Rewis was sentenced to five years’ imprisonment on each count, to run concurrently. Petitioner Williams was sentenced to three years’ imprisonment on each count, to run concurrently, subject to parole under 18 U. S. C. §4208 (a) (2). Petitioner Rewis was also convicted of two counts of having failed to purchase a wagering tax stamp. These latter two convictions were reversed by the Court of Appeals under the intervening decisions of this Court in Marchetti v. United States, 390 U. S. 39 (1968), and Grosso v. United States, 390 U. S. 62 (1968).

       18 U. S. C. § 2 provides:
      “(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
      “(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”

       418 F. 2d 1218. The Government has not sought review of that part of the Court of Appeals decision reversing the conviction of the two Georgia residents.

       Both parties correctly concede that the questions in this case are solely statutory. No issue of constitutional dimension is presented.

       Incorporated in the Senate report (S. Rep. No. 644, 87th Cong., 1st Sess., 2-3, dated July 27, 1961) the following appears:
      “The bill, S. 1653, was introduced by the chairman of the committee, Senator James O. Eastland, on April 18, 1961, on the recommendation of the Attorney General, Robert F. Kennedy, as a part of the Attorney General’s legislative program to combat organized crime and racketeering.
      “The Attorney General testified before the committee in support of the bill, S. 1653, on June 6, 1961, and commented:
      “ 'We are seeking to take effective action against the racketeer who conducts an unlawful business but lives far from the scene in comfort and safety, as well as against other hoodlums.
      “ ‘Let me say from the outset that we do not seek or intend to impede the travel of anyone except persons engaged in illegal businesses as spelled out in the bill. . . .
      “ ‘The target clearly is organized crime. The travel that would be banned is travel “in furtherance of a business enterprise” which involves gambling, liquor, narcotics, and prostitution offenses or extortion or bribery. Obviously, we are not trying to curtail the sporadic, casual involvement in these offenses, but rather a continuous course of conduct sufficient for it to be termed a business enterprise.’
      “ ‘Our investigations also have made it quite clear that only the Federal Government can shut off the funds which permit the top men of organized crime to live far from the scene and, therefore, remain immune from the local officials.’ ”


author: Mr. Justice Blackmun Mr. Justice Black, Mr. Justice Brennan,

text:
    ROGERS, SECRETARY OF STATE v. BELLEI
    No. 24.
    Argued January 15, 1970
    Reargued November 12, 1970
    Decided April 5, 1971
    BlackmtjN, J., delivered the opinion of the Court, in which Burger, C. J., and HarlaN, Stewart, and White, JJ., joined. Black, J., filed a dissenting opinion, in which Douglas and Marshall, JJ., joined, post, p. 836. BrennaN, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 845.

      Solicitor General Griswold argued the cause for appellant on the reargument. With him on the brief were Assistant Attorney General Wilson and Charles Gordon. Joseph J. Connolly argued the cause for appellant on the original argument.

      O. John Rogge reargued the cause and filed a brief for appellee.

      Richard N. Gardner argued the cause on the reargument for the Association of American Wives of Europeans et al. as amici curiae urging affirmance. With him on the brief were Alexis C. Coudert, Eugene L. Girden, Joseph H. Gordon, David M. Gooder, and Arlene Tuck Ulman.

    James Sinclair, pro se, filed a brief as amicus curiae urging reversal.

      Donald L. Ungar filed a brief for Vicente Gonzalez-Gomez as amicus curiae urging affirmance.
   Mr. Justice Blackmun

delivered the opinion of the Court.

Under constitutional challenge here, primarily on Fifth Amendment due process grounds, but also on Fourteenth Amendment grounds, is § 301 (b) of the Immigration and Nationality Act of June 27, 1952, 66 Stat. 236, 8 U. S. C. § 1401 (b).

Section 301 (a) of the Act, 8 U. S. C. § 1401 (a), defines those persons who “shall be nationals and citizens of the United States at birth.” Paragraph (7) of § 301 (a) includes in that definition a person born abroad “of parents one of whom is an alien, and the other a citizen of the United States” who has met specified conditions of residence in this country. Section 301 (b), however, provides that one who is a citizen at birth under § 301 (a)(7) shall lose his citizenship unless, after age 14 and before age 28, he shall come to the United States and be physically present here continuously for at least five years. We quote the statute in the margin.

The plan thus adopted by Congress with respect to a person of this classification was to bestow citizenship at birth but to take it away upon the person’s failure to comply with a post-age-14 and pre-age-28 residential requirement. It is this deprival of citizenship, once bestowed, that is under attack here.

I

The facts are stipulated:

1. The appellee, Aldo Mario Bellei (hereinafter the plaintiff), was born in Italy on December 22,1939. He is now 31 years of age.

2. The plaintiff’s father has always been a citizen of Italy and never has acquired United States citizenship. The plaintiff’s mother, however, was born in Philadelphia in 1915 and thus was a native-born United States citizen. She has retained that citizenship. Moreover, she has fulfilled the requirement of § 301 (a)(7) for physical presence in the United States for 10 years, more than five of which were after she attained the age of 14 years. The mother and father were married in Philadelphia on the mother’s 24th birthday, March 14, 1939. Nine days later, on March 23, the newlyweds departed for Italy. They have resided there ever since.

3. By Italian law the plaintiff acquired Italian citizenship upon his birth in Italy. He retains that citizenship. He also acquired United States citizenship at his birth under Rev. Stat. § 1993, as amended by the Act of May 24, 1934, § 1, 48 Stat. 797, then in effect. That version of the statute, as does the present one, contained a residence condition applicable to a child born abroad with one alien parent.

4. The plaintiff resided in Italy from the time of his birth until recently. He currently resides in England, where he has employment as an electronics engineer with an organization engaged in the NATO defense program.

5. The plaintiff has come to the United States five different times. He was physically present here during the following periods:

April 27 to July 31, 1948
July 10 to October 5, 1951
June to October 1955
December 18, 1962 to February 13, 1963
May 26 to June 13, 1965.

On the first two occasions, when the plaintiff was a boy of eight and 11, he entered the country with his mother on her United States passport. On the next two occasions, when he was 15 and just under 23, he entered on his own United States passport and was admitted as a citizen of this country. His passport was first issued on June 27, 1952. His last application approval, in August 1961, contains the notation “Warned abt. 301 (b).” The plaintiff’s United States passport was periodically approved to and including December 22, 1962, his 23d birthday.

6. On his fifth visit to the United States, in 1965, the plaintiff entered with an Italian passport and as an alien visitor. He had just been married and he came with his bride to visit his maternal grandparents.

7. The plaintiff was warned in writing by United States authorities of the impact of § 301 (b) when he was in this country in January 1963 and again in November of that year when he was in Italy. Sometime after February 11, 1964, he was orally advised by the American Embassy at Rome that he had lost his United States citizenship pursuant to §301 (b). In November 1966 he was so notified in writing by the American Consul in Rome when the plaintiff requested another American passport.

8. On March 28, 1960, plaintiff registered under the United States Selective Service laws with the American Consul in Rome. At that time he already was 20 years of age. He took in Italy, and passed, a United States Army physical examination. On December 11, 1963, he was asked to report for induction in the District of Columbia. This induction, however, was then deferred because of his NATO defense program employment. At the time of deferment he was warned of the danger of losing his United States citizenship if he did not comply with the residence requirement. After February 14,1964, Selective Service advised him by letter that, due to the loss of his citizenship, he had no further obligation for United States military service.

Plaintiff thus concededly failed to comply with the conditions imposed by § 301 (b) of the Act.

II

The plaintiff instituted the present action against the Secretary of State in the Southern District of New York. He asked that the Secretary be enjoined from carrying out and enforcing § 301 (b), and also requested a declaratory judgment that § 301 (b) is unconstitutional as vio-lative of the Fifth Amendment’s Due Process Clause, the Eighth Amendment’s Punishment Clause, and the Ninth Amendment, and that he is and always has been a native-born United States citizen. Because, under 28 U. S. C. § 1391 (e), the New York venue was improper, the case was transferred to the District of Columbia. 28 U. S. C. § 1406 (a).

A three-judge District Court was convened. With the facts stipulated, cross motions for summary judgment were filed. The District Court ruled that § 301 (b) was unconstitutional, citing Afroyim v. Rusk, 387 U. S. 253 (1967), and Schneider v. Rusk, 377 U. S. 163 (1964), and sustained the plaintiff’s summary judgment motion. Bellei v. Rusk, 296 F. Supp. 1247 (DC 1969). This Court noted probable jurisdiction, 396 U. S. 811 (1969), and, after argument at the 1969 Term, restored the case to the calendar for reargument. 397 U. S. 1060 (1970).

III

The two cases primarily relied upon by the three-judge District Court are, of course, of particular significance here.

Schneider v. Rusk, 377 U. S. 163 (1964). Mrs. Schneider, a German national by birth, acquired United States citizenship derivatively through her mother’s naturalization in the United States. She came to this country as a small child with her parents and remained here until she finished college. She then went abroad for graduate work, was engaged to a German national, married in Germany, and stayed in residence there. She declared that she had no intention of returning to the United States. In 1959, a passport was denied by the State Department on the ground that she had lost her United States citizenship under the specific provisions of § 352 (a)(1) of the Immigration and Nationality Act, 8 U. S. C. § 1484 (a)(1), by continuous residence for three years in a foreign state of which she was formerly a national. The Court, by a five-to-three vote, held the statute violative of Fifth Amendment due process because there was no like restriction against foreign residence by native-born citizens.

The dissent (Mr. Justice Clark, joined by Justices Harlan and White) based its position on what it regarded as the long acceptance of expatriating naturalized citizens who voluntarily return to residence in their native lands; possible international complications; past decisions approving the power of Congress to enact statutes of that type; and the Constitution’s distinctions between native-born and naturalized citizens.

Afroyim v. Rusk, 387 U. S. 253 (1967). Mr. Afroyim, a Polish national by birth, immigrated to the United States at age 19 and after 14 years here acquired United States citizenship by naturalization. Twenty-four years later he went to Israel and voted in a political election there. In 1960 a passport was denied him by the State Department on the ground that he had lost his United States citizenship under the specific provisions of §349 (a)(5) of the Act, 8 U. S. C. § 1481 (a)(5), by his foreign voting. The Court, by a five-to-four vote, held that the Fourteenth Amendment’s definition of citizenship was significant; that Congress has no “general power, express or implied, to take away an American citizen’s citizenship without his assent,” 387 U. S., at 257; that Congress’ power is to provide a uniform rule of naturalization and, when once exercised with respect to the individual, is exhausted, citing Mr. Chief Justice Marshall’s well-known but not uncontroversial dictum in Osborn v. Bank of the United States, 9 Wheat. 738, 827 (1824); and that the “undeniable purpose” of the Fourteenth Amendment was to make the recently conferred “citizenship of Negroes permanent and secure” and “to put citizenship beyond the power of any governmental unit to destroy,” 387 U. S., at 263. Perez v. Brownell, 356 U. S. 44 (1958), a five-to-four holding within the decade and precisely to the opposite effect, was overruled.

The dissent (Me. Justice Hablan, joined by Justices Clark, Stewabt, and White) took issue with the Court’s claim of support in the legislative history, would elucidate the Marshall dictum, and observed that the adoption of the Fourteenth Amendment did not deprive Congress of the power to expatriate on permissible grounds consistent with “other relevant commands” of the Constitution. 387 U. S., at 292.

It is to be observed that both Mrs. Schneider and Mr. Afroyim had resided in this country for years. Each had acquired United States citizenship here by the naturalization process (in one case derivative and in the other direct) prescribed by the National Legislature. Each, in short, was covered explicitly by the Fourteenth Amendment’s very first sentence: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This, of course, accounts for the Court’s emphasis in Afroyim upon “Fourteenth Amendment citizenship.” 387 U. S., at 262.

IY

The statutes culminating in § 301 merit review:

1. The very first Congress, at its Second Session, proceeded to implement its power, under the Constitution’s Art. I, § 8, cl. 4, to “establish an uniform Rule of Naturalization” by producing the Act of March 26, 1790, 1 Stat. 103. That statute, among other things, stated, “And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States . . . .”

2. A like provision, with only minor changes in phrasing and with the same emphasis on paternal residence, was continuously in effect through three succeeding naturalization Acts. Act of January 29, 1795, § 3, 1 Stat. 415; Act of April 14, 1802, § 4, 2 Stat. 155; Act of February 10, 1855, c. 71, § 1, 10 Stat. 604. The only significant difference is that the 1790, 1795, and 1802 Acts read retrospectively, while the 1855 Act reads prospectively as well. See Weedin v. Chin Bow, 274 U. S. 657, 664 (1927), and Montana v. Kennedy, 366 U. S. 308, 311 (1961).

3. Section 1 of the 1855 Act, with changes unimportant here, was embodied as § 1993 of the Revised Statutes of 1874.

4. The Act of March 2, 1907, § 6, 34 Stat. 1229, provided that all children born abroad who were citizens under Rev. Stat. § 1993 and who continued to reside elsewhere, in order to receive governmental protection, were to record at age 18 their intention to become residents and remain citizens of the United States and were to take the oath of allegiance upon attaining their majority.

5. The change in § 1993 effected by the Act of May 24, 1934, is reflected in n. 2, supra. This eliminated the theretofore imposed restriction to the paternal parent and prospectively granted citizenship, subject to a five-year continuous residence requirement and an oath, to the foreign-born child of either a citizen father or a citizen mother. This was the form of the statute at the time of plaintiff’s birth on December 22, 1939.

6. The Nationality Act of 1940, § 201, 54 Stat. 1138, contained a similar condition directed to a total of five years’ residence in the United States between the ages of 13 and 21.

7. The Immigration and Nationality Act, by its § 407, 66 Stat. 281, became law in December 1952. Its § 301 (b) contains a five years’ continuous residence condition (alleviated, with the 1957 amendment, see n. 1, by an allowance for absences less than 12 months in the aggregate) directed to the period between 14 and 28 years of age.

The statutory pattern, therefore, developed and expanded from (a) one, established in 1790 and enduring through the Revised Statutes and until 1934, where citizenship was specifically denied to the child born abroad of a father who never resided in the United States; to (b), in 1907, a governmental protection condition for the child born of an American citizen father and residing abroad, dependent upon a declaration of intent and the oath of allegiance at majority; to (c), in 1934, a condition, for the child born abroad of one United States citizen parent and one alien parent, of five years’ continuous residence in the United States before age 18 and the oath of allegiance within six months after majority; to (d), in 1940, a condition, for that child, of five years’ residence here, not necessarily continuous, between ages 13 and 21; to (e), in 1952, a condition, for that child, of five years’ continuous residence here, with allowance, between ages 14 and 28.

The application of these respective statutes to a person in plaintiff Bellei’s position produces the following results:

1. Not until 1934 would that person have had any conceivable claim to United States citizenship. For more than a century and a half no statute was of assistance. Maternal citizenship afforded no benefit. One may observe, too, that if Mr. Bellei had been born in 1933, instead of in 1939, he would have no claim even today. Montana v. Kennedy, supra.

2. Despite the recognition of the maternal root by the 1934 amendment, in effect at the time of plaintiff’s birth, and despite the continuing liberalization of the succeeding statutes, the plaintiff still would not be entitled to full citizenship because, although his mother met the condition for her residence in the United States, the plaintiff never did fulfill the residential condition imposed for him by any of the statutes.

3. This is so even though the liberalizing 1940 and 1952 statutes, enacted after the plaintiff’s birth, were applicable by their terms to one born abroad subsequent to May 24, 1934, the date of the 1934 Act, and were available to the plaintiff. See nn. 5 and 1, supra.

Thus, in summary, it may be said fairly that, for the most part, each successive statute, as applied to a foreign-born child of one United States citizen parent, moved in a direction of leniency for the child. For plaintiff Bellei the statute changed from complete disqualification to citizenship upon a condition subsequent, with that condition being expanded and made less onerous, and, after his birth, with the succeeding liberalizing provisions made applicable to him in replacement of the stricter statute in effect when he was born. The plaintiff nevertheless failed to satisfy any form of the condition.

V

It is evident that Congress felt itself possessed of the power to grant citizenship to the foreign born and at the same time to impose qualifications and conditions for that citizenship. Of course, Congress obviously felt that way, too, about the two expatriation provisions invalidated by the decisions in Schneider and Afroyim.

We look again, then, at the Constitution and further indulge in history’s assistance:

Of initial significance, because of its being the foundation stone of the Court’s decisional structure in Afroyim, and, perhaps by a process of after-the-fact osmosis, of the earlier Schneider as well, is the Fourteenth Amendment’s opening sentence:
“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The central fact, in our weighing of the plaintiff’s claim to continuing and therefore current United States citizenship, is that he was born abroad. He was not born in the United States. He was not naturalized in the United States. And he has not been subject to the jurisdiction of the United States. All this being so, it seems indisputable that the first sentence of the Fourteenth Amendment has no application to plaintiff Bellei. He simply is not a Fourteenth-Amendment-first-sentence citizen. His posture contrasts with that of Mr. Afroyim, who was naturalized in the United States, and with that of Mrs. Schneider, whose citizenship was derivative by her presence here and by her mother’s naturalization here.

The plaintiff's claim thus must center in the statutory-power of Congress and in the appropriate exercise of that power within the restrictions of any pertinent constitutional provisions other than the Fourteenth Amendment’s first sentence.

The reach of congressional power in this area is readily apparent:

1. Over 70 years ago the Court, in an opinion by Mr. Justice Gray, reviewed and discussed early English statutes relating to rights of inheritance and of citizenship of persons born abroad of parents who were British subjects. United States v. Wong Kim Ark, 169 U. S. 649, 668-671 (1898). The Court concluded that “naturalization by descent” was not a common-law concept but was dependent, instead, upon statutory enactment. The statutes examined were 25 Edw. 3, Stat. 2 (1350); 29 Car. 2, c. 6 (1677); 7 Anne, c. 5, § 3 (1708); 4 Geo. 2, c. 21 (1731); and 13 Geo. 3, c. 21 (1773). Later Mr. Chief Justice Taft, speaking for a unanimous Court, referred to this “very learned and useful opinion of Mr. Justice Gray” and observed “that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute . . . .” Weedin v. Chin Bow, 274 U. S., at 660. He referred to the cited English statutes and stated, “These statutes applied to the colonies before the War of Independence.”

We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.

2. The Constitution as originally adopted contained no definition of United States citizenship. However, it referred to citizenship in general terms and in varying contexts: Art. I, § 2, cl. 2, qualifications for members of the House; Art. I, §3, cl. 3, qualifications for Senators; Art. II, § 1, cl. 5, eligibility for the office of President; Art. Ill, § 2, cl. 1, citizenship as affecting judicial power of the United States. And, as has been noted, Art. I, § 8, cl. 4, vested Congress with the power to “establish an uniform Rule of Naturalization.” The historical reviews in the Afroyim opinions provide an intimation that the Constitution’s lack of definitional specificity may well have been attributable in part to the desire to avoid entanglement in the then-existing controversy between concepts of state and national citizenship and with the difficult question of the status of Negro slaves.

In any event, although one might have expected a definition of citizenship in constitutional terms, none was embraced in the original document or, indeed, in any of the amendments adopted prior to the War Between the States.

3. Apart from the passing reference to the “natural born Citizen” in the Constitution’s Art. II, § 1, cl. 5, we have, in the Civil Rights Act of April 9, 1866, 14 Stat. 27, the first statutory recognition and concomitant formal definition of the citizenship status of the native born: “[A] 11 persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States . . . .” This, of course, found immediate expression in the Fourteenth Amendment, adopted in 1868, with expansion to “[a] 11 persons born or naturalized in the United States . . . .” As has been noted above, the amendment’s “undeniable purpose” was “to make citizenship of Negroes permanent and secure” and not subject to change by mere statute. Afroyim v. Rusk, 387 U. S., at 263. See H. Flack, Adoption of the Fourteenth Amendment 88-94 (1908).

Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was “declaratory of existing rights, and affirmative of existing law,” so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wong Kim Ark, 169 U. S., at 688. Then follows a most significant sentence:

“But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.”

Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action.

4. The Court has recognized the existence of this power. It has observed, “No alien has the slightest right to naturalization unless all statutory requirements are complied with . . . .” United States v. Ginsberg, 243 U. S. 472, 475 (1917). See United States v. Ness, 245 U. S. 319 (1917); Maney v. United States, 278 U. S. 17 (1928). And the Court has specifically recognized the power of Congress not to grant a United States citizen the right to transmit citizenship by descent. As hereinabove noted, persons born abroad, even of United States citizen fathers who, however, acquired American citizenship after the effective date of the 1802 Act, were aliens. Congress responded to that situation only by enacting the 1855 statute. Montana v. Kennedy, 366 U. S., at 311. But more than 50 years had expired during which, because of the withholding of that benefit by Congress, citizenship by such descent was not bestowed. United States v. Wong Kim Ark, 169 U. S., at 673-674. Then, too, the Court has recognized that until the 1934 Act the transmission of citizenship to one born abroad was restricted to the child of a qualifying American father, and withheld completely from the child of a United States citizen mother and an alien father. Montana v. Kennedy, supra.

Further, it is conceded here both that Congress may withhold citizenship from persons like plaintiff Bellei and may prescribe a period of residence in the United States as a condition precedent without constitutional question.

Thus we have the presence of congressional power in this area, its exercise, and the Court’s specific recognition of that power and of its having been properly withheld or properly used in particular situations.

VI

This takes us, then, to the issue of the constitutionality of the exercise of that congressional power when it is used to impose the condition subsequent that confronted plaintiff Bellei. We conclude that its imposition is not unreasonable, arbitrary, or unlawful, and that it withstands the present constitutional challenge.

1. The Congress has an appropriate concern with problems attendant on dual nationality. Savorgnan v. United States, 338 U. S. 491, 500 (1950); N. Bar-Yaacov, Dual Nationality xi and 4 (1961). These problems are particularly acute when it is the father who is the child’s alien parent and the father chooses to have his family reside in the country of his own nationality. The child is reared, at best, in an atmosphere of divided loyalty. We cannot say that a concern that the child’s own primary allegiance is to the country of his birth and of his father’s allegiance is either misplaced or arbitrary.

The duality also creates problems for the governments involved. Mr. Justice Brennan recognized this when, concurring in Kennedy v. Mendoza-Martinez, 372 U. S. 144, 187 (1963), a case concerning native-born citizens, he observed: “We have recognized the entanglements which may stem from dual allegiance . . . .” In a famous case Mr. Justice Douglas wrote of the problem of dual citizenship. Kawakita v. United States, 343 U. S. 717, 723-736 (1952). He noted that “[o]ne who has a dual nationality will be subject to claims from both nations, claims which at times may be competing or conflicting,” id., at 733; that one with dual nationality cannot turn that status “into a fair-weather citizenship,” id., at 736; and that “ [circumstances may compel one who has a dual nationality to do acts which otherwise would not be compatible with the obligations of American citizenship,” ibid. The District Court in this very case conceded:

“It is a legitimate concern of Congress that those who bear American citizenship and receive its benefits have some nexus to the United States.” 296 F. Supp., at 1252.

2. There are at least intimations in the decided cases that a dual national constitutionally may be required to make an election. In Perkins v. Elg, 307 U. S. 325, 329 (1939), the Court observed that a native-born citizen who had acquired dual nationality during minority through his parents’ foreign naturalization abroad did not lose his United States citizenship “provided that on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties.” In Kawakita v. United States, 343 U. S., at 734, the Court noted that a dual national “under certain circumstances” can be deprived of his American citizenship through an Act of Congress. In Mandoli v. Acheson, 344 U. S. 133, 138 (1952), the Court took pains to observe that there was no statute in existence imposing an election upon that dual nationality litigant.

These cases do not flatly say that a duty to elect may be constitutionally imposed. They surely indicate, however, that this is possible, and in Mandoli the holding was based on the very absence of a statute and not on any theory of unconstitutionality. And all three of these cases concerned persons who were born here, that is, persons who possessed Fourteenth Amendment citizenship; they did not concern a person, such as plaintiff Bellei, whose claim to citizenship is wholly, and only, statutory.

3. The statutory development outlined in Part IV above, by itself and without reference to the underlying legislative history, committee reports, and other studies, reveals a careful consideration by the Congress of the problems attendant upon dual nationality of a person born abroad. This was purposeful and not accidental. It was legislation structured with care and in the light of then apparent problems.

4. The solution to the dual nationality dilemma provided by the Congress by way of required residence surely is not unreasonable. It may not be the best that could be devised, but here, too, we cannot say that it is irrational or arbitrary or unfair. Congress first has imposed a condition precedent in that the citizen parent must have been in the United States or its possessions not less than 10 years, at least five of which are after attaining age 14. It then has imposed, as to the foreign-born child himself, the condition subsequent as to residence here. The Court already had emphasized the importance of residence in this country as the talisman of dedicated attachment, Weedin v. Chin Bow, 274 U. S., at 666-667, and said:

“It is not too much to say, therefore, that Congress at that time [when Rev. Stat. § 1993 was under consideration] attached more importance to actual residence in the United States as indicating a basis for citizenship than it did to descent from those who had been born citizens of the colonies or of the states before the Constitution. As said by Mr. Fish, when Secretary of State, to Minister Washburn, June 28, 1873, in speaking of this very proviso, ‘the heritable blood of citizenship was thus associated unmistakeably with residence within the country which was thus recognized as essential to full citizenship.’ Foreign Relations of the United States, Pt. 1, 1873, p. 259.” 274 U. S., at 665-666.

The same policy is reflected in the required period of residence here for aliens seeking naturalization. 8 U. S. C. § 1427 (a).

5. We feel that it does not make good constitutional sense, or comport with logic, to say, on the one hand, that Congress may impose a condition precedent, with no constitutional complication, and yet be powerless to impose precisely the same condition subsequent. Any such distinction, of course, must rest, if it has any basis at all, on the asserted “premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive,” Schneider v. Rusk, 377 U. S., at 165, and on the announcement that Congress has no “power, express or implied, to take away an American citizen's citizenship without his assent,” Afroyim v. Rusk, 387 U. S., at 257. But, as pointed out above, these were utterances bottomed upon Fourteenth Amendment citizenship and that Amendment’s direct reference to “persons born or naturalized in the United States.” We do not accept the notion that those utterances are now to be judicially extended to citizenship not based upon the Fourteenth Amendment and to make citizenship an absolute. That it is not an absolute is demonstrated by the fact that even Fourteenth Amendment citizenship by naturalization, when unlawfully procured, may be set aside. Afroyim v. Rusk, 387 U. S., at 267 n. 23.

6. A contrary holding would convert what is congressional generosity into something unanticipated and obviously undesired by the Congress. Our National Legislature indulged the foreign-born child with presumptive citizenship, subject to subsequent satisfaction of a reasonable residence requirement, rather than to deny him citizenship outright, as concededly it had the power to do, and relegate the child, if he desired American citizenship, to the more arduous requirements of the usual naturalization process. The plaintiff here would force the Congress to choose between unconditional conferment of United States citizenship at birth and deferment of citizenship until a condition precedent is fulfilled. We are not convinced that the Constitution requires so rigid a choice. If it does, the congressional response seems obvious.

7. Neither are we persuaded that a condition subsequent in this area impresses one with “second-class citizenship.” That cliché is too handy and too easy, and, like most clichés, can be misleading. That the condition subsequent may be beneficial is apparent in the light of the conceded fact that citizenship to this plaintiff was fully deniable. The proper emphasis is on what the statute permits him to gain from the possible starting point of noncitizenship, not on what he claims to lose from the possible starting point of full citizenship to which he has no constitutional right in the first place. His citizenship, while it lasts, although conditional, is not “second-class.”

8. The plaintiff is not stateless. His Italian citizenship remains. He has lived practically all his life in Italy. He has never lived in this country; although he has visited here five times, the stipulated facts contain no indication that he ever will live here. He asserts no claim of ignorance or of mistake or even of hardship. He was warned several times of the provision of the statute and of his need to take up residence in the United States prior to his 23d birthday.

We hold that § 301 (b) has no constitutional infirmity in its application to plaintiff Bellei. The judgment of the District Court is reversed.

Mr. Justice Black,

with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting.

Less than four years ago this Court held that

“the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.” Afroyim v. Rusk, 387 U. S. 253, 268 (1967).

The holding was clear. Congress could not, until today, consistently with the Fourteenth Amendment enact a law stripping an American of his citizenship which he has never voluntarily renounced or given up. Now this Court, by a vote of five to four through a simple change in its composition, overrules that decision.

The Court today holds that Congress can indeed rob a citizen of his citizenship just so long as five members of this Court can satisfy themselves that the congressional action was not “unreasonable, arbitrary,” ante, at 831; “misplaced or arbitrary,” ante, at 832; or “irrational or arbitrary or unfair,” ante, at 833. My first comment is that not one of these “tests” appears in the Constitution. Moreover, it seems a little strange to find such “tests” as these announced in an opinion which condemns the earlier decisions it overrules for their resort to cliches, which it describes as “too handy and too easy, and, like most clichés, can be misleading.” Ante, at 835. That description precisely fits those words and clauses which the majority uses, but which the Constitution does not.

The Constitution, written for the ages, cannot rise and fall with this Court’s passing notions of what is “fair,” or “reasonable,” or “arbitrary.” The Fourteenth Amendment commands:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Speaking of this very language, the Court held in Afroyim that no American can be deprived of his citizenship without his assent. Today, the Court overrules that holding. This precious Fourteenth Amendment American citizenship should not be blown around by every passing political wind that changes the composition of this Court. I dissent.

Bellei became an American citizen under the terms of § 1993 of the Revised Statutes, as amended, and he has neither renounced his American citizenship nor voluntarily assented to any governmental act terminating it. He has never given any indication of wanting to expatriate himself but, rather, has consistently maintained that he wants to keep his American citizenship. In my view, the decision in Afroyim, therefore, requires the Court to hold here that Bellei has been unconstitutionally deprived by § 301 (b) of the Immigration and Nationality Act of 1952 of his right to be an American citizen. Since § 301 (b) does not take into account in any way whether the citizen intends or desires to relinquish his citizenship, that section is inevitably inconsistent with the constitutional principles declared in Afroyim.

The Court today holds that the Citizenship Clause of the Fourteenth Amendment has no application to Bellei. The Court first notes that Afroyim was essentially a case construing the Citizenship Clause of the Fourteenth Amendment. Since the Citizenship Clause declares that: “All persons born or naturalized in the United States . . . are citizens of the United States . . . ,” the Court reasons that the protections against involuntary expatriation declared in Afroyim do not protect all American citizens, but only those “born or naturalized in the United States.” Afroyim, the argument runs, was naturalized in this country so he was protected by the Citizenship Clause, but Bellei, since he acquired his American citizenship at birth in Italy as a foreign-born child of an American citizen, was neither born nor naturalized in the United States and, hence, falls outside the scope of the Fourteenth Amendment guarantees declared in Afroyim. One could hardly call this a generous reading of the great purposes the Fourteenth Amendment was adopted to bring about.

While conceding that Bellei is an American citizen, the majority states: “He simply is not a Fourteenth-Amendment-first-sentence citizen.” Therefore, the majority reasons, the congressional revocation of his citizenship is not barred by the Constitution. I cannot accept the Court’s conclusion that the Fourteenth Amendment protects the citizenship of some Americans and not others.

Indeed, the concept of a hierarchy of citizenship, suggested by the majority opinion, was flatly rejected in Schneider v. Rusk, 377 U. S. 163 (1964): “We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive.” Id., at 165. The Court there held that Congress could not deprive Mrs. Schneider of her citizenship, which she, like Mr. Bellei in the present case, acquired derivatively through her citizen mother. Consequently, the majority in its rush to overrule Afroyim, must also, in effect, overrule Schneider as well.

Under the view adopted by the majority today, all children born to Americans while abroad would be excluded from the protections of the Citizenship Clause and would instead be relegated to the permanent status of second-class citizenship, subject to revocation at the will of Congress. The Court rejected such narrow, restrictive, and super-technical interpretations of the Citizenship Clause when it held in Afroyim that that Clause “was designed to, and does, protect every citizen of this Nation . . . .” 387 U. S., at 268.

Afroyim’s broad interpretation of the scope of the Citizenship Clause finds ample support in the language and history of the Fourteenth Amendment. Bellei was not “born ... in the United States,” but he was, constitutionally speaking, “naturalized in the United States.” Although those Americans who acquire their citizenship under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word “naturalize” in this way has a considerable constitutional history. Congress is empowered by the Constitution to “establish an uniform Rule of Naturalization,” Art. I, § 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen. The first congressional exercise of this power, entitled “An Act to establish an uniform Rule of Naturalization,” was passed in 1790 at the Second Session of the First Congress. It provided in part:

“And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.” 1 Stat. 103, 104.

This provision is the earliest form of the statute under which Bellei acquired his citizenship. Its enactment as part of a “Rule of Naturalization” shows, I think, that the First Congress conceived of this and most likely all other purely statutory grants of citizenship as forms or varieties of naturalization. However, the clearest expression of the idea that Bellei and others similarly situated should for constitutional purposes be considered as naturalized citizens is to be found in United States v. Wong Kim Ark, 169 U. S. 649 (1898):

“The Fourteenth Amendment of the Constitution . . . contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts.” 169 U. S., at 702-703.

The Court in Wong Kim Ark thus stated a broad and comprehensive definition of naturalization. As shown in Wong Kim Ark, naturalization when used in its constitutional sense is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country. All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization. This inclusive definition has been adopted in several opinions of this Court besides United States v. Wong Kim Ark, supra. Thus in Minor v. Happersett, 21 Wall. 162, 167 (1875), the Court said: “Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. . . . [N]ew citizens may be born or they may be created by naturalization.” And in Elk v. Wilkins, 112 U. S. 94 (1884), the Court took the position that the Fourteenth Amendment

“contemplates two sources of citizenship, and two sources only: birth and naturalization. . . . Persons not . . . subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.” 112 U. S., at 101-102.

Moreover, this concept of naturalization is the only one permitted by this Court’s consistent adoption of the view that the Fourteenth Amendment was intended to supply a comprehensive definition of American citizenship. In an opinion written shortly after the Fourteenth Amendment was ratified, the Court stated that one of the primary purposes of the Citizenship Clause was “to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State.” Slaughter-House Cases, 16 Wall. 36, 73 (1873). In his study, The Adoption of the Fourteenth Amendment, Professor Flack similarly concluded that the Citizenship Clause “put beyond doubt and cavil in the original law, who were citizens of the United States.” H. Flack, The Adoption of the Fourteenth Amendment 89 (1908). And in Afroyim both majority and dissenting Justices appear to have agreed on the basic proposition that the scope of the Citizenship Clause, whatever its effect, did reach all citizens. The opinion of the Court in Afroyim described the Citizenship Clause as “calculated completely to control the status of citizenship.” 387 U. S., at 262. And the dissenting Justices agreed with this proposition to the extent of holding that the Citizenship Clause was a “declaration of the classes of individuals to whom citizenship initially attaches.” Id., at 292.

The majority opinion appears at times to rely on the argument that Bellei, while he concededly might have been a naturalized citizen, was not naturalized “in the United States.” This interpretation obviously imposes a limitation on the scope of the Citizenship Clause which is inconsistent with the conclusion expressed above that the Fourteenth Amendment provides a comprehensive definition of American citizenship, for the majority’s view would exclude from the protection of that Clause all those who acquired American citizenship while abroad. I cannot accept the narrow and extraordinarily technical reading of the Fourteenth Amendment employed by the Court today. If, for example, Congress should decide to vest the authority to naturalize aliens in American embassy officials abroad rather than having the ceremony performed in this country, I have no doubt that those so naturalized would be just as fully protected by the Fourteenth Amendment as are those who go through our present naturalization procedures. Rather than the technical reading adopted by the majority, it is my view that the word “in” as it appears in the phrase “in the United States” was surely meant to be understood in two somewhat different senses: one can become a citizen of this country by being born within it or by being naturalized into it. This interpretation is supported by the legislative history of the Citizenship Clause. That clause was added in the Senate rather late in the debates on the Fourteenth Amendment, and as originally introduced its reference was to all those “born in the United States or naturalized by the laws thereof.” Cong. Globe, 39th Cong., 1st Sess., 2768. (Emphasis added.) The final version of the Citizenship Clause was undoubtedly intended to have this same scope. See Flack, supra, at 88-89.

The majority takes the position that Bellei, although admittedly a citizen of this country, was not entitled to the protections of the Citizenship Clause. I would not depart from the holding in Afroyim that every American citizen has Fourteenth Amendment citizenship. Bellei, as a naturalized American, is entitled to all the rights and privileges of American citizenship, including the right to keep his citizenship until he voluntarily renounces or relinquishes it.

The Court today puts aside the Fourteenth Amendment as a standard by which to measure congressional action with respect to citizenship, and substitutes in its place the majority’s own vague notions of “fairness.” The majority takes a new step with the recurring theme that the test of constitutionality is the Court’s own view of what is “fair, reasonable, and right.” Despite the concession that Bellei was admittedly an American citizen, and despite the holding in Afroyim that the Fourteenth Amendment has put citizenship, once conferred, beyond the power of Congress to revoke, the majority today upholds the revocation of Bellei’s citizenship on the ground that the congressional action was not “irrational or arbitrary or unfair.” The majority applies the “shock-the-conscience” test to uphold, rather than strike, a federal statute. It is a dangerous concept of constitutional law that allows the majority to conclude that, because it cannot say the statute is “irrational or arbitrary or unfair,” the statute must be constitutional.

Of course the Court’s construction of the Constitution is not a “strict” one. On the contrary, it proceeds on the premise that a majority of this Court can change the Constitution day by day, month by month, and year by year, according to its shifting notions of what is fair, reasonable, and right. There was little need for the founders to draft a written constitution if this Court can say it is only binding when a majority finds it fair, reasonable, and right to make it so. That is the loosest construction that could be employed. It is true that England has moved along very well in the world without a written constitution. But with complete familiarity with the English experience, our ancestors determined to draft a written constitution which the members of this Court are sworn to obey. While I remain on the Court I shall continue to oppose the power of judges, appointed by changing administrations, to change the Constitution from time to time according to their notions of what is “fair” and “reasonable.” I would decide this case not by my views of what is “arbitrary,” or what is “fair,” but rather by what the Constitution commands.

I dissent.

Mr. Justice Brennan,

with whom Mr. Justice Douglas joins, dissenting.

Since the Court this Term has already downgraded citizens receiving public welfare, Wyman v. James, 400 U. S. 309 (1971), and citizens having the misfortune to be illegitimate, Labine v. Vincent, ante, p. 532, I suppose today’s decision downgrading citizens born outside the United States should have been expected. Once again, as in James and Labine, the Court’s opinion makes evident that its holding is contrary to earlier decisions. Concededly, petitioner was a citizen at birth, not by constitutional right, but only through operation of a federal statute. In the light of the complete lack of rational basis for distinguishing among citizens whose naturalization was carried out within the physical bounds of the United States, and those, like Bellei, who may be naturalized overseas, the conclusion is compelled that the reference in the Fourteenth Amendment to persons “born or naturalized in the United States” includes those naturalized through operation of an Act of Congress, wherever they may be at the time. Congress was therefore powerless to strip Bellei.of his citizenship; he could lose it only if he voluntarily renounced or relinquished it. Afroyim v. Rusk, 387 U. S. 253 (1967). I dissent.

       “Sec. 301. (a) The following shall be nationals and citizens of the United States at birth:
      “(1) a person born in the United States, and subject to the jurisdiction thereof;
      “(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided ....
      “(b) Any person who is a national and citizen of the United States at birth under paragraph (7) of subsection (a), shall lose his nationality and citizenship unless he shall come to the United States prior to attaining the age of twenty-three years and shall immediately following any such coming be continuously physically present in the United State[s] for at least five years: Provided, That such physical presence follows the attainment of the age of fourteen years and precedes the age of twenty-eight years.
      “(c) Subsection (b) shall apply to a person bom abroad subsequent to May 24, 1934 . . .

      Section 301 (a) (7) was amended November 6, 1966, by Pub. L. 89-770, 80 Stat. 1322, by way of additions to the proviso, omitted above; these have no relevancy here. Pub. L. 85-316, § 16, 71 Stat. 644, 8 U. S. C. § 1401b, enacted in September 1957, provides that absences of less than 12 months in the aggregate “shall not be considered to break the continuity of [the] physical presence” required by § 301 (b).

       “Any child hereafter bom out of the limits and Jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child. In cases where one of the parents is an alien, the right of citizenship shall not descend unless the child comes to the United States and resides therein for at least five years continuously immediately previous to his eighteenth birthday, and unless, within six months after the child's twenty-first birthday, he or she shall take an oath of allegiance to the United States of America as prescribed by the Bureau of Naturalization.”

       “All children heretofore bom or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.”

       “That all children bom outside the limits of the United States who are citizens thereof in accordance with the provisions of section nineteen hundred and ninety-three of the Revised Statutes of the United States and who continue to reside outside the United States shall, in order to receive the protection of this Government, be required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States and shall be further required to take the oath of allegiance to the United States upon attaining their majority.”

       Sec. 201. The following shall be nationals and citizens of the United States at birth:
      “(g) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years’ residence in the United States or one of its outlying possessions, at least five of which were after attaining the age of sixteen years, the other being an alien: Provided, That in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one years: Provided further, That, if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or if he resides abroad for such a time that it becomes impossible for him to complete the five years’ residence in the United States or its outlying possessions before reaching the age of twenty-one years, his American citizenship shall thereupon cease.
      “(h) The foregoing provisions of subsection (g) concerning retention of citizenship shall apply to a child bom abroad subsequent to May 24, 1934.”

       At oral argument plaintiff’s counsel conceded that “Congress need not vest a person in his position with citizenship if it chooses not to do so.” Tr. of Oral Rearg. 27. Counsel for the amici sympathetic with the plaintiff’s cause made a like concession. Id., at 36.

        . Id., at 26.

       Section 1993 of the Revised Statutes, as amended by the Act of May 24, 1934, 48 Stat. 797.

       8 U.S. C. §1401 (b).


author: Per Curiam. Mr. Justice Stewart,

text:
    JOHNSON v. UNITED STATES
    No. 5247.
    Argued March 24, 1971
    Decided April 5, 1971

      William J. Lippman, by appointment of the Court, 400 U. S. 940, argued the cause and filed briefs for petitioner.

      Samuel Huntington argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, and Roger A. Pauley.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

The Chief Justice took no part in the consideration or decision of this case.

Mr. Justice Stewart,

with whom Mr. Justice Douglas joins,

dissenting.

In the petitioner’s trial on a charge of rape, the District Judge instructed the jury that it could return a verdict of guilty with the death penalty. Yet that verdict was constitutionally impermissible in light of this Court’s decision in United States v. Jackson, 390 U. S. 570. See Bailey v. United States, 132 U. S. App. D. C. 82, 86 and n. 3, 405 P. 2d 1352, 1356 and n. 3. I think the extreme prejudice arising from this erroneous instruction requires reversal of the judgment of conviction and a remand of this case for a new trial. Cf. Price v. Georgia, 398 U. S. 323, 331-332.


author: Per Curiam.

text:
    KITCHENS v. SMITH, WARDEN
    No. 6131.
    Decided April 5, 1971
   Per Curiam.

Petitioner pleaded guilty to robbery in a Georgia state court in 1944. He was not represented by counsel at any time. While serving his sentence, petitioner escaped and did not return to Georgia until 1969, when he was returned to finish the remainder of his sentence. He then brought this habeas corpus action in county court, alleging that his conviction was void under Gideon v. Wainwright, 372 U. S. 335 (1963). The county court denied relief because Gideon was “recent law and under the law at the time of his sentence, the sentence met the requirements of the law at that time.” This was error since as we have often noted, Gideon is fully retroactive. See, e. g., Linkletter v. Walker, 381 U. S. 618, 639 (1965); Desist v. United States, 394 U. S. 244, 250 n. 15 (1969); McConnell v. Rhay, 393 U. S. 2, 3 (1968); Stovall v. Denno, 388 U. S. 293, 297-298 (1967).

On appeal, the Georgia Supreme Court affirmed the denial of habeas corpus on different grounds, saying that petitioner did not testify at the habeas corpus hearing that he “wanted a lawyer, asked for one, or made any effort to get one” or that “because of his poverty, or for any other reason, he was unable to hire a lawyer.” 226 Ga. 667, 177 S. E. 2d 87-88 (1970).

As this Court has said, however, “[I]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.” Carnley v. Cochran, 369 U. S. 506, 513 (1962). This applies to guilty pleas as well as to trials. Uveges v. Pennsylvania, 335 U. S. 437, 441 (1948).

Of course, to establish his right to appointed counsel in 1944, petitioner had the burden of proving his inability at that time to hire an attorney. His petition for habeas corpus specifically averred that he was unable to obtain counsel “because of his impoverished condition” at that time. The respondent denied this allegation and thus put the matter in issue. At the hearing, petitioner testified, “I was a lot younger and I didn’t have any money and I didn’t have a lawyer . . . .” (Emphasis added.) The State made no effort whatever to contradict petitioner’s testimony that he was indigent; no part of its case went to the issue of indigency. In this light, the Georgia Supreme Court’s finding that petitioner “did not testify . . . that because of his poverty, or for any other reason, he was unable to hire a lawyer” is explicable only under the most rigid rules of testimonial construction. Though petitioner did not precisely testify that his failure to obtain a lawyer was a result of his indigency, this was the undeniable implication of his testimony, especially in view of the habeas corpus petition’s allegation that petitioner was unable to hire an attorney “because of” his indigency. The hearing below, as the transcript shows, was conducted informally. Petitioner had no lawyer, and introduced no evidence other than his own testimony. He testified discursively; no objections were made by the State, nor did it cross-examine petitioner on the issue of indigency.

It is our view that on this record petitioner proved he was without counsel due to indigency at the time of his conviction. The petition for certiorari is granted, the judgment of the Georgia Supreme Court is reversed and the case remanded for further proceedings not inconsistent with this opinion.


text:
    February 19, 1971
    No.-.
    Fairchild v. United States.
   C. A. 10th Cir. Renewed application for stay presented to Mr. Justice White, and by him referred to the Court, denied.


text:
    February 22, 1971
    No. 921.
    Richardson v. Kennedy, Secretary of the Treasury.
   Affirmed on appeal from D. C. W. D. Pa.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted and the case set for oral argument.


text:
    No. 734.
    Hegarty v. California.
   Appeal from Ct. App. Cal., 1st App. Dist., dismissed for want of substantial federal question.


text:
    No. 915.
    Carter, Administratrix v. Hartenstein, dba Hartenstein Elevator Co., et al.
   Appeal from Sup. Ct. Ark. dismissed for want of substantial federal question.


text:
    No. 1002.
    Barnard et al. v. California.
   Appeal from App. Dept., Super. Ct. Cal., County of Los Angeles, dismissed for want of substantial federal question.


text:
    No. 1003.
    Tape Industries Association of America et al. v. Younger, District Attorney of Los Angeles County, et al.
   Appeal from D. C. C. D. Cal. dismissed for want of jurisdiction.


text:
    No. 6229.
    Anderson v. New York et al.
   Appeal from Ct. App. N. Y. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 986.
    Baker et al., Trustees of Property of Penn Central Transportation Co. v. Pennsylvania et al.
   Appeal from D. C. W. D. Pa. Judgment vacated and case remanded with instructions to vacate the interlocutory injunction appealed from because the injunction, together with the underlying cause, has become moot.


text:
    No. 6047.
    Christopher et al. v. Mitchell, Attorney General, et al.
   Appeal from D. C. D. C. Judgment vacated and case remanded for further consideration in light of the judgment of this Court in No. 43, Orig., Oregon v. Mitchell, No. 44, Orig., Texas v. Mitchell, No. 46, Orig., United States v. Arizona, and No. 47, Orig., United States v. Idaho [400 U. S. 112].


text:
    No. 6080.
    Ray v. Attorney General of the United States et al.
   C. A. 9th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded to the United States District Court for the Central District of California with directions to dismiss the application for habeas corpus as moot.


text:
    No.-.
    Stanley v. Ohio.
   Sup. Ct. Ohio. Application for bail denied.


text:
    No.-.
    Cummings v. City of Toledo.
   Sup. Ct. Ohio. Application for stay denied.


text:
    No.-.
    McKenzie v. Texas.
   Ct. Crim. App. Tex. Motion of State of Texas to terminate petitioner’s stay of execution denied. The papers filed on behalf of petitioner will be treated as a petition for writ of certiorari and placed on docket of this Court as No. 6623.


text:
    No. 31,
    Orig.
    Utah v. United States.
    [For previous actions herein, see, e. g., 400 U. S. 962.]
   Motion of the State of Utah for additional time to respond to exceptions of the United States to Report of Special Master granted.

Me. Justice Maeshall took no part in the consideration or decision of this motion.


text:
    No. 44,
    Orig.
    Texas v. Mitchell, Attorney General,
   400 U. S. 112. Motion of Dawn P. German for leave to intervene and to file petition for rehearing denied.


text:
    No. 507.
    California Department of Human Resources Development et al. v. Java et al.
   Appeal from D. C. N. D. Cal. [Probable jurisdiction noted, 400 U. S. 877.] Motion of Stephen P. Berzon for leave to participate in oral argument pro hac vice granted.


text:
    No. 931.
    Engelman, Director, Division of Public Welfare, Department of Institutions and Agencies, et al. v. Amos et al.
   Appeal from D. C. N. J. The Solicitor General is invited to file a brief expressing the views of the United States.

Mr. Justice Douglas took no part in the consideration or decision of this matter.


author: Mr. Justice Douglas,

text:
    No. 1341.
    Jackson et al. v. Ogilvie, Governor of Illinois, et al.
   Appeal from D. C. N. D. Ill. Application for emergency relief presented to Mr. Justice Marshall, and by him referred to the Court, denied.

Mr. Justice Douglas,

concurring.

The Court properly stays its hand in this election case that comes to us with the customary plea for emergency action. It is not entirely clear that the three-judge court was properly convened. But assuming it was, the case is peculiarly appropriate for application of the abstention doctrine which we recently applied in Reetz v. Bozanich, 397 U. S. 82.

The Illinois statutes involved here have not been construed as respects the issues now tendered. Whether the federal question would be avoided by a state construction of the Illinois statutes is not known. There is, however, a built-in provision for judicial review in the Illinois Circuit Court of a decision of the Election Board. Ill. Rev. Stat., c. 46, § 10-10.1 (1967).

While these issues are by our federal standard “justiciable,” federal courts are usually less able than state courts to work their way through a maze of state electoral laws. If federal courts take the laboring oar in these so-called “emergency” cases involving local electoral laws, they must make quick decisions on local-law issues that are often tangled with matters of local construction and administration.

The suit in the federal court was filed December 1970, the three-judge court rendering its decision on January 28, 1971. 325 F. Supp. 864. It was not until February 1, 1971, that appellant Jackson filed his nomination papers with the Board. On February 8, 1971, two registered voters filed written objections to those nomination papers. The Board gave notice of a hearing to be held February 11, 1971, on these objections. The Board on February 18, 1971, held that the nomination papers of appellant Jackson did not satisfy requirements of the Illinois election code. Hence it was apparent that the administrative decision of the Board came after the decision of the federal three-judge court. What appellants ask us in substance to do is to sit in direct review of the Election Board. The reason, of course, is that the primary will be held February 23, 1971, and the State will begin distributing the ballots which contain the names of the winners of the primary and the names of the independent candidates on March 8, 1971. Federal courts cannot act responsibly in those situations.

      One of the underlying local-law issues involves the question as to what people are qualified to sign nominating petitions for independent candidates such as appellants. There is one view that the signatures must be of persons who did not vote in the preceding primary election for nominees of candidates for that office,, and there is the opposing view that any registered voter may sign nominating petitions for independent candidates.


text:
    No. 880.
    Kelley v. United States.
   C. A. 9th Cir. Application for stay denied.


text:
    No. 1344.
    Fitzpatrick et al. v. Board of Election Commissioners of the City of Chicago et al.
   Appeal from D. C. N. D. Ill. Motion to expedite denied.


text:
    No. 6007.
    No. 6134.
    No. 6165.
    No. 6176.
    No. 6186.
    No. 6196.
    Halley v. United States et al.; Hunt v. Eyman, Warden, et al.; Forbes v. Wainwright, Corrections Director; Gardner v. California; Pernell v. Neil, Warden, et al.; and Szijarto v. California.
   Motions for leave to file petitions for writs of habeas corpus denied.


text:
    No. 6106.
    Tarver v. Smith, Secretary of Department of Social and Health Services of Washington.
   Sup. Ct. Wash. The Solicitor General is invited to file a brief expressing the views of the United States.


text:
    No. 6152.
    No. 6277.
    No. 6300.
    Williams v. Gray, U. S. District Judge; Carroll v. Fay, Warden; and Fennell et al. v. Mathes, Chief Judge, U. S. Court of Appeals, et al.
   Motions for leave to file petitions for writs of mandamus denied.