Peter Schuck Responds to My Post

Professor Schuck has graciously permitted me to post his response.  Here it is:

I am grateful for the comments that have been posted about my op-ed, and believe that John correctly captures my position.  It is common for the law to permit finders of fact to draw inferences from conduct, including inferences that are contrary to the words used by the actor.  Indeed, it is hard to imagine a system of justice that allowed words categorically to trump conduct inconsistent with those words.  The Court requires an intent to relinquish, and uttering the talismanic words before a government official is only one way to evidence that intent.  I certainly do not believe that killing an innocent American would be enough to support the inference, but doing so as part of an organized plot to methodically destroy American lives, property, and institutions, if proved, would surely be enough — so long as the requisite due process protections are available to the actor.

It is true that completion of such a legal procedure, like a treason prosecution, would be after the fact and perhaps of little consequence to the perpetrator. Indeed, as my colleague Akhil Amar points out, he might welcome de-nationalization if it frees him from certain obligations to the U.S. (of which very few remain) and from the possibility of a prosecution for treason (if treason is a crime that only citizens may commit — a proposition that Amar tells me is not altogether clear).  It is also true, as I noted, that our duty under international law not to render people stateless might constrain efforts to de-nationalize and cause courts to construe the power narrowly.  Still, the point of my op-ed is that Afroyim and Terrazas do not divest the government of this power where conduct clearly evinces an intent to wage (a kind of) war on the U.S.  As Justice Jackson rightly observed, “The Constitution is not a suicide pact.”