Kent v. Dulles
The Supreme Court ruled that the Secretary of State could not deny passports to Americans simply because they refused to say whether they belonged to the Communist Party, holding that Congress never gave the Secretary that kind of power.
Because the right to travel abroad is part of the constitutional liberty protected by the Fifth Amendment, the Court said it would not assume Congress silently authorized the government to withhold passports based on a citizen's beliefs or associations.
“Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage.”
Explaining why the right to travel is deeply rooted in American tradition.
How it got here: Both men sued for declaratory relief in federal district court, which ruled for the government; the D.C. Circuit, sitting en banc, affirmed by a divided vote, and the Supreme Court granted review.
The Case in Depth
What happened
Artist Rockwell Kent and psychiatrist Dr. Walter Briehl each applied for U.S. passports. The State Department demanded that both men sign affidavits stating whether they were or had ever been Communist Party members. Both refused, calling the requirement improper, and the Department refused to process their applications further, effectively denying them passports.
The question before the Court
Could the Secretary of State refuse to issue a passport to a citizen just because he wouldn't say whether he was a Communist?
The Court's answer
No — the Court ruled that the Secretary of State lacked authority to deny passports to Rockwell Kent and Dr. Walter Briehl simply because they refused to say whether they were Communists. The right to travel abroad is part of the constitutional liberty protected by the Fifth Amendment, so the Court would not assume Congress had silently given the Secretary sweeping power to withhold passports based on someone's beliefs or political associations.
Looking at historical practice, the Court found passports had traditionally been denied only over doubts about citizenship or evidence of illegal conduct — not political beliefs. Since Congress had never clearly authorized denials on ideological grounds, the Secretary's affidavit requirement exceeded his authority, though the Court left open whether Congress itself could pass such a restriction.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The ruling meant that artists, writers, scientists, and activists suspected of Communist sympathies during the Cold War could not be barred from international travel without clear congressional authorization. It curbed the State Department's practice of using passport denials as an ideological screening tool and protected a citizen's ability to travel even amid unpopular political views.
What changes now
The case is reversed, meaning Kent and Briehl's passport denials cannot stand on the grounds used. The Secretary of State can no longer require citizens to disclose Communist Party membership as a passport condition without clear statutory authorization from Congress. The decision does not resolve whether Congress could pass a law explicitly authorizing such restrictions, leaving that constitutional question for another day.
What this does not decide
The Court expressly did not decide whether Congress could constitutionally authorize the Secretary to deny passports based on Communist Party membership or beliefs — it only held that the existing statutes did not do so. It also did not decide how far the right to travel could otherwise be limited.
Concurrences and dissents
Dissent — Justice Clark
“The fact is that the Government can and does deny passports to Communists under existing law.”Quoting President Truman to argue the Secretary already had recognized authority to deny passports to Communists.
Justice Clark argued that Congress had long approved the Secretary's broad discretionary control over passports, including denials on national-security grounds, and that legislative history behind the 1918 and 1941 wartime travel-control laws showed Congress intended the Secretary to screen out people whose travel threatened national security. He would have upheld the Secretary's authority to require the affidavits without reaching any constitutional questions.
How the Court got there
The legal reasoning, step by step
- The Court first established that the right to travel abroad is part of the 'liberty' protected by the Fifth Amendment's Due Process Clause, meaning it cannot be taken away without proper legal authority.
- Because a constitutional liberty was at stake, the Court said it would not lightly assume Congress had given the Secretary of State broad, undefined power to deny passports for any reason he chose; instead, any delegation of that power had to be clear.
- Reviewing the historical practice under the passport statutes, the Court found that before 1952 the Secretary had only denied passports on two well-established grounds: doubts about the applicant's citizenship or allegiance, and evidence the applicant was involved in illegal conduct.
- Denying a passport based on Communist Party membership or refusal to disclose political beliefs did not fit either of those two historically recognized categories, so the Court concluded Congress had not authorized this particular basis for denial when it passed the passport laws.
- The Court distinguished the more restrictive wartime passport controls used in 1918 and 1941, reasoning that emergency war measures did not establish a settled peacetime practice that Congress could be said to have silently approved for ordinary times.
- Because the statutes did not clearly delegate authority to deny passports based on beliefs or associations, the Court held that the Secretary lacked power to require the anti-Communist affidavits, without needing to decide the deeper constitutional question of whether Congress itself could pass such a restriction.