Waterman, Kaufman and Anderson, Circuit Judges. Kaufman, Circuit Judge (concurring).
Plaintiff commenced a declaratory judgment action in the United States District Court for the Southern District of New York challenging the constitutionality of 8 U.S.C. § 1481(a) (5). He alleged that the section is both unconstitutional on its face and as applied to him in that it violates the due process guarantee of the Fifth Amendment and violates Section 1, Clause 1 of the Fourteenth Amendment.
After cross-motions for summary judgment had been filed by both parties, the court below in a reasoned opinion, reported at 250 F. Supp. 686 (S.D.N.Y. 1966), granted the motion filed by the defendant Secretary of State and dismissed plaintiff's complaint on the ground that there was no genuine issue as to any material fact and that the Secretary was entitled to judgment as a matter of law.
Plaintiff, who had been a naturalized citizen of the United States, had suffered the loss of that citizenship on November 14, 1960, on the ground that he had expatriated himself on July 30, 1951, when he had voluntarily voted in an Israeli parliamentary election.*fn1
The court below handed down its order upon a stipulation of the parties which set forth the material facts:
"1. Plaintiff, who was born in Poland in 1893, emigrated to the United States in 1912. Plaintiff under the name of Ephraim Bernstein, also known as Beys Afroyim, became a naturalized citizen by order of this Court on June 14, 1926.
"2. On July 30, 1951 plaintiff voted in the elections for the second Knesset, the Parliament of the State of Israel.
"3. The election for the second Knesset was a political election in a foreign state within the contemplation of Section 401(e) of the Nationality Act of 1940.
"4. Plaintiff voluntarily voted in the said election.
"5. Plaintiff contends that neither at the time of the election nor at any other time did he have any intention or desire to lose or abandon his American citizenship. Plaintiff also contends that he considered himself at all times an American citizen with allegiance to the United States. Defendant will not stipulate with respect to the truthfulness of these allegations. Defendant also maintains that these allegations are irrelevant since a specific intent or desire to lose or abandon American citizenship is not a requisite for expatriation under Section 401(e) of the Nationality Act of 1940.
"6. On November 14, 1960 the American Vice Consul at Haifa, Israel, issued a Certificate of Loss of Nationality to plaintiff on the ground that he expatriated himself on July 30, 1951 under Section 401(e) of the Nationality Act of 1940 by voting in a political election in a foreign state. The Vice Consul's action was approved by the Passport Office of the Department of State on January 4, 1961. Plaintiff on January 27, 1965 appealed to the State Department's Board of Review on the Loss of Nationality, and on May 3, 1965 the Board affirmed the Vice Consul's determination."
In his brief upon appeal appellant claims the statute violates the First, Sixth, and Eighth Amendments as well as the Fifth and Fourteenth; the First because Congress has sought by the Act to impose a drastic sanction upon a citizen's freedom to express his opinion on political, social or economic issues, and the Sixth and Eighth because the statute appears to have a punitive ring to it and the safeguards guaranteed by the Sixth to one charged with crime are not made available to one who may suffer, as did this appellant, a claimed "unusual punishment" barred by the Eighth.
We are of course bound by the authority of Perez v. Brownell, 356 U.S. 44, 78 S. Ct. 568, 2 L. Ed. 2d 603 (1958) wherein a native-born American citizen who voted in a Mexican political election, and who had lost his citizenship thereby, sought to have the U.S. Supreme Court hold that the predecessor statutory provision here challenged was beyond the ...