Kent v. Dulles

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357 U.S. 116 (1958), argued 10 Apr. 1958, decided 16 June 1958 by vote of 5 to 4; Douglas for the Court, Clark, joined by Burton, Harlan, and Whittaker, in dissent. The State Department denied Rockwell Kent a passport pursuant to its 1948 policy of refusing to issue passports to communists and their supporters, or to those whose foreign travel would be contrary to the interests of the United States. Kent argued that this abridged his First Amendment rights and interfered with his right to travel. Justice William O. Douglas for the majority acknowledged that the right to travel was a liberty protected by the Due Process Clause of the Fifth Amendment. However, the majority ruled in favor of Kent on statutory grounds, holding that Congress had not given the secretary of state authority to withhold passports of citizens because of their beliefs or associations. The dissenters argued that the Immigration and Nationality Act of 1952 should be read as recognizing broad discretionary powers of the secretary of state in issuing passports.

The immediate decisional impact was that questions about Communist party membership were dropped from the passport application. Passports were promptly issued to Kent and others who had also contested the department on this matter. The broader legal impact was that the majority opinion recognized the right to travel abroad and dismantled barriers to its exercise. It is still good law.

The decision was criticized by some for not having fully addressed the First Amendment issues and for avoiding a ruling on constitutionality. However, a relatively narrow ruling was necessary to keep Justice Felix Frankfurter's crucial fifth vote for the majority.

Sheldon Goldman

Subjects: Law.

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