Denationalization: Neither Punishment, Nor Cruel and Unusual?

In Trop v. Dulles, the U.S. Supreme Court proscribed denationalization as a form of cruel and unusual punishment. In this draft, I argue that while the court was correct in its conclusion, it was mistaken in the reasoning it adopted to reach it. Specifically, I argue that denationalization should not be categorized as a form of punishment, nor should its harm be categorized as violating the constitutional concept of cruelty. Instead, denationalization is foreclosed by a liberal constitutional order’s foundational commitment to status equality. This proscribes sanctions –both punitive and non-punitive– that deny or destroy an individual’s status as an author and participant of a constitutional community.