[Constitution of the United States of America: Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[Fourteenth Amendment - Rights Guaranteed: Privileges and Immunities of Citizenship, Due Process, and Equal Protection]
[From the U.S. Government Printing Office, www.gpo.gov]
[[Page 1559]]
FOURTEENTH AMENDMENT
__________
RIGHTS GUARANTEED
PRIVILEGES AND IMMUNITIES OF CITIZENSHIP,
DUE PROCESS AND EQUAL PROTECTION
__________
CONTENTS
Page
Section 1. Rights Guaranteed.............................. 1565
Citizens of the United States............................. 1565
Privileges and Immunities................................. 1568
Due Process of Law........................................ 1572
The Development of Substantive Due Process........ 1572
``Persons'' Defined....................... 1578
Police Power Defined and Limited.......... 1579
``Liberty''............................... 1581
Liberty of Contract............................... 1581
Regulatory Labor Laws Generally........... 1581
Laws Regulating Hours of Labor............ 1586
Laws Regulating Labor in Mines............ 1586
Laws Prohibiting Employment of Children in
Hazardous Occupations................. 1587
Laws Regulating Payment of Wages.......... 1587
Minimum Wage Laws......................... 1587
Workers' Compensation Laws................ 1588
Collective Bargaining..................... 1591
Regulation of Business Enterprises: Rates,
Charges, and Conditions of Service............ 1594
``Business Affected With a Public
Interest''............................ 1594
Nebbia v. New York........................ 1596
Judicial Review of Publicly Determined Rates and
Charges....................................... 1597
Development............................... 1597
Limitations on Judicial Review............ 1600
The Ben Avon Case......................... 1602
History of the Valuation Question......... 1603
Regulation of Public Utilities (Other Than Rates). 1607
In General................................ 1607
Compulsory Expenditures: Grade Crossings,
and the Like.......................... 1608
Compellable Services...................... 1610
Safety Regulations Applicable to Railroads 1612
Statutory Liabilities and Penalties
Applicable to Railroads............... 1613
Regulation of Corporations, Business, Professions,
and Trades.................................... 1614
Corporations.............................. 1614
Business in General....................... 1615
Laws Prohibiting Trusts, Discrimination,
Restraint of Trade.................... 1615
Laws Preventing Fraud in Sale of Goods and
Securities............................ 1616
Banking, Wage Assignments and Garnishment. 1618
Insurance................................. 1619
Miscellaneous Businesses and Professions.. 1622
Protection of State Resources..................... 1624
[[Page 1560]]
Oil and Gas............................... 1624
Protection of Property and Agricultural
Crops................................. 1625
Water..................................... 1626
Fish and Game............................. 1627
Ownership of Real Property: Limitations, Rights... 1628
Zoning and Similar Actions................ 1628
Estates, Succession, Abandoned Property... 1630
Health, Safety, and Morals........................ 1632
Safety Regulations........................ 1632
Sanitation................................ 1633
Food, Drugs, Milk......................... 1633
Intoxicating Liquor....................... 1634
Regulation of Motor Vehicles and Carriers. 1634
Protecting Morality....................... 1636
Vested Rights, Remedial Rights, Political
Candidacy..................................... 1636
Control of Local Units of Government.............. 1637
Taxing Power...................................... 1637
Generally................................. 1637
Public Purpose............................ 1638
Other Considerations Affecting Validity:
Excessive Burden; Ratio of Amount Of
Benefit Received...................... 1638
Estate, Gift and Inheritance Taxes........ 1639
Income Taxes.............................. 1640
Franchise Taxes........................... 1640
Severance Taxes........................... 1640
Real Property Taxes....................... 1641
Jurisdiction to Tax............................... 1642
Sales/Use Taxes........................... 1643
Land...................................... 1643
Tangible Personalty....................... 1643
Intangible Personalty..................... 1646
Transfer (Inheritance, Estate, Gift) Taxes 1650
Corporate Privilege Taxes................. 1654
Individual Income Taxes................... 1655
Corporate Income Taxes: Foreign
Corporations.......................... 1656
Insurance Company Taxes................... 1657
Procedure in Taxation............................. 1659
Generally................................. 1659
Notice and Hearing in Relation to Taxes... 1659
Notice and Hearing in Relation to
Assessments........................... 1660
Collection of Taxes....................... 1662
Sufficiency and Manner of Giving Notice... 1664
Sufficiency of Remedy..................... 1665
Laches.................................... 1665
Eminent Domain.................................... 1666
Substantive Due Process and Noneconomic Liberty... 1666
Abortion.................................. 1669
Privacy: Its Constitutional Dimensions.... 1679
Family Relationships...................... 1688
Liberty Interests of Retarded and Mentally
Ill: Commitment and Treatment......... 1690
[[Page 1561]]
``Right to Die''.......................... 1692
Procedural Due Process: Civil............................. 1693
Some General Criteria............................. 1693
Ancient Use and Uniformity................ 1693
Equality.................................. 1694
Due Process, Judicial Process, and
Separation of Powers.................. 1694
Power of the States to Regulate Procedure......... 1695
Generally................................. 1695
Commencement of Actions................... 1696
Pleas in Abatement........................ 1696
Defenses.................................. 1697
Amendments and Continuances............... 1697
Costs, Damages, and Penalties............. 1698
Statutes of Limitation.................... 1699
Evidence and Presumptions................. 1701
Jury Trials............................... 1704
Appeals................................... 1704
Jurisdiction...................................... 1705
Generally................................. 1705
In Personam Proceedings Against
Individuals........................... 1707
Suability of Foreign Corporations......... 1710
Actions in Rem: Proceedings Against Land.. 1716
Actions in Rem: Attachment Proceedings.... 1718
Actions in Rem: Estates, Trusts,
Corporations.......................... 1720
Notice: Service of Process................ 1722
The Procedure Which Is Due Process................ 1723
The Interests Protected: Entitlements and
Positivist Recognition................ 1723
Proceedings in Which Procedural Due
Process Must Be Observed.............. 1732
When Is Process Due....................... 1735
The Requirements of Due Process........... 1740
Procedural Due Process: Criminal.......................... 1745
Generally......................................... 1745
The Elements of Due Process....................... 1747
Clarity in Criminal Statutes: The Void-
for-Vagueness Doctrine................ 1747
Other Aspects of Statutory Notice......... 1749
Entrapment................................ 1750
Criminal Identification Process........... 1752
Initiation of the Prosecution............. 1753
Fair Trial................................ 1753
Guilty Pleas.............................. 1757
Prosecutorial Misconduct.................. 1758
Proof, Burden of Proof, and Presumptions.. 1761
Sentencing................................ 1765
The Problem of the Incompetent or Insane
Defendant or Convict.................. 1769
Corrective Process: Appeals and Other
Remedies.............................. 1770
Rights of Prisoners....................... 1772
Probation and Parole...................... 1776
The Problem of the Juvenile Offender...... 1780
The Problem of Civil Commitment........... 1783
Equal Protection of the Laws.............................. 1786
Scope and Application..................................... 1786
[[Page 1562]]
State Action...................................... 1786
``Persons''....................................... 1802
``Within Its Jurisdiction''....................... 1803
Equal Protection: Judging Classifications by Law.......... 1804
Traditional Standard: Restrained Review........... 1805
The New Standards: Active Review.................. 1809
Testing Facially Neutral Classifications Which Impact on
Minorities............................................ 1815
Traditional Equal Protection: Economic Regulation and
Related Exercises of the Police Powers........................ 1821
Taxation.................................................. 1821
Classification for Purpose of Taxation............ 1821
Foreign Corporations and Nonresidents............. 1824
Income Taxes...................................... 1825
Inheritance Taxes................................. 1826
Motor Vehicle Taxes............................... 1826
Property Taxes.................................... 1827
Special Assessment................................ 1828
Police Power Regulation................................... 1829
Classification.................................... 1829
Other Business and Employment Relations................... 1834
Labor Relations................................... 1834
Monopolies and Unfair Trade Practices............. 1835
Administrative Discretion......................... 1835
Social Welfare.................................... 1836
Punishment of Crime............................... 1838
Equal Protection and Race................................. 1839
Overview.................................................. 1839
Education................................................. 1840
Development and Application of ``Separate But
Equal''....................................... 1840
Brown v. Board of Education....................... 1842
Brown's Aftermath................................. 1843
Implementation of School Desegregation............ 1845
Northern Schools: Inter- and Intradistrict
Desegregation................................. 1847
Efforts to Curb Busing and Other Desegregation
Remedies...................................... 1852
Termination of Court Supervision.................. 1853
Juries.................................................... 1854
Capital Punishment........................................ 1857
Housing................................................... 1858
Other Areas of Discrimination............................. 1859
Transportation.................................... 1859
Public Facilities................................. 1859
Marriage.......................................... 1860
Judicial System................................... 1860
Public Designation................................ 1861
Public Accommodations............................. 1861
Elections......................................... 1861
Permissible Remedial Utilization of Racial Classifications 1861
The New Equal Protection.................................. 1869
Classifications Meriting Close Scrutiny................... 1869
Alienage and Nationality.......................... 1869
Sex............................................... 1875
[[Page 1563]]
Illegitimacy...................................... 1886
Fundamental Interests: The Political Process.............. 1892
Voter Qualifications.............................. 1893
Access to the Ballot.............................. 1897
Apportionment and Districting..................... 1902
Weighing of Votes................................. 1911
The Right to Travel....................................... 1911
Durational Residency Requirements................. 1911
Marriage and Familial Relations........................... 1914
Poverty and Fundamental Interests: The Intersection of Due
Process and Equal Protection.......................... 1916
Generally......................................... 1916
Criminal Procedure................................ 1918
The Criminal Sentence............................. 1920
Voting............................................ 1921
Access to Courts.................................. 1922
Educational Opportunity........................... 1923
Abortion.......................................... 1925
Section 2. Apportionment of Representation................ 1926
Sections 3 and 4. Disqualification and Public Debt........ 1928
Section 5. Enforcement.................................... 1928
Generally................................................. 1928
State Action.............................................. 1929
Congressional Definition of Fourteenth Amendment Rights... 1933
[[Page 1565]]
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States
and the State wherein they reside. No State shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED:
CITIZENS OF THE UNITED STATES
In the Dred Scott Case,\1\ Chief Justice Taney for the Court
ruled that United States citizenship was enjoyed by two classes of
individuals: (1) white persons born in the United States as descendents
of ``persons, who were at the time of the adoption of the Constitution
recognized as citizens in the several States and [who] became also
citizens of this new political body,'' the United States of America, and
(2) those who, having been ``born outside the dominions of the United
States,'' had migrated thereto and been naturalized therein. The States
were competent, he continued, to confer state citizenship upon anyone in
their midst, but they could not make the recipient of such status a
citizen of the United States. The ``Negro,'' or ``African race,''
according to the Chief Justice, was ineligible to attain United States
citizenship, either from a State or by virtue of birth in the United
States, even as a free man descended from a Negro residing as a free man
in one of the States at the date of ratification of the Constitution.\2\
Congress, first in Sec. 1 of the Civil Rights Act of 1866 \3\ and then
in the first sentence
[[Page 1566]]
of Sec. 1 of the Fourteenth Amendment,\4\ set aside the Dred Scott
holding in a sentence ``declaratory of existing rights, and affirmative
of existing law. . . .''\5\
\1\Scott v. Sandford, 60 U.S. (19 How.) 393, 404-06, 417-18,
419-20 (1857).
\2\The controversy, political as well as constitutional, which
this case stirred and still stirs, is exemplified and analyzed in the
material collected in S. Kutler, The Dred Scott Decision: Law or
Politics? (1967).
\3\``That all persons born in the United States and not subject
to any foreign power, excluding Indians not taxed, are hereby declared
to be citizens of the United States; and such citizens, of every race
and color, without regard to any previous condition of slavery or
involuntary servitude . . . shall have the same right[s]. . . .'' Ch.
31, 14 Stat. 27.
\4\The proposed amendment as it passed the House contained no
such provision, and it was decided in the Senate to include language
like that finally adopted. Cong. Globe, 39th Cong., 1st Sess. 2560,
2768-69, 2869 (1866). The sponsor of the language said: ``This amendment
which I have offered is simply declaratory of what I regard as the law
of the land already, that every person born within the limits of the
United States, and subject to their jurisdiction, is . . . a citizen of
the United States.'' Id. at 2890. The legislative history is discussed
at some length in Afroyim v. Rusk, 387 U.S. 253, 282-86 (1967) (Justice
Harlan dissenting).
\5\United States v. Wong Kim Ark, 169 U.S. 649, 688 (1898).
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While clearly establishing a national rule on national
citizenship and settling a controversy of long standing with regard to
the derivation of national citizenship, the Fourteenth Amendment did not
obliterate the distinction between national and state citizenship, but
rather preserved it.\6\ The Court has accorded the first sentence of
Sec. 1 a construction in accordance with the congressional intentions,
holding that a child born in the United States of Chinese parents who
themselves were ineligible to be naturalized is nevertheless a citizen
of the United States entitled to all the rights and privileges of
citizenship.\7\ Congress' intent in including the qualifying phrase
``and subject to the jurisdiction thereof,'' was apparently to exclude
from the reach of the language children born of diplomatic
representatives of a foreign state and children born of alien enemies in
hostile occupation, both recognized exceptions to the common-law rule of
acquired citizenship by birth,\8\ as well as children of members of
Indian tribes subject to tribal laws.\9\ The lower courts have generally
held that the citizenship of the parents determines the citizenship of
children born on vessels in United States territorial waters or on the
high seas.\10\
\6\Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 74 (1873).
\7\United States v. Wong Kim Ark, 169 U.S. 649 (1898).
\8\Id. at 682.
\9\Id. at 680-82; Elk v. Wilkins, 112 U.S. 94, 99 (1884).
\10\United States v. Gordon, 25 Fed. Cas. 1364 (C.C.S.D.N.Y.
1861) (No. 15,231); In re Look Tin Sing, 21 F. 905 (C.C.Cal. 1884); Lam
Mow v. Nagle, 24 F.2d 316 (9th Cir. 1928).
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In Afroyim v. Rusk,\11\ a divided Court extended the force of
this first sentence beyond prior holdings, ruling that it withdrew
[[Page 1567]]
from the Government of the United States the power to expatriate United
States citizens against their will for any reason. ``[T]he Amendment can
most reasonably be read as defining a citizenship which a citizen keeps
unless he voluntarily relinquishes it. Once acquired, this Fourteenth
Amendment citizenship was not to be shifted, canceled, or diluted at the
will of the Federal Government, the States, or any other government
unit. It is true that the chief interest of the people in giving
permanence and security to citizenship in the Fourteenth Amendment was
the desire to protect Negroes. . . . This undeniable purpose of the
Fourteenth Amendment to make citizenship of Negroes permanent and secure
would be frustrated by holding that the Government can rob a citizen of
his citizenship without his consent by simply proceeding to act under an
implied general power to regulate foreign affairs or some other power
generally granted.''\12\ In a subsequent decision, however, the Court
held that persons who were statutorily naturalized by being born abroad
of at least one American parent could not claim the protection of the
first sentence of Sec. 1 and that Congress could therefore impose a
reasonable and non-arbitrary condition subsequent upon their continued
retention of United States citizenship.\13\ Between these two decisions
there is a tension which should call forth further litigation efforts to
explore the meaning of the citizenship sentence of the Fourteenth
Amendment.
\11\387 U.S. 253 (1967). Though the Court upheld the involuntary
expatriation of a woman citizen of the United States during her marriage
to a foreign citizen in Mackenzie v. Hare, 239 U.S. 299 (1915), the
subject first received extended judicial treatment in Perez v. Brownell,
356 U.S. 44 (1958), in which by a five-to-four decision the Court upheld
a statute denaturalizing a native-born citizen for having voted in a
foreign election. For the Court, Justice Frankfurter reasoned that
Congress' power to regulate foreign affairs carried with it the
authority to sever the relationship of this country with one of its
citizens to avoid national implication in acts of that citizen which
might embarrass relations with a foreign nation. Id. at 60-62. Three of
the dissenters denied that Congress had any power to denaturalize. See
discussion supra pp. 272-76. In the years before Afroyim, a series of
decisions had curbed congressional power.
\12\Afroyim v. Rusk, 387 U.S. 253, 262-63 (1967). Four
dissenters, Justices Harlan, Clark, Stewart, and White, controverted the
Court's reliance on the history and meaning of the Fourteenth Amendment
and reasserted Justice Frankfurter's previous reasoning in Perez. Id. at
268.
\13\Rogers v. Bellei, 401 U.S. 815 (1971). This, too, was a
five-to-four decision, Justices Blackmun, Harlan, Stewart, and White,
and Chief Justice Burger in the majority, and Justices Black, Douglas,
Brennan, and Marshall dissenting.
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Citizens of the United States within the meaning of this
Amendment must be natural and not artificial persons; a corporate body
is not a citizen of the United States.\14\
\14\Insurance Co. v. New Orleans, 13 Fed. Cas. 67 (C.C.D.La.
1870). Not being citizens of the United States, corporations accordingly
have been declared unable ``to claim the protection of that clause of
the Fourteenth Amendment which secures the privileges and immunities of
citizens of the United States against abridgment or impairment by the
law of a State.'' Orient Ins. Co. v. Daggs, 172 U.S. 557, 561 (1869).
This conclusion was in harmony with the earlier holding in Paul v.
Virginia, 75 U.S. (8 Wall.) 168 (1869), to the effect that corporations
were not within the scope of the privileges and immunities clause of
state citizenship set out in Article IV, Sec. 2. See also Selover, Bates
& Co. v. Walsh, 226 U.S. 112, 126 (1912); Berea College v. Kentucky, 211
U.S. 45 (1908); Liberty Warehouse Co. v. Tobacco Growers, 276 U.S. 71,
89 (1928); Grosjean v. American Press Co., 297 U.S. 233, 244 (1936).
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[[Page 1568]]
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED:
PRIVILEGES AND IMMUNITIES
Unique among constitutional provisions, the privileges and
immunities clause of the Fourteenth Amendment enjoys the distinction of
having been rendered a ``practical nullity'' by a single decision of the
Supreme Court issued within five years after its ratification. In the
Slaughter-House Cases,\15\ a bare majority of the Court frustrated the
aims of the most aggressive sponsors of this clause, to whom was
attributed an intention to centralize ``in the hands of the Federal
Government large powers hitherto exercised by the States'' with a view
to enabling business to develop unimpeded by state interference. This
expansive alteration of the federal system was to have been achieved by
converting the rights of the citizens of each State as of the date of
the adoption of the Fourteenth Amendment into privileges and immunities
of United States citizenship and thereafter perpetuating this newly
defined status quo through judicial condemnation of any state law
challenged as ``abridging'' any one of the latter privileges. To have
fostered such intentions, the Court declared, would have been ``to
transfer the security and protection of all the civil rights . . . to
the Federal Government, . . . to bring within the power of Congress the
entire domain of civil rights heretofore belonging exclusively to the
States,'' and to ``constitute this court a perpetual censor upon all
legislation of the States, on the civil rights of their own citizens,
with authority to nullify such as it did not approve as consistent with
those rights, as they existed at the time of the adoption of this
amendment. . . . [The effect of] so great a departure from the structure
and spirit of our institutions . . . is to fetter and degrade the State
governments by subjecting them to the control of Congress, in the
exercise of powers heretofore universally conceded to them of the most
ordinary and fundamental character. . . . We are convinced that no such
results were intended by the Congress . . . , nor by the legislatures
. . . which ratified'' this amendment, and that the sole ``pervading
purpose'' of this and the other War Amendments was ``the freedom of the
slave race.''
\15\83 U.S. (16 Wall.) 36, 71, 77-79 (1873).
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Conformably to these conclusions, the Court advised the New
Orleans butchers that the Louisiana statute, conferring on a single
corporation a monopoly of the business of slaughtering cattle, abrogated
no rights possessed by them as United States citizens; insofar as that
law interfered with their claimed privilege of pursuing the lawful
calling of butchering animals, the privilege thus terminated was merely
one of ``those which belonged to the citizens of the States as such.''
Privileges and immunities of state citizenship
[[Page 1569]]
had been ``left to the state governments for security and protection''
and had not been placed by this clause ``under the special care of the
Federal Government.'' The only privileges which the Fourteenth Amendment
protected against state encroachment were declared to be those ``which
owe their existence to the Federal Government, its National character,
its Constitution, or its laws.''\16\ These privileges, however, had been
available to United States citizens and protected from state
interference by operation of federal supremacy even prior to the
adoption of the Fourteenth Amendment. The Slaughter-House Cases,
therefore, reduced the privileges and immunities clause to a superfluous
reiteration of a prohibition already operative against the states.
\16\Id. at 78-79.
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Although the Court has expressed a reluctance to attempt a
definitive enumeration of those privileges and immunities of United
States citizens which are protected against state encroachment, it
nevertheless felt obliged in the Slaughter-House Cases ``to suggest some
which owe their existence to the Federal Government, its National
character, its Constitution, or its laws.''\17\ Among those which it
then identified were the right of access to the seat of Government and
to the seaports, subtreasuries, land officers, and courts of justice in
the several States, the right to demand protection of the Federal
Government on the high seas or abroad, the right of assembly, the
privilege of habeas corpus, the right to use the navigable waters of the
United States, and rights secured by treaty. In Twining v. New
Jersey,\18\ the Court recognized ``among the rights and privileges'' of
national citizenship the right to pass freely from State to State,\19\
the right to petition Congress for a redress of grievances,\20\ the
right to vote for national officers,\21\ the
[[Page 1570]]
right to enter public lands,\22\ the right to be protected against
violence while in the lawful custody of a United States marshal,\23\ and
the right to inform the United States authorities of violation of its
laws.\24\ Earlier, in a decision not mentioned in Twining, the Court had
also acknowledged that the carrying on of interstate commerce is ``a
right which every citizen of the United States is entitled to
exercise.''\25\
\17\Id. at 79.
\18\211 U.S. 78, 97 (1908).
\19\Citing Crandall v. Nevada, 73 U.S. (65 Wall.) 35 (1868). It
was observed in United States v. Wheeler, 254 U.S. 281, 299 (1920), that
the statute at issue in Crandall was actually held to burden directly
the performance by the United States of its governmental functions. Cf.
Passenger Cases, 48 U.S. (7 How.) 282, 491-92 (1849) (Chief Justice
Taney dissenting). Four concurring Justices in Edwards v. California,
314 U.S. 160, 177, 181 (1941), would have grounded a right of interstate
travel on the privileges and immunities clause. More recently, the Court
declined to ascribe a source but was content to assert the right to be
protected. United States v. Guest, 383 U.S. 745, 758 (1966); Shapiro v.
Thompson, 394 U.S. 618, 629-31 (1969). Three Justices ascribed the
source to this clause in Oregon v. Mitchell, 400 U.S. 112, 285-87 (1970)
(Justices Stewart and Blackmun and Chief Justice Burger, concurring in
part and dissenting in part).
\20\Citing United States v. Cruikshank, 92 U.S. 542 (1876).
\21\Citing Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley v.
Sinkler, 179 U.S. 58 (1900). Note Justice Douglas' reliance on this
clause in Oregon v. Mitchell, 400 U.S. 112, 149 (1970) (concurring in
part and dissenting in part).
\22\Citing United States v. Waddell, 112 U.S. 76 (1884).
\23\Citing Logan v. United States, 144 U.S. 263 (1892).
\24\Citing In re Quarles and Butler, 158 U.S. 532 (1895).
\25\Crutcher v. Kentucky, 141 U.S. 47, 57 (1891).
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In modern times, the Court has continued the minor role accorded
to the clause, only occasionally manifesting a disposition to enlarge
the restraint which it imposes upon state action. Colgate v. Harvey,\26\
which was overruled five years later,\27\ represented the first attempt
by the Court since adoption of the Fourteenth Amendment to convert the
privileges and immunities clause into a source of protection of other
than those ``interests growing out of the relationship between the
citizen and the national government.'' Here, the Court declared that the
right of a citizen resident in one State to contract in another, to
transact any lawful business, or to make a loan of money, in any State
other than that in which the citizen resides was a privilege of national
citizenship which was abridged by a state income tax law excluding from
taxable income interest received on money loaned within the State. In
Hague v. CIO,\28\ two and perhaps three justices thought that freedom to
use municipal streets and parks for the dissemination of information
concerning provisions of a federal statute and to assemble peacefully
therein for discussion of the advantages and opportunities offered by
such act was a privilege and immunity of a United States citizen, and in
Edwards v. California\29\ four Justices were prepared to rely on the
clause.\30\ In Oyama v. California,\31\ in a single sentence the Court
agreed with the contention of a native-born youth that a state Alien
Land Law, applied to work a forfeiture of property purchased in his name
with funds advanced by his parent, a Japanese alien ineligible for
citizenship and precluded from owning land, deprived him ``of his
privileges as an American citizen.'' The right to acquire and retain
property had previously not been set
[[Page 1571]]
forth in any of the enumerations as one of the privileges protected
against state abridgment, although a federal statute enacted prior to
the proposal and ratification of the Fourteenth Amendment did confer on
all citizens the same rights to purchase and hold real property as white
citizens enjoyed.\32\
\26\296 U.S. 404 (1935).
\27\Madden v. Kentucky, 309 U.S. 83, 93 (1940).
\28\307 U.S. 496, 510-18 (1939) (Justices Roberts and Black;
Chief Justice Hughes may or may not have concurred on this point. Id. at
532). Justices Stone and Reed preferred to base the decision on the due
process clause. Id. at 518.
\29\314 U.S. 160, 177-83 (1941).
\30\See also Oregon v. Mitchell, 400 U.S. 112, 149 (1970)
(Justice Douglas); id. at 285-87 (Justices Stewart and Blackmun and
Chief Justice Burger).
\31\332 U.S. 633, 640 (1948).
\32\Civil Rights Act of 1866, ch. 31, 14 Stat. 27, now 42 U.S.C.
Sec. 1982, as amended.
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In other respects, however, claims based on this clause have
been rejected.\33\
\33\E.g., Holden v. Hardy, 169 U.S. 366, 380 (1898) (statute
limiting hours of labor in mines); Williams v. Fears, 179 U.S. 270, 274
(1900) (statute taxing the business of hiring persons to labor outside
the State); Wilmington Mining Co. v. Fulton, 205 U.S. 60, 73 (1907)
(statute requiring employment of only licensed mine managers and
examiners and imposing liability on the mine owner for failure to
furnish a reasonably safe place for workmen); Heim v. McCall, 239 U.S.
175 (1915); Crane v. New York, 239 U.S. 195 (1915) (statute restricting
employment on state public works to citizens of the United States, with
a preference to citizens of the State); Missouri Pacific Ry. v. Castle,
224 U.S. 541 (1912) (statute making railroads liable to employees for
injuries caused by negligence of fellow servants and abolishing the
defense of contributory negligence); Western Union Tel. Co. v. Milling
Co., 218 U.S. 406 (1910) (statute prohibiting a stipulation against
liability for negligence in delivery of interstate telegraph messages);
Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 139 (1873); In re
Lockwood, 154 U.S. 116 (1894) (refusal of state court to license a woman
to practice law); Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879) (law
taxing a debt owed a resident citizen by a resident of another State and
secured by mortgage of land in the debtor's State); Bartemeyer v. Iowa,
85 U.S. (18 Wall.) 129 (1874); Mugler v. Kansas, 123 U.S. 623 (1887);
Crowley v. Christensen, 137 U.S. 86, 91 (1890); Giozza v. Tiernan, 148
U.S. 657 (1893) (statutes regulating the manufacture and sale of
intoxicating liquors); In re Kemmler, 136 U.S. 436 (1890) (statute
regulating the method of capital punishment); Minor v. Happersett, 88
U.S. (21 Wall.) 162 (1875) (statute regulating the franchise to male
citizens); Pope v. Williams, 193 U.S. 621 (1904) (statute requiring
persons coming into a State to make a declaration of intention to become
citizens and residents thereof before being permitted to register as
voters); Ferry v. Spokane, P. & S. Ry., 258 U.S. 314 (1922) (statute
restricting dower, in case wife at time of husband's death is a
nonresident, to lands of which he died seized); Walker v. Sauvinet, 92
U.S. 90 (1876) (statute restricting right to jury trial in civil suits
at common law); Presser v. Illinois, 116 U.S. 252, 267 (1886) (statute
restricting drilling or parading in any city by any body of men without
license of the Governor); Maxwell v. Dow, 176 U.S. 581, 596, 597-98
(1900) (provision for prosecution upon information, and for a jury
(except in capital cases) of eight persons); New York ex rel. Bryant v.
Zimmerman, 278 U.S. 63, 71 (1928) (statute penalizing the becoming or
remaining a member of any oathbound association (other than benevolent
orders, and the like) with knowledge that the association has failed to
file its constitution and membership lists); Palko v. Connecticut, 302
U.S. 319 (1937) (statute allowing a State to appeal in criminal cases
for errors of law and to retry the accused); Breedlove v. Suttles, 302
U.S. 277 (1937) (statute making the payment of poll taxes a prerequisite
to the right to vote); Madden v. Kentucky, 309 U.S. 83, 92-93 (1940),
(overruling Colgate v. Harvey, 296 U.S. 404, 430 (1935)) (statute
whereby deposits in banks outside the State are taxed at 50 cents per
$100); Snowden v. Hughes, 321 U.S. 1 (1944) (the right to become a
candidate for state office is a privilege of state citizenship, not
national citizenship); MacDougall v. Green, 335 U.S. 281 (1948)
(Illinois Election Code requirement that a petition to form and nominate
candidates for a new political party be signed by at least 200 voters
from each of at least 50 of the 102 counties in the State,
notwithstanding that 52% of the voters reside in only one county and 87%
in the 49 most populous counties); New York v. O'Neill, 359 U.S. 1
(1959) (Uniform Reciprocal State Law to secure attendance of witnesses
from within or without a State in criminal proceedings); James v.
Valtierra, 402 U.S. 137 (1971) (a provision in a state constitution to
the effect that low-rent housing projects could not be developed,
constructed, or acquired by any state governmental body without the
affirmative vote of a majority of those citizens participating in a
community referendum).
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[[Page 1572]]
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED:
DUE PROCESS OF LAW
The Development of Substantive Due Process
Although many years after ratification the Court ventured the
not very informative observation that the Fourteenth Amendment
``operates to extend . . . the same protection against arbitrary state
legislation, affecting life, liberty and property, as is offered by the
Fifth Amendment,''\34\ and that ``ordinarily if an act of Congress is
valid under the Fifth Amendment it would be hard to say that a state law
in like terms was void under the Fourteenth,''\35\ the significance of
the due process clause as a restraint on state action appears to have
been grossly underestimated by litigants no less than by the Court in
the years immediately following its adoption. From the outset of our
constitutional history due process of law as it occurs in the Fifth
Amendment had been recognized as a restraint upon government, but, with
the conspicuous exception of the Dred Scott decision,\36\ only in the
narrower sense that a legislature must provide ``due process for the
enforcement of law.''
\34\Hibben v. Smith, 191 U.S. 310, 325 (1903).
\35\Carroll v. Greenwich Ins. Co., 199 U.S. 401, 410 (1905). See
also French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).
\36\Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857), is the
exception.
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Thus, in the Slaughter-House Cases,\37\ in which the clause was
invoked by a group of butchers challenging the validity of a Louisiana
statute which conferred upon one corporation the exclusive privilege of
butchering cattle in New Orleans, the Court declared that the
prohibition against a deprivation of property ``has been in the
Constitution since the adoption of the Fifth Amendment, as a restraint
upon the Federal power. It is also to be found in some forms of
expression in the constitution of nearly all the States, as a restraint
upon the power of the States. . . . We are not without judicial
interpretation, therefore, both State and National, of the meaning of
this clause. And it is sufficient to say that under no construction of
that provision that we have ever seen, or any that we deem admissible,
can the restraint imposed by the State of Louisiana upon the exercise of
their trade by the butchers of New Orleans be held to be a deprivation
of property within the meaning of that provision.'' Four years later, in
Munn v. Illinois,\38\ the Court again refused to interpret the due
process clause as invalidating
[[Page 1573]]
state legislation regulating the rates charged for the transportation
and warehousing of grain. Rejecting contentions that such legislation
effected an unconstitutional deprivation of property by preventing the
owner from earning a reasonable compensation for its use and by
transferring to the public an interest in a private enterprise, Chief
Justice Waite emphasized that ``the great office of statutes is to
remedy defects in the common law as they are developed. . . . We know
that this power [of rate regulation] may be abused; but that is no
argument against its existence. For protection against abuses by
legislatures the people must resort to the polls, not to the courts.''
\37\83 U.S. (16 Wall.) 36, 80-81 (1873).
\38\94 U.S. 113, 134 (1877).
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Deploring such attempts, nullified consistently in the preceding
cases, to convert the due process clause into a substantive restraint on
the powers of the States, Justice Miller in Davidson v. New Orleans,\39\
obliquely counseled against a departure from the conventional
application of the clause, albeit he acknowledged the difficulty of
arriving at a precise, all-inclusive definition thereof. ``It is not a
little remarkable,'' he observed, ``that while this provision has been
in the Constitution of the United States, as a restraint upon the
authority of the Federal government, for nearly a century, and while,
during all that time, the manner in which the powers of that government
have been exercised has been watched with jealousy, and subjected to the
most rigid criticism in all its branches, this special limitation upon
its powers has rarely been invoked in the judicial forum or the more
enlarged theatre of public discussion. But while it has been part of the
Constitution, as a restraint upon the power of the States, only a very
few years, the docket of this court is crowded with cases in which we
are asked to hold that state courts and state legislatures have deprived
their own citizens of life, liberty, or property without due process of
law. There is here abundant evidence that there exists some strange
misconception of the scope of this provision as found in the Fourteenth
Amendment. In fact, it would seem, from the character of many of the
cases before us, and the arguments made in them, that the clause under
consideration is looked upon as a means of bringing to the test of the
decision of this court the abstract opinions of every unsuccessful
litigant in a State court of the justice of the decision against him,
and of the merits of the legislation on which such a decision may be
founded. If, therefore, it were possible to define what it is for a
State to deprive a person of life, liberty, or property without due
process of law, in terms which would cover every exercise of power thus
forbidden to the State, and exclude
[[Page 1574]]
those which are not, no more useful construction could be furnished by
this or any other court to any part of the fundamental of law.
\39\96 U.S. 97, 103-04 (1878).
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``But, apart from the imminent risk of a failure to give any
definition which would be at once perspicuous, comprehensive, and
satisfactory, there is wisdom . . . in the ascertaining of the intent
and application of such an important phrase in the Federal Constitution,
by the gradual process of judicial inclusion and exclusion, as the cases
presented for decision shall require. . . .''
A bare half-dozen years later, in again reaching a result in
harmony with past precedents, the Justices gave fair warning of the
imminence of a modification of their views. After noting that the due
process clause, by reason of its operation upon ``all the powers of
government, legislative as well as executive and judicial,'' could not
be appraised solely in terms of the ``sanction of settled usage,''
Justice Mathews, speaking for the Court in Hurtado v. California,\40\
declared that ``[a]rbitrary power, enforcing its edicts to the injury of
the persons and property of its subjects, is not law, whether manifested
as the decree of a personal monarch or of an impersonal multitude. And
the limitations imposed by our constitutional law upon the action of the
governments, both state and national, are essential to the preservation
of public and private rights, notwithstanding the representative
character of our political institutions. The enforcement of these
limitations by judicial process is the device of self-governing
communities to protect the rights of individuals and minorities, as well
against the power of numbers, as against the violence of public agents
transcending the limits of lawful authority, even when acting in the
name and wielding the force of the government.'' Thus were the States
put on notice that every species of state legislation, whether dealing
with procedural or substantive rights, was subject to the scrutiny of
the Court when the question of its essential justice was raised.
\40\110 U.S. 516, 528, 532, 536 (1884).
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What induced the Court to dismiss its fears of upsetting the
balance in the distribution of powers under the federal system and to
enlarge its own supervisory powers over state legislation was the
increasing number of cases seeking protection of property rights against
the remedial social legislation States were enacting in the wake of
industrial expansion. At the same time, the added emphasis on the due
process clause afforded the Court an opportunity to compensate for its
earlier virtual nullification of the privileges and immunities clause of
the Amendment. So far as such modification of its position needed to be
justified in legal terms, theories concerning the relation of government
to private rights were available
[[Page 1575]]
to demonstrate the impropriety of leaving to the state legislatures the
same ample range of police power they had enjoyed prior to the Civil
War. Preliminary to this consummation, however, the Slaughter-House
Cases and Munn v. Illinois had to be overruled at least in part, and the
views of the dissenting Justices in those cases converted into majority
doctrine.
About twenty years were required to complete this process, in
the course of which the restricted view of the police power advanced by
Justice Field in his dissent in Munn v. Illinois,\41\ namely, that it is
solely a power to prevent injury, was in effect ratified by the Court
itself. This occurred in Mugler v. Kansas,\42\ where the power was
defined as embracing no more than the power to promote public health,
morals, and safety. During the same interval, ideas embodying the social
compact and natural rights, which had been espoused by Justice Bradley
in his dissent in the Slaughter-House Cases,\43\ had been transformed
tentatively into constitutionally enforceable limitations upon
government.\44\ The consequence was that the States in exercising their
police powers could foster only those purposes of health, morals, and
safety which the Court had enumerated, and could employ only such means
as would not unreasonably interfere with the fundamentally natural
rights of liberty and property, which Justice Bradley had equated with
freedom to pursue a lawful calling and to make contracts for that
purpose.\45\
\41\94 U.S. 113, 141-48 (1877).
\42\123 U.S. 623, 661 (1887).
\43\83 U.S. (16 Wall.) 36, 113-14, 116, 122 (1873).
\44\Loan Association v. Topeka, 87 U.S. (20 Wall.) 655, 662
(1875). ``There are . . . rights in every free government beyond the
control of the State. . . . There are limitations on [governmental
power] which grow out of the essential nature of all free governments.
Implied reservations of individual rights, without which the social
compact could not exist. . . .''
\45\``Rights to life, liberty, and the pursuit of happiness are
equivalent to the rights of life, liberty, and property. These are
fundamental rights which can only be taken away by due process of law,
and which can only be interfered with, or the enjoyment of which can
only be modified, by lawful regulations necessary or proper for the
mutual good of all. . . . This right to choose one's calling is an
essential part of that liberty which it is the object of government to
protect; and a calling, when chosen, is a man's property right. . . . A
law which prohibits a large class of citizens from adopting a lawful
employment, or from following a lawful employment previously adopted,
does deprive them of liberty as well as property, without due process of
law.'' Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 116, 122 (1873)
(Justice Bradley dissenting).
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So having narrowed the scope of the state's police power in
deference to the natural rights of liberty and property, the Court next
proceeded to read into the concepts currently accepted theories of
laissez faire economics, reinforced by the doctrine of Social Darwinism
as elaborated by Herbert Spencer, to the end that ``liberty,'' in
[[Page 1576]]
particular, became synonymous with governmental hands-off in the field
of private economic relations. In Budd v. New York,\46\ Justice Brewer
in dictum declared: ``The paternal theory of government is to me odious.
The utmost possible liberty to the individual, and the fullest possible
protection to him and his property, is both the limitation and duty of
government.'' And to implement this point of view the Court next
undertook to water down the accepted maxim that a state statute must be
presumed to be valid until clearly shown to be otherwise.\47\ The first
step was taken with opposite intention. This occurred in Munn v.
Illinois,\48\ where the Court, in sustaining the legislation before it,
declared: ``For our purposes we must assume that, if a state of facts
could exist that would justify such legislation, it actually did exist
when the statute now under consideration was passed.'' Ten years later,
in Mugler v. Kansas,\49\ this procedure was improved upon, and a state-
wide anti-liquor law was sustained on the basis of the proposition that
deleterious social effects of the excessive use of alcoholic liquors
were sufficiently notorious for the Court to be able to take notice of
them, that is to say, for the Court to review and appraise the
consideration which had induced the legislature to enact the statute in
the first place.\50\ However, in Powell v. Pennsylvania,\51\ decided the
following year, the Court, confronted with a similar act involving
oleomargarine, concerning which it was unable to claim a like measure of
common knowledge, fell back upon the doctrine of presumed validity and
sustained the measure, declaring that ``it does not appear upon the face
of the statute, or from any of the facts of which the Court must take
judicial cognizance, that it infringes rights secured by the fundamental
law.''
\46\143 U.S. 517, 551 (1892).
\47\See Fletcher v. Peck, 10. U.S. (6 Cr.) 87, 128 (1810).
\48\94 U.S. 113, 123, 182 (1877).
\49\123 U.S. 623 (1887).
\50\Id. at 662. ``We cannot shut out of view the fact, within
the knowledge of all, that the public health, the public morals, and the
public safety, may be endangered by the general use of intoxicating
drinks; nor the fact . . . that . . . pauperism, and crime . . . are, in
some degree, at least, traceable to this evil.''
\51\127 U.S. 678, 685 (1888).
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In contrast to the presumed validity rule, under which the Court
ordinarily is not obliged to go beyond the record of evidence submitted
by the litigants in determining the validity of a statute, the judicial
notice principle, as developed in Mugler v. Kansas, carried the
inference that unless the Court, independently of the record, is able to
ascertain the existence of justifying facts accessible to it by the
rules governing judicial notice, it will be obliged to invalidate a
police power regulation as bearing no reasonable or adequate relation to
the purposes to be subserved by the latter;
[[Page 1577]]
namely, health, morals, or safety. For appraising state legislation
affecting neither liberty nor property, the Court found the rule of
presumed validity quite serviceable, but for invalidating legislation
constituting governmental interference in the field of economic
relations, and, more particularly, labor-management relations, the Court
found the principle of judicial notice more advantageous. This advantage
was enhanced by the disposition of the Court, in litigation embracing
the latter type of legislation, to shift the burden of proof from the
litigant charging unconstitutionality to the State seeking enforcement.
To the State was transferred the task of demonstrating that a statute
interfering with the natural right of liberty or property was in fact
``authorized'' by the Constitution, and not merely that the latter did
not expressly prohibit enactment of the same.
In 1934 the Court in Nebbia v. New York\52\ discarded this
approach to economic legislation, and has not since returned to it. The
modern approach was evidenced in a 1955 decision reversing a lower
court's judgment invalidating a state statutory scheme regulating the
sale of eyeglasses to the advantage of ophthalmologists and optometrists
in private professional practice and adversely to opticians and to those
employed by or using space in business establishments. ``The day is gone
when this Court uses the Due Process Clause of the Fourteenth Amendment
to strike down state laws, regulatory of business and industrial
conditions, because they may be unwise, improvident, or out of harmony
with a particular school of thought. . . . We emphasize again what Chief
Justice Waite said in Munn v. Illinois, 94 U.S. 113, 134, `For
protection against abuses by legislatures the people must resort to the
polls, not to the courts.'''\53\ Yet the Court went on to assess the
reasons which might have justified the legislature in prescribing the
regulation at issue, leaving open the possibility that some regulation
might be found unreasonable.\54\ More recent decisions, however, have
limited inquiry to whether the legislation is arbitrary or irrational,
and have not addressed ``reasonableness.''\55\
\52\291 U.S. 502 (1934).
\53\Williamson v. Lee Optical Co., 348 U.S. 483, 488 (1955).
\54\Id. at 487, 491.
\55\The Court has pronounced a strict ``hands-off'' standard of
judicial review, whether of congressional or state legislative efforts
to structure and accommodate the burdens and benefits of economic life.
Such legislation is to be ``accorded the traditional presumption of
constitutionality generally accorded economic regulations'' and is to be
``upheld absent proof of arbitrariness or irrationality on the part of
Congress.'' That the accommodation among interests which the legislative
branch has struck ``may have profound and far-reaching consequences
. . . provides all the more reason for this Court to defer to the
congressional judgment unless it is demonstrably arbitrary or
irrational.'' Duke Power Co. v. Carolina Environmental Study Group, 438
U.S. 59, 83-84 (1978). See also Usery v. Turner Elkhorn Mining Co., 428
U.S. 1, 14-20 (1976); Hodel v. Indiana, 452 U.S. 314, 333 (1981); New
Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 106-08 (1978); Exxon
Corp. v. Governor of Maryland, 437 U.S. 117, 124-25 (1978); Brotherhood
of Locomotive Firemen v. Chicago, R.I. & P. R.R., 393 U.S. 129, 143
(1968); Ferguson v. Skrupa, 372 U.S. 726, 730, 733 (1963).
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[[Page 1578]]
``Persons'' Defined.--Notwithstanding the historical controversy
that has been waged concerning whether the framers of the Fourteenth
Amendment intended the word ``person'' to mean only natural persons, or
whether the word was substituted for the word ``citizen'' with a view to
protecting corporations from oppressive state legislation,\56\ the
Supreme Court, as early as the Granger Cases,\57\ decided in 1877,
upheld on the merits various state laws without raising any question as
to the status of railway corporation plaintiffs to advance due process
contentions. There is no doubt that a corporation may not be deprived of
its property without due process of law,\58\ and although prior
decisions had held that the ``liberty'' guaranteed by the Fourteenth
Amendment is the liberty of natural, not artificial, persons,\59\
nevertheless a newspaper corporation was sustained, in 1936, in its
objection that a state law deprived it of liberty of press.\60\ As to
the natural persons protected by the due process clause, these include
all human beings regardless of race, color, or citizenship.\61\
\56\See Graham, The ``Conspiracy Theory'' of the Fourteenth
Amendment, 47 Yale L. J. 371 (1938).
\57\Munn v. Illinois, 94 U.S. 113 (1877). In a case arising
under the Fifth Amendment, decided almost at the same time, the Court
explicitly declared the United States ``equally with the States . . .
are prohibited from depriving persons or corporations of property
without due process of law.'' Sinking Fund Cases, 99 U.S. 700, 718-19
(1879).
\58\Smyth v. Ames, 169 U.S. 466, 522, 526 (1898); Kentucky Co.
v. Paramount Exch., 262 U.S. 544, 550 (1923); Liggett Co. v. Baldridge,
278 U.S. 105 (1928).
\59\Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243, 255
(1906); Western Turf Ass'n v. Greenberg, 204 U.S. 359, 363 (1907);
Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). Earlier, in
Northern Securities Co. v. United States, 193 U.S. 197, 362 (1904), a
case interpreting the federal antitrust law, Justice Brewer, in a
concurring opinion, had declared that ``a corporation . . . is not
endowed with the inalienable rights of a natural person.''
\60\Grosjean v. American Press Co., 297 U.S. 233, 244 (1936)
(``a corporation is a `person' within the meaning of the equal
protection and due process of law clauses''). In First Nat'l Bank of
Boston v. Bellotti, 435 U.S. 765 (1978), faced with the validity of
state restraints upon expression by corporations, the Court did not
determine that corporations have First Amendment liberty rights--and
other constitutional rights--but decided instead that expression was
protected, irrespective of the speaker, because of the interests of the
listeners. See id. at 778 n.14 (reserving question). But see id. at 809,
822 (Justices White and Rehnquist dissenting) (corporations as creatures
of the state have the rights state gives them).
\61\Yick Wo v. Hopkins, 118 U.S. 356 (1886); Terrace v.
Thompson, 263 U.S. 197, 216 (1923). See Hellenic Lines v. Rhodetis, 398
U.S. 306, 309 (1970).
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Ordinarily, the mere interest of an official as such, in
contrast to an actual injury sustained by a natural or artificial person
through invasion of personal or property rights, has not been
[[Page 1579]]
deemed adequate to enable him to invoke the protection of the Fourteenth
Amendment against state action.\62\ Similarly, municipal corporations
are viewed as having no standing ``to invoke the provisions of the
Fourteenth Amendment in opposition to the will of their creator,'' the
State.\63\ However, state officers are acknowledged to have an interest,
despite their not having sustained any ``private damage,'' in resisting
an ``endeavor to prevent the enforcement of laws in relation to which
they have official duties,'' and, accordingly, may apply to federal
courts for the ``review of decisions of state courts declaring state
statutes which [they] seek to enforce to be repugnant to the''
Fourteenth Amendment.\64\
\62\Pennie v. Reis, 132 U.S. 464 (1889); Taylor and Marshall v.
Beckham (No. 1), 178 U.S. 548 (1900); Tyler v. Judges of Court of
Registration, 179 U.S. 405, 410 (1900); Straus v. Foxworth, 231 U.S. 162
(1913); Columbus & G. Ry. v. Miller, 283 U.S. 96 (1931).
\63\City of Pawhuska v. Pawhuska Oil Co., 250 U.S. 394 (1919);
City of Trenton v. New Jersey, 262 U.S. 182 (1923); Williams v. Mayor of
Baltimore, 289 U.S. 36 (1933). But see Madison School Dist. v. WERC, 429
U.S. 167, 175 n.7 (1976) (reserving question whether municipal
corporation as an employer has a First Amendment right assertable
against State).
\64\Coleman v. Miller, 307 U.S. 433, 441, 442, 443, 445 (1939);
Boynton v. Hutchinson Gas Co., 291 U.S. 656 (1934); South Carolina Hwy.
Dept. v. Barnwell Bros., 303 U.S. 177 (1938).
The converse is not true, however, and the interest of a state
official in vindicating the Constitution gives him no legal standing to
attack the constitutionality of a state statute in order to avoid
compliance with it. Smith v. Indiana, 191 U.S. 138 (1903); Braxton
County Court v. West Virginia, 208 U.S. 192 (1908); Marshall v. Dye, 231
U.S. 250 (1913); Stewart v. Kansas City, 239 U.S. 14 (1915). See also
Coleman v. Miller, 307 U.S. 433, 437-46 (1939).
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Police Power Defined and Limited.--The police power of a State
today embraces regulations designed to promote the public convenience or
the general prosperity as well as those to promote public safety,
health, and morals, and is not confined to the suppression of what is
offensive, disorderly, or unsanitary, but extends to what is for the
greatest welfare of the state.\65\
\65\Long ago Chief Justice Marshall described the police power
as ``that immense mass of legislation, which embraces every thing within
the territory of a State, not surrendered to the general government.''
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 202 (1824). See California
Reduction Co. v. Sanitary Works, 199 U.S. 306, 318 (1905); Chicago B. &
Q. Ry. v. Drainage Comm'rs, 200 U.S. 561, 592 (1906); Bacon v. Walker,
204 U.S. 311 (1907); Eubank v. Richmond, 226 U.S. 137 (1912);
Schmidinger v. Chicago, 226 U.S. 578 (1913); Sligh v. Kirkwood, 237 U.S.
52, 58-59 (1915); Nebbia v. New York, 291 U.S. 502 (1934); Nashville, C.
& St. L. Ry. v. Walters, 294 U.S. 405 (1935). See also Penn Central
Transp. Co. v. City of New York, 438 U.S. 104 (1978) (police power
encompasses preservation of historic landmarks; land-use restrictions
may be enacted to enhance the quality of life by preserving the
character and aesthetic features of city); City of New Orleans v. Dukes,
427 U.S. 297 (1976); Young v. American Mini Theatres, 427 U.S. 50
(1976).
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Because the police power is the least limitable of the exercises
of government, such limitations as are applicable are not readily
definable. These limitations can be determined, therefore, only
[[Page 1580]]
through appropriate regard to the subject matter of the exercise of that
power.\66\ ``It is settled [however] that neither the `contract' clause
nor the `due process' clause had the effect of overriding the power of
the state to establish all regulations that are reasonably necessary to
secure the health, safety, good order, comfort, or general welfare of
the community; that this power can neither be abdicated nor bargained
away, and is inalienable even by express grant; and that all contract
and property [or other vested] rights are held subject to its fair
exercise.''\67\ Insofar as the police power is utilized by a State, the
means employed to effect its exercise can be neither arbitrary nor
oppressive but must bear a real and substantial relation to an end which
is public, specifically, the public health, public safety, or public
morals, or some other phase of the general welfare.\68\
\66\Hudson Water Co. v. McCarter, 209 U.S. 349 (1908); Eubank v.
Richmond, 226 U.S. 137, 142 (1912); Erie R.R. v. Williams, 233 U.S. 685,
699 (1914); Sligh v. Kirkwood, 237 U.S. 52, 58-59 (1915); Hadacheck v.
Sebastian, 239 U.S. 394 (1915); Hall v. Geiger-Jones Co., 242 U.S. 539
(1917); Panhandle Eastern Pipeline Co. v. Highway Comm'n, 294 U.S. 613,
622 (1935).
\67\Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548, 558
(1914).
\68\Liggett Co. v. Baldridge, 278 U.S. 105, 111-12 (1928);
Treigle v. Acme Homestead Ass'n, 297 U.S. 189, 197 (1936).
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A general rule often invoked is that if a police power
regulation goes too far, it will be recognized as a taking of property
for which compensation must be paid.\69\ Yet where mutual advantage is a
sufficient compensation, an ulterior public advantage may justify a
comparatively insignificant taking of private property for what in its
immediate purpose seems to be a private use.\70\ On the other hand, mere
``cost and inconvenience (different words, probably, for the same thing)
would have to be very great before they could become an element in the
consideration of the right of a state to exert its reserved power or its
police power.''\71\ Moreover, it is elementary that enforcement of
uncompensated obedience to a regulation passed in the legitimate
exertion of the police power is not a taking without due process of
law.\72\ Similarly, initial compliance with a regulation which is valid
when adopted occasions no forfeiture of the right to protest when that
regulation subsequently loses its validity by becoming confiscatory in
its operation.\73\
\69\Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Welch
v. Swasey, 214 U.S. 91, 107 (1909). See also Penn Central Transp. Co. v.
City of New York, 438 U.S. 104 (1978); Agins v. City of Tiburon, 447
U.S. 255 (1980). See supra, pp. 1382-95.
\70\Noble State Bank v. Haskell, 219 U.S. 104, 110 (1911).
\71\Erie R.R. v. Williams, 233 U.S. 685, 700 (1914).
\72\New Orleans Public Service v. New Orleans, 281 U.S. 682, 687
(1930).
\73\Abie State Bank v. Bryan, 282 U.S. 765, 776 (1931).
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[[Page 1581]]
``Liberty''.--The ``liberty'' guaranteed by the due process
clause has been variously defined by the Court, as will be seen
hereinafter. In general, in the early years, it meant almost exclusively
``liberty of contract,'' but with the demise of liberty of contract came
a general broadening of ``liberty'' to include personal, political and
social rights and privileges.\74\ Nonetheless, the Court is generally
chary of expanding the concept absent statutorily recognized rights.\75\
\74\See the tentative effort in Hampton v. Mow Sun Wong, 426
U.S. 88, 102 & n.23 (1976), apparently to expand upon the concept of
``liberty'' within the meaning of the Fifth Amendment's due process
clause and necessarily therefore the Fourteenth's.
\75\See the substantial confinement of the concept in Meachum v.
Fano, 427 U.S. 215 (1976); and Montanye v. Haymes, 427 U.S. 236 (1976),
in which the Court applied to its determination of what is a liberty
interest the ``entitlement'' doctrine developed in property cases, in
which the interest is made to depend upon state recognition of the
interest through positive law, an approach contrary to previous due
process-liberty analysis. Cf. Morrissey v. Brewer, 408 U.S. 471, 482
(1972). For more recent cases, see DeShaney v. Winnebago County Social
Servs. Dep't, 489 U.S. 189 (1989) (no Due Process violation for failure
of state to protect an abused child from his parent, even though abuse
had been detected by social service agency); Collins v. City of Harker
Heights, 112 S. Ct. 1061 (1992) (failure of city to warn its employees
about workplace hazards does not violate due process; the due process
clause does not impose a duty on the city to provide employees with a
safe working environment).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Liberty of Contract
Regulatory Labor Laws Generally.--Liberty of contract, a concept
originally advanced by Justices Bradley and Field in the Slaughter-House
Cases,\76\ was elevated to the status of accepted doctrine in Allgeyer
v. Louisiana.\77\ Applied repeatedly in subsequent cases as a restraint
on federal and state power, freedom of contract was also alluded to as a
property right, as is evident in the language of the Court in Coppage v.
Kansas.\78\ ``Included in the right of personal liberty and the right of
private property--partaking of the nature of each--is the right to make
contracts for the acquisition of property. Chief among such contracts is
that of personal employment, by which labor and other services are
exchanged for money or other forms of property. If this right be
[[Page 1582]]
struck down or arbitrarily interfered with, there is a substantial
impairment of liberty in the long-established constitutional sense.''
\76\83 U.S. (16 Wall.) 36 (1873).
\77\165 U.S. 578, 589 (1897). ``The liberty mentioned in that
[Fourteenth] Amendment means not only the right of the citizen to be
free from the mere physical restraint of his person, as by
incarceration, but the term is deemed to embrace the right of the
citizen to be free in the enjoyment of all his faculties, to be free to
use them in all lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; to pursue any livelihood or avocation,
and for that purpose to enter into all contracts which may be proper,
necessary and essential to his carrying out to a successful conclusion
the purposes above mentioned.''
\78\236 U.S. 1, 14 (1915).
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By a process of reasoning that was almost completely discarded
during the Depression, the Court was nevertheless able, prior thereto,
to sustain state ameliorative legislation by acknowledging that freedom
of contract was ``a qualified and not an absolute right. . . . Liberty
implies the absence of arbitrary restraint, not immunity from reasonable
regulations and prohibitions imposed in the interest of the community.
. . . In dealing with the relation of the employer and employed, the
legislature has necessarily a wide field of discretion in order that
there may be suitable protection of health and safety, and that peace
and good order may be promoted through regulations designed to insure
wholesome conditions of work and freedom from oppression.''\79\
\79\Chicago, B. & Q. R.R. v. McGuire, 219 U.S. 549, 567, 570
(1911). See also Wolff Packing Co. v. Industrial Court, 262 U.S. 522,
534 (1923).
---------------------------------------------------------------------------
While continuing to acknowledge in abstract terms that freedom
of contract is not absolute, the Court in fact was committed to the
principle that freedom of contract is the general rule and that
legislative authority to abridge it could be justified only by
exceptional circumstances. To maintain such abridgments at a minimum,
the Court intermittently employed the rule of judicial notice in a
manner best exemplified by a comparison of the early cases of Holden v.
Hardy\80\ and Lochner v. New York,\81\ decisions which bear the same
relation to each other as Powell v. Pennsylvania\82\ and Mugler v.
Kansas.\83\
\80\169 U.S. 366 (1898).
\81\198 U.S. 45 (1905).
\82\127 U.S. 678 (1888).
\83\123 U.S. 623 (1887).
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In Holden v. Hardy,\84\ the Court, in reliance upon the
principle of presumed validity, allowed the burden of proof to remain
with those attacking the validity of a statute and upheld a Utah act
limiting the period of labor in mines to eight hours per day. Taking
cognizance of the fact that labor below the surface of the earth was
attended by risk to person and to health and for these reasons had long
been the subject of state intervention, the Court registered its
willingness to sustain a limitation on freedom of contract which a state
legislature had adjudged ``necessary for the preservation of health of
employees,'' and for which there were ``reasonable grounds for believing
that . . . [it was] supported by the facts.''
\84\169 U.S. 366, 398 (1898).
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Seven years later, however, a radically altered Court was
predisposed in favor of the doctrine of judicial notice, and applied
that
[[Page 1583]]
doctrine to conclude in Lochner v. New York\85\ that a law restricting
employment in bakeries to ten hours per day and 60 hours per week was an
unconstitutional interference with the right of adult laborers, sui
juris, to contract for their means of livelihood. Denying that in so
holding the Court was in effect substituting its own judgment for that
of the legislature, Justice Peckham nevertheless maintained that whether
the act was within the police power of the State was a ``question that
must be answered by the Court,'' and then, in disregard of the
accumulated medical evidence proffered in support of the act, uttered
the following observation. ``In looking through statistics regarding all
trades and occupations, it may be true that the trade of a baker does
not appear to be as healthy as some trades, and is also vastly more
healthy than still others. To the common understanding the trade of a
baker has never been regarded as an unhealthy one. . . . It might be
safely affirmed that almost all occupations more or less affect the
health. . . . But are we all, on that account, at the mercy of the
legislative majorities?''\86\
\85\198 U.S. 45 (1905).
\86\Id. at 58-59.
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Two dissenting opinions were filed in the case. Justice Harlan,
pointing to the abundance of medical testimony tending to show that the
life expectancy of bakers was below average, that their capacity to
resist diseases was low, and that they were peculiarly prone to suffer
irritations of the eyes, lungs, and bronchial passages, concluded that
the very existence of such evidence left the reasonableness of the
measure open to discussion and that the latter fact of itself put the
statute within legislative discretion. ``The responsibility therefor
rests upon the legislators, not upon the courts. No evils arising from
such legislation could be more far reaching than those that might come
to our system of government if the judiciary, abandoning the sphere
assigned to it by the fundamental law, should enter the domain of
legislation, and upon grounds merely of justice or reason or wisdom
annul statutes that had received the sanction of the people's
representatives. . . . [T]he public interests imperatively demand that
legislative enactments should be recognized and enforced by the courts
as embodying the will of the people, unless they are plainly and
palpably, beyond all question, in violation of the fundamental law of
the Constitution.''\87\
\87\Id. at 71, 74 (quoting Atkin v. Kansas, 191 U.S. 207, 223
(1903)).
---------------------------------------------------------------------------
The second dissenting opinion, written by Justice Holmes, has
received the greater measure of attention because the views expressed
therein were a forecast of the line of reasoning to be fol
[[Page 1584]]
lowed by the Court some decades later. ``This case is decided upon an
economic theory which a large part of the country does not entertain. If
it were a question whether I agreed with that theory, I should desire to
study it further and long before making up my mind. But I do not
conceive that to be my duty, because I strongly believe that my
agreement or disagreement has nothing to do with the right of a majority
to embody their opinions in law. It is settled by various decisions of
this court that state constitutions and state laws may regulate life in
many ways which we as legislators might think as injudicious or if you
like as tyrannical as this, and which equally with this interfere with
the liberty to contract. . . . The Fourteenth Amendment does not enact
Mr. Herbert Spencer's Social Statics. . . . But a constitution is not
intended to embody a particular economic theory, whether of paternalism
and the organic relations of the citizen to the state or of laissez
faire. It is made for people of fundamentally differing views, and the
accident of our finding certain opinions natural and familiar or novel
and even shocking ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the Constitution. . . . I
think that the word liberty in the Fourteenth Amendment is perverted
when it is held to prevent the natural outcome of a dominant opinion,
unless it can be said that a rational and fair man necessarily would
admit that the statute proposed would infringe fundamental principles as
they have been understood by the traditions of our people and our
law.''\88\
\88\198 U.S. at 75-76 (1905).
---------------------------------------------------------------------------
In part, Justice Holmes' criticism of his colleagues was unfair,
for his ``rational and fair man'' could not function in a vacuum, and,
in appraising the constitutionality of state legislation, could no more
avoid being guided by his preferences or ``economic predilections'' than
were the Justices constituting the majority. Insofar as he accepted the
broader conception of due process of law in preference to the historical
concept thereof as pertaining to the enforcement rather than the making
of law, and did not affirmatively advocate a return to the maxim that
the possibility of abuse is no argument against possession of a power,
Justice Holmes, whether consciously or not, was thus prepared to
observe, along with his opponents in the majority, the very practices
which were deemed to have rendered inevitable the assumption by the
Court of a ``perpetual censorship'' over state legislation. The basic
distinction, therefore, between the positions taken by Justice Peckham
for the majority and Justice Holmes, for what was then the minority, was
the
[[Page 1585]]
espousal of the conflicting doctrines of judicial notice by the former
and of presumed validity by the latter.
Although the Holmes dissent bore fruit in time in the form of
the Bunting v. Oregon\89\ and Muller v. Oregon\90\ decisions modifying
Lochner, the doctrinal approach employed in the earlier of these by
Justice Brewer continued to prevail until the Depression in the 1930's.
In view of the shift in the burden of proof which application of the
principle of judicial notice entailed, counsel defending the
constitutionality of social legislation developed the practice of
submitting voluminous factual briefs replete with medical or other
scientific data intended to establish beyond question a substantial
relationship between the challenged statute and public health, safety,
or morals. Whenever the Court was disposed to uphold measures pertaining
to industrial relations, such as laws limiting hours of work,\91\ it
generally intimated that the facts thus submitted by way of
justification had been authenticated sufficiently for it to take
judicial cognizance thereof. On the other hand, whenever it chose to
invalidate comparable legislation, such as enactments establishing
minimum wage for women and children,\92\ it brushed aside such
supporting data, proclaimed its inability to perceive any reasonable
connection between the statute and the legitimate objectives of health
or safety, and condemned the statute as an arbitrary interference with
freedom of contract.
\89\243 U.S. 426 (1917).
\90\208 U.S. 412 (1908).
\91\Id.
\92\Adkins v. Children's Hospital, 261 U.S. 525 (1923); Stettler
v. O'Hara, 243 U.S. 629 (1917); Morehead v. New York ex rel. Tipaldo,
298 U.S. 587 (1936).
---------------------------------------------------------------------------
During the great Depression, however, the laissez faire tenet of
self-help was supplanted by the belief that it is peculiarly the duty of
government to help those who are unable to help themselves. To sustain
remedial legislation enacted in conformity with the latter philosophy,
the Court had to revise extensively its previously formulated concepts
of ``liberty'' under the due process clause. Not only did the Court take
judicial notice of the demands for relief arising from the Depression
when it overturned prior holdings and sustained minimum wage
legislation,\93\ but, in upholding state legislation designed to protect
workers in their efforts to organize and bargain collectively, the Court
had to reconsider the scope of an
[[Page 1586]]
employer's liberty of contract and recognize a correlative liberty of
employees that state legislatures could protect.
\93\West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). Thus
the National Labor Relations Act was declared not to ``interfere with
the normal exercise of the right of the employer to select its employees
or to discharge them.'' However, restraint of the employer for the
purpose of preventing an unjust interference with the correlative right
of his employees to organize was declared not to be arbitrary. NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 44, 45-46 (1937).
---------------------------------------------------------------------------
To the extent that it acknowledged that liberty of the
individual may be infringed by the coercive conduct of other individuals
no less than by the arbitrary action of public officials, the Court in
effect transformed the due process clause into a source of encouragement
to state legislatures to intervene affirmatively to mitigate the effects
of such coercion. By such modification of its views, liberty, in the
constitutional sense of freedom resulting from restraint upon
government, was replaced by the civil liberty which an individual enjoys
by virtue of the restraints which government, in his behalf, imposes
upon his neighbors.
Laws Regulating Hours of Labor.--Even during the Lochner era,
the due process clause was construed as permitting enactment by the
States of maximum hours laws applicable to women workers\94\ and to
workers in specified lines of work thought to be physically demanding or
otherwise worthy of special protection.\95\ Because of the almost
plenary powers of the State and its municipal subdivisions to determine
the conditions for work on public projects, statutes limiting the hours
of labor on public works were also upheld at a relatively early
date.\96\
\94\Miller v. Wilson, 236 U.S. 373 (1915) (statute limiting work
to 8 hours/day, 48 hours/week); Bosley v. McLaughlin, 236 U.S. 385
(1915) (same restrictions for women working as pharmacists or student
nurses). See also Muller v. Oregon, 208 U.S. 412 (1908) (10 hours/day as
applied to work in laundries); Riley v. Massachusetts, 232 U.S. 671
(1914) (violation of lunch hour required to be posted).
\95\See, e.g., Holden v. Hardy, 169 U.S. 366 (1898) (statute
limiting the hours of labor in mines and smelters to eight hours per
day); Bunting v. Oregon, 243 U.S. 426 (1917) (statute limiting to ten
hours per day, with the possibility of 3 hours per day of overtime at
time-and-a-half pay, work in any mill, factory, or manufacturing
establishment).
\96\Atkin v. Kansas, 191 U.S. 207 (1903).
---------------------------------------------------------------------------
Laws Regulating Labor in Mines.--The regulation of mines being
patently within the police power, States during this period were also
upheld in the enactment of laws providing for appointment of mining
inspectors and requiring payment of their fees by mine owners,\97\
compelling employment of only licensed mine managers and mine examiners,
and imposing upon mine owners liability for the willful failure of their
manager and examiner to furnish a reasonably safe place for workmen.\98\
Other similar regulations which have been sustained have included laws
requiring that underground passageways meet or exceed a minimum
width,\99\ that boundary pillars be installed between adjoining coal
properties as
[[Page 1587]]
a protection against flood in case of abandonment,\100\ and that
washhouses be provided for employees.\101\
\97\St. Louis Consol. Coal Co. v. Illinois, 185 U.S. 203 (1902).
\98\Wilmington Mining Co. v. Fulton, 205 U.S. 60 (1907).
\99\Barrett v. Indiana, 229 U.S. 26 (1913).
\100\Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 (1914).
\101\Booth v. Indiana, 237 U.S. 391 (1915).
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Law Prohibiting Employment of Children in Hazardous
Occupations.--To make effective its prohibition against the employment
of persons under 16 years of age in dangerous occupations, a State has
been held to be competent to require employers at their peril to
ascertain whether their employees are in fact below that age.\102\
\102\Sturges & Burn v. Beauchamp, 231 U.S. 320 (1913).
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Laws Regulating Payment of Wages.--No unconstitutional
deprivation of liberty of contract was deemed to have been occasioned by
a statute requiring redemption in cash of store orders or other
evidences of indebtedness issued by employers in payment of wages.\103\
Nor was any constitutional defect discernible in laws requiring
railroads to pay their employees semimonthly\104\ and to pay them on the
day of discharge, without abatement or reduction, any funds due
them.\105\ Similarly, freedom of contract was held not to be infringed
by an act requiring that miners, whose compensation was fixed on the
basis of weight, be paid according to coal in the mine car rather than
at a certain price per ton for coal screened after it has been brought
to the surface, and conditioning such payment on the presence of no
greater percentage of dirt or impurities than that ascertained as
unavoidable by the State Industrial Commission.\106\
\103\Knoxville Iron Co. v. Harbison, 183 U.S. 13 (1901); Dayton
Coal and Iron Co. v. Barton, 183 U.S. 23 (1901); Keokee Coke Co. v.
Taylor, 234 U.S. 224 (1914).
\104\Erie R.R. v. Williams, 233 U.S. 685 (1914).
\105\St. Louis, I. Mt. & S.P. Ry. v. Paul, 173 U.S. 404 (1899).
\106\Rail Coal Co. v. Ohio Industrial Comm'n, 236 U.S. 338
(1915). See also McLean v. Arkansas, 211 U.S. 539 (1909).
---------------------------------------------------------------------------
Minimum Wage Laws.--The theory that a law prescribing minimum
wages for women and children violates due process by impairing freedom
of contract was finally discarded in 1937.\107\ The modern theory of the
Court, particularly when labor is the beneficiary of legislation, was
stated by Justice Douglas for a majority of the Court, in the following
terms: ``Our recent decisions make plain that we do not sit as a
superlegislature to weigh the wisdom of legislation nor to decide
whether the policy which it expresses offends the public welfare. The
legislative power has limits. . . . But the state legislatures have
constitutional authority to experiment with new techniques; they are
entitled to their own standard
[[Page 1588]]
of the public welfare; they may within extremely broad limits control
practices in the business-labor field, so long as specific
constitutional prohibitions are not violated and so long as conflicts
with valid and controlling federal laws are avoided.''\108\ Proceeding
from this basis the Court sustained a Missouri statute giving employees
the right to absent themselves four hours on election day, between the
opening and closing of the polls, without deduction of wages for their
absence.
\107\West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)
(overruling Adkins v. Children's Hospital, 261 U.S. 525 (1923), a Fifth
Amendment case); Morehead v. New York ex rel. Tipaldo, 298 U.S. 587
(1936).
\108\Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423
(1952).
---------------------------------------------------------------------------
It was admitted that this was a minimum wage law, but, said
Justice Douglas, ``the protection of the right of suffrage under our
scheme of things is basic and fundamental,'' and hence within the police
power. ``Of course,'' the Justice added, ``many forms of regulation
reduce the net return of the enterprise. . . . Most regulations of
business necessarily impose financial burdens on the enterprise for
which no compensation is paid. Those are part of the costs of our
civilization. Extreme cases are conjured up where an employer is
required to pay wages for a period that has no relation to the
legitimate end. Those cases can await decision as and when they arise.
The present law has no such infirmity. It is designed to eliminate any
penalty for exercising the right of suffrage and to remove a practical
obstacle to getting out the vote. The public welfare is a broad and
inclusive concept. The moral, social, economic, and physical well-being
of the community is one part of it; the political well-being, another.
The police power which is adequate to fix the financial burden for one
is adequate for the other. The judgment of the legislature that time out
for voting should cost the employee nothing may be a debatable one. It
is indeed conceded by the opposition to be such. But if our recent cases
mean anything, they leave debatable issues as respects business,
economic, and social affairs to legislative decision. We could strike
down this law only if we returned to the philosophy of the Lochner,
Coppage, and Adkins cases.''\109\
\109\Id. at 424-25. See also Dean v. Gadsden Times Pub. Co., 412
U.S. 543 (1973) (sustaining statute providing that employee excused for
jury duty should be entitled to full compensation from employer, less
jury service fee).
---------------------------------------------------------------------------
Workers' Compensation Laws.--``This court repeatedly has upheld
the authority of the States to establish by legislation departures from
the fellow-servant rule and other common-law rules affecting the
employer's liability for personal injuries to the employee.''\110\
``These decisions have established the propositions that the rules of
law concerning the employer's responsibility for personal injury or
death of an employee arising in the course of em
[[Page 1589]]
ployment are not beyond alteration by legislation in the public
interest; that no person has a vested right entitling him to have these
any more than other rules of law remain unchanged for his benefit; and
that, if we exclude arbitrary and unreasonable changes, liability may be
imposed upon the employer without fault, and the rules respecting his
responsibility to one employee for the negligence of another and
respecting contributory negligence and assumption of risk are subject to
legislative change.''\111\ Accordingly, a state statute which provided
an exclusive system to govern the liabilities of employers and the
rights of employees and their dependents to compensation for disabling
injuries and death caused by accident in certain hazardous
occupations,\112\ was held not to work a denial of due process in
rendering the employer liable irrespective of the doctrines of
negligence, contributory negligence, assumption of risk, and negligence
of fellow-servants, nor in depriving the employee or his dependents of
the higher damages which, in some cases, might be rendered under these
doctrines.\113\ Likewise, an act which allowed an injured employee an
election of remedies permitting restricted recovery under a compensation
law although guilty of contributory negligence, and full compensatory
damages under the Employers' Liability Act, did not deprive an employer
of his property without due process of law.\114\
\110\New York Cent. R.R. v. White, 243 U.S. 188, 200 (1917).
\111\Arizona Employers' Liability Cases, 250 U.S. 400, 419-20
(1919).
\112\In determining what occupations may be brought under the
designation of ``hazardous,'' the legislature may carry the idea to the
``vanishing point.'' Ward & Gow v. Krinsky, 259 U.S. 503, 520 (1922).
\113\New York Central R.R. v. White, 243 U.S. 188 (1917);
Mountain Timber Co. v. Washington, 243 U.S. 219 (1917).
\114\Arizona Employers' Liability Cases, 250 U.S. 400 (1919).
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The imposition upon coal mine operators, and ultimately coal
consumers, of the liability of compensating former employees who
terminated work in the industry before passage of the law for black lung
disabilities contracted in the course of their work was sustained by the
Court as a rational measure to spread the costs of the employees'
disabilities to those who have profited from the fruits of their
labor.\115\ Legislation readjusting rights and burdens is not unlawful
solely because it upsets otherwise settled expectations, but it must
take account of the realities previously existing, i.e., that the danger
may not have been known or appreciated, or that actions might have been
taken in reliance upon the current state of the law; therefore,
legislation imposing liability on the basis of deterrence or of
blameworthiness might not have passed muster.
\115\Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14-20
(1976). But see id. at 38 (Justice Powell concurring).
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[[Page 1590]]
Contracts limiting liability for injuries, consummated in
advance of the injury received, may be prohibited by the legislature,
which may further stipulate that subsequent acceptance of benefits under
such contracts shall not constitute satisfaction of a claim for injuries
thereafter sustained.\116\ Also, as applied to a nonresident alien
employee hired within the State but injured outside, an act forbidding
any contracts exempting employers from liability for injuries outside
the State has been construed as not denying due process to the
employer.\117\ The fact that a State, after having allowed employers to
cover their liability with a private insurer, subsequently withdrew that
privilege and required them to contribute to a state insurance fund was
held to effect no unconstitutional deprivation as applied to an employer
who had obtained protection from an insurance company before this change
went into effect.\118\ As long as the right to come under a workmen's
compensation statute is optional with an employer, the latter, having
chosen to accept benefits thereof, is estopped from attempting to escape
its burdens by challenging the constitutionality of a provision thereof
which makes the finding of fact of an industrial commission conclusive
if supported by any evidence regardless of its preponderance.\119\
\116\Chicago, B. & Q. R.R. v. McGuire, 219 U.S. 549 (1911).
\117\Alaska Packers Ass'n v. Industrial Accident Comm'n, 294
U.S. 532 (1935).
\118\Thornton v. Duffy, 254 U.S. 361 (1920).
\119\Booth Fisheries v. Industrial Comm'n, 271 U.S. 208 (1926).
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When, by the terms of a workers' compensation statute, the
wrongdoer, in case of wrongful death, is obliged to indemnify the
employer or the insurance carrier of the employer of the decedent, in
the amount which the latter were required under the act to contribute
into special compensation funds, no unconstitutional deprivation of the
wrongdoer's property was discernible.\120\ By the same course of
reasoning neither the employer nor the carrier was held to have been
denied due process by another provision in an act requiring payments by
them, in case an injured employee dies without dependents, into special
funds to be used for vocational rehabilitation or disability
compensation of injured workers of other establishments.\121\
Compensation also need not be based exclusively on loss of earning
power, and an award authorized by statute for injuries resulting in
disfigurement of the face or head, independent of compensation for
inability to work, has been conceded to be neither an arbitrary nor
oppressive exercise of the police power.\122\
\120\Staten Island Ry. v. Phoenix Co., 281 U.S. 98 (1930).
\121\Sheehan Co. v. Shuler, 265 U.S. 371 (1924); New York State
Rys. v. Shuler, 265 U.S. 379 (1924).
\122\New York Cent. R.R. v. Bianc, 250 U.S. 596 (1919).
Attorneys are not deprived of property or their liberty of contract by
restriction imposed by the State on the fees which they may charge in
cases arising under the workmen's compensation law. Yeiser v. Dysart,
267 U.S. 540 (1925).
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[[Page 1591]]
Collective Bargaining.--During the 1930s, liberty, as translated
into what one Justice labeled the Allgeyer-Lochner-Adair-Coppage
doctrine,\123\ lost its potency as an obstacle to legislation calculated
to enhance the bargaining capacity of workers as against that already
possessed by their employers. Prior to the manifestation, in Senn v.
Tile Layers Union,\124\ of a greater willingness to defer to legislative
judgment as to the wisdom and need of such enactments, the Court had, on
occasion, sustained measures affecting the employment relationship,
e.g., a statute requiring every corporation to furnish, upon request by
any employee being discharged or leaving its service, a letter, signed
by the superintendent or manager, setting forth the nature and duration
of the employee's service and the true cause for leaving.\125\ Added
provisions that such letters should be on plain paper selected by the em
[[Page 1592]]
ployee, signed in ink and sealed, and free from superfluous figures and
words, were also sustained as not amounting to any unconstitutional
deprivation of liberty and property.\126\ On the ground that the right
to strike is not absolute, the Court in a similar manner upheld a
statute under which a labor union official was punished for having
ordered a strike for the purpose of coercing an employer to pay a wage
claim of a former employee.\127\
\123\Justice Black in Lincoln Federal Labor Union v.
Northwestern Iron & Metal Co., 335 U.S. 525, 535 (1949). In his
concurring opinion, contained in the companion case of AFL v. American
Sash & Door Co., 335 U.S. 538, 543-44 (1949), Justice Frankfurter
summarized the now obsolete doctrines employed by the Court to strike
down state laws fostering unionization. ``[U]nionization encountered the
shibboleths of a premachine age and these were reflected in juridical
assumptions that survived the facts on which they were based. Adam Smith
was treated as though his generalizations had been imparted to him on
Sinai and not as a thinker who addressed himself to the elimination of
restrictions which had become fetters upon initiative and enterprise in
his day. Basic human rights expressed by the constitutional conception
of `liberty' were equated with theories of laissez faire. The result was
that economic views of confined validity were treated by lawyers and
judges as though the Framers had enshrined them in the Constitution.
. . . The attitude which regarded any legislative encroachment upon the
existing economic order as infected with unconstitutionality led to
disrespect for legislative attempts to strengthen the wage-earners'
bargaining power. With that attitude as a premise, Adair v. United
States, 208 U.S. 161 (1908), and Coppage v. Kansas, 236 U.S. 1 (1915),
followed logically enough; not even Truax v. Corrigan, 257 U.S. 312
(1921), could be considered unexpected.''
In Adair and Coppage the Court voided statutes outlawing
``yellow dog'' contracts whereby, as a condition of obtaining
employment, a worker had to agree not to join or to remain a member of a
union; these laws, the Court ruled, impaired the employer's ``freedom of
contract''--the employer's unrestricted right to hire and fire. In
Truax, the Court on similar grounds invalidated an Arizona statute which
denied the use of injunctions to employers seeking to restrain picketing
and various other communicative actions by striking employees. And in
Wolff Co. v. Industrial Court, 262 U.S. 522 (1923); 267 U.S. 552 (1925)
and Dorchy v. Kansas, 264 U.S. 286 (1924), the Court had also ruled that
a statute compelling employers and employees to submit their
controversies over wages and hours to state arbitration was
unconstitutional as part of a system compelling employers and employees
to continue in business on terms not of their own making.
\124\301 U.S. 486 (1937).
\125\Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922). In
conjunction with its approval of this statute, the Court also sanctioned
judicial enforcement of a local policy rule which rendered illegal an
agreement of several insurance companies having a local monopoly of a
line of insurance, to the effect that no company would employ within two
years anyone who had been discharged from, or left, the service of any
of the others.
\126\Chicago, R.I. & P. Ry. v. Perry, 259 U.S. 548 (1922).
\127\Dorchy v. Kansas, 272 U.S. 306 (1926).
---------------------------------------------------------------------------
The significance of Senn v. Tile Layers Union\128\ as an
indicator of the range of the alteration of the Court's views concerning
the constitutionality of state labor legislation, derives in part from
the fact that the statute upheld therein was not appreciably different
from that voided in Truax v. Corrigan.\129\ Both statutes withheld the
remedy of injunction. Because, however, the invalidated act did not
contain the more liberal and also more precise definition of a labor
dispute set forth in the sustained enactment and, above all, did not
affirmatively purport to sanction peaceful picketing only, the Court was
enabled to maintain that Truax v. Corrigan, insofar as ``the statute
there in question was . . . applied to legalize conduct which was not
simply peaceful picketing,'' was distinguishable. The statute upheld in
Senn authorized the giving of publicity to labor disputes, declared
peaceful picketing and patrolling lawful, and prohibited the granting of
injunctions against such conduct; the statute was applied to deny an
injunction to a tiling contractor being picketed by a union because he
refused to sign a closed shop agreement containing a provision requiring
him to abstain from working in his own business as a tile layer or
helper. Inasmuch as the enhancement of job opportunities for members of
the union was a legitimate objective, the State was held competent to
authorize the fostering of that end by peaceful picketing, and the fact
that the sustaining of the union in its efforts at peaceful persuasion
might have the effect of preventing Senn from continuing in business as
an independent entrepreneur was declared to present an issue of public
policy exclusively for legislative determination.\130\
\128\301 U.S. 468 (1937).
\129\257 U.S. 312 (1921).
\130\Cases disposing of the contention that restraints on
picketing amount to a denial of freedom of speech and constitute
therefore a deprivation of liberty without due process of law have been
set forth under the First Amendment. See pp. 1102, 1121, supra.
---------------------------------------------------------------------------
Years later, the policy of many state legislatures had evolved
in the direction of attempting to control the abuse of the enormous
economic power that previously enacted protective measures had
[[Page 1593]]
enabled labor unions to amass, and here too the Court found restrictions
constitutional. Thus the Court upheld application of a state prohibition
on racial discrimination by unions, rejecting claims that the measure
interfered unlawfully with the union's right to choose its members and
abridged its property rights, and liberty of contract. Inasmuch as the
union ``[held] itself out to represent the general business needs of
employees'' and functioned ``under the protection of the State,'' the
union was deemed to have forfeited the right to claim exemption from
legislation protecting workers against discriminatory exclusion.\131\
\131\Railway Mail Ass'n v. Corsi, 326 U.S. 88, 94 (1945).
Justice Frankfurter, concurring, declared that ``the insistence by
individuals of their private prejudices . . ., in relations like those
now before us, ought not to have a higher constitutional sanction than
the determination of a State to extend the area of nondiscrimination
beyond that which the Constitution itself exacts.'' Id. at 98.
---------------------------------------------------------------------------
Similarly approved as constitutional in Lincoln Federal Labor
Union v. Northwestern Iron & Metal Co.\132\ and AFL v. American Sash &
Door Co.\133\ were state laws outlawing the closed shop. When labor
unions invoked in their own defense the freedom of contract doctrine
that hitherto had been employed to nullify legislation intended for
their protection, the Court, speaking through Justice Black, announced
its refusal ``to return . . . to . . . [a] due process philosophy that
has been deliberately discarded. . . . The due process clause,'' it
maintained, does not ``forbid a State to pass laws clearly designed to
safeguard the opportunity of nonunion workers to get and hold jobs, free
from discrimination against them because they are nonunion
workers.''\134\ Also in harmony with the last mentioned pair of cases is
UAW v. WERB,\135\ upholding enforcement of the Wisconsin Employment
Peace Act to proscribe as an unfair labor practice efforts of a union,
after collective bargaining negotiations had become deadlocked, to
coerce an employer through a ``slow-down'' in production achieved by the
frequent, irregular, and unannounced calling of union meetings during
working hours. ``No one,'' declared the Court, can question ``the
State's power to police coercion by . . . methods'' which involve
``considerable injury to
[[Page 1594]]
property and intimidation of other employees by threats.''\136\ Finally,
in Giboney v. Empire Storage Co.,\137\ the Court acknowledged that no
violation of the Constitution results when a state law forbidding
agreements in restraint of trade is construed by state courts as
forbidding members of a union of ice peddlers from peacefully picketing
a wholesale ice distributor's place of business for the sole purpose of
inducing the latter not to sell to nonunion peddlers.
\132\335 U.S. 525 (1949).
\133\335 U.S. 538 (1949).
\134\335 U.S. 525, 534, 537. In a lengthy opinion, in which he
registered his concurrence with both decisions, Justice Frankfurter set
forth extensive statistical data calculated to prove that labor unions
not only were possessed of considerable economic power but by virtue of
such power were no longer dependent on the closed shop for survival. He
would therefore leave to the legislatures the determination ``whether it
is preferable in the public interest that trade unions should be
subjected to state intervention or left to the free play of social
forces, whether experience has disclosed `union unfair labor practices,'
and if so, whether legislative correction is more appropriate than self-
discipline and pressure of public opinion. . . .'' Id. at 538, 549-50.
\135\336 U.S. 245 (1949).
\136\Id. at 253.
\137\336 U.S. 490 (1949). Other recent cases regulating
picketing are treated under the First Amendment. See pp. 1173-79, supra.
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Regulation of Business Enterprises: Rates, Charges, and Conditions
of Service
``Business Affected With a Public Interest''--In endeavoring to
measure the impact of the due process clause upon efforts by the States
to control the charges exacted by various businesses for their services,
the Supreme Court, almost from the inception of the Fourteenth
Amendment, devoted itself to the examination of two questions: (1)
whether the clause precluded that kind of regulation of certain types of
business, and (2) the nature of the restraint, if any, which this clause
imposed on state control of rates in the case of businesses as to which
such control existed. For a brief interval following the ratification of
the Fourteenth Amendment, the Supreme Court appears to have
underestimated the significance of the due process clause as a
substantive restraint on the power of States to fix rates chargeable by
an industry deemed appropriately subject to such controls. Thus, in Munn
v. Illinois,\138\ the first of the ``Granger Cases,'' in which maximum
charges established by a state legislature for Chicago grain elevator
companies were challenged, not as being confiscatory in character, but
rather as a regulation beyond the power of any state agency to impose,
the Court, in an opinion that was largely dictum, declared that the due
process clause did not operate as a safeguard against oppressive rates,
that if regulation was permissible, the severity thereof was within
legislative discretion and could be ameliorated only by resort to the
polls. Not much time elapsed, however, before the Court effected a
complete withdrawal from this position. By 1890 \139\ it had fully
converted the due process clause into a positive restriction which the
judicial branch was duty bound to enforce whenever state agencies sought
to impose rates which, in its estimation, were arbitrary or
unreasonable.
\138\94 U.S. 113 (1877).
\139\Chicago, M. & St.P. Ry. v. Minnesota, 134 U.S. 418 (1890).
---------------------------------------------------------------------------
[[Page 1595]]
In contrast to the speed with which the Court arrived at those
above mentioned conclusions, more than fifty years were to elapse before
it developed its currently applicable formula for determining the
propriety of subjecting specific businesses to state regulation of their
prices or charges. Prior to 1934, unless a business was ``affected with
a public interest,'' control of its prices, rates, or conditions of
service was viewed as an unconstitutional deprivation of liberty and
property without due process of law. During the period of its
application, however, this standard, ``business affected with a public
interest,'' never acquired any precise meaning, and as a consequence
lawyers were never able to identify all those qualities or attributes
which invariably distinguished a business so affected from one not so
affected. The most coherent effort by the Court was the following
classification prepared by Chief Justice Taft.\140\ ``(1) Those
[businesses] which are carried on under the authority of a public grant
of privileges which either expressly or impliedly imposes the
affirmative duty of rendering a public service demanded by any member of
the public. Such are the railroads, other common carriers and public
utilities. (2) Certain occupations, regarded as exceptional, the public
interest attaching to which, recognized from earliest times, has
survived the period of arbitrary laws by Parliament or Colonial
legislatures for regulating all trades and callings. Such are those of
the keepers of inns, cabs and grist mills. . . . (3) Businesses which
though not public at their inception may be fairly said to have risen to
be such and have become subject in consequence to some government
regulation. They have come to hold such a peculiar relation to the
public that this is superimposed upon them. In the language of the
cases, the owner by devoting his business to the public use, in effect
grants the public an interest in that use and subjects himself to public
regulation to the extent of that interest although the property
continues to belong to its private owner and to be entitled to
protection accordingly.''
\140\Wolff Packing Co. v. Industrial Court, 262 U.S. 522, 535-36
(1923).
---------------------------------------------------------------------------
Through application of this now outmoded formula the Court found
it possible to sustain state laws regulating charges made by grain
elevators,\141\ stockyards,\142\ and tobacco warehouses,\143\ and fire
insurance rates\144\ and commissions paid to fire insurance agents.\145\
Voided, because the businesses sought to be controlled
[[Page 1596]]
were deemed to be not so affected, were state statutes fixing the price
at which gasoline may be sold,\146\ or at which ticket brokers may
resell tickets purchased from theatres,\147\ and limiting competition in
the manufacture and sale of ice through the withholding of licenses to
engage therein.\148\
\141\Munn v. Illinois, 94 U.S. 113 (1877); Budd v. New York, 143
U.S. 517, 546 (1892); Brass v. North Dakota ex rel. Stoesser, 153 U.S.
391 (1894).
\142\Cotting v. Kansas City Stock Yards Co., 183 U.S. 79 (1901).
\143\Townsend v. Yeomans, 301 U.S. 441 (1937).
\144\German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914);
Aetna Insurance Co. v. Hyde, 275 U.S. 440 (1928).
\145\O'Gorman & Young v. Hartford Ins. Co., 282 U.S. 251 (1931).
\146\Williams v. Standard Oil Co., 278 U.S. 235 (1929).
\147\Tyson & Bro. v. Banton, 273 U.S. 418 (1927).
\148\New State Ice Co. v. Liebmann, 285 U.S. 262 (1932). See
also Adams v. Tanner, 244 U.S. 590 (1917); Weaver v. Palmer Bro., 270
U.S. 402 (1926).
---------------------------------------------------------------------------
Nebbia v. New York.--In upholding, by a vote of five-to-four, a
depression-induced New York statute fixing prices at which fluid milk
might be sold, the Court in 1934 finally shelved the concept of ``a
business affected with a public interest.''\149\ Older decisions,
insofar as they negatived a power to control prices in businesses found
not ``to be clothed with a public use'' were now viewed as resting,
``finally, upon the basis that the requirements of due process were not
met because the laws were found arbitrary in their operation and effect.
Price control, like any other form of regulation, is [now]
unconstitutional only if arbitrary, discriminatory, or demonstrably
irrelevant to the policy the legislature is free to adopt, and hence an
unnecessary and unwarranted interference with individual liberty.''
Conceding that ``the dairy industry is not, in the accepted sense of the
phrase, a public utility,'' that is, a ``business affected with a public
interest,'' the Court in effect declared that price control henceforth
is to be viewed merely as an exercise by the government of its police
power, and as such is subject only to the restrictions which due process
imposes on arbitrary interference with liberty and property. Nor was the
Court disturbed by the fact that a ``scientific validity'' had been
claimed for the theories of Adam Smith relating to the ``price that will
clear the market.'' However much the minority might stress the
unreasonableness of any artificial state regulation interfering with
[[Page 1597]]
the determination of prices by ``natural forces,''\150\ the majority was
content to note that the ``due process clause makes no mention of
prices'' and that ``the courts are both incompetent and unauthorized to
deal with the wisdom of the policy adopted or the practicability of the
law enacted to forward it.''
\149\Nebbia v. New York, 291 U.S. 502, 531-32, 535-37, 539
(1934). In reaching this conclusion the Court might be said to have
elevated to the status of prevailing doctrine the views advanced in
previous decisions by dissenting Justices. Thus, Justice Stone,
dissenting in Ribnik v. McBride, 277 U.S. 350, 359-60 (1928), had
declared: ``Price regulation is within the State's power whenever any
combination of circumstances seriously curtails the regulative force of
competition so that buyers or sellers are placed at such a disadvantage
in the bargaining struggle that a legislature might reasonably
anticipate serious consequences to the community as a whole.'' In his
dissenting opinion in New State Ice Co. v. Liebmann, 285 U.S. 262, 302-
03 (1932), Justice Brandeis had also observed: ``The notion of a
distinct category of business `affected with a public interest'
employing property `devoted to a public use' rests upon historical
error. In my opinion the true principle is that the State's power
extends to every regulation of any business reasonably required and
appropriate for the public protection. I find in the due process clause
no other limitation upon the character or the scope of regulation
permissible.''
\150\Justice McReynolds, speaking for the dissenting Justices,
labelled the controls imposed by the challenged statute as a ``fanciful
scheme to protect the farmer against undue exactions by prescribing the
price at which milk disposed of by him at will may be resold.''
Intimating that the New York statute was as efficacious as a safety
regulation which required ``householders to pour oil on their roofs as a
means of curbing the spread of a neighborhood fire,'' Justice McReynolds
insisted that ``this Court must have regard to the wisdom of the
enactment,'' and must determine ``whether the means proposed have
reasonable relation to something within legislative power.'' 291 U.S.,
556, 558 (1934).
---------------------------------------------------------------------------
Having thus concluded that it is no longer the nature of the
business that determines the validity of a regulation of its rates or
charges but solely the reasonableness of the regulation, the Court had
little difficulty in upholding, in Olsen v. Nebraska,\151\ a state law
prescribing the maximum commission which private employment agencies may
charge. Rejecting the contentions of the employment agencies that the
need for such protective legislation had not been shown, the Court held
that differences of opinion as to the wisdom, need, or appropriateness
of the legislation ``suggest a choice which should be left to the
States;'' and that there was ``no necessity for the State to demonstrate
before us that evils persist despite the competition'' between public,
charitable, and private employment agencies. The older case of Ribnik v.
McBride,\152\ which had invalidated similar legislation upon the now
obsolete concept of a ``business affected with a public interest,'' was
expressly overruled.
\151\313 U.S. 236, 246 (1941).
\152\277 U.S. 350 (1928). Adams v. Tanner, 244 U.S. 590 (1917),
was disapproved in Ferguson v. Skrupa, 372 U.S. 726 (1963), and Tyson &
Bro. v. Banton, 273 U.S. 418 (1927), was effectively overruled in Gold
v. DiCarlo, 380 U.S. 520 (1965), without the Court hearing argument on
it.
---------------------------------------------------------------------------
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Judicial Review of Publicly Determined Rates and Charges
Development.--In Munn v. Illinois,\153\ its initial holding
concerning the applicability of the Fourteenth Amendment to governmental
price fixing,\154\ the Court not only asserted that governmental
regulation of rates charged by public utilities and allied businesses
was within the States' police power, but added that the determination of
such rates by a legislature was conclusive and not subject to judicial
review or revision. Expanding the range of per
[[Page 1598]]
missible governmental fixing of prices, the Court in Nebbia\155\
declared that prices established for business in general would invite
judicial condemnation only if ``arbitrary, discriminatory, or
demonstrably irrelevant to the policy the legislature is free to
adopt.'' The latter standard of judicial appraisal, as will be
subsequently noted, represents less of a departure from the principle
enunciated in the Munn case than that which the Court evolved, in the
years following 1877, to measure the validity of state imposed public
utility rates, and this difference in the judicial treatment of prices
and rates accordingly warrants an explanation at the outset. Unlike
operators of public utilities who, in return for the grant of certain
exclusive, virtually monopolistic privileges by the governmental unit
enfranchising them, must assume an obligation to provide continuous
service, proprietors of other businesses are in receipt of no similar
special advantages and accordingly are unrestricted in the exercise of
their right to liquidate and close their establishments. Owners of
ordinary businesses, therefore, at liberty to escape by dissolution the
consequences of publicly imposed charges deemed to be oppressive, have
thus far been unable to convince the courts that they too, no less than
public utilities, are in need of protection through judicial review.
\153\94 U.S. 113 (1877). See also Peik v. Chicago & Nw. Ry., 94
U.S. 164 (1877).
\154\Rate-making is deemed to be one species of price fixing.
FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 603 (1942).
\155\Nebbia v. New York, 291 U.S. 502, 539 (1934).
---------------------------------------------------------------------------
Consistently with its initial pronouncement in the Munn case
that reasonableness of compensation allowed under permissible rate
regulation presented a legislative rather than a judicial question, the
Court, in Davidson v. New Orleans,\156\ also rejected the contention
that, by virtue of the due process clause, businesses were nevertheless
entitled to ``just compensation'' for losses resulting from price
controls. Less than a decade was to elapse, however, before the Court,
appalled perhaps by prospective consequences of leaving business ``at
the mercy of the majority of the legislature,'' began to reverse itself.
Thus, in 1886, Chief Justice Waite, in the Railroad Commission
Cases,\157\ warned that ``this power to regulate is not a power to
destroy; [and] the State cannot do that in law which amounts to a taking
of property for public use without just compensation or without due
process of law;'' in other words, a confiscatory rate could not be
imposed. By treating ``due process of law'' and ``just compensation'' as
equivalents, the Court, contrary to its earlier holding in Davidson v.
New Orleans, was in effect asserting that the imposition of a rate so
low as to damage or diminish private property ceased to be an exercise
of a State's police
[[Page 1599]]
power and became one of eminent domain. Nevertheless, even the added
measure of protection afforded by the doctrine of the Railroad
Commission Cases proved inadequate to satisfy public utilities; the
doctrine allowed courts to intervene only to prevent legislative
imposition of a confiscatory rate, a rate so low as to be productive of
a loss and to amount to taking of property without just compensation.
The utilities sought nothing less than a judicial acknowledgment that
courts could review the ``reasonableness'' of legislative rates.
Although as late as 1888 the Court doubted that it possessed the
requisite power,\158\ it finally acceded to the wishes of the utilities
in 1890, and, in Chicago, M. & St.P. Railway v. Minnesota\159\ ruled as
follows: ``The question of the reasonableness of rates . . . , involving
as it does the element of reasonableness both as regards the company and
as regards the public, is eminently a question for judicial
investigation, requiring due process of law for its determination. If
the company is deprived of the power of charging rates for the use of
its property, and such deprivation takes place in the absence of an
investigation by judicial machinery, it is deprived of the lawful use of
its property, and thus, in substance and effect, of the property itself,
without due process of law. . . .''
\156\96 U.S. 97 (1878). See also Chicago, B. & Q. R.R. v.
Chicago, 166 U.S. 226 (1897).
\157\116 U.S. 307 (1886).
\158\Dow v. Beidelman, 125 U.S. 680 (1888).
\159\134 U.S. 418, 458 (1890).
---------------------------------------------------------------------------
Despite a last-ditch attempt to reconcile Munn with Chicago, M.
& St.P. Railway by confining application of the latter decision to cases
in which rates had been fixed by a commission and denying its pertinence
to rates directly imposed by a legislature,\160\ the Court in Reagan v.
Farmer's Loan and Trust Co.\161\ set at rest all lingering doubts over
the scope of judicial intervention by declaring that, ``if a carrier,''
in the absence of a legislative rate, ``attempted to charge a shipper an
unreasonable sum,'' the Court, in accordance with common law principles,
will pass on the reasonableness of its rates, and has ``jurisdiction
. . . to award the shipper any amount exacted . . . in excess of a
reasonable rate. . . . The province of the courts is not changed, nor
the limit of judicial inquiry altered, because the legislature instead
of a carrier prescribes the rates.''\162\ Reiterating virtually the same
principle in Smyth v. Ames,\163\ the
[[Page 1600]]
Court not only obliterated the distinction between confiscatory and
unreasonable rates but contributed the additional observation that the
requirements of due process are not met unless a court not only reviews
the reasonableness of a rate but also determines whether the rate
permits the utility to earn a fair return on a fair valuation of its
investment.
\160\Budd v. New York, 143 U.S. 517 (1892).
\161\154 U.S. 362, 397 (1894).
\162\Insofar as judicial intervention resulting in the
invalidation of legislatively imposed rates has involved carriers, it
should be noted that the successful complainant invariably has been the
carrier, not the shipper.
\163\169 U.S. 466 (1898). Of course the validity of rates
prescribed by a State for services wholly within its limits must be
determined wholly without reference to the interstate business done by a
public utility. Domestic business should not be made to bear the losses
on interstate business and vice versa. Thus a State has no power to
require the hauling of logs at a loss or at rates that are unreasonable,
even if a railroad receives adequate revenues from the intrastate long
haul and the interstate lumber haul taken together. On the other hand,
in determining whether intrastate passenger railway rates are
confiscatory, all parts of the system within the State (including
sleeping, parlor, and dining cars) should be embraced in the
computation, and the unremunerative parts should not be excluded because
built primarily for interstate traffic or not required to supply local
transportation needs. See Minnesota Rate Cases (Simpson v. Shepard), 230
U.S. 352, 434-35 (1913); Chicago, M. & St.P. Ry. v. Public Util. Comm'n,
274 U.S. 344 (1927); Groesbeck v. Duluth, S.S. & A. Ry., 250 U.S. 607
(1919). The maxim that a legislature cannot delegate legislative power
is qualified to permit creation of administrative boards to apply to the
myriad details of rate schedules the regulatory police power of the
State. To prevent a holding of invalid delegation of legislative power,
the legislature must constrain the board with a certain course of
procedure and certain rules of decision in the performance of its
functions, with which the agency must substantially comply to validate
its action. Wichita R.R. v. Public Util. Comm'n, 260 U.S. 48 (1922).
---------------------------------------------------------------------------
Limitations on Judicial Review.--Even while reviewing the
reasonableness of rates the Court recognized some limits on judicial
review. As early as 1894, the Court asserted: ``The courts are not
authorized to revise or change the body of rates imposed by a
legislature or a commission; they do not determine whether one rate is
preferable to another, or what under all circumstances would be fair and
reasonable as between the carriers and the shippers; they do not engage
in any mere administrative work; . . . [however, there can be no doubt]
of their power and duty to inquire whether a body of rates . . . is
unjust and unreasonable . . . and if found so to be, to restrain its
operation.''\164\ And later, in 1910, the Court made a similar
observation that courts may not, ``under the guise of exerting judicial
power, usurp merely administrative functions by setting aside'' an order
of the commission within the scope of the power delegated to such
commission, upon the ground that such power was unwisely or expediently
exercised.\165\
\164\Reagan v. Farmers' Loan & Trust Co., 154, U.S. 362, 397
(1894).
\165\ICC v. Illinois Cent. R.R., 215 U.S. 452, 470 (1910). This
statement, made in the context of federal ratemaking, appears to be
equally applicable to judicial review of state agency actions.
---------------------------------------------------------------------------
Also inferable from these early holdings, and effective to
restrict the bounds of judicial investigation, is a distinction between
factual questions that relate only to the wisdom or expediency of a rate
order, and are unreviewable, and other factual determinations that bear
on a commission's power to act and are inseparable from the
constitutional issue of confiscation, hence are reviewable. This
distinction was accorded adequate emphasis by the Court in
[[Page 1601]]
Louisville & Nashville R.R. v. Garrett,\166\ in which it declared that
``the appropriate question for the courts'' is simply whether a
``commission,'' in establishing a rate, ``acted within the scope of its
power'' and did not violate ``constitutional rights . . . by imposing
confiscatory requirements.'' The carrier contesting the rate was not
entitled to have a court also pass upon a question of fact regarding the
reasonableness of a higher rate the carrier charged prior to the order
of the commission. All that need concern a court, it said, is the
fairness of the proceeding whereby the commission determined that the
existing rate was excessive, but not the expediency or wisdom of the
commission's having superseded that rate with a rate regulation of its
own.
\166\231 U.S. 298, 310-13 (1913).
---------------------------------------------------------------------------
Likewise, with a view to diminishing the number of opportunities
courts have for invalidating rate regulations of state commissions, the
Court placed various obstacles in the path of the complaining litigant.
Thus, not only must a person challenging a rate assume the burden of
proof,\167\ but he must present a case of ``manifest constitutional
invalidity'';\168\ if, notwithstanding this effort, the question of
confiscation remains in doubt, no relief will be granted.\169\ Moreover,
even though a public utility which has petitioned a commission for
relief from allegedly confiscatory rates need not await indefinitely for
the commission's decision before applying to a court for equitable
relief,\170\ the court ought not to interfere in advance of any
experience of the practical result of such rates.\171\
\167\Des Moines Gas Co. v. Des Moines, 238 U.S. 153 (1915).
\168\Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352,
452 (1913).
\169\Knoxville v. Water Co., 212 U.S. 1 (1909).
\170\Smith v. Illinois Bell Tel. Co., 270 U.S. 587 (1926).
\171\Willcox v. Consolidated Gas Co., 212 U.S. 19 (1909).
---------------------------------------------------------------------------
In the course of time, however, a distinction emerged between
ordinary factual determinations by state commissions and factual
determinations which were found to be inseparable from the legal and
constitutional issue of confiscation. In two older cases arising from
proceedings begun in lower federal courts to enjoin rates, the Court
initially adopted the position that it would not disturb findings of
fact insofar as these were supported by substantial evidence. Thus, in
San Diego Land Company v. National City,\172\ the Court declared that
after a legislative body had fairly and fully investigated and acted, by
fixing what it believed to be reasonable rates, the courts cannot step
in and set aside the action due to a different conclusion about the
reasonableness of the rates. ``Judicial
[[Page 1602]]
interference should never occur unless the case presents, clearly and
beyond all doubt, such a flagrant attack upon the rights of property
under the guise of regulation as to compel the court to say that the
rates prescribed will necessarily have the effect to deny just
compensation for private property taken for the public use.'' And in a
similar later case\173\ the Court expressed even more clearly its
reluctance to reexamine ordinary factual determinations. It is not bound
``to reexamine and weigh all the evidence . . . or to proceed according
to . . . [its] independent opinion as to what are proper rates. It is
enough if . . . [the Court] cannot say that it was impossible for a
fair-minded board to come to the result which was reached.''
\172\174 U.S. 739, 750, 754 (1899). See also Minnesota Rate
Cases (Simpson v. Shepard), 230 U.S. 352, 433 (1913).
\173\San Diego Land & Town Co. v. Jasper, 189 U.S. 439, 441, 442
(1903). See also Van Dyke v. Geary, 244 U.S. 39 (1917); Georgia Ry. v.
Railroad Comm'n, 262 U.S. 625, 634 (1923).
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Moreover, in reviewing orders of the Interstate Commerce
Commission, the Court, at least in earlier years,\174\ chose to be
guided by approximately the same standards it had originally formulated
for examining regulations of state commissions. The following excerpt
from its holding in ICC v. Union Pacific R.R.\175\ represents an
adequate summation of the law as it stood prior to 1920: ``[Q]uestions
of fact may be involved in the determination of questions of law, so
that an order, regular on its face, may be set aside if it appears that
the rate is so low as to be confiscatory . . . ; or if the Commission
acted so arbitrarily and unjustly as to fix rates contrary to evidence,
or without evidence to support it; or if the authority therein involved
has been exercised in such an unreasonable manner as to cause it to be
within the elementary rule that the substance, and not the shadow,
determines the validity of the exercise of the power. . . . In
determining these mixed questions of law and fact, the Court confines
itself to the ultimate question as to whether the Commission acted
within its power. It will not consider the expediency or wisdom of the
order, or whether, on like testimony, it would have made a similar
ruling . . . [The Commission's] conclusion, of course, is subject to
review, but when supported by evidence is accepted as final; not that
its decision . . . can be supported by a mere scintilla of proof--but
the courts will not examine the facts further than to determine whether
there was substantial evidence to sustain the order.''
\174\For its current position, see Crowell v. Benson, 285 U.S.
22 (1932).
\175\222 U.S. 541, 547-48 (1912). See also ICC v. Illinois Cent.
R.R., 215 U.S. 452, 470 (1910).
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The Ben Avon Case.--These standards of review were abruptly
rejected by the Court in Ohio Valley Co. v. Ben Avon Bor
[[Page 1603]]
ough,\176\ as being no longer sufficient to satisfy the requirements of
due process. Unlike previous confiscatory rate litigation, which had
developed from rulings of lower federal courts in injunctive
proceedings, this case reached the Supreme Court by way of appeal from a
state appellate tribunal;\177\ although the state court had in fact
reviewed the evidence and ascertained that the state commission's
findings of fact were supported by substantial evidence, it also
construed the statute providing for review as denying to state courts
``the power to pass upon the weight of such evidence.'' Largely on the
strength of this interpretation of the applicable state statute, the
Court held that when the order of a legislature, or of a commission,
prescribing a schedule of maximum future rates is challenged as
confiscatory, ``the State must provide a fair opportunity for submitting
that issue to a judicial tribunal for determination upon its own
independent judgment as to both law and facts; otherwise the order is
void because in conflict with the due process clause, Fourteenth
Amendment.''
\176\253 U.S. 287 (1920).
\177\Id. at 289. In injunctive proceedings, evidence is freshly
introduced whereas in the cases received on appeal from state courts,
the evidence is found within the record.
---------------------------------------------------------------------------
Without departing from the ruling previously enunciated in
Louisville & Nashville R.R. v. Garrett,\178\ that the failure of a State
to grant a statutory right of judicial appeal from a commission's
regulation is not violative of due process as long as relief is
obtainable by a bill in equity for injunction, the Court also held that
the alternative remedy of injunction expressly provided by state law did
not afford an adequate opportunity for testing judicially a confiscatory
rate order. It conceded the principle stressed by the dissenting
Justices that ``where a State offers a litigant the choice of two
methods of judicial review, of which one is both appropriate and
unrestricted, the mere fact that the other which the litigant elects is
limited, does not amount to a denial of the constitutional right to a
judicial review.''\179\
\178\231 U.S. 298 (1913).
\179\253 U.S. 287, 291, 295 (1920).
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History of the Valuation Question.--For almost fifty years the
Court wandered through a maze of conflicting formulas for valuing public
service corporation property only to emerge therefrom in 1944 at a point
not very far removed from Munn v. Illinois.\180\
[[Page 1605]]
By holding in FPC v. Natural Gas Pipeline Co.,\181\ that the
``Constitution does not bind rate-making bodies to the service of any
single formula or combination of formulas,'' and in FPC v. Hope Natu
[[Page 1606]]
ral Gas Co.,\182\ that ``it is the result reached not the method
employed which is controlling, . . . [that] it is not the theory but the
impact of the rate order which counts, [and that] if the total effect of
the rate order cannot be said to be unjust and unreasonable, judicial
inquiry under the Act is at an end,'' the Court, in effect, abdicated
from the position assumed in the Ben Avon case.\183\ Without
surrendering the judicial power to declare rates unconstitutional on
ground of a substantive deprivation of due process,\184\ the Court
announced that it would not overturn a result it deemed to be just
simply because ``the method employed [by a commission] to reach that
result may contain infirmities. . . . [A] Commission's order does not
become suspect by reason of the fact that it is challenged. It is the
product of expert judgment which carries a presumption of validity. And
he who would upset the rate order . . . carries the heavy burden of
making a convincing showing that it is invalid because it is unjust and
unreasonable in its consequences.''\185\ The Court recently reaffirmed
Hope Natural Gas's emphasis on the bottom line: ``[t]he Constitution
within broad limits leaves the States free to decide what rate-setting
methodology best meets their needs in balancing the interests of the
utility and the public.''\186\
\180\94 U.S. 113 (1877). Because some of these methods or
formulas, no longer required as a matter of constitutional law, may
continue to be used by state commissions in drafting rate orders, a
survey is provided below.
(1) Fair Value.--On the premise that a utility is entitled to
demand a rate schedule that will yield a ``fair return upon the value''
of the property which it employs for public convenience, the Court in
Smyth v. Ames, 169 U.S. 466, 546-47 (1898), held that determination of
such value necessitated consideration of at least such factors as ``the
original cost of construction, the amount expended in permanent
improvements, the amount and market value of . . . [the utility's] bonds
and stock, the present as compared with the original cost of
construction, [replacement cost], the probable earning capacity of the
property under particular rates prescribed by statute, and the sum
required to meet operating expenses.
(2) Reproduction Cost.--Prior to the demise in 1944 of the Smyth
v. Ames fair value formula, two of the components thereof were accorded
special emphasis with the second quickly surpassing the first in measure
of importance. These were: (1) the actual cost of the property (``the
original cost of construction together with the amount expended in
permanent improvements'') and (2) reproduction costs (``the present as
compared with the original cost of construction''). For varied
application of the reproduction cost formula, see San Diego Land Co. v.
National City, 174 U.S. 739, 757 (1899); San Diego Land & Town Co. v.
Jasper, 189 U.S. 439, 443 (1903); Willcox v. Consolidated Gas Co., 212
U.S. 19, 52 (1909); Minnesota Rate Cases (Simpson v. Shepard), 230 U.S.
352 (1913); Galveston Elec. Co. v. Galveston, 258 U.S. 388, 392 (1922);
Missouri ex rel. Southwestern Bell Tel. Co. v. Public Serv. Comm'n, 262
U.S. 276 (1923); Bluefield Co. v. Public Serv. Comm'n, 262 U.S. 679
(1923); Georgia Ry. v. Railroad Comm'n, 262 U.S. 625, 630 (1923);
McCardle v. Indianapolis Co., 272 U.S. 400 (1926); St Louis & O'Fallon
Ry. v. United States, 279 U.S. 461 (1929).
(3) Prudent Investment (Versus Reproduction Cost).--This method
of valuation, championed by Justice Brandeis in a separate opinion in
Missouri ex rel. Southwestern Bell Tel. Co. v. Public Serv. Comm'n, 262
U.S. 276, 291-92, 302, 306-07 (1923), was defined as follows: ``The
compensation which the Constitution guarantees an opportunity to earn is
the reasonable cost of conducting the business. Cost includes not only
operating expenses, but also capital charges. Capital charges cover the
allowance, by way of interest, for the use of capital . . . the
allowance for the risk incurred; and enough more to attract capital.
. . . Where the financing has been proper, the cost to the utility of
the capital, required to construct, equip and operate its plant, should
measure the rate of return which the Constitution guarantees opportunity
to earn.'' Advantages to be derived from ``adoption of the amount
prudently invested as the rate base and the amount of the capital charge
as the measure of the rate of return'' would, according to Justice
Brandeis, be nothing less than the attainment of a ``basis for decision
which is certain and stable. The rate base would be ascertained as a
fact, not determined as a matter of opinion. It would not fluctuate with
the market price of labor, or materials, or money.
As a method of valuation, the prudent investment theory was not
accorded any acceptance until the Depression of the 1930's. The sharp
decline in prices which occurred during this period doubtless
contributed to the loss of affection for reproduction costs. In Los
Angeles Gas Co. v. Railroad Comm'n, 289 U.S. 287 (1933) and Railroad
Comm'n v. Pacific Gas Co., 302 U.S. 388, 399, 405 (1938), the Court
upheld respectively a valuation from which reproduction costs had been
excluded and another in which historical cost served as the rate base.
Later, in 1942, when in FPC v. Natural Gas Pipeline Co., 315 U.S. 575,
the Court further emphasized its abandonment of the reproduction cost
factor, there developed momentarily the prospect that prudent investment
might be substituted. This possibility was quickly negatived, however,
by the Hope Gas case, (FPC v. Hope Natural Gas Co., 320 U.S. 591
(1944)), which dispensed with the necessity of relying upon any formula
for the purpose of fixing valid rates.
(4) Depreciation.--No less indispensable to the determination of
the fair value mentioned in Smyth v. Ames was the amount of depreciation
to be allowed as a deduction from the measure of cost employed, whether
the latter be actual cost, reproduction cost, or any other form of cost
determination. Although not mentioned in Smyth v. Ames, the Court gave
this item consideration in Knoxville v. Water Co., 212 U.S. 1, 9-10
(1909); but notwithstanding its early recognition as an allowable item
of deduction in determining value, depreciation continued to be the
subject of controversy arising out of the difficulty of ascertaining it
and of computing annual allowances to cover the same. Indicative of such
controversy was the disagreement as to whether annual allowances shall
be in such amount as will permit the replacement of equipment at current
costs, i.e., present value, or at original cost. In the Hope Gas case,
320 U.S. at 606, the Court reversed United Railways v. West, 280 U.S.
234, 253-254 (1930), insofar as that holding rejected original cost as
the basis of annual depreciation allowances.
(5) Going Concern Value and Good Will.--Whether intangibles were
to be included in valuation was not passed upon in Smyth v. Ames, but
shortly thereafter, in Des Moines Gas Co. v. Des Moines, 238 U.S. 153,
165 (1915), the Court declared it to be self-evident ``that there is an
element of value in an assembled and established plant, doing business
and earning money, over one not thus advanced, . . . [and that] this
element of value is a property right, and should be considered in
determining the value of the property, upon which the owner has a right
to make a fair return. . . .'' Generally described as going concern
value, this element has never been precisely defined by the Court. In
its latest pronouncement on the subject, uttered in FPC v. Natural Gas
Pipeline Co., 315 U.S. 575, 589 (1942), the Court denied that there is
any ``constitutional requirement that going concern value, even when it
is an appropriate element to be included in a rate base, must be
separately stated and appraised as such. . . . [Valuations have often
been sustained] without separate appraisal of the going concern element.
. . . When that has been done, the burden rests on the regulated company
to show that this item has neither been adequately covered in the rate
base nor recouped from prior earnings of the business.'' Franchise value
and good will, on the other hand, have been consistently excluded from
valuation; the latter presumably because a utility invariably enjoys a
monopoly and consumers have no choice in the matter of patronizing it.
The latter proposition has been developed in the following cases:
Willcox v. Consolidated Gas Co., 212 U.S. 19 (1909); Des Moines Gas Co.
v. Des Moines, 238 U.S. 153, 163-64 (1915); Galveston Elec. Co. v.
Galveston, 258 U.S. 388 (1922); Los Angeles Gas Co. v. Railroad Comm'n,
289 U.S. 287, 313 (1933).
(6) Salvage Value.--It is not a constitutional error to
disregard theoretical reproduction cost for a plant which ```no
responsible person would think of reproducing.'' Accordingly, where, due
to adverse conditions, a street-surface railroad had lost all value
except for scrap or salvage, it was permissible for a commission, as the
Court held in Market Street Ry. v. Railroad Comm'n, 324 U.S. 548, 562,
564 (1945), to use as a rate the price at which the utility offered to
sell its property to a citizen. Moreover, the Commission's order was not
invalid even through under the prescribed rate the utility would operate
at a loss; for the due process clause cannot be invoked to protect a
public utility against business hazards, such as the loss of, or failure
to obtain patronage. On the other hand, in the case of a water company
whose franchise has expired, but where there is no other source of
supply, its plant should be valued as actually in use rather than at
what the property would bring for some other use in case the city should
build its own plant. Denver v. Denver Union Water Co., 246 U.S. 178
(1918).
(7) Past Losses and Gains.--``The Constitution [does not]
require that the losses of . . . [a] business in one year shall be
restored from future earnings by the device of capitalizing the losses
and adding them to the rate base on which a fair return and depreciation
allowance is to be earned.'' FPC v. Natural Gas Pipeline Co., 315 U.S.
575, 590 (1942). Nor can past losses be used to enhance the value of the
property to support a claim that rates for the future are confiscatory,
Galveston Elec. Co. v. Galveston, 258 U.S. 388 (1922), any more than
profits of the past can be used to sustain confiscatory rates for the
future Newton v. Consolidated Gas Co., 258 U.S. 165, 175 (1922); Board
of Comm'rs v. New York Tel. Co., 271 U.S. 23, 31-32 (1926).
\181\315 U.S. 575, 586 (1942).
\182\320 U.S. 591, 602 (1944). Although this and the previously
cited decision arose out of controversies involving the National Gas Act
of 1938, the principles laid down therein are believed to be applicable
to the review of rate orders of state commissions, except insofar as the
latter operate in obedience to laws containing unique standards or
procedures.
\183\Ohio Valley Co. v. Ben Avon Borough, 253 U.S. 287 (1920).
\184\In FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 599
(1942), Justices Black, Douglas, and Murphy, in a concurring opinion,
proposed to travel the road all the way back to Munn v. Illinois, and
deprive courts of the power to void rates simply because they deem the
latter to be unreasonable. In a concurring opinion, in Driscoll v.
Edison Co., 307 U.S. 104, 122 (1939), Justice Frankfurter temporarily
adopted a similar position; he declared that ``the only relevant
function of law . . . [in rate controversies] is to secure observance of
those procedural safeguards in the exercise of legislative powers which
are the historic foundations of due process.'' However, in his dissent
in FPC v. Hope Natural Gas Co., 320 U.S. 591, 625 (1944), he
disassociated himself from this proposal, and asserted that ``it was
decided [more than fifty years ago] that the final say under the
Constitution lies with the judiciary.''
\185\FPC v. Hope Natural Gas Co., 320 U.S. 591, 602 (1944), See
also Wisconsin v. FPC, 373 U.S. 294, 299, 317, 326 (1963), wherein the
Court tentatively approved an ``area rate approach,'' that is ``the
determination of fair prices for gas, based on reasonable financial
requirements of the industry, for . . . the various producing areas of
the country,'' and with rates being established on an area basis rather
than on an individual company basis. Four dissenters, Justices Clark,
Black, Brennan, and Chief Justice Warren, labelled area pricing a ``wild
goose chase,'' and stated that the Commission had acted in an arbitrary
and unreasonable manner entirely outside traditional concepts of
administrative due process. Area rates were approved in Permian Basin
Area Rate Cases, 390 U.S. 747 (1968).
\186\Duquesne Light Co. v. Barasch, 488 U.S. 299, 316 (1989)
(rejecting takings challenge to Pennsylvania rule preventing utilities
from amortizing costs of canceled nuclear plants).
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[[Page 1607]]
In dispensing with the necessity of observing the old formulas
for rate computation, the Court did not articulate any substitute
guidance for ascertaining whether a so-called end result is
unreasonable. It did intimate that rate-making ``involves a balancing of
the investor and consumer interests,'' which does not, however,
```insure that the business shall produce net revenues'. . . . From the
investor or company point of view it is important that there be enough
revenue not only for operating expenses but also for the capital costs
of the business. These include service on the debt and dividends on the
stock. . . . By that standard the return to the equity owner should be
commensurate with returns on investments in other enterprises having
corresponding risks. That return, moreover, should be sufficient to
assure confidence in the financial integrity of the enterprise, so as to
maintain its credit and to attract capital.''\187\
\187\FPC v. Hope Natural Gas Co., 320 U.S. 591, 603 (1944)
(citing Chicago G.T. Ry. v. Wellman, 143 U.S. 339, 345-46 (1892));
Missouri ex rel. Southwestern Bell Tel. Co. v. Public Serv. Comm'n, 262
U.S. 276, 291 (1923).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Regulation of Public Utilities (Other Than Rates)
In General.--By virtue of the nature of the business they carry
on and the public's interest in it, public utilities are subject to
state regulation exerted either directly by the legislature or by duly
authorized administrative bodies.\188\ But because the property of
public utilities remains under the full protection of the Constitution,
it follows that whenever the state regulates in a manner that infringes
the right of ownership in what the Court considers to be an
``arbitrary'' or ``unreasonable'' way, due process is violated.\189\
Thus, a city cannot take possession of the equipment of a street railway
company, the franchise of which has expired,\190\ although it may
subject the company to the alternative of accepting an inadequate price
for its property or of ceasing operations and removing its property from
the streets.\191\ Likewise, a city desirous of establishing a lighting
system of its own may not remove, without compensation, the fixtures of
a lighting company already occupying the streets under a franchise,\192\
although it may compete with a com
[[Page 1608]]
pany that has no exclusive charter.\193\ The property of a telegraph
company is not illegally taken, however, by a municipal ordinance that
demands, as a condition for the establishment of poles and conduits in
city streets, that the city's wires be carried free of charge, and which
provides for the moving of the conduits, when necessary, at company
expense.\194\
\188\Atlantic Coast Line R.R. v. Corporation Comm'n, 206 U.S. 1,
19 (1907) (citing Chicago, B. & Q. R.R. v. Iowa, 94 U.S. 155 (1877)).
See also Prentis v. Atlantic Coast Line, 211 U.S. 210 (1908); Denver &
R.G. R.R. v. Denver, 250 U.S. 241 (1919).
\189\Chicago & G.T. Ry. v. Wellman, 143 U.S. 339, 344 (1892);
Mississippi R.R. Comm'n v. Mobile & Ohio R.R., 244 U.S. 388, 391 (1917).
See also Missouri Pacific Ry. v. Nebraska, 217 U.S. 196 (1910);
Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 415 (1935).
\190\Cleveland Electric Ry. v. Cleveland, 204 U.S. 116 (1907).
\191\Detroit United Ry. v. Detroit, 255 U.S. 171 (1921). See
also Denver v. New York Trust Co., 229 U.S. 123 (1913).
\192\Los Angeles v. Los Angeles Gas Corp., 251 U.S. 32 (1919).
\193\Newburyport Water Co. v. Newburyport, 193 U.S. 561 (1904).
See also Skaneateles Water Co. v. Skaneateles, 184 U.S. 354 (1902);
Helena Water Works Co. v. Helena, 195 U.S. 383 (1904); Madera Water
Works v. Madera, 228 U.S. 454 (1913).
\194\Western Union Tel. Co. v. Richmond, 224 U.S. 160 (1912).
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And, the fact that a State, by mere legislative or
administrative fiat, cannot convert a private carrier into a common
carrier will not protect a foreign corporation which has elected to
enter a State the constitution and laws of which require that it operate
its local private pipe line as a common carrier. Such foreign
corporation is viewed as having waived its constitutional right to be
secure against imposition of conditions which amount to a taking of
property without due process of law.\195\
\195\Pierce Oil Corp. v. Phoenix Ref. Co., 259 U.S. 125 (1922).
---------------------------------------------------------------------------
Compulsory Expenditures: Grade Crossings, and the Like.--
Generally, the enforcement of uncompensated obedience to a regulation
for the public health and safety is not an unconstitutional taking of
property without due process of law.\196\ Thus, where the applicable
rule so required at the time of the granting of its charter, a water
company may be compelled to furnish connections at its own expense to
one residing on an ungraded street in which it voluntarily laid its
lines.\197\ However, if pipe and telephone lines are located on a right
of way owned by a pipeline company, the latter cannot, without a denial
of due process, be required to relocate such equipment at its own
expense,\198\ but if its pipes are laid under city streets, a gas
company validly may be obligated to assume the cost of moving them to
accommodate a municipal drainage system.\199\
\196\Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548, 558
(1914). See also Chicago, B. & Q. R.R. v. Chicago, 166 U.S. 226, 255
(1897); Chicago, B. & Q. Ry. v. Drainage Comm'rs, 200 U.S. 561, 591-92
(1906); New Orleans Pub. Serv. v. New Orleans, 281 U.S. 682 (1930).
\197\Consumers' Co. v. Hatch, 224 U.S. 148 (1912).
\198\Panhandle Eastern Pipe Line Co. v. Highway Comm'n, 294 U.S.
613 (1935).
\199\New Orleans Gas Co. v. Drainage Comm'n, 197 U.S. 453
(1905).
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To require a turnpike company, as a condition of its taking
tolls, to keep its road in repair and to suspend collection thereof,
conformably to a state statute, until the road is put in good order,
does not take property without due process of law, notwithstanding the
fact that present patronage does not yield revenue sufficient to
[[Page 1609]]
maintain the road in proper condition.\200\ Nor is a railroad bridge
company unconstitutionally deprived of its property when, in the absence
of proof that the addition will not yield a reasonable return, it is
ordered to widen its bridge by inclusion of a pathway for pedestrians
and a roadway for vehicles.\201\
\200\Norfolk Turnpike Co. v. Virginia, 225 U.S. 264 (1912).
\201\International Bridge Co. v. New York, 254 U.S. 126 (1920).
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Similarly upheld against due process/taking claims were
requirements that railroads repair a viaduct under which they
operate,\202\ or reconstruct a bridge or provide means for passing water
for drainage through their embankment,\203\ or sprinkle that part of the
street occupied by them.\204\ On the other hand, a requirement that an
underground cattle-pass is be constructed, not as a safety measure but
as a means of sparing the farmer the inconvenience attendant upon the
use of an existing and adequate grade crossing, was held to be a
prohibited taking of the railroad's property for private use.\205\ As to
grade crossing elimination, the rule is well established that the state
may exact from railroads the whole, or such part, of the cost thereof as
it deems appropriate, even though commercial highway users, who make no
contribution whatsoever, benefit from such improvements.
\202\Chicago, B. & Q. R.R. v. Nebraska, 170 U.S. 57 (1898).
\203\Chicago, B. & Q. Ry. v. Drainage Comm'n, 200 U.S. 561
(1906); Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67 (1915); Lake
Shore & Mich. So. Ry. v. Clough, 242 U.S. 375 (1917).
\204\Pacific Gas Co. v. Police Court, 251 U.S. 22 (1919).
\205\Chicago, St. P., Mo. & O. Ry. v. Holmberg, 282 U.S. 162
(1930).
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While the power of the State in this respect is not unlimited,
and an ``arbitrary'' and ``unreasonable'' imposition may be set aside,
the Court's modern approach to substantive due process analysis makes
this possibility far less likely than it once was. Distinguishing a 1935
case invalidating a statutorily mandated 50% cost sharing which in
effect prevented particularized findings of reasonableness (and which
contained language suggesting that railroads could not fairly be
required to subsidize competitive transportation modes),\206\ the Court
in 1953 ruled that the costs of grade separation improvements need not
be allocated solely on the basis of benefits that would accrue to
railroad property.\207\ While the Court cautioned that ``allocation of
costs must be fair and reasonable,'' it also took an approach very
deferential to local governmental decisions, stating that in the
exercise of the police power to meet transportation, safety, and
convenience needs of a growing community,
[[Page 1610]]
``the cost of such improvements may be allocated all to the railroads.''
\206\Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405 (1935).
See also Lehigh Valley R.R. v. Commissioners, 278 U.S. 24, 35 (1928)
(upholding imposition of grade crossing costs on a railroad although
``near the line of reasonableness,'' and reiterating that ``unreasonably
extravagant'' requirements would be struck down).
\207\Atchison T. & S.F. Ry. v. Public Util. Comm'n, 346 U.S.
346, 352 (1953).
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Compellable Services.--The primary duty of a public utility
being to serve on reasonable terms all those who desire the service it
renders, it follows that a company cannot pick and choose and elect to
serve only those portions of its territory which it finds most
profitable, leaving the remainder to get along without the service which
it alone is in a position to give. Compelling a gas company to continue
serving specified cities as long as it continues to do business in other
parts of the State entails therefore no unconstitutional
deprivation.\208\ Likewise, a railway may be compelled to continue the
service of a branch or part of a line although the operation involves a
loss.\209\ But even though a utility, as a condition of enjoyment of
powers and privileges granted by the State, is under a continuing
obligation to provide reasonably adequate service, and even though that
obligation cannot be avoided merely because performance occasions
financial loss, yet if a company is at liberty to surrender its
franchise and discontinue operations, it cannot be compelled to continue
at a loss.\210\
\208\United Gas Co. v. Railroad Comm'n, 278 U.S. 300, 308-09
(1929). See also New York ex rel. Woodhaven Gas Light Co. v. Public
Serv. Comm'n, 269 U.S. 244 (1925); New York & Queens Gas Co. v. McCall,
245 U.S. 345 (1917).
\209\Missouri Pac. Ry. v. Kansas, 216 U.S. 262 (1910);
Chesapeake & Ohio Ry. v. Public Serv. Comm'n, 242 U.S. 603 (1917); Fort
Smith Traction Co. v. Bourland, 267 U.S. 330 (1925).
\210\Chesapeake & Ohio Ry. v. Public Serv. Comm'n, 242 U.S. 603,
607 (1917); Brooks-Scanlon Co. v. Railroad Comm'n, 251 U.S. 396 (1920);
Railroad Comm'n v. Eastern Tex. R.R., 264 U.S. 79 (1924); Broad River
Co. v. South Carolina ex rel. Daniel, 281 U.S. 537 (1930).
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Pursuant to the principle that a State may require railroads to
provide adequate facilities suitable for the convenience of the
communities they serve,\211\ such carriers have been obligated to
establish stations at proper places for the convenience of patrons,\212\
to stop all their intrastate trains at county seats,\213\ to run a
regular passenger train instead of a mixed passenger and freight
train,\214\ to furnish passenger service on a branch line previously
devoted exclusively to carrying freight,\215\ to restore a siding used
principally by a particular plant but available generally as a public
track, and to continue, even though not profitable by itself,
sidetrack\216\ as well as the upkeep of a switch track leading from its
main line to
[[Page 1611]]
industrial plants.\217\ However, a statute requiring a railroad without
indemnification to install switches on the application of owners of
grain elevators erected on its right-of-way was held void.\218\ Whether
a state order requiring transportation service is to be viewed as
reasonable may necessitate consideration of such facts as the likelihood
that pecuniary loss will result to the carrier, the nature, extent and
productiveness of the carrier's intrastate business, the character of
the service required, the public need for it, and its effect upon
service already being rendered.\219\ Requirements for service having no
substantial relation to transportation have been voided, as in the case
of an order requiring railroads to maintain cattle scales to facilitate
trading in cattle,\220\ and a prohibition against letting down an
unengaged upper berth while the lower berth was occupied.\221\
\211\Atchison, T. & S.F. Ry. v. Railroad Comm'n, 283 U.S. 380,
394-95 (1931).
\212\Minneapolis & St. L. R.R. v. Minnesota, 193 U.S. 53 (1904).
\213\Gladson v. Minnesota, 166 U.S. 427 (1897).
\214\Missouri Pac. Ry. v. Kansas, 216 U.S. 262 (1910).
\215\Chesapeake & Ohio Ry. v. Public Serv. Comm'n, 242 U.S. 603
(1917).
\216\Lake Erie & W. R.R. v. Public Util. Comm'n, 249 U.S. 422
(1919); Western & Atlantic R.R. v. Public Comm'n, 267 U.S. 493 (1925).
\217\Alton R.R. v. Illinois Commerce Comm'n, 305 U.S. 548
(1939).
\218\Missouri Pacific Ry. v. Nebraska, 217 U.S. 196 (1910).
\219\Chesapeake & Ohio Ry. v. Public Serv. Comm'n, 242 U.S. 603,
607 (1917).
\220\Great Northern Ry. v. Minnesota, 238 U.S. 340 (1915); Great
Northern Ry. Co. v. Cahill, 253 U.S. 71 (1920).
\221\Chicago, M. & St. P. R.R. v. Wisconsin, 238 U.S. 491
(1915).
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``Since the decision in Wisconsin, M. & P.R. Co. v. Jacobson,
179 U.S. 287 (1900), there can be no doubt of the power of a State,
acting through an administrative body, to require railroad companies to
make track connections. But manifestly that does not mean that a
Commission may compel them to build branch lines, so as to connect roads
lying at a distance from each other; nor does it mean that they may be
required to make connections at every point where their tracks come
close together in city, town and country, regardless of the amount of
business to be done, or the number of persons who may utilize the
connection if built. The question in each case must be determined in the
light of all the facts and with a just regard to the advantage to be
derived by the public and the expense to be incurred by the carrier.
. . . If the order involves the use of property needed in the discharge
of those duties which the carrier is bound to perform, then, upon proof
of the necessity, the order will be granted, even though `the furnishing
of such necessary facilities may occasion an incidental pecuniary loss.'
. . . Where, however, the proceeding is brought to compel a carrier to
furnish a facility not included within its absolute duties, the question
of expense is of more controlling importance. In determining the
reasonableness of such an order the Court must consider all the facts--
the places and persons interested, the vol
[[Page 1612]]
ume of business to be affected, the saving in time and expense to the
shipper, as against the cost and loss to the carrier.''\222\
\222\Washington ex rel. Oregon R.R. & Nav. Co. v. Fairchild, 224
U.S. 510, 528-29 (1912). See also Michigan Cent. R.R. v. Michigan R.R.
Comm'n, 236 U.S. 615 (1915); Seaboard Air Line R.R. v. Georgia R.R.
Comm'n, 240 U.S. 324, 327 (1916).
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Although a carrier is under a duty to accept goods tendered at
its station, it cannot be required, upon payment simply for the service
of carriage, to accept cars offered at an arbitrary connection point
near its terminus by a competing road seeking to reach and use the
former's terminal facilities. Nor may a carrier be required to deliver
its cars to connecting carriers without adequate protection from loss or
undue detention or compensation for their use.\223\ But a carrier may be
compelled to interchange its freight cars with other carriers under
reasonable terms,\224\ and to accept, for reshipment over its lines to
points within the State, cars already loaded and in suitable
condition.\225\
\223\Louisville & Nashville R.R. v. Stock Yards Co., 212 U.S.
132 (1909).
\224\Michigan Cent. R.R. v. Michigan R.R. Comm'n, 236 U.S. 615
(1915).
\225\Chicago, M. & St. P. Ry. v. Iowa, 233 U.S. 334 (1914).
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Due process is not denied when two carriers, who wholly own and
dominate a small connecting railroad, are prohibited from exacting
higher charges from shippers accepting delivery over said connecting
road than are collected from shippers taking delivery at the terminals
of said carriers.\226\ Nor is it ``unreasonable'' or ``arbitrary'' to
require a railroad to desist from demanding advance payment on
merchandise received from one carrier while it accepts merchandise of
the same character at the same point from another carrier without such
prepayment.\227\
\226\Chicago, M. & St. P. Ry. v. Minneapolis Civic Ass'n, 247
U.S. 490 (1918). Nor are railroads denied due process when they are
forbidden to exact a greater charge for a shorter distance than for a
longer distance. Louisville & Nashville R.R. v. Kentucky, 183 U.S. 503,
512 (1902); Missouri Pacific Ry. v. McGrew Coal Co., 244 U.S. 191
(1917).
\227\Wadley Southern Ry. v. Georgia, 235 U.S. 651 (1915).
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Safety Regulations Applicable to Railroads.--Governmental power
to regulate railroads in the interest of safety has long been conceded.
The following regulations have been upheld: a prohibition against
operation on certain streets,\228\ restrictions on speed, operations,
and the like, in business sections,\229\ requirement of construction of
a sidewalk across a right of way,\230\ or removal of a track crossing at
a thoroughfare,\231\ compelling the presence of a flagman at a crossing
notwithstanding that automatic devices might be cheaper and better,\232\
compulsory examination of
[[Page 1613]]
employees for color blindness,\233\ full crews on certain trains,\234\
specification of a type of locomotive headlight,\235\ safety appliance
regulations,\236\ and a prohibition on the heating of passenger cars
from stoves or furnaces inside or suspended from the cars.\237\
\228\Railroad Co. v. Richmond, 96 U.S. 521 (1878).
\229\Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548 (1914).
\230\Great Northern Ry. v. Minnesota ex rel. Clara City, 246
U.S. 434 (1918).
\231\Denver & R. G. R.R. v. Denver, 250 U.S. 241 (1919).
\232\Nashville, C. & St. L. Ry. v. White, 278 U.S. 456 (1929).
\233\Nashville, C. & St. L. Ry. v. Alabama, 128 U.S. 96 (1888).
\234\Chicago, R.I. & P. Ry. v. Arkansas, 219 U.S. 453 (1911);
St. Louis, I. Mt. & So. Ry. v. Arkansas, 240 U.S. 518 (1916); Missouri
Pacific R.R. v. Norwood, 283 U.S. 249 (1931); Firemen v. Chicago, R.I. &
P.R.R. 393 U.S. 129 (1968).
\235\Atlantic Coast Line R.R. v. Georgia, 234 U.S. 280 (1914).
\236\Erie R.R. v. Solomon, 237 U.S. 427 (1915).
\237\New York, N.H. and H.R.R. v. New York, 165 U.S. 628 (1897).
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Statutory Liabilities and Penalties Applicable to Railroads.--A
statute making the initial carrier,\238\ or the connecting or delivering
carrier,\239\ liable to the shipper for the nondelivery of goods is not
unconstitutional; nor is a law which provides that a railroad shall be
responsible in damages to the owner of property injured by fire
communicated by its locomotive engines and which grants the railroad an
insurable interest in such property along its route and authority to
procure insurance against such liability.\240\ Equally consistent with
the requirements of due process are the following two enactments: the
first, imposing on all common carriers a penalty for failure to settle
within a reasonable specified period claims for freight lost or damaged
in shipment and conditioning payment of that penalty upon recovery by
the claimant in a subsequent suit of more than the amount tendered,\241\
and the second, levying double damages and an attorney's fee upon a
railroad for failure to pay within a reasonable time after demand the
amount claimed by an owner for stock injured or killed. However, the
Court subsequently limited its approval of the latter statute to cases
in which the plaintiff had not demanded more than he recovered in
court;\242\ when the penalty is exacted in a case in which the plaintiff
initially demanded more than he sued for and recovered, a defendant
railroad is arbitrarily deprived of its property for refusing to meet
the initial excessive demand.\243\
\238\Chicago & N.W. Ry. v. Nye Schneider Fowler Co., 260 U.S. 35
(1922). See also Yazoo & Miss. V.R.R. v. Jackson Vinegar Co., 226 U.S.
217 (1912); cf. Adams Express Co. v. Croninger, 226 U.S. 491 (1913).
\239\Atlantic Coast Line R.R. v. Glenn, 239 U.S. 388 (1915).
\240\St. Louis & San Francisco Ry. v. Mathews, 165 U.S. 1
(1897).
\241\Chicago & N.W. Ry. v. Nye Schneider Fowler Co., 260 U.S. 35
(1922).
\242\Kansas City Ry. v. Anderson, 233 U.S. 325 (1914).
\243\St. Louis, I. Mt. & So. Ry. v. Wynne, 224 U.S. 354 (1912).
See also Chicago, M. & St. P. Ry. v. Polt, 232 U.S. 165 (1914).
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Also invalidated during this period of heightened judicial
scrutiny was a penalty imposed on a carrier that had collected
transportation charges in excess of established maximum rates; the
penalty of $500 liquidated damages plus a reasonable attorney's fee
[[Page 1614]]
was disproportionate to actual damages and was exacted under conditions
not affording the carrier an adequate opportunity to safely test the
validity of the rates before liability attached.\244\ Where the carrier
did have an opportunity to test the reasonableness of the rate, however,
and collection of an overcharge did not proceed from any belief that the
rate was invalid, the Court indicated that the validity of the penalty
imposed need not be tested by comparison with the amount of the
overcharge. Inasmuch as a penalty is imposed as punishment for violation
of law, the legislature may adjust its amount to the public wrong rather
than the private injury, and the only limitation which the Fourteenth
Amendment imposes is that the penalty prescribed shall not be ``so
severe and oppressive as to be wholly disproportioned to the offense and
obviously unreasonable.'' In accordance with the latter standard, a
statute granting an aggrieved passenger (who recovered $100 for an
overcharge of 60 cents) the right to recover in a civil suit not less
than $50 nor more than $300 plus costs and a reasonable attorney's fee
was upheld.\245\
\244\Missouri Pacific Ry. v. Tucker, 230 U.S. 340 (1913).
\245\St. Louis, I. Mt. & So. Ry. v. Williams, 251 U.S. 63, 67
(1919).
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For like reasons, the Court also upheld a statute requiring
railroads to erect and maintain fences and cattle guards, and making
them liable in double the amount of damages for their failure to so
maintain them,\246\ and another law that established a minimum rate of
speed for delivery of livestock and that required every carrier
violating the requirement to pay the owner of the livestock the sum of
$10 per car per hour.\247\ On the other hand, the Court struck down as
arbitrary and oppressive assessment of fines of $100 per day (and
aggregating $3,600) on a telephone company that, in accordance with its
established and uncontested regulations, suspended the service of a
patron in arrears.\248\
\246\Missouri Pacific Ry. v. Humes, 115 U.S. 512 (1885);
Minneapolis Ry. v. Beckwith, 129 U.S. 26 (1889).
\247\Chicago, B. & Q. R.R. v. Cram, 228 U.S. 70 (1913).
\248\Southwestern Tel. Co. v. Danaher, 238 U.S. 482 (1915).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Regulation of Corporations, Business, Professions, and Trades
Corporations.--Although a corporation is the creation of a
State, which reserves the power to amend or repeal corporate charters,
the retention of such power will not support the taking of corporate
property without due process of law. To terminate the life of a
corporation by annulling its charter is not to confiscate its property
but to turn it over to the stockholders after liquidation.\1\
\1\New Orleans Debenture Redemption Co. v. Louisiana, 180 U.S.
320 (1901).
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[[Page 1615]]
Foreign (out-of-state) corporations also enjoy the protection
which the due process clause affords, but such protection does not
entitle them to the unconditional right to enter another State or, once
having been permitted to enter, to continue to do business therein.
There is language in the early cases suggesting that the power of a
State to exclude or to expel a foreign corporation is almost plenary.\2\
While modern doctrines of the ``negative'' commerce clause constrain
states' authority to discriminate against foreign corporations in favor
of local commerce, it has always been acknowledged that states may
subject corporate entry or continued operation to reasonable, non-
discriminatory conditions. Thus, a state law which requires the filing
of articles with a local official as a condition prerequisite to the
validity of conveyances of local realty to such corporations is not
violative of due process.\3\ Also valid are statutes which require a
foreign insurance company, as part of the price of entry, to maintain
reserves computed by a specific percentage of premiums, including
membership fees, received in all States,\4\ or to consent to direct
actions filed against it by persons injured in the State by tort-feasors
whom it insures.\5\ Similarly a statute requiring corporations to
dispose of farm land not necessary to the conduct of their business was
not invalid as applied to a foreign hospital corporation, even though
the latter, because of changed economic conditions, was unable to recoup
its original investment from the sale which it is thus compelled to
make.\6\
\2\National Council U.A.M. v. State Council, 203 U.S. 151, 162-
63 (1906).
\3\Munday v. Wisconsin Trust Co., 252 U.S. 499 (1920).
\4\State Farm Ins. Co. v. Duel, 324 U.S. 154 (1945).
\5\Watson v. Employers Liability Assurance Corp., 348 U.S. 66
(1954).
\6\Asbury Hospital v. Cass County, 326 U.S. 207 (1945).
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Business in General.--``The Constitution does not guarantee the
unrestricted privilege to engage in a business or to conduct it as one
pleases. Certain kinds of business may be prohibited; and the right to
conduct a business, or to pursue a calling, may be conditioned. . . .
Statutes prescribing the terms upon which those conducting certain
businesses may contract, or imposing terms if they do enter into
agreements, are within the State's competency.''\7\
\7\Nebbia v. New York, 291 U.S. 502, 527-28 (1934). See also New
Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 106-08 (1978)
(upholding regulation of franchise relationship).
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Laws Prohibiting Trusts, Discrimination, Restraint of Trade.--
Even during the period when the Court was measuring statutes by
substantive due process liberty of contract principles, it recognized
the right of states to limit liberty of contract by prohibiting
combinations in restraint of trade. Thus, states could prohibit
[[Page 1616]]
agreements to pool and fix prices, divide net earnings, and prevent
competition in the purchase and sale of grain.\8\ Nor, the Court held,
does the Fourteenth Amendment preclude a State from adopting a policy
against all combinations of competing corporations and enforcing it even
against combinations which may have been induced by good intentions and
from which benefit and no injury may have resulted.\9\ Also upheld were
a statute that prohibited retail lumber dealers from uniting in an
agreement not to purchase materials from wholesalers selling directly to
consumers in the retailers' localities,\10\ and another law punishing
combinations for ``maliciously'' injuring a rival in the same business,
profession, or trade.\11\
\8\Smiley v. Kansas, 196 U.S. 447 (1905). See Waters Pierce Oil
Co. v. Texas, 212 U.S. 86 (1909); National Cotton Oil Co. v. Texas, 197
U.S. 115 (1905), also upholding antitrust laws.
\9\International Harvester Co. v. Missouri, 234 U.S. 199 (1914).
See also American Machine Co. v. Kentucky, 236 U.S. 660 (1915).
\10\Grenada Lumber Co. v. Mississippi, 217 U.S. 433 (1910).
\11\Aikens v. Wisconsin, 195 U.S. 194 (1904).
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Similarly, a prohibition of unfair discrimination for the
purpose of intentionally destroying competition of any other regular
dealer in the same commodity by making sales thereof at a lower rate in
one section of the State than in another, after equalization for
distance, effects no invalid deprivation of property or interference
with freedom of contract.\12\ A law sanctioning contracts requiring that
commodities identified by trademark will not be sold by the vendee or
subsequent vendees except at prices stipulated by the original vendor
does not violate the due process clause.\13\ Also upheld as not
depriving a company of due process was application of an unfair sales
act to enjoin a retail grocery company from selling below statutory cost
in violation of a state unfair sales act, even though its competitors
were selling at unlawful prices. There is no constitutional right to
employ retaliation against action outlawed by a State, and appellant had
available a remedy whereby it could enjoin illegal activity of its
competitors.\14\
\12\Central Lumber Co. v. South Dakota, 226 U.S. 157 (1912). But
cf. Fairmont Co. v. Minnesota, 274 U.S. 1 (1927) (invalidating on
liberty of contract grounds similar statute punishing dealers in cream
who pay higher prices in one locality than in another, the Court finding
no reasonable relation between the statute's sanctions and the
anticipated evil).
\13\Old Dearborn Co. v. Seagram Corp., 299 U.S. 183 (1936); Pep
Boys v. Pyroil, 299 U.S. 198 (1936).
\14\Safeway Stores v. Oklahoma Grocers, 360 U.S. 334 (1959).
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Laws Preventing Fraud in Sale of Goods and Securities.--Laws and
ordinances tending to prevent frauds and requiring honest weights and
measures in the sale of articles of general consumption have long been
considered lawful exertions of the po
[[Page 1617]]
lice power.\15\ Thus, a prohibition on the issuance or sale by other
than an authorized weigher of any weight certificate for grain weighed
at any warehouse or elevator where state weighers are stationed is not
unconstitutional.\16\ Nor is a municipal ordinance requiring that
commodities sold in load lots by weight be weighed by a public
weighmaster within the city invalid as applied to one delivering coal
from state-tested scales at a mine outside the city.\17\ A statute
requiring merchants to record sales in bulk not made in the regular
course of business is also within the police power.\18\
\15\Schmidinger v. City of Chicago, 226 U.S. 578, 588 (1913)
(citing McLean v. Arkansas, 211 U.S. 539, 550 (1909)).
\16\Merchants Exchange v. Missouri, 248 U.S. 365 (1919).
\17\Hauge v. City of Chicago, 299 U.S. 387 (1937).
\18\Lemieux v. Young, 211 U.S. 489 (1909); Kidd, Dater Co. v.
Musselman Grocer Co., 217 U.S. 461 (1910).
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Similarly, the power of a State to prescribe standard containers
to protect buyers from deception as well as to facilitate trading and to
preserve the condition of the merchandise is not open to question.
Accordingly, an administrative order issued pursuant to an authorizing
statute and prescribing the dimensions, form, and capacity of containers
for strawberries and raspberries is not arbitrary inasmuch as the form
and dimensions bore a reasonable relation to the protection of the
buyers and the preservation in transit of the fruit.\19\ Similarly, an
ordinance fixing standard sizes is not unconstitutional.\20\ Regulations
issued in furtherance of a statutory authorization which imposed a rate
of tolerance for the minimum weight for a loaf of bread were upheld.\21\
Likewise, a law requiring that lard not sold in bulk should be put up in
containers holding one, three, or five pounds weight, or some whole
multiple of these numbers, does not deprive sellers of their property
without due process of law.\22\
\19\Pacific States Co. v. White, 296 U.S. 176 (1935).
\20\Schmidinger v. City of Chicago, 226 U.S. 578 (1913).
\21\Petersen Baking Co. v. Bryan, 290 U.S. 570 (1934)
(tolerances not to exceed three ounces to a pound of bread and requiring
that the bread maintain the statutory minimum weight for not less than
12 hours after cooling). But cf. Burns Baking Co. v. Bryan, 264 U.S. 504
(1924) (tolerance of only two ounces in excess of the minimum weight per
loaf is unreasonable, given finding that it was impossible to
manufacture good bread without frequently exceeding the prescribed
tolerance).
\22\Armor & Co. v. North Dakota, 240 U.S. 510 (1916).
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The right of a manufacturer to maintain secrecy as to his
compounds and processes must be held subject to the right of the State,
in the exercise of the police power and in the promotion of fair
dealing, to require that the nature of the product be fairly set
forth.\23\
\23\Heath & Milligan Co. v. Worst, 207 U.S. 338 (1907); Corn
Products Ref. Co. v. Eddy, 249 U.S. 427 (1919); National Fertilizer
Ass'n v. Bradley, 301 U.S. 178 (1937).
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[[Page 1618]]
A statute providing that the purchaser of harvesting or
threshing machinery for his own use shall have a reasonable time after
delivery for inspecting and testing it, and permitting recission of the
contract if the machinery does not prove reasonably adequate, and
further declaring any agreement contrary to its provisions to be against
public policy and void, does not violate the due process clause.\24\ A
prohibitive license fee upon the use of trading stamps is not
unconstitutional.\25\
\24\Advance-Rumely Co. v. Jackson, 287 U.S. 283 (1932).
\25\Rast v. Van Deman & Lewis, 240 U.S. 342 (1916); Tanner v.
Little, 240 U.S. 369 (1916); Pitney v. Washington, 240 U.S. 387 (1916).
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In the exercise of its power to prevent fraud and imposition, a
State may regulate trading in securities within its borders, require a
license of those engaging in such dealing, make issuance of a license
dependent on a public officer's being satisfied of the good repute of
the applicants, and permit the officer, subject to judicial review of
his findings, to revoke the license.\26\ A State may forbid the giving
of options to sell or buy at a future time any grain or other
commodity.\27\ It may also forbid sales on margin for future
delivery,\28\ and may prohibit the keeping of places where stocks,
grain, and the like, are sold but not paid for at the time, unless a
record of the same be made and a stamp tax paid.\29\ Making criminal any
deduction by the purchaser from the actual weight of grain, hay, seed,
or coal under a claim of right by reason of any custom or rule of a
board of trade is valid exercise of the police power and does not
deprive the purchaser of his property without due process of law nor
interfere with his liberty of contract.\30\
\26\Hall v. Geiger-Jones Co., 242 U.S. 539 (1917); Caldwell v.
Sioux Falls Stock Yards Co., 242 U.S. 559 (1917); Merrick v. Halsey &
Co., 242 U.S. 568 (1917).
\27\Booth v. Illinois, 184 U.S. 425 (1902).
\28\Otis v. Parker, 187 U.S. 606 (1903).
\29\Brodnax v. Missouri, 219 U.S. 285 (1911).
\30\House v. Mayes, 219 U.S. 270 (1911).
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Banking, Wage Assignments and Garnishment.--Regulation of banks
and banking has always been considered well within the police power of
states, and the Fourteenth Amendment did not eliminate this regulatory
authority. A variety of regulations has been upheld over the years. For
example, state banks are not deprived of property without due process by
a statute subjecting them to assessments for a depositors' guaranty
fund.\31\ Also, a law requiring savings banks to turn over to the State
deposits inactive for thirty years (when the depositor cannot be found),
with provision for payment to the depositor or his heirs on
establishment of
[[Page 1619]]
the right, does not effect an invalid taking of the property of said
banks; nor does a statute requiring banks to turn over to the protective
custody of the State deposits that have been inactive ten or twenty-five
years (depending on the nature of the deposit).\32\
\31\Noble State Bank v. Haskell, 219 U.S. 104 (1911);
Shallenberger v. First State Bank, 219 U.S. 114 (1911); Assaria State
Bank v. Dolley, 219 U.S. 121 (1911); Abie State Bank v. Bryan, 282 U.S.
765 (1931).
\32\Provident Savings Inst. v. Malone, 221 U.S. 660 (1911);
Anderson Nat'l Bank v. Luckett, 321 U.S. 233 (1944). When a bank
conservator appointed pursuant to a new statute has all the functions of
a receiver under the old law, one of which is the enforcement on behalf
of depositors of stockholders' liability, which liability the
conservator can enforce as cheaply as could a receiver appointed under
the pre-existing statute, it cannot be said that the new statute, in
suspending the right of a depositor to have a receiver appointed,
arbitrarily deprives a depositor of his remedy or destroys his property
without the due process of law. The depositor has no property right in
any particular form of remedy. Gibbes v. Zimmerman, 290 U.S. 326 (1933).
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The constitutional rights of creditors in an insolvent bank in
the hands of liquidators are not violated by a later statute permitting
re-opening under a reorganization plan approved by the court, the
liquidating officer, and by three-fourths of the creditors.\33\
Similarly, a Federal Reserve bank is not unlawfully deprived of business
rights of liberty of contract by a law which allows state banks to pay
checks in exchange when presented by or through a Federal Reserve bank,
post office, or express company and when not made payable otherwise by a
maker.\34\
\33\Doty v. Love, 295 U.S. 64 (1935).
\34\Farmers Bank v. Federal Reserve Bank, 262 U.S. 649 (1923).
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In fixing maximum rates of interest on money loaned within its
borders, a State is acting clearly within its police power; and the
details are within legislative discretion if not unreasonably or
arbitrarily exercised.\35\ Equally valid as an exercise of a State's
police power is a requirement that assignments of future wages as
security for debts of less than $200, to be valid, must be accepted in
writing by the employer, consented to by the assignors, and filed in
public office. Such a requirement deprives neither the borrower nor the
lender of his property without due process of law.\36\
\35\Griffith v. Connecticut, 218 U.S. 563 (1910).
\36\Mutual Loan Co. v. Martell, 222 U.S. 225 (1911).
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Insurance.--The general relations of those engaged in the
insurance business\37\ as well as the business itself have been
peculiarly subject to supervision and control.\38\ Even during the
Lochner era the Court recognized that government may fix insurance rates
and regulate the compensation of insurance agents,\39\ and over the
years the Court has upheld a wide variety of regulation. A state may
impose a fine on ``any person `who shall act in any manner in the
negotiation or transaction of unlawful insurance
[[Page 1620]]
. . . with a foreign insurance company not admitted to do business
[within said State].'''\40\ A state may forbid life insurance companies
and their agents to engage in the undertaking business and undertakers
to serve as life insurance agents.\41\ Foreign casualty and surety
insurers were not deprived of due process, the Court held, by a Virginia
law which prohibited the making of contracts of casualty or surety
insurance except through registered agents, which required that such
contracts applicable to persons or property in the State be
countersigned by a registered local agent, and which prohibited such
agents from sharing more than 50% of a commission with a nonresident
broker.\42\ And just as all banks may be required to contribute to a
depositors' guaranty fund, so may all automobile liability insurers be
required to submit to the equitable apportionment among them of
applicants who are in good faith entitled to, but are financially unable
to, procure such insurance through ordinary methods.\43\
\37\La Tourette v. McMaster, 248 U.S. 465 (1919); Stipich v.
Insurance Co., 277 U.S. 311, 320 (1928).
\38\German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914).
\39\O'Gorman & Young v. Hartford Ins. Co., 282 U.S. 251 (1931).
\40\Nutting v. Massachusetts, 183 U.S. 553, 556 (1902)
(distinguishing Allgeyer v. Louisiana, 165 U.S. 578 (1897)). See also
Hoper v. California, 155 U.S. 648 (1895).
\41\Daniel v. Family Ins. Co., 336 U.S. 220 (1949).
\42\Osborn v. Ozlin, 310 U.S. 53, 68-69 (1940). Dissenting from
the conclusion, Justice Roberts declared that the plain effect of the
Virginia law is to compel a nonresident to pay a Virginia resident for
services which the latter does not in fact render.
\43\California Auto. Ass'n v. Maloney, 341 U.S. 105 (1951).
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However, a statute which prohibited the insured from contracting
directly with a marine insurance company outside the State for coverage
of property within the State was held invalid as a deprivation of
liberty without due process of law.\44\ For the same reason, the Court
held, a State may not prevent a citizen from concluding a policy loan
agreement with a foreign life insurance company at its home office
whereby the policy on his life is pledged as collateral security for a
cash loan to become due upon default in payment of premiums, in which
case the entire policy reserve might be applied to discharge the
indebtedness. Authority to subject such an agreement to the conflicting
provisions of domestic law is not deducible from the power of a State to
license a foreign insurance company as a condition of its doing business
therein.\45\
\44\Allgeyer v. Louisiana, 165 U.S. 578 (1897).
\45\New York Life Ins. Co. v. Dodge, 246 U.S. 357 (1918).
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A stipulation that policies of hail insurance shall take effect
and become binding twenty-four hours after the hour in which an
application is taken and further requiring notice by telegram of
rejection of an application was upheld.\46\ No unconstitutional
restraint was imposed upon the liberty of contract of surety companies
by a statute providing that, after enactment, any bond exe
[[Page 1621]]
cuted for the faithful performance of a building contract shall inure to
the benefit of materialmen and laborers, notwithstanding any provision
of the bond to the contrary.\47\ Likewise constitutional was a law
requiring that a motor vehicle liability policy shall provide that
bankruptcy of the insured does not release the insurer from liability to
an injured person.\48\
\46\National Ins. Co. v. Wanberg, 260 U.S. 71 (1922).
\47\Hartford Accident Co. v. Nelson Co., 291 U.S. 352 (1934).
\48\Merchants Liability Co. v. Smart, 267 U.S. 126 (1925).
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There also is no denial of due process for a state to require
that casualty companies, in case of total loss, pay the total amount for
which the property was insured, less depreciation between the time of
issuing the policy and the time of the loss, rather than the actual cash
value of the property at the time of loss.\49\
\49\Orient Ins. Co. v. Daggs, 172 U.S. 577 (1899) (the statute
was in effect when the contract at issue was signed).
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Moreover, even though it had its attorney-in-fact located in
Illinois, signed all its contracts there, and forwarded therefrom all
checks in payment of losses, a reciprocal insurance association covering
real property located in New York could be compelled to comply with New
York regulations which required maintenance of an office in that State
and the countersigning of policies by an agent resident therein.\50\
Also, to discourage monopolies and to encourage rate competition, a
State constitutionally may impose on all fire insurance companies
connected with a tariff association fixing rates a liability or penalty
to be collected by the insured of 25% in excess of actual loss or
damage, stipulations in the insurance contract to the contrary
notwithstanding.\51\
\50\Hooperston Co. v. Cullen, 318 U.S. 313 (1943).
\51\German Alliance Ins. Co. v. Hale, 219 U.S. 307 (1911). See
also Carroll v. Greenwich Ins. Co., 199 U.S. 401 (1905).
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A state statute by which a life insurance company, if it fails
to pay upon demand the amount due under a policy after death of the
insured, is made liable in addition for fixed damages, reasonable in
amount, and for a reasonable attorney's fee is not unconstitutional even
though payment is resisted in good faith and upon reasonable
grounds.\52\ It is also proper by law to cut off a defense by a life
insurance company based on false and fraudulent statements in the
application, unless the matter misrepresented actually contributed to
the death of the insured.\53\ A provision that suicide, unless
contemplated when the application for a policy was made, shall be no
defense is equally valid.\54\ When a cooperative life insurance
association is reorganized so as to permit it to do a life insurance
business of every kind, policyholders are not deprived
[[Page 1622]]
of their property without due process of law.\55\ Similarly, when the
method of liquidation provided by a plan of rehabilitation of a mutual
life insurance company is as favorable to dissenting policyholders as
would have been the sale of assets and pro rata distribution to all
creditors, the dissenters are unable to show any taking without due
process. Dissenting policyholders have no constitutional right to a
particular form of remedy.\56\
\52\Life & Casualty Co. v. McCray, 291 U.S. 566 (1934).
\53\Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243 (1906).
\54\Whitfield v. Aetna Life Ins. Co., 205 U.S. 489 (1907).
\55\Polk v. Mutual Reserve Fund, 207 U.S. 310 (1907).
\56\Neblett v. Carpenter, 305 U.S. 297 (1938).
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Miscellaneous Businesses and Professions.--An act imposing
license fees for operating employment agencies and prohibiting them from
sending applicants to an employer who has not applied for labor does not
deny due process of law.\57\ Also, a state law prohibiting operation of
a ``debt pooling'' or a ``debt adjustment'' business except as an
incident to the legitimate practice of law is a valid exercise of
legislative discretion.\58\
\57\Brazee v. Michigan, 241 U.S. 340 (1916). With four Justices
dissenting, the Court in Adams v. Tanner, 244 U.S. 590 (1917), struck
down a state law absolutely prohibiting maintenance of private
employment agencies. Commenting on the ``constitutional philosophy''
thereof in Lincoln Federal Labor Union v. Northwestern Iron & Metal Co.,
335 U.S. 525, 535 (1949), Justice Black stated that Olsen v. Nebraska,
313 U.S. 236 (1941), ``clearly undermined Adams v. Tanner.''
\58\Ferguson v. Skrupa, 372 U.S. 726 (1963).
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The Court has sustained a law establishing as a qualification
for obtaining or retaining a pharmacy operating permit that one either
be a registered pharmacist in good standing or that the corporation or
association have a majority of its stock owned by registered pharmacists
in good standing who were actively and regularly employed in and
responsible for the management, supervision, and operation of such
pharmacy.\59\ The Court also upheld a state law forbidding (1)
solicitation of the sale of frames, mountings, or other optical
appliances, (2) solicitation of the sale of eyeglasses, lenses, or
prisms by use of advertising media, (3) retailers from leasing, or
otherwise permitting anyone purporting to do eye examinations or visual
care to occupy space in a retail store, and (4) anyone, such as an
optician, to fit lenses, or replace lenses or other optical appliances,
except upon written prescription of an optometrist or opthalmologist
licensed in the State is not invalid. A State may treat all who deal
with the human eye as members of a profession that should refrain from
merchandising methods to ob
[[Page 1623]]
tain customers, and that should choose locations that reduce the
temptations of commercialism; a state may also conclude that eye
examinations are so critical that every change in frame and duplication
of a lens should be accompanied by a prescription.\60\
\59\North Dakota State Bd. of Pharmacy v. Snyder's Drug Stores,
414 U.S. 156 (1973). In the course of the decision, the Court overruled
Liggett Co. v. Baldridge, 278 U.S. 105 (1928), in which it had voided a
law forbidding a corporation to own any drug store, unless all its
stockholders were licensed pharmacists, as applied to a foreign
corporation, all of whose stockholders were not pharmacists, which
sought to extend its business in the State by acquiring and operating
therein two additional stores.
\60\Williamson v. Lee Optical Co., 348 U.S. 483 (1955).
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The practice of medicine, using this word in its most general
sense, has long been the subject of regulation.\61\ A State may exclude
osteopathic physicians from hospitals maintained by it or its
municipalities,\62\ may regulate the practice of dentistry by
prescribing qualifications that are reasonably necessary, requiring
licenses, establishing a supervisory administrative board, and
prohibiting certain advertising regardless of its truthfulness.\63\ But
while statutes requiring pilots to be licensed\64\ and setting
reasonable competency standards (e.g., that railroad engineers pass
color blindness tests) have been sustained,\65\ an act making it a
misdemeanor for a person to act as a railway passenger conductor without
having had two years' experience as a freight conductor or brakeman was
invalidated as not rationally distinguishing between those competent and
those not competent to serve as conductor.\66\
\61\McNaughton v. Johnson, 242 U.S. 344, 349 (1917). See also
Dent v. West Virginia, 129 U.S. 114 (1889); Hawker v. New York, 170 U.S.
189 (1898); Reetz v. Michigan, 188 U.S. 505 (1903); Watson v. Maryland,
218 U.S. 173 (1910); Barsky v. Board of Regents, 347 U.S. 442 (1954)
sustaining a New York law authorizing suspension for six months of the
license of a physician who had been convicted of crime in any
jurisdiction, in this instance, contempt of Congress under 2 U.S.C.
Sec. 192. Three Justices, Black, Douglas, and Frankfurter, dissented.
\62\Collins v. Texas, 223 U.S. 288 (1912); Hayman v. Galveston,
273 U.S. 414 (1927).
\63\Semler v. Dental Examiners, 294 U.S. 608, 611 (1935). See
also Douglas v. Noble, 261 U.S. 165 (1923); Graves v. Minnesota, 272
U.S. 425, 427 (1926).
\64\Olsen v. Smith, 195 U.S. 332 (1904).
\65\Nashville, C. & St. L. R.R. v. Alabama, 128 U.S. 96 (1888).
\66\Smith v. Texas, 233 U.S. 630 (1914). See DeVeau v. Braisted,
363 U.S. 144, 157-60 (1960), sustaining New York law barring from office
in longshoremen's union persons convicted of felony and not thereafter
pardoned or granted a good conduct certificate from a parole board.
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The Court has also upheld a variety of other licensing or
regulatory legislation applicable to places of amusement,\67\ grain
elevators,\68\ detective agencies,\69\ the sale of cigarettes\70\ or
cosmetics,\71\ and the resale of theatre tickets.\72\ Restrictions on
advertising have also been upheld, including absolute bans on the
advertising of cigarettes,\73\ or the use of a representation of the
United
[[Page 1624]]
States flag on an advertising medium.\74\ Similarly constitutional were
prohibitions on the solicitation by a layman of the business of
collecting and adjusting claims,\75\ the keeping of private markets
within six squares of a public market,\76\ the keeping of billiard halls
except in hotels,\77\ or the purchase by junk dealers of wire, copper,
and other items, without ascertaining the seller's right to sell.\78\
\67\Western Turf Ass'n v. Greenberg, 204 U.S. 359 (1907).
\68\W.W. Cargill Co. v. Minnesota, 180 U.S. 452 (1901).
\69\Lehon v. Atlanta, 242 U.S. 53 (1916).
\70\Gundling v. Chicago, 177 U.S. 183, 185 (1900).
\71\Bourjois, Inc. v. Chapman, 301 U.S. 183 (1937).
\72\Weller v. New York, 268 U.S. 319 (1925).
\73\Packer Corp. v. Utah, 285 U.S. 105 (1932).
\74\Halter v. Nebraska, 205 U.S. 34 (1907).
\75\McCloskey v. Tobin, 252 U.S. 107 (1920).
\76\Natal v. Louisiana, 139 U.S. 621 (1891).
\77\Murphy v. California, 225 U.S. 623 (1912).
\78\Rosenthal v. New York, 226 U.S. 260 (1912).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Protection of State Resources
Oil and Gas.--To prevent waste, production of oil and gas may be
prorated; the prohibition of wasteful conduct, whether primarily in
behalf of the owners of oil and gas in a common reservoir or because of
the public interests involved, is consistent with the Constitution.\79\
Thus, the Court upheld against due process challenge a statute which
defined waste as including, in addition to its ordinary meaning,
economic waste, surface waste, and production in excess of
transportation or marketing facilities or reasonable market demands, and
which limited each producer's share to a prorated portion of the total
production that can be taken from the common source without waste.\80\
Whether a system of proration based on hourly potential is as fair as
one based upon estimated recoverable reserves or some other combination
of factors is a question for administrative and not judicial judgment.
In a domain of knowledge still shifting and growing, it has been held to
be presumptuous for courts, on the basis of conflicting expert
testimony, to invalidate an oil proration order, promulgated by an
administrative commission in execution of a regulatory scheme intended
to conserve a State's oil resources.\81\ On the other hand, where the
evidence showed that an order, purporting to limit daily total
production of a gas field and to prorate the allowed production among
several wells, had for its real purpose, not the prevention of waste nor
the undue drainage from the reserves of other well owners, but rather
the compelling of pipeline owners to furnish a market to those who had
no pipeline connections, the order was held void as
[[Page 1625]]
a taking of private property for private benefit.\82\ Also sustained as
conservation measures were orders of the Oklahoma Corporation
Commission, premised on a finding that existing low field prices for
natural gas were resulting in economic and physical waste, fixing a
minimum price for gas and requiring one producer to take gas ratably
from another producer in the same field at the dictated price.\83\
\79\Thompson v. Consolidated Gas Co., 300 U.S. 55, 76-77 (1937)
(citing Ohio Oil Co. v. Indiana (No. 1), 177 U.S. 190 (1900)); Lindsley
v. Natural Carbonic Gas Co., 220 U.S. 61 (1911); Oklahoma v. Kansas
Natural Gas Co., 221 U.S. 229 (1911).
\80\Champlin Ref. Co. v. Corporation Comm'n, 286 U.S. 210
(1932).
\81\Railroad Comm'n v. Rowan & Nichols Oil Co., 310 U.S. 573
(1940). See also Railroad Comm'n v. Rowan & Nichols Oil Co., 311 U.S.
570 (1941); Railroad Comm'n v. Humble Oil & Ref. Co., 311 U.S. 578
(1941).
\82\Thompson v. Consolidated Gas Co., 300 U.S. 55 (1937).
\83\Cities Service Co. v. Peerless Co., 340 U.S. 179 (1950);
Phillips Petroleum Co. v. Oklahoma, 340 U.S. 190 (1950).
---------------------------------------------------------------------------
Even though carbon black is more valuable than the gas from
which it is extracted, and notwithstanding a resulting loss of
investment in a plant for the manufacture of carbon black, a State, in
the exercise of its police power, may forbid the use of natural gas for
products, such as carbon black, in the production of which such gas is
burned without fully utilizing for other manufacturing or domestic
purposes the heat therein contained.\84\ Likewise, for the purpose of
regulating and adjusting coexisting rights of surface owners to
underlying oil and gas, it is within the power of a State to prohibit
the operators of wells from allowing natural gas, not conveniently
necessary for other purposes, to come to the surface without the lifting
power having been utilized to produce the greatest quality of oil in
proportion.\85\
\84\Walls v. Midland Carbon Co., 254 U.S. 300 (1920). See also
Henderson Co. v. Thompson, 300 U.S. 258 (1937).
\85\Bandini Co. v. Superior Court, 284 U.S. 8 (1931).
---------------------------------------------------------------------------
Protection of Property and Agricultural Crops.--An ordinance
conditioning the right to drill for oil and gas within the city limits
upon the filing of a bond in the sum of $200,000 for each well, to
secure payment of damages from injuries to any persons or property
resulting from the drilling operation, or maintenance of any well or
structure appurtenant thereto, is consistent with due process of law and
is not rendered unreasonable by the requirement that the bond be
executed, not by personal sureties, but by a bonding company authorized
to do business in the State.\86\ On the other hand, a Pennsylvania
statute, which forbade the mining of coal under private dwellings or
streets of cities by a grantor that had reserved the right to mine, was
viewed as restricting the use of private property too much and hence as
a denial of due process and a ``taking'' without compensation.\87\ Years
later, however, a quite similar Pennsylvania statute was upheld, the
Court finding that the new law no longer involved merely a balancing of
private
[[Page 1626]]
economic interests, but instead promoted such ``important public
interests'' as conservation, protection of water supplies, and
preservation of land values for taxation.\88\ Also distinguished from
Pennsylvania Coal was a challenge to an ordinance prohibiting sand and
gravel excavation near the water table and imposing a duty to refill any
existing excavation below that level. The ordinance was upheld; the fact
that it prohibited a business that had been conducted for over 30 years
did not give rise to a taking in the absence of proof that the land
could not be used for other legitimate purposes.\89\
\86\Gant v. Oklahoma City, 289 U.S. 98 (1933).
\87\Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). On the
``taking'' jurisprudence that has stemmed from this case, see supra, pp.
1382-84.
\88\Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S.
470, 488 (1987). The Court in Pennsylvania Coal had viewed that case as
one of ``a single private house.'' 260 U.S. at 413.
\89\Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962).
---------------------------------------------------------------------------
A statute requiring the destruction of cedar trees within two
miles of apple orchards in order to prevent damage to the orchards
caused by cedar rust was upheld as not unreasonable even in the absence
of compensation. Apple growing being one of the principal agricultural
pursuits in Virginia and the value of cedar trees throughout the State
being small as compared with that of apple orchards, the State was
constitutionally competent to require the destruction of one class of
property in order to save another which, in the judgment of its
legislature, was of greater value to the public.\90\ Similarly, Florida
was held to possess constitutional authority to protect the reputation
of one of its major industries by penalizing the delivery for shipment
in interstate commerce of citrus fruits so immature as to be unfit for
consumption.\91\
\90\Miller v. Schoene, 276 U.S. 272, 277, 279 (1928).
\91\Sligh v. Kirkwood, 237 U.S. 52 (1915).
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Water.--A statute making it unlawful for a riparian owner to
divert water into another State was held not to deprive the owner of
property without due process of law. ``The constitutional power of the
State to insist that its natural advantages shall remain unimpaired by
its citizens is not dependent upon any nice estimate of the extent of
present use or speculation as to future needs. . . . What it has it may
keep and give no one a reason for its will.''\92\ This holding has since
been disapproved, but on interstate commerce rather than due process
grounds.\93\ States may, however, enact and enforce a variety of
conservation measures for the protection of watersheds.\94\
\92\Hudson Water Co. v. McCarter, 209 U.S. 349, 356-57 (1908).
\93\Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982).
See also City of Altus v. Carr, 255 F. Supp. 828 (W.D. Tex.), aff'd per
curiam, 385 U.S. 35 (1966).
\94\See, e.g., Perley v. North Carolina, 249 U.S. 510 (1919)
(upholding law requiring the removal of timber refuse from the vicinity
of a watershed to prevent the spread of fire and consequent damage to
such watershed).
[[Page 1627]]
Fish and Game.--A State has sufficient control over fish and
wild game found within its boundaries\95\ that it may regulate or
prohibit fishing and hunting.\96\ For the effective enforcement of such
restrictions, a state may also forbid the possession within its borders
of special instruments of violations, such as nets, traps, and seines,
regardless of the time of acquisition or the protestations of lawful
intentions on the part of a particular possessor.\97\ The Court also
upheld a state law, designed to conserve for food fish found within its
waters, restricting a commercial reduction plant from accepting more
fish than it could process without deterioration, waste, or spoilage,
and applying such restriction to fish imported into the State.\98\
\95\Bayside Fish Co. v. Gentry, 297 U.S. 422, 426 (1936).
\96\Manchester v. Massachusetts, 139 U.S. 240 (1891); Geer v.
Connecticut, 161 U.S. 519 (1896).
\97\Miller v. McLaughlin, 281 U.S. 261, 264 (1930).
\98\Bayside Fish Co. v. Gentry, 297 U.S. 422 (1936). See also
New York ex rel. Silz v. Hesterberg, 211 U.S. 31 (1908) (upholding law
proscribing possession during the closed season of game imported from
abroad).
---------------------------------------------------------------------------
The Court's early decisions rested on the legal fiction that
states owned the fish and wild game within their borders, hence could
reserve these possessions solely for use by their own citizens. The
Court soon backed away from the ownership fiction,\99\ and in Hughes v.
Oklahoma\100\ overruled Geer v. Connecticut, indicating instead that
state conservation measures discriminating against out-of-state persons
were to be measured under the commerce clause. Although a state's
``concerns for conservation and protection of wild animals'' were still
a ``legitimate'' basis for regulation, these concerns could not justify
disproportionate burdens on interstate commerce.\101\ More recently
still, in the context of recreational rather than commercial activity,
the Court reached a result more deferential to state authority, holding
that access to recreational big game hunting is not within the category
of rights protected by the Privileges and Immunitites Clause, and that
consequently a state could without differential cost justification
charge out-of-staters significantly more than in-staters for a hunting
license.\102\ Suffice it to say that similar cases involving a state's
efforts to reserve its fish and game for its own inhabitants are likely
to be
[[Page 1628]]
challenged under commerce or privileges and immunities principles,
rather than under substantive due process.
\99\See, e.g., Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1
(1928) (invalidating Louisiana statute prohibiting transportation
outside the state of shrimp taken in state waters, unless the head and
shell had first been removed); Toomer v. Witsell, 334 U.S. 385 (1948)
(invalidating law discriminating against out-of-state commercial
fishermen); Douglas v. Seacoast Products, 431 U.S. 265, 284 (1977)
(state could not discriminate in favor of its residents against out-of-
state fishermen in federally licensed ships).
\100\441 U.S. 322 (1979) (formally overruling Geer).
\101\Id. at 336, 338-39.
\102\Baldwin v. Montana Fish and Game Comm'n, 436 U.S. 371
(1978).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Ownership of Real Property: Limitations, Rights
Zoning and Similar Actions.--That states and municipal
subdivisions may zone land for designated uses is now a well established
aspect of the police power. Zoning authority gained judicial recognition
early in the 20th century. Initially, analogy was drawn to public
nuisance law, the Court recognizing that States and their municipal
subdivisions may declare that in particular circumstances and in
particular localities specific businesses, which are not nuisances per
se, are to be deemed nuisances in fact and in law.\103\ Thus, a State
may declare the emission of dense smoke in populous areas a nuisance and
restrain it; regulations to that effect are not invalid even though they
affect the use of property or subject the owner to the expense of
complying with their terms.\104\ So too, the Court upheld an ordinance
that prohibited brickmaking in a designated area, even though the land
contained valuable clay deposits which could not profitably be removed
for processing elsewhere, was far more valuable for brickmaking than for
any other purpose, had been acquired before it was annexed to the
municipality, and had long been used as a brickyard.\105\
\103\Reinman v. City of Little Rock, 237 U.S. 171 (1915)
(location of a livery stable within a thickly populated city ``is well
within the range of the power of the state to legislate for the health
and general welfare''). See also Fischer v. St. Louis, 194 U.S. 361
(1904) (upholding restriction on location of dairy cow stables); Bacon
v. Walker, 204 U.S. 311 (1907) (upholding restriction on grazing of
sheep near habitations).
\104\Northwestern Laundry v. Des Moines, 239 U.S. 486 (1916).
For a case embracing a rather special set of facts, see Dobbins v. Los
Angeles, 195 U.S. 223 (1904).
\105\Hadacheck v. Sebastian, 239 U.S. 394 (1915).
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With increasing urbanization and consequent broadening of the
philosophy of regulation of land use to protect not only health and
safety but also the amenities of modern living,\106\ the Court has
recognized the discretion of government, within the loose confines of
the due process clause, to zone in many ways and for many purposes. The
Court will uphold a challengened land-use plan unless it determines that
the plan is clearly arbitrary and unreasonable and has no substantial
relation to the public health, safety, or general welfare,\107\ or
unless the plan as applied amounts to a tak
[[Page 1629]]
ing of property without just compensation.\108\ Applying these
principles, the Court has held that the creation of a residential
district in a village and the exclusion therefrom of apartment houses,
retail stores, and billboards is a permissible exercise of municipal
power.\109\ So too, a municipality restricting housing in a community to
one-family dwellings, in which any number of persons related by blood,
adoption, or marriage could occupy a house but only two unrelated
persons could do so, was sustained in the absence of any showing that it
was aimed at the deprivation of a ``fundamental interest.''\110\ Such a
fundamental interest was found impaired by a zoning ordinance in Moore
v. City of East Cleveland,\111\ which restricted housing occupancy to a
single family but so defined ``family'' that a grandmother who had been
living with her two grandsons of different children was in violation of
the ordinance. Similarly, black persons cannot be forbidden to occupy
houses in blocks where the greater number of houses are occupied by
white persons, or vice versa.\112\ But aside from such basic
constraints, a wide range of regulation is permissible. Government may
regulate the height of buildings\113\ and establish building setback
requirements.\114\ The preservation of open spaces, through density
controls and restrictions on the numbers of houses,\115\ and the
preservation of historic structures\116\ are also permissible
utilizations of the zoning power.
\106\Cf. Developments in the Law-Zoning, 91 Harv. L. Rev. 1427
(1978).
\107\Village of Euclid v. Ambler Realty Co., 272 U.S. 365
(1926); Zahn v. Board of Pub. Works, 274 U.S. 325 (1927); Nectow v. City
of Cambridge, 277 U.S. 183 (1928); Cusack Co. v. City of Chicago, 242
U.S. 526 (1917); St. Louis Poster Adv. Co. v. City of St. Louis, 249
U.S. 269 (1919).
\108\See, e.g., Lucas v. South Carolina Coastal Council, 112 S.
Ct. 2886 (1992), and discussion of the Fifth Amendment's eminent domain
power, supra pp. 1382-95.
\109\Village of Euclid v. Ambler Realty Co., 272 U.S. 365
(1926).
\110\Village of Belle Terre v. Boraas, 416 U.S. 1 (1974).
\111\431 U.S. 494 (1977). A plurality of the Court struck down
the ordinance as a violation of substantive due process, an infringment
of family living arrangements which are a protected liberty interest,
id. at 498-506, while Justice Stevens concurred on the ground that the
ordinance was arbitrary and unreasonable. Id. at 513. Four Justices
dissented. Id. at 521, 531, 541.
\112\Buchanan v. Warley, 245 U.S. 60 (1917).
\113\Welch v. Swasey, 214 U.S. 91 (1909).
\114\Gorieb v. Fox, 274 U.S. 603 (1927).
\115\Agins v. City of Tiburon, 447 U.S. 255 (1980).
\116\Penn Central Transp. Co. v. City of New York, 438 U.S. 104
(1978).
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In one aspect of zoning--the degree to which such decisions may
be delegated to private persons--the Court has not attained consistency.
Thus, it invalidated a city ordinance which conferred the power to
establish building setback lines upon the owners of two thirds of the
property abutting any street,\117\ and, subsequently, it struck down an
ordinance which permitted the establishment of philanthropic homes for
the aged in residential areas but only upon the written consent of the
owners of two-thirds of
[[Page 1630]]
the property within 400 feet of the proposed facility.\118\ In a
decision falling chronologically between these two, it sustained an
ordinance which permitted property owners to waive a municipal
restriction prohibiting the construction of billboards.\119\ In its most
recent decision, upholding a city charter provision permitting the
petitioning to citywide referendum of zoning changes and variances by
the city planning commission and necessitating a 55% approval vote in
the referendum to sustain the commission's decision, the Court
distinguished between delegating to a small group of affected landowners
such a decision relating to other people and the people's retention of
the ultimate legislative power in themselves which for convenience they
had delegated to a legislative body.\120\ The zoning power may not be
delegated to a church, the Court invalidating under the Establishment
Clause a state law permitting any church to block issuance of a liquor
license for a facility to be operated within 500 feet of the
church.\121\
\117\Eubank v. City of Richmond, 226 U.S. 137 (1912).
\118\Washington ex rel. Seattle Title Trust Co. v. Roberge, 278
U.S. 116 (1928).
\119\Thomas Cusack Co. v. City of Chicago, 242 U.S. 526 (1917).
The Court thought the case different from Eubank, because in that case
the ordinance established no rule but gave to decision of a narrow
segment of the community the force of law, whereas in Cusack the
ordinance barred the erection of any billboards but permitted the
prohibition to be modified by the persons most affected. Id. at 531.
\120\City of Eastlake v. Forest City Enterprises, 426 U.S. 668
(1976). Such referenda do, however, raise equal protection problems. See
infra, p.1858.
\121\Larkin v. Grendel's Den, 459 U.S. 116 (1982).
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Estates, Succession, Abandoned Property.--The Court upheld a New
York Decedent Estate Law that granted to a surviving spouse a right of
election to take as in intestacy, as applied to a widow who, before
enactment of the law, had waived any right to her husband's estate.
Impairment of the widow's waiver by subsequent legislation did not
deprive the husband's estate of property without due process of law.
Because rights of succession to property are of statutory creation, the
Court explained, New York could have conditioned any further exercise of
testamentary power upon the giving of right of election to the surviving
spouse regardless of any waiver however formally executed.\122\
\122\Irving Trust Co. v. Day, 314 U.S. 556, 564 (1942).
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Even after the creation of a testamentary trust, a State retains
the power to devise new and reasonable directions to the trustee to meet
new conditions arising during its administration, especially such as the
Depression presented to trusts containing mortgages. Accordingly, no
constitutional right is violated by the retroactive application to an
estate on which administration had already begun of a statute which had
the effect of taking away a remainderman's right to judicial examination
of the trustee's computation of income. Under the peculiar facts of the
case, however, the remainderman's
[[Page 1631]]
right had been created by judicial rules promulgated after the death of
the decedent, so the case is not precedent for a broad rule of
retroactivity.\123\
\123\Demorest v. City Bank Co., 321 U.S. 36, 47-48 (1944).
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States have several jurisdictional bases for application of
escheat and abandoned property laws to out-of-state corporations.
Application of New York's Abandoned Property Law to insurance policies
on the lives of New York residents issued by foreign corporations did
not deprive such companies of property without due process, where the
insured persons had continued to be New York residents and the
beneficiaries were resident at the maturity date of the policies. The
relationship between New York and its residents who abandon claims
against foreign insurance companies, and between New York and foreign
insurance companies doing business therein, is sufficiently close to
give New York jurisdiction.\124\ In Standard Oil Co. v. New Jersey,\125\
a divided Court held that due process is not violated by a statute
escheating to the State shares of stock in a domestic corporation and
unpaid dividends declared thereon, even though the last known owners
were nonresidents and the stock was issued and the dividends were held
in another State. The State's power over the debtor corporation gives it
power to seize the debts or demands represented by the stock and
dividends.
\124\Connecticut Ins. Co. v. Moore, 333 U.S. 541 (1948).
Justices Jackson and Douglas dissented on the ground that New York was
attempting to escheat unclaimed funds not actually or constructively
located in New York, and which were the property of beneficiaries who
may never have been citizens or residents of New York.
\125\341 U.S. 428 (1951).
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The large discretion the States possess to define abandoned
property and to provide for its disposition is revealed in Texaco v.
Short.\126\ There upheld was an Indiana statute which terminated
interests in coal, oil, gas, or other minerals which have not been used
for twenty years and which provided for reversion to the owner of the
interest out of which the mining interests had been carved. With respect
to interests existing at the time of enactment, the statute provided a
two-year grace period in which owners of mineral interests that were
then unused and subject to lapse could preserve those interests by
filing a claim in the recorder's office. The ``use'' of a mineral
interest which could prevent its extinction included the actual or
attempted extraction of minerals, the payment of rents or royalties, and
any payment of taxes. Merely filing a claim with the local recorder
would preserve the interest. The statute provided no notice, save for
its own publication, to owners
[[Page 1632]]
of interests, nor did it require surface owners to notify owners of
mineral interests that the interests were about to expire. By a narrow
margin, the Court sustained the statute, holding that the State's
interest in encouraging production, securing timely notices of property
ownership, and settling property titles provided a basis for enactment,
and finding that due process did not require any actual notice to
holders of unused mineral interests. Property owners are charged with
maintaining knowledge of the legal conditions of property ownership. The
act provided a grace period and specified several actions which were
sufficient to avoid extinguishment. The State ``may impose on an owner
of a mineral interest the burden of using that interest or filing a
current statement of interests'' and it may similarly ``impose on him
the lesser burden of keeping informed of the use or nonuse of his own
property.''\127\
\126\454 U.S. 516 (1982).
\127\Id. at 538. The four dissenters thought that some specific
notice was required for persons holding before enactment. Id. at 540.
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Health, Safety, and Morals
Even under the narrowest concept of the police power as limited
by substantive due process, it was generally conceded that states could
exercise the power to protect the public health, safety, and
morals.\128\ Illustrative cases are noted below.
\128\See, e.g., Mugler v. Kansas, 123 U.S. 623, 661 (1887), and
discussion supra p.1575.
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Safety Regulations.--A variety of measures designed to reduce
fire hazards have been upheld. These include municipal ordinances that
prohibit the storage of gasoline within 300 feet of any dwelling,\129\
or require that all tanks with a capacity of more than ten gallons, used
for the storage of gasoline, be buried at least three feet under
ground,\130\ or which prohibit washing and ironing in public laundries
and wash houses, within defined territorial limits from 10 p.m. to 6
a.m.\131\ Equally sanctioned by the Fourteenth Amendment is the
demolition and removal by cities of wooden buildings erected within
defined fire limits contrary to regulations in force at the time.\132\
Construction of property in full compliance with existing laws, however,
does not confer upon the owner an immunity against exercise of the
police power. Thus, a 1944 amendment to a Multiple Dwelling Law,
requiring installation of automatic sprinklers in lodginghouses of non-
fireproof construction erected prior to said enactment, does not, as
applied to a lodginghouse constructed in 1940 in conformity with all
laws then
[[Page 1633]]
applicable, deprive the owner of due process, even though compliance
entails an expenditure of $7,500 on a property worth only $25,000.\133\
\129\Pierce Oil Corp. v. Hope, 248 U.S. 498 (1919).
\130\Standard Oil Co. v. Marysville, 279 U.S. 582 (1929).
\131\Barbier v. Connolly, 113 U.S. 27 (1885); Soon Hing v.
Crowley, 113 U.S. 703 (1885).
\132\Maguire v. Reardon, 225 U.S. 271 (1921).
\133\Queenside Hills Co. v. Saxl, 328 U.S. 80 (1946).
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Sanitation.--An ordinance for incineration of garbage and refuse
at a designated place as a means of protecting public health is not
taking of private property without just compensation even though such
garbage and refuse may have some elements of value for certain
purposes.\134\ Compelling property owners to connect with a publicly
maintained system of sewers and enforcing that duty by criminal
penalties does not violate the due process clause.\135\
\134\California Reduction Co. v. Sanitary Works, 199 U.S. 306
(1905).
\135\Hutchinson v. City of Valdosta, 227 U.S. 303 (1913).
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Food, Drugs, Milk.--``The power of the State to . . . prevent
the production within its borders of impure foods, unfit for use, and
such articles as would spread disease and pestilence, is well
established.''\136\ Statutes forbidding or regulating the manufacture of
oleomargarine have been upheld as a valid exercise of such power.\137\
For the same reasons, statutes ordering the destruction of unsafe and
unwholesome food,\138\ and prohibiting the sale and authorizing
confiscation of impure milk\139\ have been sustained, notwithstanding
that such articles had a value for purposes other than food. There also
can be no question of the authority of the State, in the interest of
public health and welfare, to forbid the sale of drugs by itinerant
vendors\140\ or the sale of spectacles by an establishment not in charge
of a physician or optometrist.\141\ Nor is it any longer possible to
doubt the validity of state regulations pertaining to the
administration, sale, prescription, and use of dangerous and habit-
forming drugs.\142\
\136\Sligh v. Kirkwood, 237 U.S. 52, 59-60 (1915).
\137\Powell v. Pennsylvania, 127 U.S. 678 (1888); Magnano v.
Hamilton, 292 U.S. 40 (1934).
\138\North American Storage Co. v. City of Chicago, 211 U.S. 306
(1908).
\139\Adams v. City of Milwaukee, 228 U.S. 572 (1913).
\140\Baccus v. Louisiana, 232 U.S. 334 (1914).
\141\Roschen v. Ward, 279 U.S. 337 (1929).
\142\Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45
(1921).
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Equally valid as police power regulations are laws forbidding
the sale of ice cream not containing a reasonable proportion of butter
fat\143\ or of condensed milk made from skimmed milk rather than whole
milk\144\ or of food preservatives containing boric acid.\145\
Similarly, a statute which prohibits the sale of milk to which has been
added any fat or oil other than a milk fat, and
[[Page 1634]]
which has, as one of its purposes, the prevention of fraud and deception
in the sale of milk products, does not, when applied to ``filled milk''
having the taste, consistency, and appearance of whole milk products,
violate the due process clause. Filled milk is inferior to whole milk in
its nutritional content and cannot be served to children as a substitute
for whole milk without producing a dietary deficiency.\146\ However, a
statute forbidding the sale of bedding made with shoddy, even when
sterilized and therefore harmless to health, was held to be arbitrary
and therefore invalid.\147\
\143\Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916).
\144\Hebe Co. v. Shaw, 248 U.S. 297 (1919).
\145\Price v. Illinois, 238 U.S. 446 (1915).
\146\Sage Stores Co. v. Kansas, 323 U.S. 32 (1944).
\147\Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926).
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Intoxicating Liquor.--``[O]n account of their well-known noxious
qualities and the extraordinary evils shown by experience to be
consequent upon their use, a State . . . [is competent] to prohibit
[absolutely the] manufacture, gift, purchase, sale, or transportation of
intoxicating liquors within its borders. . . .''\148\ And to implement
such prohibition, a State has the power to declare that places where
liquor is manufactured or kept shall be deemed common nuisances,\149\
and even to subject an innocent owner to the forfeiture of his property
for the acts of a wrongdoer.\150\
\148\Beer Co. v. Massachusetts, 97 U.S. 25, 33 (1878); Mugler v.
Kansas, 123 U.S. 623 (1887); Kidd v. Pearson, 128 U.S. 1 (1888); Purity
Extract Co. v. Lynch, 226 U.S. 192 (1912); Clark Distilling Co. v.
Western Md. Ry., 242 U.S. 311 (1917); Barbour v. Georgia, 249 U.S. 454
(1919).
\149\Mugler v. Kansas, 123 U.S. 623, 671 (1887).
\150\Hawes v. Georgia, 258 U.S. 1 (1922); Van Oster v. Kansas,
272 U.S. 465 (1926).
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Regulation of Motor Vehicles and Carriers.--The highways of a
State are public property, the primary and preferred use of which is for
private purposes; their uses for purposes of gain may generally be
prohibited by the legislature or conditioned as it sees fit.\151\ In
limiting the use of its highways for intrastate transportation for hire,
a State reasonably may provide that carriers who have furnished
adequate, responsible, and continuous service over a given route from a
specified data in the past shall be entitled to licenses as a matter of
right but that the licensing of those whose service over the route began
later than the date specified shall depend upon public convenience and
necessity.\152\ To require private contract carriers for hire to obtain
a certificate of convenience and necessity, which is not granted if the
service of common carriers is impaired thereby, and to fix minimum rates
applicable thereto, which are not less than those prescribed for common
carriers, is valid as a means of conserving highways,\153\ but any
attempt to
[[Page 1635]]
convert private carriers into common carriers,\154\ or to subject them
to the burdens and regulations of common carriers, without expressly
declaring them to be common carriers, is violative of due process.\155\
In the absence of legislation by Congress, a State may, in protection of
the public safety, deny an interstate motor carrier the use of an
already congested highway.\156\
\151\Stephenson v. Binford, 287 U.S. 251 (1932).
\152\Stanley v. Public Utilities Comm'n, 295 U.S. 76 (1935).
\153\Stephenson v. Binford, 287 U.S. 251 (1932).
\154\Michigan Pub. Utils. Comm'n v. Duke, 266 U.S. 570 (1925).
\155\Frost Trucking v. Railroad Comm'n, 271 U.S. 583 (1926);
Smith v. Cahoon, 283 U.S. 553 (1931).
\156\Bradley v. Public Utils. Comm'n, 289 U.S. 92 (1933).
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In exercising its authority over its highways, on the other
hand, a State is not limited merely to the raising of revenue for
maintenance and reconstruction or to regulating the manner in which
vehicles shall be operated, but may also prevent the wear and hazards
due to excessive size of vehicles and weight of load. Accordingly, a
statute limiting to 7,000 pounds the net load permissible for trucks is
not unreasonable.\157\ No less constitutional is a municipal traffic
regulation which forbids the operation in the streets of any advertising
vehicle, excepting vehicles displaying business notices or
advertisements of the products of the owner and not used mainly for
advertising; and such regulation may be validly enforced to prevent an
express company from selling advertising space on the outside of its
trucks. Inasmuch as it is the judgment of local authorities that such
advertising affects public safety by distracting drivers and
pedestrians, courts are unable to hold otherwise in the absence of
evidence refuting that conclusion.\158\
\157\Sproles v. Binford, 286 U.S. 374 (1932).
\158\Railway Express Agency v. New York, 336 U.S. 106 (1949).
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Any appropriate means adopted to insure compliance and care on
the part of licensees and to protect other highway users being consonant
with due process, a State may also provide that a driver who fails to
pay a judgment for negligent operation shall have his license and
registration suspended for three years, unless, in the meantime, the
judgment is satisfied or discharged.\159\ Compulsory automobile
insurance is so plainly valid as to present no federal constitutional
question.\160\
\159\Reitz v. Mealey, 314 U.S. 33 (1941); Kesler v. Department
of Pub. Safety, 369 U.S. 153 (1962). But see Perez v. Campbell, 402 U.S.
637 (1971). Procedural due process must, of course be observed. Bell v.
Burson, 402 U.S. 535 (1971). A nonresident owner who loans his
automobile in another state, by the law of which he is immune from
liability for the borrower's negligence and who was not in the state at
the time of the accident, is not subjected to any unconstitutional
deprivation by a law thereof, imposing liability on the owner for the
negligence of one driving the car with the owner's permission. Young v.
Masci, 289 U.S. 253 (1933).
\160\Ex parte Poresky, 290 U.S. 30 (1933). See also Packard v.
Banton, 264 U.S. 140 (1924); Sprout v. South Bend, 277 U.S. 163 (1928);
Hodge Co. v. Cincinnati, 284 U.S. 335 (1932); Continental Baking Co. v.
Woodring, 286 U.S. 352 (1932).
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[[Page 1636]]
Protecting Morality.--Unless effecting a clear, unmistakable
infringement of rights secured by fundamental law, legislation
suppressing prostitution\161\ or gambling will be upheld by the Court as
concededly within the police power of a State.\162\ Accordingly, a state
statute may provide that, in the event a judgment is obtained against a
party winning money, a lien may be had on the property of the owner of
the building where the gambling transaction was conducted when the owner
knowingly consented to the gambling.\163\ For the same reason,
lotteries, including those operated under a legislative grant, may be
forbidden, irrespective of any particular equities.\164\
\161\L'Hote v. New Orleans, 177 U.S. 587 (1900).
\162\Ah Sin v. Wittman, 198 U.S. 500 (1905).
\163\Marvin v. Trout, 199 U.S. 212 (1905).
\164\Stone v. Mississippi, 101 U.S. 814 (1880); Douglas v.
Kentucky, 168 U.S. 488 (1897).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Vested Rights, Remedial Rights, Political Candidacy
Inasmuch as the Due Process Clause protects against arbitrary
deprivation of ``property,'' privileges not constituting property are
not entitled to protection.\165\ Because an existing right of action to
recover damages for an injury is property, that right of action is
protected by the clause.\166\ Thus, the retroactive repeal of a
provision which made directors liable for moneys embezzled by corporate
officers, by preventing enforcement of a liability which already had
arisen, deprived certain creditors of their property without due process
of law.\167\ But while a vested cause of action is property, a person
has no constitutionally protected property interest in any particular
form of remedy and is guaranteed only the preservation of a substantial
right to redress by any effective procedure.\168\ Accordingly, a statute
creating an additional remedy for enforcing stockholders' liability is
not, as applied to stockholders then holding stock, violative of due
process.\169\ Nor is a law which lifts a statute of limitations and
makes possible a suit, theretofore barred,
[[Page 1637]]
for the value of certain securities. ``The Fourteenth Amendment does not
make an act of state legislation void merely because it has some
retrospective operation. . . . Some rules of law probably could not be
changed retroactively without hardship and oppression . . . . Assuming
that statutes of limitation, like other types of legislation, could be
so manipulated that their retroactive effects would offend the
constitution, certainly it cannot be said that lifting the bar of a
statute of limitation so as to restore a remedy lost through mere lapse
of time is per se an offense against the Fourteenth Amendment.''\170\
\165\See, e.g., Snowden v. Hughes, 321 U.S. 1 (1944) (right to
become a candidate for state office is a privilege only, hence an
unlawful denial of such right is not a denial of a right of
``property''). Cases under the equal protection clause now mandate a
different result. See Holt Civic Club v. City of Tuscaloosa, 439 U.S.
60, 75 (1978) (seeming to conflate due process and equal protection
standards in political rights cases).
\166\Angle v. Chicago, St. Paul, M. & D. Ry., 151 U.S. 1 (1894).
\167\Coombes v. Getz, 285 U.S. 434, 442, 448 (1932).
\168\Gibbes v. Zimmerman, 290 U.S. 326, 332 (1933). See Duke
Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59 (1978) (limitation
of common-law liability of private industry nuclear accidents in order
to encourage development of energy a rational action, especially when
combined with congressional pledge to take necessary action in event of
accident; whether limitation would have been of questionable validity in
absence of pledge uncertain but unlikely).
\169\Shriver v. Woodbine Bank, 285 U.S. 467 (1932).
\170\Chase Securities Corp. v. Donaldson, 325 U.S. 304, 315-16
(1945).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Control of Local Units of Government
The Fourteenth Amendment does not deprive a State of the power
to determine what duties may be performed by local officers, and whether
they shall be appointed or popularly elected.\171\ Thus, a statute
requiring cities to indemnify owners of property damaged by mobs or
during riots effects no unconstitutional deprivation of the property
even in circumstances when the city could not have prevented the
violence.\172\ Likewise, a person obtaining a judgment against a
municipality for damages resulting from a riot is not deprived of
property without due process of law by an act which so limits the
municipality's taxing power as to prevent collection of funds adequate
to pay it. As long as the judgment continues as an existing liability no
unconstitutional deprivation is experienced.\173\
\171\Soliah v. Heskin, 222 U.S. 522 (1912); City of Trenton v.
New Jersey, 262 U.S. 182 (1923). The equal protection clause has been
employed, however, to limit a State's discretion with regard to certain
matters. Infra, pp. 1892-1911.
\172\City of Chicago v. Sturges, 222 U.S. 313 (1911).
\173\Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U.S.
285, 289 (1883).
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Local units of government obliged to surrender property to other
units newly created out of the territory of the former cannot
successfully invoke the due process clause,\174\ nor may taxpayers
allege any unconstitutional deprivation as a result of changes in their
tax burden attendant upon the consolidation of contiguous
municipalities.\175\ Nor is a statute requiring counties to reimburse
cities of the first class but not other classes for rebates allowed for
prompt payment of taxes in conflict with the due process clause.\176\
\174\Michigan ex rel. Kies v. Lowrey, 199 U.S. 233 (1905).
\175\Hunter v. Pittsburgh, 207 U.S. 161 (1907).
\176\Stewart v. Kansas City, 239 U.S. 14 (1915).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Taxing Power
Generally.--It was not contemplated that the adoption of the
Fourteenth Amendment would restrain or cripple the taxing power
[[Page 1638]]
of the States.\1\ Rather, the purpose of the amendment was to extend to
the residents of the States the same protection against arbitrary state
legislation affecting life, liberty, and property as was afforded
against Congress by the Fifth Amendment.\2\
\1\Tonawanda v. Lyon, 181 U.S. 389 (1901); Cass Farm Co. v.
Detroit, 181 U.S. 396 (1901).
\2\Southwestern Oil Co. v. Texas, 217 U.S. 114, 119 (1910).
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Public Purpose.--As a general matter, public moneys cannot be
expended for other than public purposes. Some early cases applied this
principle by invalidating taxes judged to be imposed to raise money for
purely private rather than public purposes.\3\ However, modern notions
of public purpose have expanded to the point where the limitation has
little practical import. Whether a use is public or private, while it is
ultimately a judicial question, ``is a practical question addressed to
the law-making department, and it would require a plain case of
departure from every public purpose which could reasonably be conceived
to justify the intervention of a court.''\4\ Taxes levied for each of
the following purposes have been held to be for a public use: a city
coal and fuel yard,\5\ a state bank, a warehouse, an elevator, a
flourmill system, homebuilding projects,\6\ a society for preventing
cruelty to animals (dog license tax),\7\ a railroad tunnel,\8\ books for
school children attending private as well as public schools,\9\ and
relief of unemployment.\10\
\3\Loan Association v. City of Topeka, 87 U.S. (20 Wall.) 655
(1875) (voiding tax employed by city to make a substantial grant to a
bridge manufacturing company to induce it to locate its factory in the
city). See also City of Parkersburg v. Brown, 106 U.S. 487 (1882)
(private purpose bonds not authorized by state constitution).
\4\Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 515
(1937). In applying the Fifth Amendment Due Process Clause the Court has
said that discretion as to what is a public purpose ``belongs to
Congress, unless the choice is clearly wrong, a display of arbitrary
power, not an exercise of judgment.'' Helvering v. Davis, 301 U.S. 619,
640 (1937); United States v. Butler, 297 U.S. 1, 67 (1936). That payment
may be made to private individuals is now irrelevant. Carmichael, supra,
at 518. Cf. Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976)
(sustaining tax imposed on mine companies to compensate workers for
black lung disabilities, including those contracting disease before
enactment of tax, as way of spreading cost of employee liabilities).
\5\Jones v. City of Portland, 245 U.S. 217 (1917).
\6\Green v. Frazier, 253 U.S. 233 (1920).
\7\Nicchia v. New York, 254 U.S. 228 (1920).
\8\Milheim v. Moffat Tunnel Dist., 262 U.S. 710 (1923).
\9\Cochran v. Board of Education, 281 U.S. 370 (1930).
\10\Carmichael v. Southern Coal & Coke Co., 300 U.S. 644 (1937).
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Other Considerations Affecting Validity: Excessive Burden; Ratio
of Amount of Benefit Received.--When the power to tax exists, the extent
of the burden is a matter for the discretion of the lawmakers,\11\ and
the Court will refrain from condemning a
[[Page 1639]]
tax solely on the ground that it is excessive.\12\ Nor can the
constitutionality of taxation be made to depend upon the taxpayer's
enjoyment of any special benefits from use of the funds raised by
taxation.\13\
\11\Fox v. Standard Oil Co., 294 U.S. 87, 99 (1935).
\12\Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935). See
also Kelly v. City of Pittsburgh, 104 U.S. 78 (1881); Chapman v.
Zobelein, 237 U.S. 135 (1915); Alaska Fish Salting & By-Products Co. v.
Smith, 255 U.S. 44 (1921); Magnano Co. v. Hamilton, 292 U.S. 40 (1934);
City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369 (1974).
\13\Nashville, C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933);
Carmichael v. Southern Coal & Coke Co., 301 U.S. 495 (1937). A taxpayer
therefore cannot contest the imposition of an income tax on the ground
that, in operation, it returns to his town less income tax than he and
its other inhabitants pay. Dane v. Jackson, 256 U.S. 589 (1921).
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Estate, Gift, and Inheritance Taxes.--The power of testamentary
disposition and the privilege of inheritance being legitimate subjects
of taxation, a State may apply its inheritance tax to either the
transmission, or the exercise of the legal power of transmission, of
property by will or descent, or to the legal privilege of taking
property by devise or descent.\14\ Accordingly, an inheritance tax law,
enacted after the death of a testator but before the distribution of his
estate, constitutionally may be imposed on the shares of legatees,
notwithstanding that under the law of the State in effect on the date of
such enactment, ownership of the property passed to the legatees upon
the testator's death.\15\ Equally consistent with due process is a tax
on an inter vivos transfer of property by deed intended to take effect
upon the death of the grantor.\16\
\14\Stebbins v. Riley, 268 U.S. 137, 140, 141 (1925).
\15\Cahen v. Brewster, 203 U.S. 543 (1906).
\16\Keeney v. New York, 222 U.S. 525 (1912).
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When remainders indisputably vest at the time of the creation of
a trust and a succession tax is enacted thereafter, the imposition of
the tax on the transfer of such remainder is unconstitutional.\17\ But
where the remaindermen's interests are contingent and do not vest until
the donor's death subsequent to the adoption of the statute, the tax is
valid.\18\
\17\Coolidge v. Long, 282 U.S. 582 (1931).
\18\Binney v. Long, 299 U.S. 280 (1936); Nickel v. Cole, 256
U.S. 222 (1921). See also Salomon v. State Tax Comm'n, 278 U.S. 484
(1929) (contingent remainder); and Orr v. Gilman, 183 U.S. 278 (1902)
(power of appointment).
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The Court has noted that insofar as retroactive taxation of
vested gifts has been voided, the justification therefor has been that
``the nature or amount of the tax could not reasonably have been
anticipated by the taxpayer at the time of the particular voluntary act
which the [retroactive] statute later made the taxable event. . . .
Taxation . . . of a gift which . . . [the donor] might well
[[Page 1640]]
have refrained from making had he anticipated the tax . . . [is] thought
to be so arbitrary . . . as to be a denial of due process.''\19\
\19\Welch v. Henry, 305 U.S. 134, 147 (1938).
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Income Taxes.--The authority of states to tax income is
``universally recognized.''\20\ Years ago the Court explained that
``[e]njoyment of the privileges of residence in the state and the
attendant right to invoke the protection of its laws are inseparable
from responsibility for sharing the costs of government. . . . A tax
measured by the net income of residents is an equitable method of
distributing the burdens of government among those who are privileged to
enjoy its benefits.''\21\ Also, a tax on income is not constitutionally
suspect because retroactive. The routine practice of making taxes
retroactive for the entire year of the legislative session in which the
tax is enacted has long been upheld,\22\ and there are also situations
in which courts have upheld retroactive application to the preceding
year or two.\23\
\20\New York ex rel. Cohn v. Graves, 300 U.S. 308, 313 (1937).
\21\Id. See also Shaffer v. Carter, 252 U.S. 37, 49-52 (1920);
and Travis v. Yale & Towne Mfg. Co., 252 U.S. 60 (1920) (states may tax
the income of nonresidents derived from property or activity within the
state).
\22\See, e.g., Stockdale v. Insurance Companies, 87 U.S. (20
Wall.) 323 (1874); United States v. Hudson, 299 U.S. 498 (1937); United
States v. Darusmont, 449 U.S. 292 (1981).
\23\Welch v. Henry, 305 U.S. 134 (1938) (upholding imposition in
1935 of tax liability for 1933 tax year; due to the scheduling of
legislative sessions, this was the legislature's first opportunity to
adjust revenues after obtaining information of the nature and amount of
the income generated by the original tax). Since ``[t]axation is neither
a penalty imposed on the taxpayer nor a liability which he assumes by
contract,'' the Court explained, ``its retroactive imposition does not
necessarily infringe due process.'' Id. at 146-47.
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Franchise Taxes.--A city ordinance imposing annual license taxes
on light and power companies is not violative of the due process clause
merely because the city has entered the power business in competition
with such companies.\24\ Nor does a municipal charter authorizing the
imposition upon a local telegraph company of a tax upon the lines of the
company within its limits at the rate at which other property is taxed
but upon an arbitrary valuation per mile, deprive the company of its
property without due process of law, inasmuch as the tax is a mere
franchise or privilege tax.\25\
\24\Puget Sound Co. v. Seattle, 291 U.S. 619 (1934).
\25\New York Tel. Co. v. Dolan, 265 U.S. 96 (1924).
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Severance Taxes.--A state excise tax on the production of oil
which extends to the royalty interest of the lessor as well as to the
interest of the lessee engaged in the active work of production, the tax
being apportioned between these parties according to their respective
interest in the common venture, is not arbitrary as applied to the
lessor, but consistent with due process.\26\
\26\Barwise v. Sheppard, 299 U.S. 33 (1936).
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[[Page 1641]]
Real Property Taxes.--The maintenance of a high assessment in
the face of declining value is merely another way of achieving an
increase in the rate of property tax. Hence, an overassessment
constitutes no deprivation of property without due process of law.\27\
Likewise, land subject to mortgage may be taxed for its full value
without deduction of the mortgage debt from the valuation.\28\
\27\Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362 (1940).
\28\Paddell v. City of New York, 211 U.S. 446 (1908).
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A State may defray the entire expense of creating, developing,
and improving a political subdivision either from funds raised by
general taxation or by apportioning the burden among the municipalities
in which the improvements are made or by creating, or authorizing the
creation of, tax districts to meet sanctioned outlays.\29\ Where a state
statute authorizes municipal authorities to define the district to be
benefited by a street improvement and to assess the cost of the
improvement upon the property within the district in proportion to
benefits, their action in establishing the district and in fixing the
assessments on included property, after due hearing of the owners as
required by the statute cannot, when not arbitrary or fradulent, be
reviewed under the Fourteenth Amendment upon the ground that other
property benefited by the improvement was not included.\30\
\29\Hagar v. Reclamation Dist., 111 U.S. 701 (1884).
\30\Butters v. City of Oakland, 263 U.S. 162 (1923).
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It is also proper to impose a special assessment for the
preliminary expenses of an abandoned road improvement, even though the
assessment exceeds the amount of the benefit which the assessors
estimated the property would receive from the completed work.\31\
Likewise a levy upon all lands within a drainage district of a tax of
twenty-five cents per acre to defray preliminary expenses does not
unconstitutionally take the property of landowners within that district
who may not be benefited by the completed drainage plans.\32\ On the
other hand, when the benefit to be derived by a railroad from the
construction of a highway will be largely offset by the loss of local
freight and passenger traffic, an assessment upon such railroad is
violative of due process,\33\ whereas any gains from increased traffic
reasonably expected to result from a road improvement will suffice to
sustain an assessment thereon.\34\ Also the
[[Page 1642]]
fact that the only use made of a lot abutting on a street improvement is
for a railway right of way does not make invalid, for lack of benefits,
an assessment thereon for grading, curbing, and paving.\35\ However,
when a high and dry island was included within the boundaries of a
drainage district from which it could not be benefitted directly or
indirectly, a tax imposed on the island land by the district was held to
be a deprivation of property without due process of law.\36\ Finally, a
State may levy an assessment for special benefits resulting from an
improvement already made\37\ and may validate an assessment previously
held void for want of authority.\38\
\31\Missouri Pac. R.R. v. Road District, 266 U.S. 187 (1924).
See also Roberts v. Irrigation Dist., 289 U.S. 71 (1933), in which it
was also stated that an assessment to pay the general indebtedness of an
irrigation district is valid, even though in excess of the benefits
received.
\32\Houck v. Little River Dist., 239 U.S. 254 (1915).
\33\Road Dist. v. Missouri Pac. R.R., 274 U.S. 188 (1927).
\34\Kansas City Ry. v. Road Dist., 266 U.S. 379 (1924).
\35\Louisville & Nashville R.R. v. Barber Asphalt Co., 197 U.S.
430 (1905).
\36\Myles Salt Co. v. Iberia Drainage Dist., 239 U.S. 478
(1916).
\37\Wagner v. Baltimore, 239 U.S. 207 (1915).
\38\Charlotte Harbor Ry. v. Welles, 260 U.S. 8 (1922).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Jurisdiction to Tax
The operation of the Due Process Clause as a limitation on the
taxing power of the states has been an issue in a variety of different
contexts, but most involve one of the other of two basic issues, first,
the relationship between the state exercising taxing power and the
object of that exercise of power, and second, whether the degree of
contact is sufficient to justify the state's imposition of a particular
obligation. Often these issues arise in conjunction with claims that the
state's actions are also violative of the Commerce Clause. Illustrative
of the factual settings in which such issues arise are 1), determining
the scope of the business activity of a multijurisdictional entity that
is subject to a state's taxing power, 2) application of wealth transfer
taxes to gifts or bequests of nonresidents, 3) allocation of the income
of multijurisdictional entities for tax purposes, 4) the scope of state
authority to tax the income of nonresidents, and 5) collection of state
use taxes.
The Court's opinions in these cases have often discussed due
process and Commerce Clause issues as if they were indistinguishable.
The recent decision in Quill Corp. v. North Dakota,\39\ however,
utilized a two-tier analysis that found sufficient contact to satisfy
due process but not Commerce Clause requirements. Quill may be read as
implying that the more stringent Commerce Clause standard subsumes due
process jurisdictional issues, and that consequently these due process
issues need no longer be separately considered. This interpretation has
yet to be confirmed, however, and a detailed review of due process
precedents may prove useful.
\39\112 S. Ct. 1904 (1992).
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[[Page 1643]]
Sales/Use Taxes.--In Quill Corp. v. North Dakota,\40\ the Court
struck down a state statute requiring an out-of-state mail order company
with neither outlets nor sales representatives in the state to collect
and transmit use taxes on sales to state residents, but did so on
Commerce Clause rather than due process grounds. Taxation of an
interstate business does not offend due process, the Court held, if that
business ``purposefully avails itself of the benefits of an economic
market in the [taxing] State . . . even if it has no physical presence
in the State.''\41\ A physical presence within the state is necessary,
however, under Commerce Clause analysis applicable to taxation of mail
order sales.\42\
\40\112 S. Ct. 1904 (1992).
\41\The Court had previously held that the requirement in terms
of a benefit is minimal. Commonwealth Edison Co. v. Montana, 453 U.S.
609, 622-23 (1982), (quoting Carmichael v. Southern Coal & Coke Co., 301
U.S. 495, 521-23 (1937)). It is satisfied by a ``minimal connection''
between the interstate activities and the taxing State and a rational
relationship between the income attributed to the State and the
intrastate values of the enterprise. Mobil Oil Corp. v. Commissioner of
Taxes, 445 U.S. 425, 436-37 (1980); Moorman Mfg. Co. v. Bair, 437 U.S.
267, 272-73 (1978). See especially Standard Pressed Steel Co. v.
Department of Revenue, 419 U.S. 560, 562 (1975); National Geographic
Society v. California Bd. of Equalization, 430 U.S. 551 (1977).
\42\Quill Corp. v. North Dakota, 112 S. Ct. at 1911-16 (refusing
to overrule the Commerce Clause ruling in National Bellas Hess v.
Department of Revenue, 386 U.S. 753, 756 (1967)). See also Trinova Corp.
v. Michigan Dep't of Treasury, 498 U.S. 358 (1991) (neither the Commerce
Clause nor the Due Process Clause is violated by application of a
business tax, measured on a value added basis, to a company that
manufactures goods in another state, but that operates a sales office
and conducts sales within state).
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Land.--Even prior to the ratification of the Fourteenth
Amendment, it was a settled principle that a State could not tax land
situated beyond its limits; subsequently elaborating upon that principle
the Court has said that, ``we know of no case where a legislature has
assumed to impose a tax upon land within the jurisdiction of another
State, much less where such action has been defended by a court.''\43\
Insofar as a tax payment may be viewed as an exaction for the
maintenance of government in consideration of protection afforded, the
logic sustaining this rule is self-evident.
\43\Union Transit Co. v. Kentucky, 199 U.S. 194, 204 (1905). See
also Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U.S. 385
(1903).
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Tangible Personalty.--As long as tangible personal property has
a situs within its borders, a State validly may tax the same, whether
directly through an ad valorem tax or indirectly through death taxes,
irrespective of the residence of the owner.\44\ By the same token, if
tangible personal property makes only occasional incursions into other
States, its permanent situs remains in the State
[[Page 1644]]
of origin, and, subject to certain exceptions, is taxable only by the
latter.\45\ The ancient maxim, mobilia sequuntur personam, which had its
origin when personal property consisted in the main of articles
appertaining to the person of the owner, yielded in modern times to the
``law of the place where the property is kept and used.'' The tendency
has been to treat tangible personal property as ``having a situs of its
own for the purpose of taxation, and correlatively to . . . exempt [it]
at the domicile of its owner.''\46\ When rolling stock is permanently
located and employed in the prosecution of a business outside the
boundaries of a domiciliary State, the latter has no jurisdiction to tax
it.\47\ Vessels, however, inasmuch as they merely touch briefly at
numerous ports, never acquire a taxable situs at any one of them, and
are taxable by the domicile of their owners or not at all,\48\ unless of
course, the ships operate wholly on the waters within one State, in
which event they are taxable there and not at the domicile of the
owners.\49\ Airplanes have been treated in a similar manner for tax
purposes. Noting that the entire fleet of airplanes of an interstate
carrier were ``never continuously without the [domiciliary] State during
the whole tax year,'' that such airplanes also had their ``home port''
in the domiciliary State, and that the company maintained its principal
office therein, the Court sustained a personal property tax applied by
the domiciliary State to all the airplanes owned by the taxpayer. No
other State was deemed able to accord the same protection and benefits
as the taxing State in which the taxpayer had both its domicile and its
business situs; the doctrines of Union Transit Co. v. Kentucky,\50\ as
to the taxability of permanently located tangibles, and that of
[[Page 1645]]
apportionment, for instrumentalities engaged in interstate commerce\51\
were held to be inapplicable.\52\
\44\Carstairs v. Cochran, 193 U.S. 10 (1904); Hannis Distilling
Co. v. Baltimore, 216 U.S. 285 (1910); Frick v. Pennsylvania, 268 U.S.
473 (1925); Blodgett v. Silberman, 277 U.S. 1 (1928).
\45\New York ex rel. New York Cent. R.R. v. Miller, 202 U.S. 584
(1906). As to the competence of States to tax equipment of foreign
carriers which enter their jurisdiction intermittently, see supra, pp.
227-33.
\46\Wheeling Steel Corp. v. Fox, 298 U.S. 193, 209-10 (1936);
Union Transit Co. v. Kentucky, 199 U.S. 194, 207 (1905); Johnson Oil Co.
v. Oklahoma, 290 U.S. 158 (1933).
\47\Union Transit Co. v. Kentucky, 199 U.S. 194 (1905). Justice
Black, in Central R.R. v. Pennsylvania, 370 U.S. 607, 619-21 (1962), had
his ``doubts about the use of the Due Process Clause to . . .
[invalidate State taxes]. The modern use of due process to invalidate
State taxes rests on two doctrines: (1) that a State is without
`jurisdiction to tax' property beyond its boundaries, and (2) that
multiple taxation of the same property by different States is
prohibited. Nothing in the language or the history of the Fourteenth
Amendment, however, indicates any intention to establish either of these
two doctrines . . . And in the first case [Railroad Co. v. Jackson, 74
U.S. (7 Wall.) 262 (1869)] striking down a State tax for lack of
judisdiction to tax after the passage of that Amendment, neither the
Amendment nor its Due Process Clause . . . was ever mentioned.'' He also
maintained that Justice Holmes shared this view in Union Transit Co. v.
Kentucky, supra, at 211.
\48\Southern Pacific Co. v. Kentucky, 222 U.S. 63 (1911).
\49\Old Dominion Steamship Co. v. Virginia, 198 U.S. 299 (1905).
\50\199 U.S. 194 (1905). See also Central R.R. v. Pennsylvania,
370 U.S. 607, 611-17 (1962).
\51\Pullman's Car Co. v. Pennsylvania, 141 U.S. 18 (1891).
\52\Northwest Airlines v. Minnesota, 322 U.S. 292, 294-97, 307
(1944). The case was said to be governed by New York ex rel. New York
Cent. R.R. v. Miller, 202 U.S. 584, 596 (1906). As to the problem of
multiple taxation of such airplanes, which had in fact been taxed
proportionately by other States, the Court declared that the
``taxability of any part of this fleet by any other State, than
Minnesota, in view of the taxability of the entire fleet by that State,
is not now before us.'' Justice Jackson, in a concurring opinion, would
treat Minnesota's right to tax as exclusively of any similar right
elsewhere.
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Conversely, a nondomiciliary State, although it may not tax
property belonging to a foreign corporation which has never come within
its borders, may levy on movables which are regularly and habitually
used and employed therein. Thus, while the fact that cars are loaded and
reloaded at a refinery in a State outside the owner's domicile does not
fix the situs of the entire fleet in that State, the latter may
nevertheless tax the number of cars which on the average are found to be
present within its borders.\53\ Moreover, in assessing that part of a
railroad within its limits, a State need not treat it as an independent
line, disconnected from the part without, and place upon the property
within the State only a value which could be given to it if operated
separately from the balance of the road. The State may ascertain the
value of the whole line as a single property and then determine the
value of the part within on a mileage basis, unless there be special
circumstances which distinguish between conditions in the several
States.\54\ But no property of an interstate carrier can be taken into
account unless it can be seen in some plain and fairly intelligible way
that it adds to the value of the road and the rights exercised in the
State.\55\ Also, a state property tax on railroads, which is measured by
gross earnings apportioned to mileage, is not unconstitutional in the
absence of proof that it exceeds what would be legitimate as an ordinary
tax on the property valued as part of a going concern or that it is
relatively higher than taxes on other kinds of property.\56\ The tax
reaches only revenues derived from local operations, and the fact that
the apportionment formula does not result in mathematical exactitude is
not a constitutional defect.\57\
\53\Johnson Oil Co. v. Oklahoma, 290 U.S. 158 (1933).
\54\Pittsburgh C.C. & St. L. Ry. v. Backus, 154 U.S. 421 (1894).
\55\Wallace v. Hines, 253 U.S. 66 (1920). For example, the ratio
of track mileage within the taxing State to total track mileage cannot
be employed in evaluating that portion of total railway property found
in the State when the cost of the lines in the taxing State was much
less than in other States and the most valuable terminals of the
railroad were located in other States. See also Fargo v. Hart, 193 U.S.
490 (1904); Union Tank Line Co. v. Wright, 249 U.S. 275 (1919).
\56\Great Northern Ry. v. Minnesota, 278 U.S. 503 (1929).
\57\Illinois Cent. R.R. v. Minnesota, 309 U.S. 157 (1940).
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[[Page 1646]]
Intangible Personalty.--To determine whether a State, or States,
may tax intangible personal property, the Court has applied the fiction,
mobilia sequuntur personam and has also recognized that such property
may acquire, for tax purposes, a business or commercial situs where
permanently located, but it has never clearly disposed of the issue
whether multiple personal property taxation of intangibles is consistent
with due process. In the case of corporate stock, however, the Court has
obliquely acknowledged that the owner thereof may be taxed at his own
domicile, at the commercial situs of the issuing corporation, and at the
latter's domicile; constitutional lawyers speculated whether the Court
would sustain a tax by all three jurisdictions, or by only two of them,
and, if the latter, which two, the State of the commercial situs and of
the issuing corporation's domicile, or the State of the owner's domicile
and that of the commercial situs.\58\
\58\Howard, State Jurisdiction to Tax Intangibles: A Twelve Year
Cycle, 8 Mo. L. Rev. 155, 160-62 (1943); Rawlins, State Jurisdiction to
Tax Intangibles: Some Modern Aspects, 18 Tex. L. Rev. 196, 314-15
(1940).
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Thus far, the Court has sustained the following personal
property taxes on intangibles:
(1) A debt held by a resident against a nonresident, evidenced
by a bond of the debtor and secured by a mortgage on real estate in the
State of the debtor's residence.\59\
\59\Kirtland v. Hotchkiss, 100 U.S. 491, 498 (1879).
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(2) A mortgage owned and kept outside the State by a nonresident
but on land within the State.\60\
\60\Savings Society v. Multnomah County, 169 U.S. 421 (1898).
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(3) Investments, in the form of loans to a resident, made by a
resident agent of a nonresident creditor, are taxable to the nonresident
creditor.\61\
\61\Bristol v. Washington County, 177 U.S. 133, 141 (1900).
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(4) Deposits of a resident in a bank in another State, where he
carries on a business and from which these deposits are derived, but
belonging absolutely to him and not used in the business, are subject to
a personal property tax in the city of his residence, whether or not
they are subject to tax in the State where the business is carried on.
The tax is imposed for the general advantage of living within the
jurisdiction (benefit-protection theory), and may be measured by
reference to the riches of the person taxed.\62\
\62\Fidelity & Columbia Trust Co. v. Louisville, 245 U.S. 54
(1917).
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(5) Membership owned by a nonresident in a domestic exchange,
known as a chamber of commerce.\63\
\63\Rogers v. Hennepin County, 240 U.S. 184 (1916).
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[[Page 1647]]
(6) Membership by a resident in a stock exchange located in
another State. ``Double taxation'' the Court observed ``by one and the
same State is not'' prohibited ``by the Fourteenth Amendment; much less
is taxation by two States upon identical or closely related property
interest falling within the jurisdiction of both, forbidden.''\64\
\64\Citizens National Bank v. Durr, 257 U.S. 99, 109 (1921).
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(7) A resident owner may be taxed on stock held in a foreign
corporation that does no business and has no property within the taxing
State. The Court also added that ``undoubtedly the State in which a
corporation is organized may . . . [tax] all of its shares whether owned
by residents or nonresidents.''\65\
\65\Hawley v. Malden, 232 U.S. 1, 12 (1914).
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(8) Stock in a foreign corporation owned by another foreign
corporation transacting its business within the taxing State. The Court
attached no importance to the fact that the shares were already taxed by
the State in which the issuing corporation was domiciled and might also
be taxed by the State in which the stock owner was domiciled, or at any
rate did not find it necessary to pass upon the validity of the latter
two taxes. The present levy was deemed to be tenable on the basis of the
benefit-protection theory, namely, ``the economic advantages realized
through the protection at the place . . . [of business situs] of the
ownership of rights in intangibles. . . .''\66\
\66\First Bank Corp. v. Minnesota, 301 U.S. 234, 241 (1937).
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(9) Shares owned by nonresident shareholders in a domestic
corporation, the tax being assessed on the basis of corporate assets and
payable by the corporation either out of its general fund or by
collection from the shareholder. The shares represent an aliquot portion
of the whole corporate assets, and the property right so represented
arises where the corporation has its home, and is therefore within the
taxing jurisdiction of the State, notwithstanding that ownership of the
stock may also be a taxable subject in another State.\67\
\67\Schuylkill Trust Co. v. Pennsylvania, 302 U.S. 506 (1938).
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(10) A tax on the dividends of a corporation may be distributed
ratably among stockholders regardless of their residence outside the
State, the stockholders being the ultimate beneficiaries of the
corporation's activities within the taxing State and protected by the
latter and subject to its jurisdiction.\68\ This tax, though collected
by the corporation, is on the transfer to a stockholder of his share of
[[Page 1648]]
corporate dividends within the taxing State and is deducted from said
dividend payments.\69\
\68\International Harvester Co. v. Department of Taxation, 322
U.S. 435 (1944).
\69\Wisconsin Gas Co. v. United States, 322 U.S. 526 (1944).
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(11) Stamp taxes on the transfer within the taxing State by one
nonresident to another of stock certificates issued by a foreign
corporation,\70\ and upon promissory notes executed by a domestic
corporation, although payable to banks in other States.\71\ These taxes,
however, were deemed to have been laid, not on the property, but upon an
event, the transfer in one instance, and execution in the latter which
took place in the taxing State.
\70\New York ex rel. Hatch v. Reardon, 204 U.S. 152 (1907).
\71\Graniteville Mfg. Co. v. Query, 283 U.S. 376 (1931).
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The following personal property taxes on intangibles have been
invalidated:
(1) Debts evidenced by notes in safekeeping within the taxing
State, but made and payable and secured by property in a second State
and owned by a resident of a third State.\72\
\72\Buck v. Beach, 206 U.S. 392 (1907).
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(2) A property tax sought to be collected from a life
beneficiary on the corpus of a trust composed of property located in
another State and as to which the beneficiary had neither control nor
possession, apart from the receipt of income therefrom.\73\ However, a
personal property tax may be collected on one-half of the value of the
corpus of a trust from a resident who is one of the two trustees
thereof, not withstanding that the trust was created by the will of a
resident of another State in respect of intangible property located in
the latter State, at least where it does not appear that the trustee is
exposed to the danger of other ad valorem taxes in another State.\74\
The first case, Brooke v. Norfolk,\75\ is distinguishable by virture of
the fact that the property tax therein voided was levied upon a resident
beneficiary rather than upon a resident trustee in control of
nonresident intangibles. Different too is Safe Deposit & T. Co. v.
Virginia,\76\ where a property tax was unsuccessfully demanded of a
nonresident trustee with respect to nonresident intangibles under its
control.
\73\Brooke v. City of Norfolk, 277 U.S. 27 (1928).
\74\Greenough v. Tax Assessors, 331 U.S. 486, 496-97 (1947).
\75\277 U.S. 27 (1928).
\76\280 U.S. 83 (1929).
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(3) A tax, measured by income, levied on trust certificates held
by a resident, representing interests in various parcels of land (some
inside the State and some outside), the holder of the certificates,
though without a voice in the management of the property,
[[Page 1649]]
being entitled to a share in the net income and, upon sale of the
property, to the proceeds of the sale.\77\
\77\Senior v. Braden, 295 U.S. 422 (1935).
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A State in which a foreign corporation has acquired a commercial
domicile and in which it maintains its general business offices may tax
the latter's bank deposits and accounts receivable even though the
deposits are outside the State and the accounts receivable arise from
manufacturing activities in another State.\78\ Similarly, a
nondomiciliary State in which a foreign corporation did business can tax
the ``corporate excess'' arising from property employed and business
done in the taxing State.\79\ On the other hand, when the foreign
corporation transacts only interstate commerce within a State, any
excise tax on such excess is void, irrespective of the amount of the
tax.\80\ A domiciliary State, however, may tax the excess of market
value of outstanding capital stock over the value of real and personal
property and certain indebtedness of a domestic corporation even though
this ``corporate excess'' arose from property located and business done
in another State and was there taxable. Moreover, this result follows
whether the tax is considered as one on property or on the
franchise.\81\ Also a domiciliary State, which imposes no franchise tax
on a stock fire insurance corporation, validly may assess a tax on the
full amount of its paid-in capital stock and surplus, less deductions
for liabilities, notwithstanding that such domestic corporation
concentrates its executive, accounting, and other business offices in
New York, and maintains in the domiciliary State only a required
registered office at which local claims are handled. Despite ``the
vicissitudes which the so-called `jurisdiction-to-tax' doctrine has
encountered . . . ,'' the presumption persists that intangible property
is taxable by the State of origin.\82\ But a property tax on the capital
stock of a domestic company which includes in the appraisal thereof the
value of coal mined in the taxing State but located in another State
awaiting sale deprives the corporation of its property without due
process of
[[Page 1650]]
law.\83\ Also void for the same reason is a state tax on the franchise
of a domestic ferry company which includes in the valuation thereof the
worth of a franchise granted to the said company by another State.\84\
\78\Wheeling Steel Corp v. Fox, 298 U.S. 193 (1936). See also
Memphis Gas Co. v. Beeler, 315 U.S. 649, 652 (1942).
\79\Adams Express Co. v. Ohio, 165 U.S. 194 (1897).
\80\Alpha Cement Co. v. Massachusetts, 268 U.S. 203 (1925).
\81\Cream of Wheat Co. v. County of Grand Forks, 253 U.S. 325
(1920).
\82\Newark Fire Ins. Co. v. State Board, 307 U.S. 313, 318, 324
(1939). Although the eight Justices affirming this tax were not in
agreement as to the reasons to be assigned in justification of this
result, the holding appears to be in line with the dictum uttered by
Chief Justice Stone in Curry v. McCanless, 307 U.S. 357, 368 (1939), to
the effect that the taxation of a corporation by a State where it does
business, measured by the value of the intangibles used in its business
there, does not preclude the State of incorporation from imposing a tax
measured by all its intangibles.
\83\Delaware, L. & W.P.R.R. v. Pennsylvania, 198 U.S. 341
(1905).
\84\Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U.S.
385 (1903).
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Transfer (Inheritance, Estate, Gift) Taxes.--Being competent to
regulate exercise of the power of testamentary disposition and the
privilege of inheritance, a State may base its succession taxes upon
either the transmission or an exercise of the legal power of
transmission, of property by will or by descent, or the enjoyment of the
legal privilege of taking property by devise or descent.\85\ But
whatever may be the justification of their power to levy such taxes,
States have consistently found themselves restricted by the rule,
established as to property taxes in 1905 in Union Transit Co. v.
Kentucky,\86\ and subsequently reiterated in Frick v. Pennsylvania\87\
in 1925, which precludes imposition of transfer taxes upon tangible
personal property by any State other than the one in which such
tangibles are permanently located or have an actual situs. In the case
of intangibles, however, the Court has oscillated in upholding, then
rejecting, and again currently sustaining the levy by more than one
State of death taxes upon intangibles comprising the estate of a
decedent.
\85\Stebbins v. Riley, 268 U.S. 137, 140-41 (1925).
\86\199 U.S. 194 (1905). In dissenting in State Tax Comm'n v.
Aldrich, 316 U.S. 174, 185 (1942), Justice Jackson asserted that a
reconsideration of this principle had become timely.
\87\268 U.S. 473 (1925). See also Treichler v. Wisconsin, 338
U.S. 251 (1949); City Bank Co. v. Schnader, 293 U.S. 112 (1934).
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Until 1930, transfer taxes upon intangibles levied by both the
domiciliary as well as nondomiciliary, or situs State, were with rare
exceptions approved. Thus, in Bullen v. Wisconsin,\88\ the domiciliary
State of the creator of a trust was held competent to levy an
inheritance tax, upon the death of the settlor, on his trust fund
consisting of stocks, bonds, and notes kept and administered in another
State and as to which the settlor reserved the right to control
disposition and to direct payment of income for life, such reserved
powers being equivalent to a fee. Cognizance was taken of the fact that
the State in which these intangibles had their situs had also
[[Page 1651]]
taxed the trust. Levy of an inheritance tax by a nondomiciliary State
was sustained on similar grounds in Wheeler v. New York, wherein it was
held that the presence of a negotiable instrument was sufficient to
confer jurisdiction upon the State seeking to tax its transfer.\89\ On
the other hand, the mere ownership by a foreign corporation of property
in a nondomiciliary State was held insufficient to support a tax by that
State on the succession to shares of stock in that corporation owned by
a nonresident decedent.\90\ Also against the trend was Blodgett v.
Silberman,\91\ wherein the Court defeated collection of a transfer tax
by the domiciliary State by treating coins and bank notes deposited by a
decedent in a safe deposit box in another State as tangible property,
albeit it conceded that the domiciliary State could tax the transfer of
books and certificates of indebtness found in that safe deposit box as
well as the decedent's interest in a foreign partnership.
\88\240 U.S. 635, 631 (1916). A decision rendered in 1926 which
is seemingly in conflict was Wachovia Bank & Trust Co. v. Doughton, 272
U.S. 567 (1926), in which North Carolina was prevented from taxing the
exercise of a power of appointment through a will executed therein by a
resident, when the property was a trust fund in Massachusetts created by
the will of a resident of the latter State. One of the reasons assigned
for this result was that by the law of Massachusetts the property
involved was treated as passing from the original donor to the
appointee. However, this holding was overruled in Graves v. Schmidlapp,
315 U.S. 657 (1942).
\89\233 U.S. 434 (1914).
\90\Rhode Island Trust Co. v. Doughton, 270 U.S. 69 (1926).
\91\277 U.S. 1 (1928).
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In the course of about two years following the Depression, the
Court handed down a group of four decisions which placed the stamp of
disapproval upon multiple transfer and--by inference--other multiple
taxation of intangibles.\92\ Asserting, as it did in one of these cases,
that ``practical considerations of wisdom, convenience and justice alike
dictate the desirability of a uniform rule confining the jurisdiction to
impose death transfer taxes as to intangibles to the State of the
[owner's] domicile,''\93\ the Court, through consistent application of
the maxim, mobilia sequuntur personam, proceeded to deny the right of
nondomiciliary States to tax and to reject as inadequate jurisdictional
claims of the latter founded upon such bases as control, benefit, and
protection or situs. During this interval, 1930-1932, multiple transfer
taxation of intangibles came to be viewed, not merely as undesirable,
but as so arbitrary and unreasonable as to be prohibited by the due
process clause.
\92\First Nat'l Bank v. Maine, 284 U.S. 312 (1932); Beidler v.
South Carolina Tax Comm'n, 282 U.S. 1 (1930); Baldwin v. Missouri, 281
U.S. 586 (1930); Farmer's Loan Co. v. Minnesota, 280 U.S. 204 (1930).
\93\First National Bank v. Maine, 284 U.S. 312, 330-31 (1932).
---------------------------------------------------------------------------
While the Court expressly overruled only one of these four
decisions condemning multiple succession taxation of intangibles,
beginning with Curry v. McCanless\94\ in 1939, it announced a departure
from the ``doctrine, of recent origin, that the Fourteenth Amendment
precludes the taxation of any interest in the same intangible in more
than one State. . . .'' Taking cognizance of the fact
[[Page 1652]]
that this doctrine had never been extended to the field of income
taxation or consistently applied in the field of property taxation, the
Court declared that a correct interpretation of constitutional
requirements would dictate the following conclusions: ``From the
beginning of our constitutional system control over the person at the
place of his domicile and his duty there, common to all citizens, to
contribute to the support of government have been deemed to afford an
adequate constitutional basis for imposing on him a tax on the use and
enjoyment of rights in intangibles measured by their value. . . . But
when the taxpayer extends his activities with respect to his
intangibles, so as to avail himself of the protection and benefit of the
laws of another State, in such a way as to bring his person or . . .
[his intangibles] within the reach of the tax gatherer there, the reason
for a single place of taxation no longer obtains, . . . [However], the
State of domicile is not deprived, by the taxpayer's activities,
elsewhere, of its constitutional jurisdiction to tax.'' In accordance
with this line of reasoning, Tennessee, where a decedent died domiciled,
and Alabama, where a trustee, by conveyance from said decedent, held
securities on specific trusts, were both deemed competent to impose a
tax on the transfer of these securities passing under the will of the
decedent. ``In effecting her purposes,'' the testatrix was viewed as
having ``brought some of the legal interests which she created within
the control of one State by selecting a trustee there, and others within
the control of the other State, by making her domicile there.'' She had
found it necessary to invoke ``the aid of the law of both States and her
legatees'' were subject to the same necessity.
\94\307 U.S. 357, 363, 366-68, 372 (1939).
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These statements represented a belated adoption of the views
advanced by Chief Justice Stone in dissenting or concurring opinions
which he filed in three of the four decisions during 1930-1932. By the
line of reasoning taken in these opinions, if protection or control was
extended to, or exercised over, intangibles or the person of their
owner, then as many States as afforded such protection or were capable
of exerting such dominion should be privileged to tax the transfer of
such property. On this basis, the domiciliary State would invariably
qualify as a State competent to tax as would a nondomiciliary State, so
far as it could legitimately exercise control or could be shown to have
afforded a measure of protection that was not trivial or insubstantial.
On the authority of Curry v. McCanless, the Court, in Pearson v.
McGraw,\95\ also sustained the application of an Oregon transfer tax to
intangibles handled by an Illinois trust company and never
[[Page 1653]]
physically present in Oregon. Jurisdiction to tax was viewed as
dependent, not on the location of the property in the State, but on
control over the owner who was a resident of Oregon. In Graves v.
Elliott,\96\ the Court upheld the power of New York, in computing its
estate tax, to include in the gross estate of a domiciled decedent the
value of a trust of bonds managed in Colorado by a Colorado trust
company and already taxed on its transfer by Colorado, which trust the
decedent had established while in Colorado and concerning which he had
never exercised any of his reserved powers of revocation or change of
beneficiaries. It was observed that ``the power of disposition of
property is the equivalent of ownership, . . . and its exercise in the
case of intangibles is . . . [an] appropriate subject of taxation at the
place of the domicile of the owner of the power. Relinquishment at
death, in consequence of the nonexercise in life, of a power to revoke a
trust created by a decedent is likewise an appropriate subject of
taxation.''\97\ Consistent application of the principle enunciated in
Curry v. McCanless is also discernible in two later cases in which the
Court sustained the right of a domiciliary State to tax the transfer of
intangibles kept outside its boundaries, notwithstanding that ``in some
instances they may be subject to taxation in other jurisdictions, to
whose control they are subject and whose legal protection they
enjoyed.'' In Graves v. Schmidlapp,\98\ an estate tax was levied upon
the value of the subject of a general testamentary power of appointment
effectively exercised by a resident donee over intangibles held by
trustees under the will of a nonresident donor of the power. Viewing the
transfer of interest in the intangibles by exercise of the power of
appointment as the equivalent of ownership, the Court quoted from
McCulloch v. Maryland\99\ to the effect that the power to tax ```is an
incident of sovereignty, and is coextensive with that to which it is an
incident.''' Again, in Central Hanover Bank Co. v. Kelly,\100\ the Court
approved a New Jersey transfer tax imposed on the occasion of the death
of a New Jersey grantor of an irrevocable trust executed, and consisting
of securities located in New York, and providing for the disposition of
the corpus to two nonresident sons.
\95\308 U.S. 313 (1939).
\96\307 U.S. 383 (1939).
\97\Id. at 386.
\98\315 U.S. 657, 660, 661 (1942).
\99\17 U.S. (4 Wheat.) 316, 429 (1819).
\100\319 U.S. 94 (1943).
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The costliness of multiple taxation of estates comprising
intangibles is appreciably aggravated when each of several States founds
its tax not upon different events or property rights but upon an
identical basis, namely that the decedent died domiciled within its
[[Page 1654]]
borders. Not only is an estate then threatened with excessive
contraction but the contesting States may discover that the assets of
the estate are insufficient to satisfy their claims. Thus, in Texas v.
Florida,\101\ the State of Texas filed an original petition in the
Supreme Court, in which it asserted that its claim, together with those
of three other States, exceeded the value of the estate, that the
portion of the estate within Texas alone would not suffice to discharge
its own tax, and that its efforts to collect its tax might be defeated
by adjudications of domicile by the other States. The Supreme Court
disposed of this controversy by sustaining a finding that the decedent
had been domiciled in Massachusetts, but intimated that thereafter it
would take jurisdiction in like situations only in the event that an
estate did not exceed in value the total of the conflicting demands of
several States and that the latter were confronted with a prospective
inability to collect.
\101\306 U.S. 398 (1939). Resort to the Supreme Court's original
jurisdiction was necessary because in Worcester County Trust Co. v.
Riley, 302 U.S. 292 (1937), the Court, proceeding on the basis that
inconsistent determinations by the courts of two States as to the
domicile of a taxpayer do not raise a substantial federal constitutional
question, held that the Eleventh Amendment precluded a suit by the
estate of the decedent to establish the correct State of domicile. In
California v. Texas, 437 U.S. 601 (1978), a case on all points with
Texas v. Florida, the Court denied leave to file an original action to
adjudicate a dispute between the two States about the actual domicile of
Howard Hughes, a number of Justices suggesting that Worcester County no
longer was good law. Subsequently, the Court reaffirmed Worcester
County, Cory v. White, 457 U.S. 85 (1982), and then permitted an
original action to proceed, California v. Texas, 457 U.S. 164 (1982),
several Justices taking the position that neither Worcester County nor
Texas v. Florida was any longer viable.
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Corporate Privilege Taxes.--Since the tax is levied not on
property but on the privilege of doing business in corporate form, a
domestic corporation may be subjected to a privilege tax graduated
according to paid-up capital stock, even though the latter represents
capital not subject to the taxing power of the State.\102\ By the same
token, the validity of a franchise tax, imposed on a domestic
corporation engaged in foreign maritime commerce and assessed upon a
proportion of the total franchise value equal to the ratio of local
business done to total business, is not impaired by the fact that the
total value of the franchise was enhanced by property and operations
carried on beyond the limits of the State.\103\ However, a State, under
the guise of taxing the privilege of doing an intrastate business,
cannot levy on property beyond its borders; therefore, as applied to
foreign corporations, a license tax based on
[[Page 1655]]
authorized capital stock is void,\104\ even though there be a maximum to
the fee,\105\ unless apportioned according to some method, as, for
example, a franchise tax based on such proportion of outstanding capital
stock as it represented by property owned and used in business
transacted in the taxing State.\106\ An entrance fee, on the other hand,
collected only once as the price of admission to do an intrastate
business, is distinguishable from a tax and accordingly may be levied on
a foreign corporation on the basis of a sum fixed in relation to the
amount of authorized capital stock (in this instance, a $5,000 fee on an
authorized capital of $100,000,000).\107\
\102\Kansas City Ry. v. Kansas, 240 U.S. 227 (1916); Kansas
City, M. & B. R.R. v. Stiles, 242 U.S. 111 (1916).
\103\Schwab v. Richardson, 263 U.S. 88 (1923).
\104\Western Union Tel. Co. v. Kansas, 216 U.S. 1 (1910);
Pullman Co. v. Kansas, 216 U.S. 56 (1910); Looney v. Crane Co., 245 U.S.
178 (1917); International Paper Co. v. Massachusetts, 246 U.S. 135
(1918).
\105\Cudahy Co. v. Hinkle, 278 U.S. 460 (1929).
\106\St. Louis S. W. Ry. v. Arkansas, 235 U.S. 350 (1914).
\107\Atlantic Refining Co. v. Virginia, 302 U.S. 22 (1937).
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A municipal license tax imposed as a percentage of the receipts
of a foreign corporation derived from the sales within and without the
State of goods manufactured in the city is not a tax on business
transactions or property outside the city and therefore does not violate
the due process clause.\108\ But a State lacks jurisdiction to extend
its privilege tax to the gross receipts of a foreign contracting
corporation for work done outside the taxing State in fabricating
equipment later installed in the taxing State. Unless the activities
which are the subject of the tax are carried on within its territorial
limits, a State is not competent to impose such a privilege tax.\109\
\108\American Mfg. Co. v. St. Louis, 250 U.S. 459 (1919). Nor
does a state license tax on the production of electricity violate the
due process clause because it may be necessary, to ascertain, as an
element in its computation, the amounts delivered in another
jurisdiction. Utah Power & Light Co. v. Pfost, 286 U.S. 165 (1932).
\109\James v. Dravo Contracting Co., 302 U.S. 134 (1937).
---------------------------------------------------------------------------
A tax on chain stores, at a rate per store determined by the
number of stores both within and without the State is not
unconstitutional as a tax in part upon things beyond the jurisdiction of
the State.\110\
\110\Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412
(1937).
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Individual Income Taxes.--Consistent with due process of law, a
State annually may tax the entire net income of resident individuals
from whatever source received,\111\ and that portion of a nonresident's
net income derived from property owned, and from any business, trade, or
profession carried on, by him within its borders.\112\ Jurisdiction, in
the case of residents, is founded upon the rights and privileges
incident to domicile, and, in the case of non
[[Page 1656]]
residents, upon dominion over either the receiver of the income or the
property or activity from which it is derived and upon the obligation to
contribute to the support of a government which renders secure the
collection of such income. Accordingly, a State may tax residents on
income from rents of land located outside the State and from interest on
bonds physically without the State and secured by mortgage upon lands
similarly situated\113\ and from a trust created and administered in
another State, and not directly taxable to the trustee.\114\ The fact
that another State has lawfully taxed identical income in the hands of
trustees operating therein does not necessarily destroy a domiciliary
State's right to tax the receipt of income by a resident beneficiary.
``The taxing power of a state is restricted to her confines and may not
be exercised in respect of subjects beyond them.''\115\ Likewise, even
though a nonresident does no business within a State, the latter may tax
the profits realized by the nonresident upon his sale of a right
appurtenant to membership in a stock exchange within its borders.\116\
\111\Lawrence v. State Tax Comm'n, 286 U.S. 276 (1932).
\112\Shaffer v. Carter, 252 U.S. 37 (1920); Travis v. Yale &
Towne Mfg. Co., 252 U.S. 60 (1920).
\113\New York ex rel. Cohn v. Graves, 300 U.S. 308 (1937).
\114\Maguire v. Trefy, 253 U.S. 12 (1920).
\115\Guaranty Trust Co. v. Virginia, 305 U.S. 19, 23 (1938).
\116\New York ex. rel. Whitney v. Graves, 299 U.S. 366 (1937).
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Corporate Income Taxes: Foreign Corporations.--A tax based on
the income of a foreign corporation may be determined by allocating to
the State a proportion of the total.\117\ However, such a basis may work
an unconstitutional result if the income thus attributed to the State is
out of all appropriate proportion to the business there transacted by
the corporation. Evidence may always be submitted which tends to show
that a State has applied a method which, albeit fair on its face,
operates so as to reach profits which are in no sense attributable to
transactions within its jurisdication.\118\ Nevertheless, a foreign
corporation is in error when it contends that due process is denied by a
franchise tax measured by income, which is levied, not upon net income
from intrastate business alone, but on net income justly attributable to
all classes of business done within the State, interstate and foreign,
[[Page 1657]]
as well as intrastate business.\119\ Inasmuch as the privilege granted
by a State to a foreign corporation of carrying on local business
supports a tax by that State on the income derived from that business,
it follows that the Wisconsin privilege dividend tax, consistent with
the due process clause, may be applied to a Delaware corporation, having
its principal offices in New York, holding its meetings and voting its
dividends in New York, and drawing its dividend checks on New York bank
accounts. The tax is imposed on the ``privilege of declaring and
receiving dividends'' out of income derived from property located and
business transacted in the State, equal to a specified percentage of
such dividends, the corporation being required to deduct the tax from
dividends payable to resident and nonresident shareholders and pay it
over to the State.\120\
\117\Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113
(1920); Bass, Ratcliff & Gretton Ltd. v. Tax Comm'n 266 U.S. 271 (1924).
The Court has recently considered and expanded the ability of the States
to use apportionment formulae to allocate to each State for taxing
purposes a fraction of the income earned by an integrated business
conducted in several States as well as abroad. Moorman Mfg. Co. v. Bair,
437 U.S. 267 (1978); Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S.
425 (1980); Exxon Corp. v. Department of Revenue, 447 U.S. 207 (1980).
Exxon refused to permit a unitary business to use separate accounting
techniques that divided its profits among its various functional
departments to demonstrate that a State's formulary apportionment taxes
extraterritorial income improperly. Bair, supra, at 276-80, implied that
a showing of actual multiple taxation was a necessary predicate to a due
process challenge but might not be sufficient.
\118\Hans Rees' Sons v. North Carolina, 283 U.S. 123 (1931).
\119\Matson Nav. Co. v. State Board, 297 U.S. 441 (1936).
\120\Wisconsin v. J.C. Penney Co., 311 U.S. 435, 448-49 (1940).
Dissenting, Justice Roberts, along with Chief Justice Hughes and
Justices McReynolds and Reed, stressed the fact that the use and
disbursement by the corporation at its home office of income derived
from operations in many States does not depend on and cannot be
controlled by, any law of Wisconsin. The act of disbursing such income
as dividends, he contended is ``one wholly beyond the reach of
Wisconsin's sovereign power, one which it cannot effectively command, or
prohibit or condition.'' The assumption that a proportion of the
dividends distributed is paid out of earnings in Wisconsin for the year
immediately preceding payment is arbitrary and not borne out by the
facts. Accordingly, ``if the exaction is an income tax in any sense it
is such upon the stockholders (many of whom are nonresidents) and is
obviously bad.'' See also Wisconsin v. Minnesota Mining Co., 311 U.S 452
(1940).
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Insurance Company Taxes.--A privilege tax on the gross premiums
received by a foreign life insurance company at its home office for
business written in the State does not deprive the company of property
without due process,\121\ but a tax is bad when the company has
withdrawn all its agents from the State and has ceased to do business,
merely continuing to be bound to policyholders resident therein and
receiving at its home office the renewal premiums.\122\ Also violative
of due process is a state gross premium tax imposed on a nonresident
firm, doing business in the taxing jurisdiction, which purchased
coverage of property located therein from an unlicensed out-of-state
insurer which consummated the contract, serviced the policy, and
collected the premiums outside that taxing jurisdiction.\123\
Distinguishable therefrom is the following tax which was construed as
having been levied, not upon annual premiums nor upon the privilege
merely of doing business during the period that the company actually was
within the State, but upon the privilege of entering and engaging in
business, the percentage ``on the annual premiums to be paid
[[Page 1658]]
throughout the life of the policies issued.'' By reason of this
difference a State may continue to collect such tax even after the
company's withdrawal from the State.\124\
\121\Equitable Life Soc'y v. Pennsylvania, 238 U.S. 143 (1915).
\122\Provident Savings Ass'n v. Kentucky, 239 U.S. 103 (1915).
\123\State Bd. of Ins. v. Todd Shipyards, 370 U.S. 451 (1962).
\124\Continental Co. v. Tennessee, 311 U.S. 5, 6 (1940)
(emphasis added).
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A State which taxes the insuring of property within its limits
may lawfully extend its tax to a foreign insurance company which
contracts with an automobile sales corporation in a third State to
insure its customers against loss of cars purchased through it, so far
as the cars go into possession of a purchaser within the taxing
State.\125\ On the other hand, a foreign corporation admitted to do a
local business, which insures its property with insurers in other States
who are not authorized to do business in the taxing State, cannot
constitutionally be subjected to a 5% tax on the amount of premiums paid
for such coverage.\126\ Likewise a Connecticut life insurance
corporation, licensed to do business in California, which negotiated
reinsurance contracts in Connecticut, received payment of premiums
thereon in Connecticut, and was there liable for payment of losses
claimed thereunder, cannot be subjected by California to a privilege tax
measured by gross premiums derived from such contracts, notwithstanding
that the contracts reinsured other insurers authorized to do business in
California and protected policies effected in California on the lives of
residents therein. The tax cannot be sustained whether as laid on
property, business done, or transactions carried on, within California,
or as a tax on a privilege granted by that State.\127\
\125\Palmetto Ins. Co. v. Connecticut, 272 U.S. 295 (1926).
\126\St. Louis Compress Co. v. Arkansas, 260 U.S. 346 (1922).
\127\Connecticut General Co. v. Johnson, 303 U.S. 77 (1938).
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When policy loans to residents are made by a local agent of a
foreign insurance company, in the servicing of which notes are signed,
security taken, interest collected, and debts are paid within the State,
such credits are taxable to the company, notwithstanding that the
promissory notes evidencing such credits are kept at the home office of
the insurer.\128\ But when a resident policyholder's loan is merely
charged against the reserve value of his policy, under an arrangement
for extinguishing the debt and interest thereon by deduction from any
claim under the policy, such credit is not taxable to the foreign
insurance company.\129\ Premiums due from residents on which an
extension has been granted by foreign companies also are credits on
which the latter may be taxed by the State of the debtor's
domicile;\130\ the mere fact that the insurers
[[Page 1659]]
charge these premiums to local agents and give no credit directly to
policyholders does not enable them to escape this tax.\131\
\128\Metropolitan Life Ins. Co. v. City of New Orleans, 205 U.S.
395 (1907).
\129\Orleans Parish v. New York Life Ins. Co., 216 U.S 517
(1910).
\130\Liverpool & L. & G. Ins. Co. v. Orleans Assessors, 221 U.S.
346 (1911).
\131\Orient Ins. Co. v. Assessors of Orleans, 221 U.S. 358
(1911).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Procedure in Taxation
Generally.--Exactly what due process requires in the assessment
and collection of general taxes has never been decided by the Supreme
Court. While it was held that ``notice to the owner at some stage of the
proceedings, as well as an opportunity to defend, is essential'' for
imposition of special taxes, it has also ruled that laws for assessment
and collection of general taxes stand upon a different footing and are
to be construed with the utmost liberality, even to the extent of
acknowledging that no notice whatever is necessary.\132\ Due process of
law as applied to taxation does not mean judicial process;\133\ neither
does it require the same kind of notice as is required in a suit at law,
or even in proceedings for taking private property under the power of
eminent domain.\134\ If a taxpayer is given an opportunity to test the
validity of a tax at any time before it is final, whether the
proceedings for review take place before a board having a quasi-judicial
character, or before a tribunal provided by the State for the propose of
determining such questions, due process of law is not denied.\135\
\132\Turpin v. Lemon, 187 U.S. 51, 58 (1902); Glidden v.
Harrington, 189 U.S. 255 (1903).
\133\McMillen v. Anderson, 95 U.S. 37, 42 (1877).
\134\Bell's Gap R.R. v. Pennsylvania, 134 U.S. 232, 239 (1890).
\135\Hodge v. Muscatine County, 196 U.S. 276 (1905).
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Notice and Hearing in Relation to Taxes.--``Of the different
kinds of taxes which the State may impose, there is a vast number of
which, from their nature, no notice can be given to the taxpayer, nor
would notice be of any possible advantage to him, such as poll taxes,
license taxes (not dependent upon the extent of his business), and
generally, specific taxes on things, or persons, or occupations. In such
cases the legislature, in authorizing the tax, fixes its amount, and
that is the end of the matter. If the tax be not paid, the property of
the delinquent may be sold, and he be thus deprived of his property. Yet
there can be no question that the proceeding is due process of law, as
there is no inquiry into the weight of evidence, or other element of a
judicial nature, and nothing could be changed by hearing the taxpayer.
No right of his is, therefore, invaded. Thus, if the tax on animals be a
fixed sum per head, or on articles a fixed sum per yard, or bushel, or
gallon, there is nothing the owner can do which can affect the amount to
be collected from him. So, if a person wishes a license to do business
of a particular kind, or at a particular place, such as keeping a hotel
[[Page 1660]]
or a restaurant, or selling liquors, or cigars, or clothes, he has only
to pay the amount required by law and go into the business. There is no
need in such cases for notice or hearing. So, also, if taxes are imposed
in the shape of licenses for privileges, such as those on foreign
corporations for doing business in the State, or on domestic
corporations for franchises, if the parties desire the privilege, they
have only to pay the amount required. In such cases there is no
necessity for notice or hearing. The amount of the tax would not be
changed by it.''\136\
\136\Hagar v. Reclamation Dist., 111 U.S. 701, 709-10 (1884).
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Notice and Hearing in Relation to Assessments.--``But where a
tax is levied on property not specifically, but according to its value,
to be ascertained by assessors appointed for that purpose upon such
evidence as they may obtain, a different principle comes in. The
officers in estimating the value act judicially; and in most of the
States provision is made for the correction of errors committed by them,
through boards of revision or equalization, sitting at designated
periods provided by law to hear complaints respecting the justice of the
assessments. The law in prescribing the time when such complaints will
be heard, gives all the notice required, and the proceedings by which
the valuation is determined, though it may be followed, if the tax be
not paid, by a sale of the delinquent's property, is due process of
law.''\137\
\137\Id. at 710.
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Nevertheless, it has never been considered necessary to the
validity of a tax that the party charged shall have been present, or had
an opportunity to be present, in some tribunal when he was
assessed.\138\ Where a tax board has its time of sitting fixed by law
and where its sessions are not secret, no obstacle prevents the
appearance of any one before it to assert a right or redress a wrong and
in the business of assessing taxes, this is all that can be reasonably
asked.\139\ Nor is there any constitutional command that notice of an
assessment as well as an opportunity to contest it be given in advance
of the assesment. It is enough that all available defenses may be
presented to a competent tribunal during a suit to collect the tax and
before the demand of the State for remittance becomes final.\140\ A
hearing before judgment, with full opportunity to submit evidence and
arguments being all that can be adjudged vital, it follows that
rehearings and new trials are not essential to due process of law.\141\
One hearing is sufficient to constitute due
[[Page 1661]]
process,\142\ and the requirements of due process are also met if a
taxpayer, who had no notice of a hearing, does receive notice of the
decision reached there and is privileged to appeal it and, on appeal, to
present evidence and be heard on the valuation of his property.\143\
\138\McMillen v. Anderson, 95 U.S. 37, 42 (1877).
\139\State Railroad Tax Cases, 92 U.S. 575, 610 (1876).
\140\Nickey v. Mississippi, 292 U.S. 393, 396 (1934). See also
Clement Nat'l Bank v. Vermont, 231 U.S. 120 (1913).
\141\Pittsburgh C. C. & St. L. Ry. v. Backus, 154 U.S. 421
(1894).
\142\Michigan Central R.R. v. Powers, 201 U.S. 245, 302 (1906).
\143\Pittsburgh C. C. & St. L. Ry. v. Board of Pub. Works, 172
U.S. 32, 45 (1898).
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However, when special assessments are made by a political
subdivision, a taxing board or court, according to special benefits, the
property owner is entitled to be heard as to the amount of his
assessments and upon all questions properly entering into that
determination.\144\ The hearing need not amount to a judicial
inquiry,\145\ but a mere opportunity to submit objections in writing,
without the right of personal appearance, is not sufficient.\146\ If an
assessment for a local improvement is made in accordance with a fixed
rule prescribed by legislative act, the property owner is not entitled
to be heard in advance on the question of benefits.\147\ On the other
hand, if the area of the assessment district was not determined by the
legislature, a landowner does have the right to be heard respecting
benefits to his property before it can be included in the improvement
district and assessed, but due process is not denied if, in the absence
of actual fraud or bad faith, the decision of the agency vested with the
initial determination of benefits is made final.\148\ The owner has no
constitutional right to be heard in opposition to the launching of a
project which may end in assessment, and once his land has been duly
included within a benefit district, the only privilege which he
thereafter enjoys is to a hearing upon the apportionment, that is, the
amount of the tax which he has to pay.\149\ Nor can he rightfully
complain because the statute renders conclusive, after a hearing, the
determination as to apportionment by the same body which levied the
assessment.\150\
\144\St. Louis Land Co. v. Kansas City, 241 U.S. 419, 430
(1916); Paulsen v. Portland, 149 U.S. 30, 41 (1893); Bauman v. Ross, 167
U.S. 548, 590 (1897).
\145\Tonawanda v. Lyon, 181 U.S. 389, 391 (1901).
\146\Londoner v. Denver, 210 U.S. 373 (1908).
\147\Withnell v. Ruecking Constr. Co., 249 U.S. 63, 68 (1919);
Browning v. Hooper, 269 U.S. 396, 405 (1926). Likewise, the committing
to a board of county supervisors of authority to determine, without
notice or hearing, when repairs to an existing drainage system are
necessary cannot be said to deny due process of law to landowners in the
district, who, by statutory requirement, are assessed for the cost
thereof in proportion to the original assessment. Breiholz v. Board of
Supervisors, 257 U.S. 118 (1921).
\148\Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 168,
175 (1896); Browning v. Hooper, 269 U.S. 396, 405 (1926).
\149\Utley v. Petersburg, 292 U.S. 106, 109 (1934); French v.
Barber Asphalt Paving Co., 181 U.S. 324, 341 (1901). See also Soliah v.
Heskin, 222 U.S. 522 (1912).
\150\Hibben v. Smith, 191 U.S. 310, 321 (1903).
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[[Page 1662]]
More specifically, where the mode of assessment resolves itself
into a mere mathematical calculation, there is no necessity for a
hearing.\151\ Statutes and ordinances providing for the paving and
grading of streets, the cost thereof to be assessed on the front foot
rule, do not, by their failure to provide for a hearing or review of
assessments, generally deprive a complaining owner of property without
due process of law.\152\ In contrast, when an attempt is made to cast
upon particular property a certain proportion of the construction cost
of a sewer not calculated by any mathematical formula, the taxpayer has
a right to be heard.\153\
\151\Hancock v. Muskogee, 250 U.S. 454, 458 (1919). Likewise, a
taxpayer does not have a right to a hearing before a state board of
equalization preliminary to issuance by it of an order increasing the
valuation of all property in a city by 40%. Bi-Metallic Co. v. Colorado,
239 U.S. 441 (1915).
\152\City of Detroit v. Parker, 181 U.S. 399 (1901).
\153\Paulsen v. Portland, 149 U.S. 30, 38 (1893).
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Collection of Taxes.--To reach property which has escaped
taxation, a State may tax estates of decedents for a period prior to
death and grant proportionate deductions for all prior taxes which the
personal representative can prove to have been paid.\154\ Collection of
an inheritance tax also may be expedited by a statute requiring the
sealing of safe deposit boxes for at least ten days after the death of
the renter and obliging the lessor to retain assets found therein
sufficient to pay the tax that may be due the State.\155\ Moreover, with
a view to achieving a like result in the case of gasoline taxes, a State
may compel retailers to collect such taxes from consumers and, under
penalty of a fine for delinquency, to remit monthly the amounts thus
collected.\156\ Likewise, a tax on the tangible personal property of a
nonresident owner may be collected from the custodian or possessor of
such property, and the latter, as an assurance of reimbursement, may be
granted a lien on such property.\157\ In collecting personal income
taxes, however, most States require employers to deduct and withhold the
tax from the wages of employees, but the duty thereby imposed on the
employer has never been viewed as depriving him of property without due
process of law, nor has the adjustment of his system of accounting and
paying salaries which withholding entails been viewed as an unreasonable
regulation of the conduct of his business.\158\
\154\Bankers Trust Co. v. Blodgett, 260 U.S. 647 (1923).
\155\National Safe Deposit Co. v. Stead, 232 U.S. 58 (1914).
\156\Pierce Oil Corp. v. Hopkins, 264 U.S. 137 (1924).
\157\Carstairs v. Cochran, 193 U.S. 10 (1904); Hannis Distilling
Co. v. Baltimore, 216 U.S. 285 (1910).
\158\Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 75, 76
(1920).
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[[Page 1663]]
Moreover, no unconstitutional deprivation of the property rights
of vendors of trucks, sold under conditional sales contract to a
carrier, results when a State asserts against such trucks a prior lien
for highway use taxes levied against the carrier and (1) accruing from
the operation by the carrier of trucks, other than those sold by the
vendors, either before or during the time the carrier operated the
vendors' trucks, or (2) arising from assessments against the carrier,
after vendors repossessed their trucks, and based upon the carrier's
operations preceding such repossession. A vendor is not privileged to
contend that the lien asserted must be limited to taxes attributable
solely to operation of its own trucks; for the wear on the highways
occasioned by the carrier's operation is in no way altered by the
vendor's retention of title.\159\
\159\International Harvester Corp. v. Goodrich, 350 U.S. 537
(1956).
---------------------------------------------------------------------------
As a State may provide in advance that taxes shall bear interest
from the time they become due, it may with equal validity stipulate that
taxes which have become delinquent shall bear interest from the time the
delinquency commenced. A State may adopt new remedies for the collection
of taxes and apply these remedies to taxes already delinquent.\160\
After liability of a taxpayer has been fixed by appropriate procedure,
collection of a tax by distress and seizure of his person does not
deprive him of liberty without due process of law.\161\ Nor is a foreign
insurance company denied due process of law when its personal property
is distrained to satisfy unpaid taxes.\162\
\160\League v. Texas, 184 U.S. 156 (1902).
\161\Palmer v. McMahon, 133 U.S. 660, 669 (1890).
\162\Scottish Union & Nat'l Ins. Co. v. Bowland, 196 U.S. 611
(1905).
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The requirements of due process are fulfilled by a statute
which, in conjunction with affording an opportunity to be heard,
provides for the forfeiture of titles to land for failure to list and
pay taxes thereon for certain specified years.\163\ No less
constitutional, as a means of facilitating collection, is an in rem
proceeding, to which the land alone is made a party, whereby tax liens
on land are foreclosed and all preexisting rights or liens are
eliminated by a sale under a decree.\164\ On the other hand, while the
conversion of an unpaid special assessment into both a personal judgment
against the owner as well as a charge on the land is consistent with the
Fourteenth Amendment,\165\ a judgment imposing personal liability
against a nonresident taxpayer over whom the state court acquired no
jurisdiction is void.\166\ Apart from such restraints,
[[Page 1664]]
however, a State is free to adopt new remedies for the collection of
taxes and even to apply new remedies to taxes already delinquent.\167\
\163\King v. Mullins, 171 U.S. 404 (1898); Chapman v. Zobelein,
237 U.S. 135 (1915).
\164\Leigh v. Green, 193 U.S. 79 (1904).
\165\Davidson v. City of New Orleans, 96 U.S. 97, 107 (1878).
\166\Dewey v. Des Moines, 173 U.S. 193 (1899).
\167\League v. Texas, 184 U.S. 156, 158 (1902). See also Straus
v. Foxworth, 231 U.S. 162 (1913).
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Sufficiency and Manner of Giving Notice.--Notice, insofar as it
is required, may be either personal, or by publication, or by statute
fixing the time and place of hearing.\168\ A state statute, consistent
with due process, may designate a corporation as the agent of a
nonresident stockholder to receive notice and to represent him in
proceedings for correcting assessment.\169\ Also ``where the State . . .
[desires] to sell land for taxes upon proceedings to enforce a lien for
the payment thereof, it may proceed directly against the land within the
jurisdiction of the court, and a notice which permits all interested,
who are `so minded,' to ascertain that it is to be subjected to sale to
answer for taxes, and to appear and be heard, whether to be found within
the jurisdiction or not, is due process of law within the Fourteenth
Amendment. . .''\170\ A description, even though it not be technically
correct, which identifies the land will sustain an assessment for taxes
and a notice of sale therefor when delinquent. If the owner knows that
the property so described is his, he is not, by reason of the
insufficient description, deprived of his property without due process.
Where tax proceedings are in rem, owners are bound to take notice
thereof, and to pay taxes on their property, even if assessed to unknown
or other persons, and if an owner stands by and sees his property sold
for delinquent taxes, he is not thereby wrongfully deprived of his
property.\171\
\168\Londoner v. Denver, 210 U.S. 373 (1908). See also Kentucky
Railroad Tax Cases, 115 U.S. 321, 331 (1885); Winona & St. Peter Land
Co. v. Minnesota, 159 U.S. 526, 537 (1895); Merchants Bank v.
Pennsylvania, 167 U.S. 461, 466 (1897); Glidden v. Harrington, 189 U.S.
255 (1903).
\169\Corry v. Baltimore, 196 U.S. 466, 478 (1905).
\170\Leigh v. Green, 193 U.S. 79, 92-93 (1904).
\171\Ontario Land Co. v. Yordy, 212 U.S. 152 (1909). See also
Longyear v. Toolan, 209 U.S. 414 (1908).
---------------------------------------------------------------------------
However, due process was deemed not to have been accorded an
incompetent taxpayer, for whom a guardian had not yet been appointed,
but who was well known to town officials to be financially responsible,
when, in accordance with statutory procedure, notice of a real property
tax delinquency was mailed to her and published in local papers as well
as posted in the town post office, and thereafter, without appearance on
her part, the property was foreclosed and deeded to the town.\172\ On
the other hand, due process was not denied to appellants when, through
dereliction of their
[[Page 1665]]
bookkeeper, they were not apprised of the receipt of mailed notices, and
thus were unable to avert foreclosure of liens for unpaid water charges
outstanding against two parcels of land held by them in trust; this
conclusion is unaffected by the disparity between the value of the land
taken and the amount owed nor by the fact that the city, in one
instance, retained the proceeds of sale after lapse of time to redeem.
Having issued appropriate notices, the city cannot be held responsible
for the negligence of the bookkeeper and the managing trustee in
overlooking arrearages on tax bills, nor is it obligated to inquire why
appellants regularly paid real estate taxes on their property.\173\
\172\Covey v. Town of Somers, 351 U.S. 141 (1956).
\173\Nelson v. New York City, 352 U.S. 103 (1956).
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Sufficiency of Remedy.--When no other remedy is available, due
process is denied by a judgment of a state court withholding a decree in
equity to enjoin collection of a discriminatory tax.\174\ Requirements
of due process are similarly violated by a statute which limits a
taxpayer's right to challenge an assessment to cases of fraud or
corruption,\175\ and by a state tribunal which prevents a recovery of
taxes imposed in violation of the Constitution and laws of the United
States by invoking a state law limiting suits to recover taxes alleged
to have been assessed illegally to taxes paid at the time and in the
manner provided by said law.\176\ In this as in other areas, the state
must provide procedural safeguards against imposition of an
unconstitutional tax. These procedures need not apply predeprivation,
but a state that denies predeprivation remedy by requiring that tax
payments be made before objections are heard must provide a
postdeprivation remedy.\177\ In the case of a tax held unconstitutional
as a discrimination against interstate commerce and not invalidated in
its entirety, the state has several alternatives for equalizing
incidence of the tax: it may pay a refund equal to the difference
between the tax paid and the tax that would have been due under rates
afforded to in-state competitors; it may assess and collect back taxes
from those competitors; or it may combine the two approaches.\178\
\174\Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930).
\175\Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907).
\176\Carpenter v. Shaw, 280 U.S. 363 (1930). See also Ward v.
Love County, 253 U.S. 17 (1920).
\177\McKesson Corp. v. Florida Alcohol & Tobacco Div., 496 U.S.
18 (1990).
\178\Id.
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Laches.--Persons failing to avail themselves of an opportunity
to object and be heard cannot thereafter complain of assessments as
arbitrary and unconstitutional.\179\ Likewise a car company, which
failed to report its gross receipts as required by statute, has
[[Page 1666]]
no further right to contest the state comptroller's estimate of those
receipts and his adding thereto the 10 percent penalty permitted by
law.\180\
\179\Farncomb v. Denver, 252 U.S. 7 (1920).
\180\Pullman Co. v. Knott, 235 U.S. 23 (1914).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Eminent Domain
The due process clause of the Fourteenth Amendment has been held
to require that when a state or local governmental body, or a private
body exercising delegated power, takes private property it must provide
just compensation and take only for a public purpose. Applicable
principles are discussed under the Fifth Amendment.\181\
\181\For analysis of the law of eminent domain, see supra, pp.
1369-95.
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
DUE PROCESS OF LAW
Substantive Due Process and Noneconomic Liberty
At the heyday of economic substantive due process, the Court
ruled in two cases which, while they also involved property, promised
substantially to extend judicial supervision of the reasonableness of
legislation. This promise was not realized, but later cases brought
forth an avalanche of exposition. In Meyer v. Nebraska,\182\ the Court
struck down a state law forbidding the teaching in any school in the
State, public or private, of any modern foreign language, other than
English, to any child who had not successfully finished the eighth
grade; in Pierce v. Society of Sisters,\183\ it declared
unconstitutional a state law which required public school education of
children aged eight to sixteen. Both cases involved, as noted, property
rights which the Court asserted were protected; the statute in Meyer
interfered with the occupation of a teacher of German who had been
convicted of teaching that language, while the private school plaintiffs
in Pierce were threatened with destruction of their businesses and the
values of their properties.\184\ Yet in both cases the Court also
permitted these persons adversely affected in their property interests
to represent the interests of parents and children in the assertion of
other aspects of ``liberty'' of which they could not be denied.
\182\262 U.S. 390 (1923). Justices Holmes and Sutherland entered
a dissent, applicable to Meyer, in Bartels v. Iowa, 262 U.S. 404, 412
(1923).
\183\268 U.S. 510 (1925).
\184\Meyer v. Nebraska, 262 U.S. 390, 400 (1923); Pierce v.
Society of Sisters, 268 U.S. 510, 531, 533, 534 (1928).
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``Without doubt,'' Justice McReynolds said, liberty ``denotes
not merely freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, establish a home and bring
up children, to worship God according to the dictates of his
[[Page 1667]]
own conscience, and generally to enjoy those privileges long recognized
at common law as essential to the orderly pursuit of happiness by free
men.''\185\ The right of the parents to have their children instructed
in a foreign language was ``within the liberty of the [Fourteenth]
Amendment.''\186\ Meyer was relied on in Pierce by the Court in
asserting that the statute there ``unreasonably interferes with the
liberty of parents and guardians to direct the upbringing and education
of children under their control. . . . The child is not the mere
creature of the State; those who nurture him and direct his destiny have
the right, coupled with the high duty, to recognize and prepare him for
additional obligations.''\187\
\185\262 U.S. at 399.
\186\Id. at 400.
\187\268 U.S. at 534-35.
---------------------------------------------------------------------------
Other assertions of the liberty to be free from compulsory state
provisions proved unsuccessful,\188\ although dicta in these cases
continued to broadly define liberty.\189\ And in Loving v.
Virginia,\190\ a statute prohibiting interracial marriage was held to
deny due process. Marriage was termed ``one of the `basic civil rights
of man''' and a ``fundamental freedom.'' ``The freedom to marry has long
been recognized as one of the vital personal rights essential to the
orderly pursuit of happiness by free men.'' The classification of
marriage rights on a racial basis was ``unsupportable.'' But the
expansion of the Bill of Rights to restrict state action, especially the
religion and free expression provisions of the First Amendment, afforded
the Court an opportunity to base certain decisions voiding state
policies on these grounds rather than on due process.\191\
\188\E.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905); Zucht
v. King, 260 U.S. 174 (1922) (compulsory vaccination); Buck v. Bell, 274
U.S. 200 (1927) (sexual sterilization of inmates of state institutions
found to be afflicted with hereditary forms of insanity or imbecility);
Minnesota v. Probate Court ex rel. Pearson, 309 U.S. 270 (1940)
(institutionalization of habitual sexual offenders as psychopathic
personalities).
\189\See also Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)
(marriage and procreation are among ``the basic civil rights of man'');
Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (care and nurture of
children by the family are within ``the private realm of family life
which the state cannot enter'').
\190\388 U.S. 1, 12 (1967).
\191\Indeed, in Griswold v. Connecticut, 381 U.S. 479, 482
(1965), Justice Douglas reinterpreted Meyer and Pierce as having been
based on the First Amendment. Note that in Epperson v. Arkansas, 393
U.S. 97, 105 (1968), and Tinker v. Des Moines School District, 393 U.S.
503, 506-07 (1969), Justice Fortas for the Court approvingly noted the
due process basis of Meyer and Pierce while deciding both cases on First
Amendment grounds.
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In Poe v. Ullman,\192\ Justice Harlan advocated the application
of a due process standard of reasonableness--the same standard he
[[Page 1668]]
would have applied to test economic legislation--to a Connecticut
statute banning the use of contraceptives, even by married couples.
According to the Justice, due process is limited neither to procedural
guarantees nor restricted to the rights enumerated in the first eight
Amendments of the Bill of Rights, but is rather ``a discrete concept
which subsists as an independent guaranty of liberty and procedural
fairness, more general and inclusive than the specific prohibitions.''
The liberty protected by the clause ``is a rational continuum which,
broadly speaking, includes a freedom from all substantial arbitrary
impositions and purposeless restraints . . . and which also recognizes,
what a reasonable and sensitive judgment must, that certain interests
require particularly careful scrutiny of the state needs asserted to
justify their abridgment.'' Applying a lengthy analysis, he concluded
that the statute infringed upon a fundamental liberty without the
showing of a justification which would support the intrusion. Yet, when
the same issue returned to the Court, a majority of the Justices,
rejecting reliance on substantive due process,\193\ decided it on the
basis of the statute's invasion of privacy, a ``penumbral'' right
protected by a matrix of constitutional provisions.\194\ The analysis,
however, approached the matter in terms, and in reliance on cases,
reminiscent of substantive due process, although the separate
concurrences of Justices Harlan and White specifically based on
substantive due process,\195\ indicates that the majority's position was
at least definitionally different. Subsequent cases, functionally
grounded in equal protection analysis, relied in great degree upon a
view of rationality and reasonableness not too different from Justice
Harlan's dissent in Poe v. Ullman.\196\
\192\367 U.S. 497, 522, 539-45 (1961). Justice Douglas, also
dissenting, relied on a due process analysis, which began with the texts
of the first eight Amendments as the basis of fundamental due process
and continued into the ``emanations'' from this as also protected. Id.
at 509.
\193\``We do not sit as a super-legislature to determine the
wisdom, need, and propriety of laws that touch economic problems,
business affairs, or social conditions.'' Griswold v. Connecticut, 381
U.S. 479, 482 (1965) (opinion of Court by Justice Douglas).
\194\Supra, pp. 1504-05.
\195\381 U.S. at 499, 502.
\196\Eisenstadt v. Baird, 405 U.S. 438 (1972), is the principal
case. See also Stanley v. Illinois, 405 U.S. 645 (1972).
---------------------------------------------------------------------------
The Court remains divided over how broadly to define a liberty
interest. In Bowers v. Hardwick,\197\ for example, the Court majority
found no right to engage in homosexual sodomy, and rejected the
dissent's suggestion that focus should instead be placed on a right to
privacy and autonomy in matters of sexual intimacy. Similar disagreement
over the appropriate level of generality for definition of a liberty
interest was evident in Michael H. v. Gerald D.,
[[Page 1669]]
involving the rights of an adulterous biological father to establish
paternity and to associate with his child.\198\ Justice Scalia, joined
only by Chief Justice Rehnquist in this part of the plurality decision,
argued for ``the most specific level at which a relevant tradition
protecting, or denying protection to, the asserted right can be
identified.''\199\ Dissenting Justice Brennan, joined by two others,
rejected the emphasis on tradition, and argued instead that the Court
should ``ask whether the specific parent-child relationship under
consideration is close enough to the interests that we already have
protected [as] an aspect of `liberty.'''\200\ The resurgence of
substantive due process reasoning became evident upon the Court's
confrontation with cases raising the constitutionality of laws
proscribing or limiting abortions.
\197\478 U.S. 186 (1986).
\198\491 U.S. 110 (1989). Five Justices agreed that a liberty
interest was implicated, but the Court ruled that California's
procedures for establishing paternity did not unconstitutionally impinge
on that interest.
\199\Id. at 128 n.6.
\200\Id. at 142.
---------------------------------------------------------------------------
Abortion.--Laws limiting or prohibiting abortions in practically
all the States, the District of Columbia, and the territories were
invalidated by a ruling recognizing a right of personal privacy
protected by the due process clause that included a qualified right of a
woman to determine whether or not to bear a child. On the basis of its
analysis of the competing individual rights and state interests, the
Court in Roe v. Wade\201\ discerned a three-stage balancing of rights
and interests extending over the full nine-month term of pregnancy.
\201\Roe v. Wade, 410 U.S. 113 (1973). A companion case was Doe
v. Bolton, 410 U.S. 179 (1973). The opinion by Justice Blackman was
concurred in by Justices Douglas, Brennan, Stewart, Marshall, and
Powell, and Chief Justice Burger. Justices White and Rehnquist
dissented, id. at 171, 221, arguing that the Court should follow the
traditional due process test of determining whether a law has a rational
relation to a valid state objective and that so judged the statute was
valid. Justice Rehnquist was willing to consider an absolute ban on
abortions even when the mother's life is in jeopardy to be a denial of
due process, id. at 173, while Justice White left the issue open. Id. at
223.
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``(a) For the stage prior to approximately the end of the first
trimester, the abortion decision and its effectuation must be left to
the medical judgment of the pregnant woman's attending physician.
``(b) For the stage subsequent to approximately the end of the
first trimester, the State, in promoting its interest in the health of
the mother, may, if it chooses, regulate the abortion procedure in ways
that are reasonably related to maternal health.
``(c) For the stage subsequent to viability, the State in
promoting its interest in the potentiality of human life may, if it
chooses,
[[Page 1670]]
regulate, and even proscribe, abortion except where it is necessary, in
appropriate medical judgment, for the preservation of the life or health
of the mother.''\202\
\202\Roe v. Wade, 410 U.S. 113, 164-65 (1973).
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A lengthy history of the medical and legal views of abortion
apparently convinced the Court that the prohibition of abortion lacked
the solid foundation necessary to preserve such prohibitions from
constitutional review.\203\ Similarly, a review of the concept of
``person'' as protected in the due process clause and in other
provisions of the Constitution established to the Court's satisfaction
that the word ``person'' did not include the unborn, and therefore that
the unborn lacked federal constitutional protection.\204\ Without
treating the question in more than summary fashion, the Court announced
that ``a right of personal privacy, or a guarantee of certain areas or
zones of privacy, does exist in the Constitution'' and that it is
``founded in the Fourteenth Amendment's concept of personal liberty and
restrictions upon state action.''\205\ ``This right of privacy . . . is
broad enough to encompass a woman's decision whether or not to terminate
her pregnancy.''\206\ Moreover, this right of privacy is ``fundamental''
and, drawing upon the strict standard of review in equal protection
litigation, the Court held that the due process clause required that the
regulations limiting this fundamental right may be justified only by a
``compelling state interest'' and must be narrowly drawn to express only
the legitimate state interests at stake.\207\ Assessing the possible
interests of the States, the Court rejected as unsupported in the record
and ill-served by the laws in question justifications relating to the
promotion of morality and the protection of women from the medical
hazards of abortions. The state interest in protecting the life of the
fetus was held to be limited by the lack of a social consensus with
regard to the issue when life begins. Two valid state interests were
recognized, however. ``[T]he State does have an important and legitimate
interest in preserving and protecting the health of the pregnant woman
. . . [and] it has still another important and legitimate interest in
protecting the potentiality of human life. These interests are separate
and distinct. Each grows in substantiality as the woman approaches term
and, at a point during pregnancy, each becomes `compelling.'''\208\
\203\Id. at 129-47.
\204\Id. at 156-59.
\205\Id. at 152-53.
\206\Id.
\207\Id. at 152, 155-56. The ``compelling state interest'' test
in equal protection cases is reviewed infra, pp. 1809-14.
\208\410 U.S. at 147-52, 159-63.
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[[Page 1671]]
This approach led to the three-stage concept quoted above.
Because medical data indicated that abortion prior to the end of the
first trimester is relatively safe, the mortality rate being lower than
the rates for normal childbirth, and because the fetus has no capability
of meaningful life outside the mother's womb, the State has no
``compelling interest'' in the first trimester and ``the attending
physician, in consultation with his patient, is free to determine,
without regulation by the State, that, in his medical judgment, the
patient's pregnancy should be terminated.''\209\ In the intermediate
trimester, the danger to the woman increases and the State may therefore
regulate the abortion procedure ``to the extent that the regulation
reasonably relates to the preservation and protection of maternal
health,'' but the fetus is still not able to survive outside the womb,
and consequently the actual decision to have an abortion cannot be
otherwise impeded.\210\ ``With respect to the State's important and
legitimate interest in potential life, the `compelling' point is at
viability. This is so because the fetus then presumably has the
capability of meaningful life outside the mother's womb. State
regulation protective of fetal life after viability thus has both
logical and biological justifications. If the State is interested in
protecting fetal life after viability, it may go so far as to proscribe
abortion during that period, except when it is necessary to preserve the
life or health of the mother.''\211\
\209\Id. at 163.
\210\Id.
\211\Id. at 163-164. A fetus becomes ``viable'' when it is
``potentially able to live outside the mother's womb, albeit with
artificial aid. Viability is usually placed at about seven months (28
weeks) but may occur earlier, even at 24 weeks.'' Id. at 160 (footnotes
omitted).
---------------------------------------------------------------------------
In a companion case, the Court struck down three procedural
provisions of a permissive state abortion statute.\212\ These required
that the abortion be performed in a hospital accredited by a private
accrediting organization, that the operation be approved by the hospital
staff abortion committee, and that the performing physician's judgment
be confirmed by the independent examination of the patient by two other
licensed physicians. These provisions were held not to be justified by
the State's interest in maternal health because they were not reasonably
related to that interest.\213\ And a residency provision was struck down
as violating the privileges and immunities clause.\214\ But a clause
making the performance of an abortion a crime except when it is based
upon the doctor's ``best clinical judgment that an abortion is
necessary'' was upheld against vagueness attack and was further held to
benefit women seeking
[[Page 1672]]
abortions inasmuch as the doctor could utilize his best clinical
judgment in light of all the attendant circumstances.\215\
\212\Doe v. Bolton, 410 U.S. 179 (1973).
\213\Id. at 192-200.
\214\Id. at 200. The clause is Article IV, Sec. 2. See supra,
pp. 867-77.
\215\410 U.S. at 191-92. ``[T]he medical judgment may be
exercised in the light of all factors--physical, emotional,
psychological, familial, and the woman's age--relevant to the well-being
of the patient. All these factors may relate to health.'' Id. at 192.
Presumably this discussion applies to the Court's ruling in Roe holding
that even in the third trimester the woman may not be forbidden to have
an abortion if it is necessary to preserve her health as well as her
life, 410 U.S. at 163-64, a holding which is unelaborated in the
opinion. See also United States v. Vuitch, 402 U.S. 62 (1971).
---------------------------------------------------------------------------
These decisions were reaffirmed and extended when the Court was
faced with a restrictive state statute enacted after Roe making access
to abortions contingent upon spousal or parental consent and imposing
restraints upon methods.\216\ Striking down all the substantial
limitations, the Court held (1) that the spousal consent provision was
an attempt by the State to delegate a veto power over the decision of
the woman and her doctor that the State itself could not exercise,\217\
(2) that no significant state interests justified the imposition of a
blanket parental consent requirement as a condition of the obtaining of
an abortion by an unmarried minor during the first 12 weeks of
pregnancy,\218\ and (3) that a criminal pro
[[Page 1673]]
vision requiring the attending physician to exercise all care and
diligence to preserve the life and health of the fetus without regard to
the stage of viability was inconsistent with Roe.\219\ Sustained were
provisions that required the woman's written consent to an abortion with
assurances that it is informed and freely given, and provisions
mandating reporting and recordkeeping for public health purposes with
adequate assurances of confidentiality. A provision that barred the use
of the most commonly used method of abortion after the first 12 weeks of
pregnancy was declared unconstitutional since in the absence of another
comparably safe technique it did not qualify as a reasonble protection
of maternal health and it instead operated to deny the vast majority of
abortions after the first 12 weeks.\220\
\216\Planned Parenthood v. Danforth, 428 U.S. 52 (1976). See
also Bellotti v. Baird, 443 U.S. 622 (1979) (parental consent to minor's
abortion); Colautti v. Franklin, 439 U.S. 379 (1979) (imposition on
doctor determination of viability of fetus and obligation to take life-
saving steps); Singleton v. Wulff, 428 U.S. 106 (1976) (standing of
doctors to litigate right of patients to Medicaid-financed abortions);
Bigelow v. Virginia, 421 U.S. 809 (1975) (ban on newspaper ads for
abortions); Connecticut v. Menillo, 423 U.S. 9 (1975) (state ban on
performance of abortion by ``any person'' may constitutionally be
applied to prosecute nonphysicians performing abortions).
\217\Planned Parenthood v. Danforth, 428 U.S. 52, 67-72 (1976).
The Court recognized the husband's interests and the state interest in
promoting marital harmony. But the latter was deemed not served by the
requirement, and, since when the spouses disagree on the abortion
decision one has to prevail, the Court thought the person who bears the
child and who is the more directly affected should be the one to
prevail. Justices White and Rehnquist and Chief Justice Burger
dissented. Id. at 92.
\218\Id. at 72-75. Minors have rights protected by the
Constitution, but the States have broader authority to regulate their
activities than those of adults. Here, the Court perceived no state
interest served by the requirement that overcomes the woman's right to
make her own decision; it emphasized that it was not holding that every
minor, regardless of age or maturity, could give effective consent for
an abortion. Justice Stevens joined the other dissenters on this part of
the holding. Id. at 101. In Bellotti v. Baird, 443 U.S. 622 (1979),
eight Justices agreed that a parental consent law, applied to a mature
minor, found to be capable of making, and having made, an informed and
reasonable decision to have an abortion, was void but split on the
reasoning. Four Justices would hold that neither parents nor a court
could be given an absolute veto over a mature minor's decision, while
four others would hold that if parental consent is required the State
must afford an expeditious access to court to review the parental
determination and set it aside in appropriate cases. In H. L. v.
Matheson, 450 U.S. 398 (1981), the Court upheld, as applied to an
unemancipated minor living at home and dependent on her parents, a
statute requiring a physician, ``if possible,'' to notify the parents or
guardians of a minor seeking an abortion. The decisions leave open a
variety of questions, addressed by some concurring and dissenting
Justices, dealing with when it would not be in the minor's best interest
to avoid notifying her parents and with the alternatives to parental
notification and consent. In two 1983 cases the Court applied the
Bellotti v. Baird standard for determining whether judicial substitutes
for parental consent requirements permit a pregnant minor to demonstrate
that she is sufficiently mature to make her own decision on abortion.
Compare City of Akron v. Akron Center for Reproductive Health, 462 U.S.
416 (1983) (no opportunity for case-by-case determinations); with
Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983) (adequate
individualized consideration).
\219\Planned Parenthood v. Danforth, 428 U.S. 52, 81-84 (1976).
A law requiring a doctor, subject to penal sanction, to determine if a
fetus is viable or may be viable and to take steps to preserve the life
and health of viable fetuses was held to be unconstitutionally vague.
Colautti v. Franklin, 439 U.S. 379 (1979).
\220\Planned Parenthood v. Danforth, 428 U.S. 52, 75-79 (1976).
---------------------------------------------------------------------------
In other rulings applying Roe, the Court struck down some
requirements and upheld others. A requirement that all abortions
performed after the first trimester be performed in a hospital was
invalidated as imposing ``a heavy, and unnecessary, burden on women's
access to a relatively inexpensive, otherwise accessible, and [at least
during the first few weeks of the second trimester] safe abortion
procedure.''\221\ A state may, however, require that abortions be
performed in hospitals or licensed outpatient clinics, as long as
licensing standards do not ``depart from accepted medical
practice.''\222\ Various ``informed consent'' requirements were struck
down as intruding upon the discretion of the physician, and as being
aimed at discouraging abortions rather than at informing the pregnant
woman's decision;\223\ while the state has a legitimate in
[[Page 1674]]
terest in ensuring that the woman's consent is informed, the Court
explained, it may not demand of the physician ``a recitation of an
inflexible list of information'' unrelated to the particular patient's
health, and, for that matter, may not demand that the physician rather
than some other qualified person render the counseling.\224\ The Court
also invalidated a 24-hour waiting period following a woman's written,
informed consent.\225\ On the other hand, the Court upheld a requirement
that tissue removed in clinic abortions be submitted to a pathologist
for examination, since the same requirements were imposed for in-
hospital abortions and for almost all other in-hospital surgery.\226\
Also, the Court upheld a requirement that a second physician be present
at abortions performed after viability in order to assist in saving the
life of the fetus.\227\
\221\City of Akron v. Akron Center for Reproductive Health, 462
U.S. 416, 438 (1983); Accord, Planned Parenthood Ass'n v. Ashcroft, 462
U.S. 476 (1983). The Court in Akron relied on evidence that ``dilation
and evacuation'' (D&E) abortions performed in clinics cost less than
half as much as hospital abortions, and that common use of the D&E
procedure had ``increased dramatically'' the safety of second trimester
abortions in the 10 years since Roe v. Wade. 462 U.S. at 435-36.
\222\Simopoulos v. Virginia, 462 U.S. 506, 516 (1983).
\223\City of Akron v. Akron Center for Reproductive Health, 462
U.S. 416, 444-45 (1983); Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U.S. 747 (1986).
\224\City of Akron, 462 U.S. 416, 448-49 (1983).
\225\City of Akron v. Akron Center for Reproductive Health, 462
U.S. 416, 450-51 (1983). But see Hodgson v. Minnesota, 497 U.S. 417
(1990) (upholding a 48-hour waiting period following notification of
parents by a minor).
\226\Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 486-90
(1983).
\227\Id. at 482-86, 505.
---------------------------------------------------------------------------
The Court refused to extend Roe to the area of public funding to
pay for abortions for the pregnant indigent, holding that neither due
process nor equal protection requires government to use public funds for
this purpose.\228\ Due process, the Court held, does not obligate the
States to pay the pregnancy-related medical expenses of indigent women,
even though both abortion and the right to bear the child to birth are
``fundamental'' rights.\229\ But the more critical question was the
equal protection restraint imposed when government does provide public
funds for medical care to indigents; may it accord differential
treatment to abortion and childbirth and prefer the latter? The States
may do so, the Court continued, because it is rationally related to a
lawful purpose to encourage normal childbirth. The use of the rational
basis test required a rejection of the compelling state interest test in
the following manner. First, the more severe test was not activated by a
classification impacting on a suspect class, neither wealth nor
indigency being such a class. Second, and most significant for abortion
adjudication, the Court held that state refusal to pay for abortions did
not impinge upon a fundamental right. Prior state restrictions which had
been invalidated, the Court continued, had created absolute obstacles to
the
[[Page 1675]]
obtaining of an abortion. While a state-created obstacle need not be
absolute to be impermissible, it must at a minimum ``unduly burden'' the
right to terminate a pregnancy. To allocate public funds so as to
further a state interest in normal childbirth does not create an
absolute obstacle to obtaining an abortion nor does it unduly burden the
right. The condition--indigency--that is the barrier to getting an
abortion was not created by government nor does the State add to the
burden that exists already. ``An indigent woman who desires an abortion
suffers no disadvantage as a consequence of Connecticut's decision to
fund childbirth; she continues as before to be dependent on private
sources for the services she desires. The State may have made childbirth
a more attractive alternative, thereby influencing the woman's decision,
but it has imposed no restriction on access to abortions that was not
already there.''\230\ Applying the same principles, the Court held that
a municipal hospital could constitutionally provide hospital services
for indigent women for childbirth but deny services for abortion.\231\
\228\Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448
U.S. 297 (1980). See also Beal v. Doe, 432 U.S. 438 (1977) (states are
not required by federal law to fund abortions); Harris v. McRae, supra,
at 306-11 (same). The state restriction in Maher supra at 466, applied
to nontheraputic abortions, whereas the federal law barred funding for
most medically necessary abortions as well, a distinction the Court
deemed irrelevant, Harris, at supra, 323, although it provided Justice
Stevens with the basis for reaching different results. Id. at 349
(dissenting).
\229\Maher, 432 U.S. at 469 & n.5; Harris, 448 U.S. at 312-18.
\230\Maher, 432 U.S. at 469-74 (the quoted sentence is at 474);
Harris, 448 U.S. at 321-26. Justices Brennan, Marshall, and Blackmun
dissented in both cases and Justice Stevens joined them in Harris.
\231\Poelker v. Doe, 432 U.S. 519 (1977).
---------------------------------------------------------------------------
In 1983 the Court expressly reaffirmed Roe v. Wade,\232\ and
continued to apply its principles to a variety of state statutes
attempting to regulate the circumstances of abortions. The Court's 1989
decision in Webster v. Reproductive Health Services,\233\ however,
signalled a break with the past even though Roe v. Wade was not
overruled.
\232\City of Akron v. Akron Center for Reproductive Health, 462
U.S. 416, 419-20 (1983). In refusing to overrule Roe v. Wade, the Court
merely cited the principle of stare decisis. Justice Powell's opinion of
the Court was joined by Chief Justice Burger, and by Justices Brennan,
Marshall, Blackmun, and Stevens. Justice O'Connor, joined by Justices
White and Rehnquist, dissented, voicing disagreement with the trimester
approach and suggesting instead that throughout pregnancy the test
should be the same: whether state regulation constitutes ``unduly
burdensome interference with [a woman's] freedom to decide whether to
terminate her pregnancy.'' 462 U.S. at 452, 461. In the 1986 case of
Thornburgh v. American College of Obstetricians and Gynecologists, 476
U.S. 747 (1986), Justice White, joined by Justice Rehnquist, advocated
overruling of Roe v. Wade, Chief Justice Burger thought Roe v. Wade had
been extended to the point where it should be reexamined, and Justice
O'Connor repeated misgivings expressed in her Akron dissent.
\233\492 U.S. 490 (1989).
---------------------------------------------------------------------------
Webster upheld two aspects of Missouri's statute regulating
abortions: a prohibition on the use of public facilities and employees
to perform abortions not necessary to save the life of the mother; and a
requirement that a physician, before performing an abortion on a fetus
she has reason to believe has reached a gestational
[[Page 1676]]
age of 20 weeks, make an actual viability determination.\234\ In two
1990 cases the Court then upheld parental notification requirements.
Ohio's requirement that one parent be notified of a minor's intent to
obtain an abortion, or that the minor use a judicial bypass procedure to
obtain the approval of a juvenile court, was approved.\235\ And, while
the Court ruled that Minnesota's requirement that both parents be
notified was invalid standing alone, the statute was saved by a judicial
bypass alternative.\236\
\234\The Court declined to rule on several other aspects of
Missouri's law, including a preamble stating that life begins at
conception, and a prohibition on the use of public funds to encourage or
counsel a woman to have a nontherapeutic abortion.
\235\Ohio v. Akron Center for Reproductive Health, 497 U.S. 502
(1990).
\236\Hodgson v. Minnesota, 497 U.S. 417 (1990).
---------------------------------------------------------------------------
The Webster Court was split in its approach to Missouri's
viability determination requirement, and in its approach to Roe v. Wade.
The plurality opinion by Chief Justice Rehnquist, joined in that part by
Justices White and Kennedy, was highly critical of Roe, but found no
occasion to overrule it. Instead, the plurality's approach would water
down Roe by applying a less stringent standard of review. The viability
testing requirement is valid, the plurality contended, because it
``permissibly furthers the State's interest in protecting potential
human life.''\237\ Justice O'Connor concurred in the result because in
her view the requirement did not impose ``an undue burden'' on a woman's
right to an abortion, and Justice Scalia concurred in the result while
urging that Roe be overruled outright. That Webster may have changed the
focus of debate was illustrated by the Court's approach to the parental
notification issue. A Court majority in Hodgson invalidated Minnesota's
alternative procedure requiring notification of both parents without
judicial bypass, not because it burdened a fundamental right, but
because it did ``not reasonably further any legitimate state
interest.''\238\
\237\492 U.S. at 519-20. Dissenting Justice Blackmun, joined by
Justices Brennan and Marshall, argued that this ``permissibly furthers''
standard ``completely disregards the irreducible minimum of Roe . . .
that a woman has a limited fundamental constitutional right to decide
whether to terminate a pregnancy,'' and instead balances ``a lead
weight'' (the State's interest in fetal life) against a ``feather'' (a
woman's liberty interest). Id. at 555, 556 n.11.
\238\497 U.S. at 450.
---------------------------------------------------------------------------
Roe was not confronted more directly in Webster because the
viability testing requirement, as characterized by the plurality, merely
asserted a state interest in protecting potential human life from the
point of viability, and hence did not challenge Roe's trimester
framework.\239\ Nonetheless, a majority of Justices appeared
[[Page 1677]]
ready to reject a strict trimester approach. The plurality asserted a
compelling state interest in protecting human life throughout pregnancy,
rejecting the notion that the state interest ``should come into
existence only at the point of viability;''\240\ Justice O'Connor
repeated her view that the trimester approach is ``problematic;''\241\
and, as mentioned, Justice Scalia would do away with Roe altogether.
\239\492 U.S. at 521. Concurring Justice O'Connor agreed that
``no decision of this Court has held that the State may not directly
promote its interest in potential life when viability is possible.'' Id.
at 528.
\240\Id. at 519.
\241\Id. at 529. Previously, dissenting in City of Akron v.
Akron Center for Reproductive Health, 462 U.S. 416, 458 (1983), Justice
O'Connor had suggested that the Roe trimester framework ``is clearly on
a collision course with itself. As the medical risks of various abortion
procedures decrease, the point at which the State may regulate for
reasons of maternal health is moved further forward to actual
childbirth. As medical science becomes better able to provide for the
separate existence of the fetus, the point of viability is moved further
back toward conception.''
---------------------------------------------------------------------------
Three years later the Court, invoking principles of stare
decisis, reaffirmed Roe's ``essential holding,'' but restated that
holding in terms of undue burden and also abandoned Roe's reliance on
the trimester approach. Roe's ``essential holding,'' said the Court in
Planned Parenthood of Southeastern Pennsylvania v. Casey,\242\ has three
parts. ``First is a recognition of the right of a woman to choose to
have an abortion before viability and to obtain it without undue
interference from the State. Before viability, the State's interests are
not strong enough to support a prohibition of abortion or the imposition
of a substantial obstacle to the woman's effective right to elect the
procedure. Second is a confirmation of the State's power to restrict
abortions after fetal viability, if the law contains exceptions for
pregnancies which endanger a woman's life or health. And third is the
principle that the State has legitimate interests from the outset of the
pregnancy in protecting the health of the woman and the life of the
fetus that may become a child.''
\242\112 S. Ct. 2791, 2804 (1992).
---------------------------------------------------------------------------
This restatement of Roe's essentials, recognizing a legitimate
state interest in protecting fetal life throughout pregnancy,
necessarily eliminated the rigid trimester analysis permitting almost no
regulation in the first trimester. Viability still marked ``the earliest
point at which the State's interest in fetal life is constitutionally
adequate to justify a legislative ban on nontherapeutic
abortions,''\243\ but less burdensome regulations could be applied
before viability. ``What is at stake,'' the three-Justice plurality
asserted, ``is the woman's right to make the ultimate decision, not a
right to be insulated from all others in doing so. Regulations which do
no more than create a structural mechanism by which the State . . . may
express profound respect for the life of the unborn are permitted, if
they are not a substantial obstacle to the woman's ex
[[Page 1678]]
ercise of the right to choose.'' Thus, unless an undue burden is
imposed, states may adopt measures ``designed to persuade [a woman] to
choose childbirth over abortion.''\244\
\243\Id. at 2811.
\244\Id. at 2821.
---------------------------------------------------------------------------
Application of these principles led the Court to uphold several
aspects of Pennslyvania's abortion control law, in the process
overruling precedent, but to invalidate what was arguably the most
restrictive provision. Four challenged provisions of the law were
upheld: a definition of ``medical emergency'' controlling exemptions
from the Act's other limitations; recordkeeping and reporting
requirements imposed on facilities that perform abortions; an informed
consent and 24-hour waiting period requirement; and a parental consent
requirment, with possibility for judicial bypass, applicable to minors.
Invalidated as an undue burden on a woman's right to an abortion was a
spousal notification requirement.
It was a new alignment of Justices that restated and preserved
Roe. Joining Justice O'Connor in a jointly authored opinion adopting and
applying Justice O'Connor's ``undue burden'' analysis were Justices
Kennedy and Souter. Justices Blackmun and Stevens joined parts of the
plurality opinion, but dissented from other parts. Justice Stevens would
not have abandoned trimester analysis, and would have invalidated the
24-hour waiting period and aspects of the informed consent requirement.
Justice Blackmun, author of the Court's opinion in Roe, asserted that
``the right to reproductive choice is entitled to the full protection
afforded by this Court before Webster,''\245\ and would have invalidated
all of the challenged provisions. Chief Justice Rehnquist, joined by
Justices White, Scalia, and Thomas, would have overruled Roe and upheld
all challenged aspects of the Pennsylvania law.
\245\Id. at 2844.
---------------------------------------------------------------------------
Overruled in Casey were earlier decisions that had struck down
informed consent and 24-hour waiting periods.\246\ Given the state's
legitimate interests in protecting the life of the unborn and the health
of the potential mother, and applying ``undue burden'' analysis, the
three-Justice plurality found these requirements permissible. Requiring
informed consent for medical procedures is both commonplace and
reasonable, and, in the absence of any evidence of burden, the state
could require that information relevant to informed consent be provided
by a physician rather than an assistant. The 24-hour waiting period was
approved both in theory (it
[[Page 1679]]
being reasonable to assume ``that important decisions will be more
informed and deliberate if they follow some period of reflection'') and
in practice (in spite of ``troubling'' findings of increased burdens on
poorer women who must travel significant distances to obtain abortions,
and on all women who must twice rather than once brave harassment by
anti-abortion protesters).\247\ The Court also upheld application of an
additional requirement that women under age 18 obtain the consent of one
parent or avail themselves of a judicial bypass alternative.
\246\City of Akron v. Akron Center for Reproductive Health, 462
U.S. 416 (1983) (invalidating ``informed consent'' and 24-hour waiting
period); Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S. 747 (1986) (invalidating informed consent
requirement).
\247\112 S. Ct. at 2835.
---------------------------------------------------------------------------
On the other hand, the Court\248\ distinguished Pennsylvania's
spousal notification provision as constituting an undue burden on a
woman's right to choose an abortion. ``A State may not give to a man the
kind of dominion over his wife that parents exercise over their
children'' (and that men exercised over their wives at common law).\249\
Although there was an exception for a woman who believed that notifying
her husband would subject her to bodily injury, this exception was not
broad enough to cover other forms of abusive retaliation, e.g.,
psychological intimidation, bodily harm to children, or financial
deprivation. To require a wife to notify her husband in spite of her
fear of such abuse would unduly burden the wife's liberty interest as an
individual to decide whether to bear a child.
\248\The plurality Justices were joined in this part of their
opinion by Justices Blackmun and Stevens.
\249\Id. at 2831.
---------------------------------------------------------------------------
Privacy: Its Constitutional Dimensions.--Roe v. Wade and its
progeny could have had significant effect outside the abortion area in
the general area of personal liberties, inasmuch as the revitalization
of substantive due process in the noneconomic regulation area, overlaid
with the compelling state interest test, could call into question many
governmental restraints upon the person. Roe's emphasis upon the privacy
rationale seemed to presage an active judicial role in defining and
protecting the interests of persons ``to be let alone.'' Those
developments have not occurred, however, and the cases reflect the
intention of the Court to curb the expansion of any doctrinal
ramifications flowing beyond the abortion cases.
Privacy has in a number of cases been identified as a core value
of the Bill of Rights,\250\ but it was not until Griswold v.
Connecticut\251\ that an independent right of privacy, derived from the
confluence of several provisions of the Bill of Rights or discovered in
the ``penumbras'' of these provisions, was expounded by the
[[Page 1680]]
Court and actually used to strike down a governmental restraint. The
abortion cases extended Griswold many degrees in several respects.
First, the cases removed any lingering possibility that the right is a
marital one that depends upon that relationship.\252\ Second, the right
of privacy was denominated a liberty which found its source and its
protection in the due process clause of the Fourteenth Amendment.\253\
Third, by designating the right as a ``fundamental'' right, the Court
required a governmental restraint to be justified by a ``compelling
state interest.'' Necessary to assessment of the effect of this
development is a close analysis of the limits of the right thus
protected as well as of its contents.
\250\E.g., the Fourth Amendment.
\251\381 U.S. 479 (1965).
\252\In Eisenstadt v. Baird, 405 U.S. 438 (1972), the court had
declined to extend the Griswold principle to the unmarried on privacy
grounds, relying on an equal protection analysis instead.
\253\Roe v. Wade, 410 U.S. 113, 153 (1973). See id. at 167-71
(Justice Stewart concurring). Justice Douglas continued to deny that
substantive due process is the basis of the decisions. Doe v. Bolton,
410 U.S. 179, 209, 212 n.4 (1973) (concurring).
---------------------------------------------------------------------------
``The Constitution does not explicitly mention any right of
privacy. In a line of decisions, however, . . . the Court has recognized
that a right of personal privacy, or a guarantee of certain areas or
zones of privacy, does exist under the Constitution. . . . These
decisions make it clear that only personal rights that can be deemed
`fundamental' or `implicit in the concept of ordered liberty,' Palko v.
Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of
personal privacy. They also make it clear that the right has some
extension to activities relating to marriage, Loving v. Virginia, 388
U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-
42 (1942); contraception, Eisenstadt v. Baird, 405 U.S. at 453-54; id.
at 460, 463-65 (White, J., concurring in result); family relationships,
Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and
education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer
v. Nebraska, supra.''\254\ In the pornography cases decided later in the
same Term, the Court denied the existence of any privacy right of
customers to view unprotected material in commercial establishments,
repeating the above descriptive language from Roe, and saying further:
``the constitutionally protected privacy of family, marriage,
motherhood, procreation, and child rearing is not just concerned with a
particular place, but with a protected intimate relationship. Such
protected privacy extends to the doctor's office, the hospital, the
hotel room, or as otherwise required to safeguard the right to intimacy
involved.''\255\
\254\Roe v. Wade, 410 U.S. 113, 152 (1973).
\255\Paris Adult Theatre v. Slaton, 413 U.S. 49, 66 n.13 (1973).
---------------------------------------------------------------------------
[[Page 1681]]
What is apparent from the Court's approach in these cases is
that its concept of privacy is descriptive rather than analytical,
making difficult an assessment of the potential of the doctrine. Privacy
as a concept appears to encompass at least two different but related
aspects. First, it relates to the right or the ability of individuals to
determine how much and what information about themselves is to be
revealed to others. Second, it relates to the idea of autonomy, the
freedom of individuals to perform or not perform certain acts or subject
themselves to certain experiences.\256\ Governmental commands to do or
not to do something may well implicate one or the other or both of these
aspects, and judicial decision about the validity of such governmental
commands must necessarily be informed by use of an analytical framework
balancing the governmental interests against the individual interests in
maintaining freedom in one or both aspects of privacy. That framework
cannot now be constructed on the basis of the Court's decided cases.
\256\Whalen v. Roe, 429 U.S. 589, 598-600 (1977).
---------------------------------------------------------------------------
Griswold v. Connecticut,\257\ voiding a state statute
proscribing the use of contraceptives, seems primarily to be based upon
a judicial concept of privacy flowing from the first aspect of privacy
described above. That is, the predominant concern flowing through the
several opinions is the threat of forced disclosure about the private
and intimate lives of persons through the pervasive surveillance and
investigative efforts that would be needed to enforce such a law;
moreover, the concern was not limited to the outward pressures upon the
confines of such provisions as the Fourth Amendment's search and seizure
clause, but extended to techniques that would have been within the range
of permissible investigation. Subsequent cases, however, have returned
to Fourth and Fifth Amendment principles to regulate official invasions
of privacy.\258\
\257\381 U.S. 479 (1965).
\258\E.g., California Bankers Ass'n v. Schultz, 416 U.S. 21
(1974). See also Laird v. Tatum, 408 U.S. 1 (1972); United States v.
United States District Court, 407 U.S. 297 (1972); United States v.
Dionisio, 410 U.S. 1 (1973); Zurcher v. Stanford Daily, 436 U.S. 547
(1978).
---------------------------------------------------------------------------
For example, in United States v. Miller,\259\ the Court
evaluated in Fourth Amendment terms the right of privacy of depositors
in restricting Government access to their cancelled checks maintained by
the bank as required by the Bank Secrecy Act. The cancelled checks, the
Court held, were business records of the bank in which the depositors
had no expectation of privacy and therefore no
[[Page 1682]]
Fourth Amendment standing to challenge government legal process directed
to the bank, and this status was unchanged by the fact that the banks
kept the records under government mandate in the first place. And in
Fisher v. United States,\260\ the Court denied that the Fifth
Amendment's self-incrimination clause operated in any way to prevent the
IRS from obtaining by summons income tax records prepared by accountants
and in the hands of either the taxpayer or his attorney, no matter how
incriminating, because the Amendment only protects against compelled
testimonial self-incrimination. ``[T]he Court has never suggested that
every invasion of privacy violates the privilege. Within the limits
imposed by the language of the Fifth Amendment, which we necessarily
observe, the privilege truly serves privacy interests; but the Court has
never on any ground, personal privacy included, applied the Fifth
Amendment to prevent the otherwise proper acquisition or use of evidence
which, in the Court's view, did not involve compelled testimonial self-
incrimination of some sort.''\261\ Further, ``[w]e cannot cut the Fifth
Amendment completely loose from the moorings of its language, and make
it serve as a general protector of privacy--a word not mentioned in its
text and a concept directly addressed in the Fourth Amendment.''\262\
The First Amendment itself affords some limitation upon governmental
acquisition of information but here again the gravamen is a violation of
speech or association or the like concomitant with exposure of personal
information, and not exposure itself.\263\
\259\425 U.S. 435 (1976). See also Fisher v. United States, 425
U.S. 391, 401 (1976); Paul v. Davis, 424 U.S. 693, 712-13 (1976); United
States v. Bisceglia, 420 U.S. 141 (1975).
\260\425 U.S. 391 (1976).
\261\Id. at 399.
\262\Id. at 401.
\263\See Buckley v. Valeo, 424 U.S. 1, 60-82 (1976); Whalen v.
Roe, 429 U.S. 589, 601 n.27, 604 n.32 (1977); United States v. Miller,
425 U.S. 435, 444 n.6 (1976). The Court continues to reserve the
question of the ``[s]pecial problems of privacy which might be presented
by subpoena of a personal diary.'' Fisher v. United States, 425 U.S.
391, 401 n.7 (1976).
---------------------------------------------------------------------------
A cryptic opinion in Whalen v. Roe\264\ may indicate the Court's
willingness to recognize privacy interests as independent constitutional
rights. At issue was a state's pervasive regulation of prescription
drugs that could be abused, and the centralized recordkeeping through
computers of all such prescriptions identifying the patients. The scheme
was attacked on the basis that it invaded privacy interests against
disclosure and privacy interests involving autonomy of persons in
choosing whether to have the medication. The Court appeared to agree
that both interests are protected, but because the scheme was surrounded
with extensive security protection against disclosure beyond that
necessary to achieve the purposes of the program it was not thought to
``pose a sufficiently
[[Page 1683]]
grievous threat to either interest to establish a constitutional
violation.''\265\
\264\429 U.S. 589 (1977).
\265\Id. at 598-604. The Court cautioned that it had decided
nothing about the privacy implications of the accumulation and
disclosure of vast amounts of information in data banks. Safeguarding
such information from disclosure ``arguably has its roots in the
Constitution,'' at least ``in some circumstances,'' the Court seemed to
indicate. Id. at 605. Compare id. at 606 (Justice Brennan concurring).
What the Court's careful circumscription of the privacy issue through
balancing does to the concept is unclear after Nixon v. Administrator of
General Services, 433 U.S. 425, 455-65 (1977), but note the dissents.
Id. at 504, 525-36 (Chief Justice Burger), and 545 n.1 (Justice
Rehnquist).
---------------------------------------------------------------------------
Not the method of enforcement but the fact of enforcement was
the issue in Roe and Doe. That is, the power of the State to deny women
all access to abortions, the power to proscribe effectuation of the will
and desire of women to terminate pregnancy, was at issue. Because the
Court determined that the will and desire constituted a protected
``liberty,'' the State was required to justify its proscription by a
compelling interest. Once the question of the personhood of the fetus
was resolved, the Court confronted in effect only two asserted state
interests. Protecting the health of the mother was recognized as a valid
interest, the Court thereby departing from a laissez faire ``free will''
approach to individual autonomy. A state interest in morality was
mentioned by the Court, not because the State had raised it, but simply
to defer deciding it; however, the noted morality issue involved not the
morality of abortion, but instead the promotion of sexual morality
through making abortion unavailable.\266\
\266\Roe v. Wade, 410 U.S. 113, 148 (1972). Additionally, if the
purpose of the statute was to deter illicit sexual conduct, the law was
overbroad since it included both unmarried and married women. This
morality rationale also fell afoul of overinclusion and underinclusion
in Eisenstadt v. Baird, 405 U.S. 438, 477-50 (1972).
---------------------------------------------------------------------------
Stanley v. Georgia,\267\ holding that government may not make
private possession of obscene materials for private use a crime,
approached a judicial recognition of the autonomy aspect of privacy.
True it is that the possession there was in Stanley's home, a fact
heavily relied on by the Court, but the police had lawfully invaded his
privacy upon the authority of a valid warrant and a subsidiary Fourth
Amendment issue that was available for decision was passed over in favor
of a broader resolution. Inasmuch as the materials were obscene, they
were outside the scope of First Amendment protection. But the Court
premised its decision upon one's protected right to receive what
information and ideas he wished and upon one's protected ``right to be
free, except in very limited circumstances, from unwanted governmental
intrusions into one's
[[Page 1684]]
privacy.''\268\ These rights were held superior to the interests Georgia
asserted to override them. That is, first, the State was held to have no
authority to protect an individual's mind from the effects of obscenity,
to promote the moral content of one's thoughts. Second, the State's
assertion that exposure to obscenity may lead to deviant sexual behavior
was rejected on the basis of a lack of empirical support and, more
important, on the basis that less intrusive deterrents were available.
Thus, a right to be free of governmental regulation in this area was
clearly recognized.
\267\394 U.S. 557 (1969).
\268\Id. at 564-65.
---------------------------------------------------------------------------
Stanley was quickly restricted to its facts, to possession of
pornography in the home.\269\ But in its important reconsideration of
and reaffirmation of governmental interests in the control of
pornography, the Court went beyond this restriction and recognized
governmental interests that included the promotion of public morality,
protection of the individual's psychological health, and improving the
quality of life. ``It is argued that individual `free will' must govern,
even in activities beyond the protection of the First Amendment and
other constitutional guarantees of privacy, and that government cannot
legitimately impede an individual's desire to see or acquire obscene
plays, movies, and books. We do indeed base our society on certain
assumptions that people have the capacity for free choice. Most
exercises of individual free choice--those in politics, religion, and
expression of ideas--are explicitly protected by the Constitution.
Totally unlimited play for free will, however, is not allowed in our or
any other society. . . . [Many laws are enacted] to protect the weak,
the uninformed, the unsuspecting, and the gullible from the exercise of
their own volition.'' Furthermore, continued the Court: ``Our
Constitution establishes a broad range of conditions on the exercise of
power by the States, but for us to say that our Constitution
incorporates the proposition that conduct involving consenting adults is
always beyond state regulation is a step we are unable to take. . . .
The issue in this context goes beyond whether someone, or even the
majority, considers the conduct depicted as `wrong' or `sinful.' The
States have the power to make a morally neutral judgment that public
exhibition of obscene material, or commerce in such material, has a
tendency to injure the community as a whole, to endanger the public
safety, or to jeopardize . . . the States' `right . . . to maintain a
decent society.'''\270\
\269\United States v. Reidel, 402 U.S. 351, 354-56 (1971);
United States v. Thirty-seven Photographs, 402 U.S. 363, 375-76 (1971).
\270\Paris Adult Theatre v. Slaton, 413 U.S. 49, 57-63, 63-64,
68-69 (1973); and see id. at 68 n.15.
---------------------------------------------------------------------------
[[Page 1685]]
Stanley was further distinguished in Bowers v. Hardwick as being
``firmly grounded in the First Amendment.''\271\ Thus, the Court held in
Bowers, there is no protected right to engage in homosexual sodomy in
the privacy of the home, and Stanley did not implicitly create
protection for ``voluntary sexual conduct [in the home] between
consenting adults.''\272\
\271\478 U.S. 186, 195 (1986).
\272\478 U.S. at 195-96. Dissenting Justice Blackmun challenged
the Court's characterization of Stanley, suggesting that it had rested
as much on the Fourth as on the First Amendment, and that ``the right of
an individual to conduct intimate relationships in . . . his or her own
home [is] at the heart of the Constitution's protection of privacy.''
Id. at at 207-08.
---------------------------------------------------------------------------
Evidently, then, the fundamental right of privacy that is
protected by the due process clause is one functionally related to
``family, marriage, motherhood, procreation, and child rearing.''\273\
Even so limited, the concept can have numerous significant aspects
occasioning major constitutional decisions. Thus, in Carey v. Population
Services International,\274\ the Griswold-Baird line of cases was
significantly extended so as to make the ``decision whether or not to
beget or bear a child'' a ``constitutionally protected right of
privacy'' interest that government may not forbid or burden without
justifying the limitation by a compelling state interest and by a
regulation narrowly drawn to express only that interest or interests.
This ``constitutional protection of individual autonomy in matters of
childbearing'' led the Court to invalidate a state statute that banned
the distribution of contraceptives to adults except by licensed
pharmacists and that forbade any person to sell or distribute
contraceptives to a minor under 16.\275\ The limitation of the number of
outlets to adults ``imposes a significant burden on the right of the
individuals to use contraceptives if they choose to do so'' and was
unjustified by any interest put forward by the State. The prohibition on
sale to minors was judged not by the compelling state interest test, but
instead by inquiring whether the restrictions serve ``any significant
state interest . . . that is not present in the case of an adult.'' This
test is ``apparently less rigorous'' than the test used with adults, a
distinction justified by the greater governmental latitude in regulating
the conduct of children and the lesser capability of children in making
important decisions. The at
[[Page 1686]]
tempted justification for the ban was rejected. Doubting the
permissibility of a ban on access to contraceptives to deter minors'
sexual activity, the Court even more doubted, because the State
presented no evidence, that limiting access would deter minors from
engaging in sexual activity.\276\
\273\Id. at 66 n.13. See also Paul v. Davis, 424 U.S. 693, 713
(1976).
\274\431 U.S. 678 (1977).
\275\Id. at 684-91. The opinion of the Court on the general
principles drew the support of Justices Brennan, Stewart, Marshall,
Blackmun, and Stevens. Justice White concurred in the result in the
voiding of the ban on access to adults while not expressing an opinion
on the Court's general principles. Id. at 702. Justice Powell agreed the
ban on access to adults was void but concurred in an opinion
significantly more restrained than the opinion of the Court. Id. at 703.
Chief Justice Burger, id. at 702, and Justice Rehnquist, id. at 717,
dissented.
\276\Id. at 691-99. This portion of the opinion was supported by
only Justices Brennan, Stewart, Marshall, and Blackmun. Justices White,
Powell, and Stevens concurred in the result, id. at 702, 703, 712, each
on more narrow grounds than the plurality. Again, Chief Justice Burger
and Justice Rehnquist dissented. Id. at 702, 717.
---------------------------------------------------------------------------
In Bowers v. Hardwick,\277\ the Court by 5-4 vote roundly
rejected the suggestion that the privacy cases protecting ``family,
marriage, or procreation'' extend any protection for private consensual
homosexual sodomy,\278\ and also rejected the more comprehensive claim
that the cases ``stand for the proposition that any kind of private
sexual conduct between consenting adults is constitutionally insulated
from state proscription.''\279\ Moreover, the Court refused to create
any such fundamental right. Justice White's opinion for the Court in
Hardwick sounded the same opposition to ``announcing rights not readily
identifiable in the Constitution's text'' that underlay his dissents in
the abortion cases.\280\ In addition, the Court concluded that
rationales relied upon in the earlier privacy cases do not extend ``a
fundamental right to homosexuals to engage in acts of consensual
sodomy.''\281\ Heavy reliance was placed on the fact that prohibitions
on sodomy have ``ancient roots,'' and on the fact that half of the
states still prohibit the practices.\282\ The privacy of the home does
not immunize all behavior from state regulation, and the Court was
``unwilling to start down [the] road'' of im
[[Page 1687]]
munizing ``voluntary sexual conduct between consenting adults.''\283\
Justice Blackmun's dissent was critical of the Court's phrasing of the
issue as one of homosexual sodomy,\284\ and asserted that the basic
issue was the individual's privacy right ``to be let alone.'' The
privacy cases are not limited to protection of the family and the right
to procreation, he asserted, but instead stand for the broader principle
of individual autonomy and choice in matters of sexual intimacy.\285\
\277\478 U.S. 186 (1986). The Court's opinion was written by
Justice White, and joined by Chief Justice Burger and by Justices
Powell, Rehnquist, and O'Connor. The Chief Justice and Justice Powell
added brief concurring opinions. Justice Blackmun dissented, joined by
Justices Brennan, Marshall, and Stevens, and Justice Stevens, joined by
Justices Brennan and Marshall, added a separate dissenting opinion.
\278\``[N]one of the rights announced in those cases bears any
resemblance to the claimed constitutional right of homosexuals to engage
in acts of sodomy.'' 478 U.S. at 190-91.
\279\Id. at 191. The Court asserted that Carey v. Population
Services Int'l, 431 U.S. 678, 694 n.17 (1977), which had reserved
decision on the issue, had established that the privacy right ``did not
reach so far.''
\280\478 U.S. at 191.
\281\In the Court's view, homosexual sodomy is neither a
fundamental liberty ``implicit in the concept of ordered liberty'' nor
is it ``deeply rooted in this Nation's history and tradition.'' Id. at
at 191-92.
\282\Id. Chief Justice Burger's brief concurring opinion
amplified on this theme, concluding that constitutional protection for
``the act of homosexual sodomy . . . would . . . cast aside millennia of
moral teaching.'' Id. at at 197. Justice Powell cautioned that Eighth
Amendment proportionality principles might limit the severity with which
states can punish the practices (Hardwick had been charged but not
prosecuted, and had initiated the action to have the statute under which
he had been charged declared unconstitutional). Id.
\283\The Court voiced concern that ``it would be difficult . . .
to limit the claimed right to homosexual conduct while leaving exposed
to prosecution adultery, incest, and other sexual crimes even though
they are committed in the home.'' Id. at 195-96. Dissenting Justices
Blackmun (id. at 209 n.4) and Stevens (id. at 217-18) suggested that
these crimes are readily distinguishable.
\284\Id. at 199. The Georgia statute at issue, like most sodomy
statutes, prohibits the practices regardless of the sex or marital
status of the participants. See Id. at 188 n.1. Justice Stevens too
focused on this aspect, suggesting that the earlier privacy cases
clearly bar a state from prohibiting sodomous acts by married couples,
and that Georgia had not justified selective application to homosexuals.
Id. at 219.
\285\Id. at 204-06.
---------------------------------------------------------------------------
Similarly, the extent to which governmental regulation of the
sexual activities of minors is subject to constitutional scrutiny is of
great and continuing importance.\286\ Analysis of these questions is
hampered because the Court has not told us what about the particular
facets of human relationships--marriage, family, procreation--gives rise
to a protected liberty and what does not, and how indeed these factors
vary significantly enough from other human relationships to result in
differing constitutional treatment. The Court's observation in the
abortion cases ``that only personal rights that can be deemed
`fundamental' are included in this guarantee of personal privacy,''
occasioning justification by a ``compelling'' interest,\287\ little
elucidates the answers inasmuch as in the same Term the Court
significantly restricted its equal protection doctrine of
``fundamental'' interests--``compelling'' interest justification by
holding that the ``key'' to discovering whether an interest or a
relationship is a ``fundamental'' one is whether it is ``explicitly or
implicitly guaranteed by the Constitution.''\288\
\286\The Court reserved this question in Carey, 431 U.S., 694
n.17 (plurality opinion), although Justices White, Powell, and Stevens
in concurrence seemed to see no barrier to state prohibition of sexual
relations by minors. Id. at 702, 703, 712.
\287\Roe v. Wade, 410 U.S. 113, 152 (1973). The language is
quoted in full in Carey, supra, 431 U.S. 684-85.
\288\San Antonio School District v. Rodriguez, 411 U.S. 1, 33-34
(1973). That this restriction is not holding with respect to equal
protection analysis or due process analysis can be discerned easily.
Compare Zablocki v. Redhail, 434 U.S. 374 (1978) (opinion of Court),
with id. at 391 (Justice Stewart concurring), and id. at 396 (Justice
Powell concurring).
---------------------------------------------------------------------------
Whether an independent, discrete concept of privacy, in either
of its major aspects, emerges from developing judicial doctrines is
largely problematical. There appears to be a tendency to designate
[[Page 1688]]
as a right of privacy a right or interest which extensions of precedent
or applications of logical analysis have led the Court to conclude to
protect. Because this protection is now settled to be a ``liberty''
which the due process clause includes, the analytical validity of
denominating the particular right or interest as an element of privacy
rather than as an element of ``liberty'' seems open to question.
Family Relationships.--While the ``privacy'' basis of autonomy
seems to be definitionally based, the Court's drawing on the line of
cases since Meyer and Pierce\289\ has ``established that the
Constitution protects the sanctity of the family precisely because the
institution of the family is deeply rooted in this Nation's history and
tradition.''\290\ Recognition of the protected ``liberty'' of the
familial relationship affords the Court a principled and doctrinal basis
of review of governmental regulations that adversely impact upon the
ability to enter into the relationship, to maintain it, to terminate it,
and to resolve conflicts within the relationship. This liberty, unlike
the interest in property which has its source in statutory law, springs
from the base of ``intrinsic human rights, as they have been understood
in `this Nation's history and tradition.'''\291\ Being of fundamental
importance, the familial relationship is ordinarily subject only to
regulation that can survive rigorous judicial scrutiny, although
``reasonable regulations that do not significantly interfere with
decisions to enter into the marital relationship may legitimately be
imposed.''\292\ Recent decisions cast light in all areas of the family
relationship.
\289\Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society
of Sisters, 268 U.S. 510 (1928).
\290\Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977)
(plurality). Continuing the limitation of the right of privacy to
family-related activities is Bowers v. Hardwick, 478 U.S. 186 (1986).
\291\Smith v. Organization of Foster Families, 431 U.S. 816, 845
(1977).
\292\Zablocki v. Redhail, 434 U.S. 374, 386 (1978).
---------------------------------------------------------------------------
Because the right to marry is a fundamental right protected by
the due process clause,\293\ a state may not deny the right to marry to
someone who has failed to meet a child support obligation, there being
no legitimate state interest compelling enough to justify the
prohibition.\294\ There is a constitutional right to live together as a
[[Page 1689]]
family,\295\ one not limited to the nuclear family. Thus, a city
ordinance which zoned for single family occupancy and so defined
``family'' as to bar extended family relationships was found to violate
the due process clause as applied to prevent a grandmother from having
in her household two grandchildren of different children.\296\ And the
concept of ``family'' may extend beyond the biological, blood
relationship of extended families to the situation of foster families,
although the Court has acknowledged that such a claim to
constitutionally protected liberty interests raises complex and novel
questions.\297\ In the conflict between natural and foster families,
other difficult questions inhere and it may well be that a properly
constituted process under state law of determining the best interests of
the child will be deferred to.\298\ On the other hand, the Court has
held, the presumption of legitimacy accorded to a child born to a
married woman living with her husband is valid even to defeat the right
of the child's biological father to establish paternity and visitation
rights.\299\
\293\Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v.
Connecticut, 381 U.S. 479, 486 (1965); Cleveland Bd. of Education v.
LaFleur, 414 U.S. 632, 639-40 (1974); Zablocki v. Redhail, 434 U.S. 374,
383-87 (1978).
\294\Zablocki v. Redhail, 434 U.S. 374 (1978). The majority of
the Court deemed the statute to fail under equal protection, whereas
Justices Stewart and Powell found the due process clause to be violated.
Id. at 391, 396. Compare Califano v. Jobst, 434 U.S. 47 (1977).
\295\``If a State were to attempt to force the breakup of a
natural family, over the objections of the parents and their children,
without some showing of unfitness and for the sole reason that to do so
was thought to be in the children's best interest, I should have little
doubt that the State would have intruded impermissibly on `the private
realm of family life which the state cannot enter.''' Smith v.
Organization of Foster Families, 431 U.S. 816, 862-63 (1977) (Justice
Stewart concurring), cited with approval in Quilloin v. Walcott, 434
U.S. 246, 255 (1978).
\296\Moore v. City of East Cleveland, 431 U.S. 494 (1977)
(plurality opinion). The fifth vote, decisive to the invalidity of the
ordinance, was on other grounds. Id. at 513.
\297\Smith v. Organization of Foster Families, 431 U.S. 816
(1977). The natural family, the Court observed, did not have its source
in statutory law, whereas the ties that develop between foster parent
and foster child have their origins in an arrangement which the State
brought about. But some liberty interests do arise from positive law,
although the expectations and entitlements are thereby limited as well
by state law. And such a liberty interest may not be recognized without
derogating from the substantive liberty interests of the natural
parents. Thus, the interest of foster parents must be quite limited and
attenuated, but Smith does not define what it is. Id. at 842-47.
\298\See Quilloin v. Walcott, 434 U.S. 246 (1978).
\299\Michael H. v. Gerald D., 491 U.S. 110 (1989). There was no
opinion of the Court. A majority of Justices (Brennan, Marshall,
Blackmun, Stevens, White) was willing to recognize that the biological
father has a liberty interest in a relationship with his child, but
Justice Stevens voted with the plurality (Scalia, Rehnquist, O'Connor,
Kennedy) because he believed that the statute at issue adequately
protected that interest.
---------------------------------------------------------------------------
The Court has merely touched upon but not dealt definitively
with the complex and novel questions raised by possible conflicts
between parental rights and children's rights.\300\
\300\The clearest conflict presented to date raised the issue of
giving a veto to parents over their minor children's right to have an
abortion. Planned Parenthood v. Danforth, 428 U.S. 52 (1976); Planned
Parenthood v. Casey, 112 S. Ct. 2791 (1992). See also Parham v. J. R.,
442 U.S. 584 (1979) (parental role in commitment of child for treatment
of mental illness).
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[[Page 1690]]
Liberty Interests of Retarded and Mentally Ill: Commitment and
Treatment.--Potentially a major development in substantive due process
is the formulation of a liberty right of those retarded or handicapped
individuals who are involuntarily committed or who voluntarily seek
commitment to public institutions. The States pursuant to their parens
patriae power have a substantial interest in institutionalizing persons
in need of care, both for their own protection and for the protection of
others.\301\ Each individual, on the other hand, has a due process
protected interest in freedom from confinement and personal restraint;
an interest in reducing the degree of confinement continues even for
those individuals who are properly committed.\302\ Little controversy
has attended the gradual accretion of case law, now confirmed by the
Supreme Court, that due process guarantees freedom from undue physical
restraint and from unsafe conditions of confinement.\303\ Whether it
also guarantees a considerable right to treatment, to
``habilitation,''\304\ is the focus of the cases now being litigated,
and while the right has been strongly recognized by a number of
influential lower court decisions\305\ its treatment in the Supreme
Court is as yet tentative. Thus, Youngberg v. Romeo recognized a liberty
right to ``minimally adequate or reasonable training to ensure safety
and
[[Page 1691]]
freedom from undue restraint.''\306\ While the lower court had passed
upon and agreed with plaintiff's theory of entitlement to ``such
treatment as will afford a reasonable opportunity to acquire and
maintain those life skills necessary to cope as effectively as [his]
capacities permit,''\307\ the Supreme Court thought that before it
plaintiff had reduced his theory to one of ``training related to safety
and freedom from restraint.''\308\ But the Court's concern for
federalism, its reluctance to approve judicial activism in supervising
institutions, its recognition that budgetary constraints interfered with
state provision of services caused it to require the lower federal
courts to defer to professional decisionmaking in determining what care
was adequate. Professional decisions are presumptively valid and
liability can be imposed ``only when the decision by the professional is
such a substantial departure from accepted professional judgment,
practice, or standards as to demonstrate that the person responsible
actually did not base the decision on such a judgment.''\309\
Presumably, however, the difference between liability for damages and
injunctive relief will still afford federal courts considerable latitude
in enjoining institutions to better their services in the future, even
if they cannot award damages for past failures.\310\
\301\These principles have no application to persons not held in
custody by the state. DeShaney v. Winnebago County Social Servs. Dep't,
489 U.S. 189 (1989) (no Due Process violation for failure of state to
protect an abused child from his parent, even when the social service
agency had been notified of possible abuse, and possibility had been
substantiated through visits by social worker).
\302\Youngberg v. Romeo, 457 U.S. 307, 314-16 (1982). See
Jackson v. Indiana, 406 U.S. 715 (1972); O'Connor v. Donaldson, 422 U.S.
563 (1975); Vitek v. Jones, 445 U.S. 480, 491-94 (1980).
\303\Youngberg v. Romeo, 457 U.S. 307, 314-316 (1982). Thus,
personal security constitutes a ``historic liberty interest'' protected
substantively by the due process clause. Ingraham v. Wright, 430 U.S.
651, 673 (1977) (liberty interest in being free from undeserved corporal
punishment in school); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1,
18 (1979) (Justice Powell concurring) (``Liberty from bodily restraint
always has been recognized as the core of the liberty protected by the
Due Process Clause from arbitrary governmental actions'').
\304\``The word `habilitation' is commonly used to refer to
programs for the mentally retarded because mental retardation is . . . a
learning disability and training impairment rather than an illness.
[T]he principal focus of habilitation is upon training and development
of needed skills.'' Youngberg v. Romeo, 457 U.S. 307, 309 n.1 (1982)
(quoting amicus brief for American Psychiatric Association).
\305\In Jackson v. Indiana, 406 U.S. 715, 738 (1972), the Court
had said that ``due process requires that the nature and duration of
commitment bear some reasonable relation to the purpose for which the
individual is committed.'' Reasoning that if commitment is for treatment
and betterment of individuals, it must be accompanied by adequate
treatment, several lower courts recognized a due process right. E.g.,
Wyatt v. Stickney, 325 F. Supp. 781 (M.D.Ala), enforced, 334 F. Supp.
1341 (1971), supplemented, 334 F. Supp. 373 and 344 F. Supp. 387
(M.D.Ala. 1972), aff'd in part, reserved in part, and remanded, sub nom.
Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Donaldson v. O'Connor,
493 F.2d 507 (5th Cir. 1974), vacated on other grounds, 432 U.S. 563
(1975).
\306\Youngberg v. Romeo, 457 U.S. 307, 319 (1982).
\307\Id. at 318 n.23.
\308\Id. at 317-18. Concurring, Justices Blackmun, Brennan, and
O'Connor, argued that due process guaranteed patients at least that
training necessary to prevent them from losing the skills they entered
the institution with and probably more. Id. at 325. Chief Justice Burger
rejected any protected interest in training. Id. at 329. The Court had
also avoided a decision on a right to treatment in O'Connor v.
Donaldson, 422 U.S. 563, 573 (1975), vacating and remanding a decision
recognizing the right and thus depriving the decision of precedential
value. Chief Justice Burger expressly rejected the right there also. Id.
at 578. But just four days later the Court denied certiorari to another
panel decision from the same circuit relying on its Donaldson decision
to establish such a right, leaving the principle alive in that circuit.
Burnham v. Department of Public Health, 503 F.2d 1319 (5th Cir. 1974),
cert. denied, 422 U.S. 1057 (1975). See also Allen v. Illinois, 478 U.S.
364, 373 (1986) (dictum that person civilly committed as ``sexually
dangerous person'' might be entitled to protection under the self-
incrimination clause if he could show that his confinement ``is
essentially identical to that imposed upon felons with no need for
psychiatric care'').
\309\Id. at 323.
\310\E.g., Ohlinger v. Watson, 652 F. 2d 775, 779 (9th Cir.
1980); Welsch v. Likins, 550 F.2d 1122, 1132 (8th Cir. 1977). Of course,
lack of funding will create problems with respect to injunctive relief
as well. Cf. New York State Ass'n for Retarded Children v. Carey, 631
F.2d 162, 163 (2d Cir. 1980). It should be noted that the Supreme Court
has limited the injunctive powers of the federal courts in similar
situations also.
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Still other issues await plumbing. The whole area of the rights
of committed individuals will likely be explored under a sub
[[Page 1692]]
stantive and procedural due process analysis.\311\ Additionally, federal
legislation is becoming extensive,\312\ and state legislative and
judicial development of law is highly important because the Supreme
Court looks to this law as one source of the interests which the due
process clause protects.\313\
\311\See Developments in the Law--Civil Commitment of the
Mentally Ill, 87 Harv. L. Rev. 1190 (1974). In Mills v. Rogers, 457 U.S.
291 (1982), the Court had before it the issue of the due process right
of committed mental patients at state hospitals to refuse administration
of antipsychotic drugs. An intervening decision of the State's highest
court had measurably strengthened the patients' rights under both state
and federal law and the Court remanded for reconsideration in light of
the state court decision. See also Rennie v. Klein, 653 F.2d 836 (3d
Cir. 1981).
\312\Developmentally Disabled Assistance and Bill of Rights Act
of 1975, Pub. L. No. 94-103, 89 Stat. 486, as amended, 42 U.S.C.
Sec. Sec. 6000 et seq., as to which see Pennhurst State School & Hosp.
v. Halderman, 451 U.S. 1 (1981); Mental Health Systems Act, 94 Stat.
1565, 42 U.S.C. Sec. 9401 et seq.
\313\See, e.g., Mills v. Rogers, 457 U.S. 291, 299-300 (1982).
And see infra, pp. 1723-32 (procedural due process).
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``Right to Die''.--In Cruzan v. Director, Missouri Dep't of
Health,\314\ the Court upheld Missouri's requirement that, before
nutrition and hydration may be withdrawn from a person in a persistent
vegetative state, it must be demonstrated by ``clear and convincing
evidence'' that such action is consistent with the patient's previously
manifested wishes. The Due Process Clause does not require that the
state rely on the judgment of the family, the guardian, or ``anyone but
the patient herself'' in making this decision, the Court concluded.\315\
Thus, in the absence of clear and convincing evidence that the patient
herself had expressed an interest not to be sustained in a persistent
vegetative state, or that she had expressed a desire to have a surrogate
make such a decision for her, the state may refuse to allow withdrawal
of nutrition and hydration. ``A State is entitled to guard against
potential abuses'' that can occur if family members do not protect a
patient's best interests, and ``may properly decline to make judgments
about the `quality' of life that a particular individual may enjoy, and
[instead] simply assert an unqualified interest in the preservation of
human life to be weighed against the . . . interests of the
individual.''\316\
\314\497 U.S. 261 (1990).
\315\Id. at 286.
\316\Id. at 281-82.
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The Court's opinion in Cruzan ``assume[d]'' that a competent
person has a constitutionally protected right to refuse lifesaving
hydration and nutrition.\317\ More important, however, a majority of
Justices separately declared that such a liberty interest exists.\318\
Thus, the Court appears committed to the position that the right
[[Page 1693]]
to refuse nutrition and hydration is subsumed in the broader right to
refuse medical treatment. Also blurred in the Court's analysis was any
distinction between terminally ill patients and those whose condition
has stabilized; there was testimony that the patient in Cruzan could be
kept ``alive'' for about 30 years if nutrition and hydration were
continued.
\317\Id. at 279.
\318\See 497 U.S. at 287 (O'Connor, concurring); id. at 304-05
(Brennan, joined by Marshall and Blackmun, dissenting); id. at 331
(Stevens, dissenting).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED:
PROCEDURAL DUE PROCESS--CIVIL
Some General Criteria
What due process of law means in the procedural context depends
on the circumstances. It varies with the subject matter and the
necessities of the situation. Due process of law is a process which,
following the forms of law, is appropriate to the case and just to the
parties affected. It must be pursued in the ordinary mode prescribed by
law; it must be adapted to the end to be attained; and whenever
necessary to the protection of the parties, it must give them an
opportunity to be heard respecting the justice of the judgment sought.
Any legal proceeding enforced by public authority, whether sanctioned by
age or custom or newly devised in the discretion of the legislative
power, which regards and preserves these principles of liberty and
justice, must be held to be due process of law.\1\
\1\Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884); Hurtado
v. California, 110 U.S. 516, 537 (1884).
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Ancient Use and Uniformity.--The requirements of due process may
be ascertained in part by an examination of those settled usages and
modes of proceedings existing in the common and statutory law of England
during colonial times, and not unsuited to the civil and political
conditions in this country. A process of law not otherwise forbidden may
be taken to be due process of law if it has been sanctioned by settled
usage both in England and in this country. In other words, the antiquity
of a procedure is a fact of weight in its behalf. However, it does not
follow that a procedure settled in English law and adopted in this
country is, or remains, an essential element of due process of law. If
that were so, the procedure of the first half of the seventeenth century
would be fastened upon American jurisprudence like a strait jacket, only
to be unloosed by constitutional amendment. Fortunately, the States are
not tied down by any provision of the Constitution to the practice and
procedure which existed at the common law, but may avail
[[Page 1694]]
themselves of the wisdom gathered by the experience of the country to
make changes deemed to be necessary.\2\
\2\Brown v. New Jersey, 175 U.S. 172, 175 (1899); Hurtado v.
California, 110 U.S. 516, 529 (1884); Twining v. New Jersey, 211 U.S.
78, 101 (1908); Anderson Nat'l Bank v. Luckett, 321 U.S. 233, 244
(1944).
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Equality.--If due process is to be secured, the laws must
operate alike upon all and not subject the individual to the arbitrary
exercise of governmental power unrestrained by established principles of
private rights and distributive justice. Where a litigant has the
benefit of a full and fair trial in the state courts, and his rights are
measured, not by laws made to affect him individually, but by general
provisions of law applicable to all those in like condition, he is not
deprived of property without due process of law, even if he can be
regarded as deprived of his property by an adverse result.\3\
\3\Marchant v. Pennsylvania R.R., 153 U.S. 380, 386 (1894).
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Due Process, Judicial Process, and Separation of Powers.--Due
process of law does not always mean a proceeding in court.\4\
Proceedings to raise revenue by levying and collecting taxes are not
necessarily judicial, nor are administrative and executive proceedings,
yet their validity is not thereby impaired.\5\ Moreover, the due process
clause does not require de novo judicial review of the factual
conclusions of state regulatory agencies.\6\
\4\Ballard v. Hunter, 204 U.S. 241, 255 (1907); Palmer v.
McMahon, 133 U.S. 660, 668 (1890).
\5\McMillen v. Anderson, 95 U.S. 37, 41 (1877).
\6\Railroad Comm'n v. Rowan & Nichols Oil Co., 311 U.S. 570
(1941) (oil field proration order). See also Railroad Comm'n v. Rowan &
Nichols Oil Co., 310 U.S. 573 (1940) (courts should not second-guess
regulatory commissions in evaluating expert testimony).
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Nor does the Fourteenth Amendment prohibit a State from
conferring upon nonjudicial bodies certain functions that may be called
judicial, or from delegating to a court powers that are legislative in
nature. For example, state statutes vesting in a parole board certain
judicial functions,\7\ or conferring discretionary power upon
administrative boards to grant or withhold permission to carry on a
trade,\8\ or vesting in a probate court authority to appoint park
commissioners and establish park districts\9\ are not in conflict with
the due process clause and present no federal question. Whether
legislative, executive, and judicial powers of a State shall be kept
altogether distinct and separate, or whether they should in some
particulars be merged, is for the determination of the State.\10\
\7\Dreyer v. Illinois, 187 U.S. 71, 83-84 (1902).
\8\New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552, 562,
(1905).
\9\Ohio ex rel. Bryant v. Akron Park Dist., 281 U.S. 74, 79
(1930).
\10\Carfer v. Caldwell, 200 U.S. 293, 297 (1906).
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[[Page 1695]]
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
PROCEDURAL DUE PROCESS: CIVIL
Power of the States to Regulate Procedure
Generally.--The due process clause of the Fourteenth Amendment
does not control mere forms of procedure in state courts or regulate
practice therein.\11\ A State ``is free to regulate procedure of its
courts in accordance with it own conception of policy and fairness
unless in so doing it offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental.''\12\ Pursuant to such power, the States have regulated the
manner in which rights may be enforced and wrongs remedied,\13\ and in
connection therewith have created courts and endowed them with such
jurisdiction as, in the judgment of their legislatures, seemed
appropriate.\14\ Whether legislative action in such matters is deemed to
be wise or proves efficient, whether it works a particular hardship on a
particular litigant, or perpetuates or supplants ancient forms of
procedure, are issues which can ordinarily give rise to no conflict with
the Fourteenth Amendment, inasmuch as its function is negative rather
than affirmative and in no way obligates the States to adopt specific
measures of reform.\15\ More recent decisions, however, have imposed
some restrictions on state procedures that require substantial
reorientation of process.\16\
\11\Holmes v. Conway, 241 U.S. 624, 631 (1916); Louisville &
Nashville R.R. v. Schmidt, 177 U.S. 230, 236 (1900).
\12\Snyder v. Massachusetts, 291 U.S. 97, 105 (1934); West v.
Louisiana, 194 U.S. 258, 263 (1904); Chicago, B. & Q. R.R. v. Chicago,
166 U.S. 226 (1897); Jordan v. Massachusetts, 225 U.S. 167, 176 (1912).
See Boddie v. Connecticut, 401 U.S. 371 (1971), for one recent
limitation. The power of a State to determine the limits of the
jurisdiction of its courts and the character of the controversies which
shall be heard in them and to deny access to its courts is also subject
to restrictions imposed by the contract, full faith and credit, and
privileges and immunities clauses of the Constitution. Angel v.
Bullington, 330 U.S. 183 (1947).
\13\Insurance Co. v. Glidden Co., 284 U.S. 151, 158 (1931); Iowa
Central Ry. v. Iowa, 160 U.S. 389, 393 (1896): Honeyman v. Hanan, 302
U.S. 375 (1937). See also Lindsey v. Normet, 405 U.S. 56 (1972).
\14\Cincinnati Street Ry. v. Snell, 193 U.S. 30, 36 (1904).
\15\Ownbey v. Morgan, 256 U.S. 94, 112 (1921). Thus the
Fourteenth Amendment does not constrain the States to accept modern
doctrines of equity, or adopt a combined system of law and equity
procedure, or dispense with all necessity for form and method in
pleading, or give untrammelled liberty to amend pleadings. Note that the
Supreme Court did once grant review to determine whether due process
required the States to provide some form of post-conviction remedy to
assert federal constitutional violations, a review which was mooted when
the State enacted such a process. Case v. Nebraska, 381 U.S. 336 (1965).
When a State, however, through its legal system exerts a monopoly over
the pacific settlement of private disputes, as with the dissolution of
marriage, due process may well impose affirmative obligations on that
State. Boddie v. Connecticut, 401 U.S. 371, 374-77 (1971).
\16\While this statement is more generally true in the context
of criminal cases, in which the appellate process and post-conviction
remedial process have been subject to considerable revision in the
treatment of indigents, some requirements have also been imposed in
civil cases. Boddie v. Connecticut, 401 U.S. 371 (1971); Lindsey v.
Normet, 405 U.S. 56, 74-79 (1972); Santosky v. Kramer, 455 U.S. 745
(1982). Review has, however, been restrained with regard to details.
See, e.g., Lindsey v. Normet, supra, 64-69.
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[[Page 1696]]
Commencement of Actions.--A state may impose certain conditions
on the right to institute litigation. Access to the courts has been
denied to persons instituting stockholders' derivative actions unless
reasonable security for the costs and fees incurred by the corporation
is first tendered.\17\ But, at least in those situations in which the
State has monopolized the avenues of settlement of disputes between
persons by prescribing judicial resolution, and where the dispute
involves such a fundamental interest as marriage and its dissolution, no
State may deny to those persons unable to pay its fees access to those
judicial avenues.\18\ It must be considered, then, that foreclosure of
all access to the courts, at least through financial barriers and
perhaps through other means as well, is subject to federal
constitutional scrutiny and must be justified by reference to a state
interest of suitable importance. In older cases, not questioned by the
more recent ones, it was held that a State, as the price of opening its
tribunals to a nonresident plaintiff, may exact the condition that the
nonresident stand ready to answer all cross actions filed and accept any
in personam judgments obtained by a resident defendant through service
of process or appropriate pleading upon the plaintiff's attorney of
record.\19\ and for similar reasons, a requirement, without excluding
other evidence, of a chemical analysis as a condition precedent to a
suit to recover for damages resulting to crops from allegedly deficient
fertilizers is not deemed to be arbitrary or unreasonable.\20\
\17\Cohen v. Beneficial Loan Corp., 337 U.S. 541 (1949). Nor was
the retroactive application of this statutory requirement to actions
pending at the time of its adoption violative of due process as long as
no new liability for expenses incurred before enactment was imposed
thereby and the only effect thereof was to stay such proceedings until
the security was furnished.
\18\Boddie v. Connecticut, 401 U.S. 371 (1971). See also Little
v. Streater, 452 U.S. 1 (1981) (state-mandated paternity suit); Lassiter
v. Department of Social Services, 452 U.S. 18 (1981) (parental status
termination proceeding); Santosky v. Kramer, 455 U.S. 745 (1982)
(permanent termination of parental custody).
\19\Young Co. v. McNeal-Edwards Co., 283 U.S. 398 (1931); Adam
v. Saenger, 303 U.S. 59 (1938).
\20\Jones v. Union Guano Co., 264 U.S. 171 (1924).
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Pleas in Abatement.--State legislation which forbids a defendant
to come into court and challenge the validity of service upon him in a
personal action without thereby surrendering himself to the jurisdiction
of the court, but which does not restrain him from protecting his
substantive rights against enforcement of a judgment rendered without
service of process is constitutional and does not deprive him of
property without due process of law. Such a defendant, if he pleases,
may ignore the proceedings as wholly ineffective, and set up the
invalidity of the judgment if and when an
[[Page 1697]]
attempt is made to take his property thereunder. However, if he desires
to contest the validity of the proceedings in the court in which it is
instituted, so as to avoid even a semblance of a judgment against him,
it is within the power of a State to declare that he shall do this
subject to the risk of being obliged to submit to the jurisdiction of
the court to hear and determine the merits, if the objection raised by
him as to its jurisdiction over his person shall be overruled.\21\
\21\York v. Texas, 137 U.S. 15 (1890); Kauffman v. Wootters, 138
U.S. 285, 287 (1891).
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Defenses.--Just as a State may condition the right to institute
litigation, so may it establish terms for the interposition of certain
defenses. It may validly provide that one sued in a possessory action
cannot bring an action to try title until after judgment is rendered and
after he has paid that judgment, if it so provides.\22\ A State may
limit the defense in an action to evict tenants for nonpayment of rent
to the issue of payment and leave the tenants to other remedial actions
at law on a claim that the landlord had failed to maintain the
premises.\23\ A State may also provide that the doctrines of
contributory negligence, assumption of risk, and fellow servant do not
bar recovery in certain employment-related accidents. No person has a
vested right in such defenses.\24\
\22\Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133 (1915).
\23\Lindsey v. Normet, 405 U.S. 56, 64-69 (1972). See also
Bianchi v. Morales, 262 U.S. 170 (1923) (upholding mortgage law
providing for summary foreclosure of a mortgage without allowing any
defense except payment).
\24\Bowersock v. Smith, 243 U.S. 29, 34, (1917); Chicago, R.I. &
P. Ry. v. Cole, 251 U.S. 54, 55 (1919); Herron v. Southern Pacific Co.,
283 U.S. 91 (1931). See also Martinez v. California, 444 U.S. 277, 280-
83 (1980) (State interest in fashioning its own tort law permits it to
provide immunity defenses for its employees and thus defeat recovery).
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Similarly, a nonresident defendant in a suit begun by foreign
attachment, even though he has no resources or credit other than the
property attached, cannot challenge the validity of a statute which
requires him to give bail or security for the discharge of the seized
property before permitting him an opportunity to appear and defend.\25\
\25\Ownbey v. Morgan, 256 U.S. 94 (1921).
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Amendments and Continuances.--Amendment of pleadings is largely
within the discretion of the trial court, and unless a gross abuse of
discretion is shown, there is no ground for reversal. Accordingly, where
the defense sought to be interposed is without merit, a claim that due
process would be denied by rendition of a foreclosure decree without
leave to file a supplementary answer is utterly without foundation.\26\
\26\Sawyer v. Piper, 189 U.S. 154 (1903).
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[[Page 1698]]
Costs, Damages, and Penalties.--What costs are allowed by law is
for the court to determine; an erroneous judgment of what the law allows
does not deprive a party of his property without due process of law.\27\
Nor does a statute providing for the recovery of reasonable attorney's
fees in actions on small claims subject unsuccessful defendants to any
unconstitutional deprivation.\28\ Congress may severely restrict
attorney's fees in an effort to keep an administrative claims proceeding
informal.\29\ Equally consistent with the requirements of due process is
a statutory procedure whereby a prosecutor of a case is adjudged liable
for costs, and committed to jail in default of payment thereof, whenever
the court or jury, after according him an opportunity to present
evidence of good faith, finds that he instituted the prosecution without
probable cause and from malicious motives.\30\ Also, as a reasonable
incentive for prompt settlement without suit of just demands of a class
receiving special legislative treatment, such as common carriers and
insurance companies together with their patrons, a State may permit
harassed litigants to recover penalties in the form of attorney's fees
or damages.\31\ To deter careless destruction of human life, a State by
law may allow punitive damages to be assessed in actions against
employers for deaths caused by the negligence of their employees,\32\
and may also allow punitive damages for fraud perpetrated by
employees.\33\ Also constitutional is the traditional common law
approach for measuring punitive damages, granting the jury wide but not
unlimited discretion to consider the gravity of the offense and the need
to deter similar offenses.\34\
\27\Ballard v. Hunter, 204 U.S. 241, 259 (1907).
\28\Missouri, Kansas & Texas Ry. v. Cade, 233 U.S. 642, 650
(1914).
\29\Walters v. National Ass'n of Radiation Survivors, 473 U.S.
305 (1985) (limitation of attorneys' fees to $10 in veterans benefit
proceedings does not violate claimants' Fifth Amendment due process
rights absent a showing of probability of error in the proceedings that
presence of attorneys would sharply diminish). See also United States
Dep't of Labor v. Triplett, 494 U.S. 715 (1990) (upholding regulations
under the Black Lung Benefits Act prohibiting contractual fee
arrangements).
\30\Lowe v. Kansas, 163 U.S. 81 (1896). Consider, however, the
possible bearing of Giaccio v. Pennsylvania, 382 U.S. 399 (1966)
(statute allowing jury to impose costs on acquitted defendant, but
containing no standards to guide discretion, violates due process).
\31\Yazoo & Miss. R.R. v. Jackson Vinegar Co., 226 U.S. 217
(1912); Chicago & Northwestern Ry. v. Nye Schneider Fowler Co., 260 U.S.
35, 43-44 (1922); Hartford Life Ins. Co. v. Blincoe, 255 U.S. 129, 139
(1921); Life & Casualty Co. v. McCray, 291 U.S. 566 (1934).
\32\Pizitz Co. v. Yeldell, 274 U.S. 112, 114 (1927).
\33\Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991).
\34\Id. (finding sufficient constraints on jury discretion in
jury instructions and in post-verdict review).
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By virtue of its plenary power to prescribe the character of the
sentence which shall be awarded against those found guilty of crime, a
State may provide that a public officer embezzling public
[[Page 1699]]
money shall, notwithstanding that he has made restitution, suffer not
only imprisonment but also pay a fine equal to double the amount
embezzled, which shall operate as a judgment for the use of persons
whose money was embezzled. Whatever this fine is called, whether a
penalty, or punishment, or civil judgment, it comes to the convict as
the result of his crime.\35\ On the other hand, when appellant, by its
refusal to surrender certain assets, was adjudged in contempt for
frustrating enforcement of a judgment obtained against it, dismissal of
its appeal from the first judgment was not a penalty imposed for the
contempt, but merely a reasonable method for sustaining the
effectiveness of the State's judicial process.\36\
\35\Coffey v. Harlan County, 204 U.S. 659, 663, 665 (1907).
\36\National Union v. Arnold, 348 U.S. 37 (1954) (the judgment
debtor had refused to post a supersedeas bond or to comply with
reasonable orders designed to safeguard the value of the judgment
pending decision on appeal).
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Statutes of Limitation.--A statute of limitations does not
deprive one of property without due process of law, unless, in its
application to an existing right of action, it unreasonably limits the
opportunity to enforce the right by suit. By the same token, a State may
shorten an existing period of limitation, provided a reasonable time is
allowed for bringing an action after the passage of the statute and
before the bar takes effect. What is a reasonable period, however, is
dependent on the nature of the right and particular circumstances.\37\
\37\Wheeler v. Jackson, 137 U.S. 245, 258 (1890); Kentucky Union
Co. v. Kentucky, 219 U.S. 140, 156 (1911). Cf. Logan v. Zimmerman Brush
Co., 455 U.S. 422, 437 (1982) (discussing discretion of States in
erecting reasonable procedural requirements for triggering or
foreclosing the right to an adjudication).
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Thus, an interval of only one year is not so unreasonable as to
be wanting in due process when applied to bar actions relative to the
property of an absentee in instances when the receiver for such property
has not been appointed until 13 years after the former's
disappearance.\38\ When a State, by law, suddenly prohibits, unless
brought within six months after its passage, all actions to contest tax
deeds which have been of record for two years, no unconstitutional
deprivation is effected.\39\ No less valid is a statute, applicable to
wild lands, which provides that when a person has been in possession
under a recorded deed continuously for 20 years and had paid taxes
thereon during the same, the former owner in that interval paying
nothing, no action to recover such land shall be entertained unless
commenced within 20 years, or before the expiration of five years
following enactment of said provi
[[Page 1700]]
sion.\40\ Similarly, an amendment to a workmen's compensation act,
limiting to three years the time within which a case may be reopened for
readjustment of compensation on account of aggravation of a disability,
does not deny due process to one who sustained his injury at a time when
the statute contained no limitation. A limitation is deemed to affect
the remedy only, and the period of its operation in this instance was
viewed as neither arbitrary nor oppressive.\41\
\38\Blinn v. Nelson, 222 U.S. 1 (1911).
\39\Turner v. New York, 168 U.S. 90, 94 (1897).
\40\Soper v. Lawrence Brothers, 201 U.S. 359 (1906). Nor is a
former owner who had not been in possession for five years after and
fifteen years before said enactment thereby deprived of any property
without due process.
\41\Mattson v. Department of Labor, 293 U.S. 151, 154 (1934).
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Moreover, as long as no agreement of the parties is violated, a
State may extend as well as shorten the time in which suits may be
brought in its courts and may even entirely remove a statutory bar to
the commencement of litigation. As applied to actions for personal
debts, a repeal or extension of a statute of limitations affects no
unconstitutional deprivation of property of a debtor-defendant in whose
favor such statute had already become a defense. ``A right to defeat a
just debt by the statute of limitation . . . [not being] a vested
right,'' such as is protected by the Constitution, accordingly no
offense against the Fourteenth Amendment is committed by revival,
through an extension or repeal, of an action on an implied obligation to
pay a child for the use of her property,\42\ or a suit to recover the
purchase price of securities sold in violation of a Blue Sky Law,\43\ or
a right of an employee to seek, on account of the aggravation of a
former injury, an additional award out of a state-administered fund.\44\
However, as respects suits to recover real and personal property, when
the right of action has been barred by a statute of limitations and
title as well as real ownership have become vested in the defendant, any
later act removing or repealing the bar would be void as attempting an
arbitrary transfer of title.\45\ Also unconstitutional is the
application of a statute of limitation to extend a period that parties
to a contract have agreed should limit their right to remedies under the
contract. ``When the parties to a contract have expressly agreed upon a
time limit on their obligation, a statute which invalidates . . . [said]
agreement and directs enforcement of the contract after . . . [the
agreed] time has expired'' unconstitutionally imposes a burden in excess
of that contracted.\46\
\42\Campbell v. Holt, 115 U.S. 620, 623, 628 (1885).
\43\Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945).
\44\Gange Lumber Co. v. Rowley, 326 U.S. 295 (1945).
\45\Campbell v. Holt, 115 U.S. 620, 623 (1885). See also Stewart
v. Keyes, 295 U.S. 403, 417 (1935).
\46\Home Ins. Co. v. Dick, 281 U.S. 397, 398 (1930).
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[[Page 1701]]
Evidence and Presumptions.--The establishment of presumptions
and rules respecting the burden of proof is clearly within the domain of
the legislative branch of government.\47\ Nonetheless, the due process
clause does impose limitations upon the power to provide for the
deprivation of liberty or property by a standard of proof too lax to
make reasonable assurance of accurate factfinding. Thus, ``[t]he
function of a standard of proof, as that concept is embodied in the Due
Process Clause and in the realm of factfinding, is to `instruct the
factfinder concerning the degree of confidence our society thinks he
should have in the correctness of factual conclusions for a particular
type of adjudication.'''\48\ Applying the formula it has worked out for
determining what process is due in a particular situation,\49\ the Court
has held that in a civil proceeding to commit an individual
involuntarily to a state mental hospital for an indefinite period, a
standard at least as stringent as clear and convincing evidence is
required.\50\ Because the interest of parents in retaining custody of
their children is fundamental, the State may not terminate parental
rights through reliance on a standard of preponderance of the evidence--
the proof necessary to award money damages in an ordinary civil action--
but must prove by clear and convincing evidence that the parents are
unfit.\51\ Unfitness of a parent may not simply be presumed because of
some purported assumption about general characteristics, but must be
established.\52\
\47\Hawkins v. Bleakly, 243 U.S. 210, 214 (1917); James-
Dickinson Co. v. Harry, 273 U.S. 119, 124 (1927). Congress' power to
provide rules of evidence and standards of proof in the federal courts
stems from its power to create such courts. Vance v. Terrazas, 444 U.S.
252, 264-67 (1980); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 31
(1976). In the absence of congressional guidance, the Court has
determined the evidentiary standard in certain statutory actions.
Nishikawa v. Dulles, 356 U.S. 129 (1958); Woodby v. INS, 385 U.S. 276
(1966).
\48\Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re
Winship, 397 U.S. 358, 370 (1970) (Justice Harlan concurring)).
\49\Mathews v. Eldridge, 424 U.S. 319 (1976).
\50\Addington v. Texas, 441 U.S. 418 (1979).
\51\Santosky v. Kramer, 455 U.S. 745 (1982). Four Justices
dissented, arguing that considered as a whole the statutory scheme
comported with due process. Id. at 770 (Justices Rehnquist, White,
O'Connor, and Chief Justice Burger). Application of the traditional
preponderance of the evidence standard is permissible in paternity
actions. Rivera v. Minnich, 483 U.S. 574 (1987).
\52\Stanley v. Illinois, 405 U.S. 645 (1972) (presumption that
unwed fathers are unfit parents). But see Michael H. v. Gerald D., 491
U.S. 110 (1989) (statutory presumption of legitimacy accorded to a child
born to a married woman living with her husband defeats the right of the
child's biological father to establish paternity and visitation rights).
---------------------------------------------------------------------------
As long as a presumption is not unreasonable and is not
conclusive of the rights of the person against whom raised, however, it
does not violate the due process clause. Legislative fiat may not take
the place of fact, though, in the determination of issues involv
[[Page 1702]]
ing life, liberty, or property, and a statute creating a presumption
which is entirely arbitrary and which operates to deny a fair
opportunity to repel it or to present facts pertinent to one's defense
is void.\53\ On the other hand, if there is a rational connection
between what is proved and what is inferred, legislation declaring that
the proof of one fact or group of facts shall constitute prima facie
evidence of a main or ultimate fact will be sustained.\54\
\53\Presumptions were voided in Bailey v. Alabama, 219 U.S. 219
(1911) (anyone breaching personal services contract guilty of fraud);
Manley v. Georgia, 279 U.S. 1 (1929) (every bank insolvency deemed
fraudulent); Western & Atlantic R.R. v. Henderson, 279 U.S. 639 (1929)
(collision between train and auto at grade crossing constitutes
negligence by railway company); Carella v. California, 491 U.S. 263
(1989) (conclusive presumption of theft and embezzlement upon proof of
failure to return a rental vehicle).
\54\Presumptions sustained include Hawker v. New York, 170 U.S.
189 (1898) (person convicted of felony unfit to practice medicine);
Hawes v. Georgia, 258 U.S. 1 (1922) (person occupying property presumed
to have knowledge of still found on property); Bandini Co. v. Superior
Court, 284 U.S. 8 (1931) (release of natural gas into the air from well
presumed wasteful); Atlantic Coast Line R.R. v. Ford, 287 U.S. 502
(1933) (rebuttable presumption of railroad negligence for accident at
grade crossing). See also Morrison v. California, 291 U.S. 82 (1934).
---------------------------------------------------------------------------
For a brief period, the Court utilized what it called the
``irrebuttable presumption doctrine'' to curb the legislative tendency
to confer a benefit or to impose a detriment, depending for its
application upon the establishment of certain characteristics from which
the existence of other characteristics are presumed.\55\ Thus, as noted,
in Stanley v. Illinois,\56\ the Court found invalid a construction of
the state statute that presumed illegitimate fathers to be unfit parents
and that prevented them from objecting to state wardship. Mandatory
maternity leave rules of school boards requiring pregnant teachers to
take unpaid maternity leave five and four months respectively prior to
the date of the expected births of their babies were voided as creating
a conclusive presumption that every pregnant teacher who reaches a
particular point of pregnancy becomes physically incapable of
teaching.\57\ Major controversy developed over application of the
doctrine in benefits cases. Thus, while a State may require that
nonresidents must pay higher tuition charges at state colleges than
residents, and while the Court assumed that a durational residency
requirement would be permissible as a prerequisite to qualify for the
lower tuition, it was held impermissible for the State to presume
conclusively that because
[[Page 1703]]
the legal address of a student was outside the State at the time of
application or at some point during the preceding year he was a
nonresident as long as he remained a student. The due process clause
required that the student be afforded the opportunity to show that he is
or has become a bona fide resident entitled to the lower tuition.\58\
\55\The approach was not unprecedented, some older cases having
voided tax legislation that presumed conclusively an ultimate fact.
Schlesinger v. Wisconsin, 270 U.S. 230 (1926) (deeming any gift made by
decedent within six years of death to be a part of estate denies
estate's right to prove gift was not made in contemplation of death);
Heiner v. Donnan, 285 U.S. 312 (1932); Hoeper v. Tax Comm'n, 284 U.S.
206 (1931).
\56\405 U.S. 645 (1972).
\57\Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974).
\58\Vlandis v. Kline, 412 U.S. 441 (1973).
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Moreover, a food stamp program provision making ineligible any
household that contained a member age 18 or over who was claimed as a
dependent for federal income tax purposes the prior tax year by a person
not himself eligible for stamps was voided on the ground that it created
a conclusive presumption that fairly often could be shown to be false if
evidence could be presented.\59\ The rule which emerged for subjecting
persons to detriment or qualifying them for benefits was that the
legislature may not presume the existence of the decisive characteristic
upon a given set of facts, unless it can be shown that the defined
characteristics do in fact encompass all persons and only those persons
that it was the purpose of the legislature to reach. The doctrine in
effect afforded the Court the opportunity to choose between resort to
the equal protection clause or to the due process clause in judging the
validity of certain classifications,\60\ and it precluded Congress and
legislatures from making general classifications that avoided the
administrative costs of individualization in many areas.
\59\Department of Agriculture v. Murry, 413 U.S. 508 (1973).
\60\Thus, on the some day Murry was decided, a similar food
stamp qualification was struck down on equal protection grounds.
Department of Agriculture v. Moreno, 413 U.S. 528 (1973).
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Utilization of the doctrine was curbed, if not halted, in
Weinberger v. Salfi,\61\ in which the Court upheld the validity of a
Social Security provision requiring as a qualification of receipt of
benefits as a spouse of a covered wage earner that one must have been
married to the wage earner for at least nine months prior to his death.
Purporting to approve but to distinguish the prior cases in the
line,\62\ the Court rather imported traditional equal protection
analysis into considerations of due process challenges to statutory
classifications.\63\ ``Extensions'' of the prior cases to government
entitlement classifications, such as the Social Security Act
qualification
[[Page 1704]]
standard before it, would, said the Court, ``turn the doctrine of those
cases into a virtual engine of destruction for countless legislative
judgments which have heretofore been thought wholly consistent with the
Fifth and Fourteenth Amendments to the Constitution.''\64\ Whether the
Court will now limit the doctrine to the detriment area only, exclusive
of benefit programs, whether it will limit it to those areas which
involve fundamental rights or suspect classifications, in the equal
protection sense of those expressions,\65\ or whether it will simply
permit the doctrine to pass from the scene remains unsettled, but it is
noteworthy that it now rarely appears on the Court's docket.\66\
\61\422 U.S. 749 (1975).
\62\Stanley and LaFleur were distinguished as involving
fundamental rights of family and childbearing, id. at 771, and Murry was
distinguished as involving an irrational classification. Id. at 772.
Vlandis, said Justice Rehnquist for the Court, meant no more than that
when a State fixes residency as the qualification it may not deny to one
meeting the test of residency the opportunity so to establish it. Id. at
771. But see id. at 802-03 (Justice Brennan dissenting).
\63\Id. at 768-70, 775-77, 785 (utilizing Dandridge v. Williams,
397 U.S. 471 (1970), Richardson v. Belcher, 404 U.S. 78 (1971), and
similar cases).
\64\Weinberger v. Salfi, 422 U.S. 749, 772 (1975).
\65\Vlandis, which was approved but distinguished, is only
marginally in this doctrinal area, involving as it does a right to
travel feature, but it is like Salfi and Murry in its benefit context
and order of presumption. The Court has avoided deciding whether to
overrule, retain, or further limit Vlandis. Elkins v. Moreno, 435 U.S.
647, 658-62 (1978).
\66\In Turner v. Department of Employment Security, 423 U.S. 44
(1975), decided after Salfi, the Court voided under the doctrine a
statute making pregnant women ineligible for unemployment compensation
for a period extending from 12 weeks before the expected birth until six
weeks after childbirth. But see Usery v. Turner Elkhorn Mining Co., 428
U.S. 1 (1977) (provision granting benefits to miners ``irrebuttably
presumed'' to be disabled is merely a way of giving benefits to all
those with the condition triggering the presumption); Califano v. Boles,
443 U.S. 282, 284-85 (1979) (Congress must fix general categorization;
case-by-case determination would be prohibitively costly).
---------------------------------------------------------------------------
Jury Trials.--Trial by jury in civil trials, unlike the case in
criminal trials, has not been deemed essential to due process, and the
Fourteenth Amendment has not been held to restrain the States in
retaining or abolishing civil juries.\67\ Thus, abolition of juries in
proceedings to enforce liens,\68\ mandamus\69\ and quo warranto\70\
actions, and in eminent domain\71\ and equity\72\ proceedings has been
approved. States are free to adopt innovations respecting selection and
number of jurors. Verdicts rendered by ten out of twelve jurors may be
substituted for the requirement of unanimity,\73\ and petit juries
containing eight rather than the conventional number of twelve members
may be established.\74\
\67\Walker v. Sauvinet, 92 U.S. 90 (1876); New York Central R.R.
v. White, 243 U.S. 188, 208 (1917).
\68\Marvin v. Trout, 199 U.S. 212, 226 (1905).
\69\In re Delgado, 140 U.S. 586, 588 (1891).
\70\Wilson v. North Carolina, 169 U.S. 586 (1898); Foster v.
Kansas, 112 U.S. 201, 206 (1884).
\71\Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 694
(1897).
\72\Montana Co. v. St. Louis M. & M. Co., 152 U.S. 160, 171
(1894).
\73\See Jordan v. Massachusetts, 225 U.S. 167, 176 (1912).
\74\See Maxwell v. Dow, 176 U.S. 581, 602 (1900).
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Appeals.--If a full and fair trial on the merits is provided,
due process does not require a State to provide appellate review.\75\
But
[[Page 1705]]
if an appeal is afforded, the State must not so structure it as to
arbitrarily deny to some persons the right or privilege available to
others.\76\
\75\Lindsey v. Normet, 405 U.S. 56, 77 (1972) (citing cases).
\76\Id. at 74-79 (conditioning appeal in eviction action upon
tenant posting bond, with two sureties, in twice the amount of rent
expected to accrue pending appeal, is invalid when no similar provision
is applied to other cases). Cf. Bankers Life & Casualty Co. v. Crenshaw,
486 U.S. 71 (1988) (assessment of 15% penalty on party who
unsuccessfully appeals from money judgment meets rational basis test
under equal protection challenge, since it applies to plaintiffs and
defendants alike and does not single out one class of appellants).
---------------------------------------------------------------------------
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
PROCEDURAL DUE PROCESS: CIVIL
Jurisdiction
Generally.--Jurisdiction may be defined as the power to create
legal interests. In the famous case of Pennoyer v. Neff,\77\ the Court
enunciated two principles of jurisdiction respecting the States in a
federal system. First, ``every State possesses exclusive jurisdiction
and sovereignty over persons and property within its territory,'' and,
second, ``no State can exercise direct jurisdiction and authority over
persons or property without its territory.''\78\ Although these two
principles were drawn from the writings of Joseph Story refining the
theories of continental jurists,\79\ the constitutional basis for them
was deemed to be in the due process clause of the Fourteenth
Amendment.\80\ From these beginnings, the Court developed a complex set
of rules defining when jurisdiction--physical power--could be exerted
over persons through in personam actions and over things, generally,
through actions in rem.\81\
\77\95 U.S. 714 (1878).
\78\Id. at 722.
\79\Hazard, A General Theory of State-Court Jurisdiction, 1965
Sup. Ct. Rev. 241, 252-62.
\80\Pennoyer v. Neff, 95 U.S. 714, 733-35 (1878). The due
process clause and the remainder of the Fourteenth Amendment had not
been ratified at the time of the entry of the state-court judgment
giving rise to the case. This inconvenient fact does not detract from
the subsequent settled utilization of this constitutional foundation.
Pennoyer denied full faith and credit to the judgment because the state
lacked jurisdiction.
\81\Pennoyer v. Neff, 95 U.S. 714, 733 (1878); Scott v. McNeal,
154 U.S. 34, 64 (1894).
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In proceedings in personam to determine liability of a
defendant, no property having been subjected by such litigation to the
control of the court, jurisdiction over the defendant's person is a
condition prerequisite to the rendering of any effective decree.\82\
That condition is fulfilled, that is, a State is deemed capable of
exerting jurisdiction over an individual if he is physically present
within the territory of the State, if he is domiciled in the State
although temporarily absent therefrom, or if he has consented to the
[[Page 1706]]
exercise of jurisdiction over him. In actions in rem, however, a State
could validly proceed to settle controversies with regard to rights or
claims against property within its borders, notwithstanding that control
of the defendant was never obtained. Accordingly, by reason of its
inherent authority over titles to land within its territorial confines,
a State could proceed through its courts to judgment respecting the
ownership of such property, even though it lacked a constitutional
competence to reach claimants of title who resided beyond its
borders.\83\ By the same token, probate\84\ and garnishment of foreign
attachment\85\ proceedings, being in the nature of in rem actions for
the disposition of property, or quasi in rem, might be prosecuted to
conclusion without requiring the presence of all parties in
interest.\86\
\82\National Exchange Bank v. Wiley, 195 U.S. 257, 270 (1904);
Iron Cliffs Co. v. Negaunee Iron Co., 197 U.S. 463, 471 (1905).
\83\Arndt v. Griggs, 134 U.S. 316, 321 (1890); Grannis v.
Ordean, 234 U.S. 385 (1914); Pennington v. Fourth Nat'l Bank, 243 U.S.
269, 271 (1917).
\84\Goodrich v. Ferris, 214 U.S. 71, 80 (1909).
\85\Pennington v. Fourth Nat'l Bank, 243 U.S. 269, 271 (1917);
Harris v. Balk, 198 U.S. 215 (1905).
\86\The jurisdictional requirements for rendering a valid
divorce decree are considered under the full faith and credit clause.
Supra, pp. 840-50.
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Over a long period of time, the mobility of American society and
the increasing complexity of commerce led to attenuation of the second
principle of Pennoyer,\87\ and beginning with International Shoe Co. v.
Washington,\88\ the Court established the modern standard of obtaining
in personam jurisdiction based upon the nature and the quality of
contacts that individuals and corporations have with a State; this
``minimum contacts'' test permits the courts of a State through process
to obtain power over out-of-state defendants. In recent cases, the
``minimum contacts'' test has been held applicable to all assertions of
jurisdiction, so that in rem and quasi-in-rem proceedings must now be
evaluated in the context of the defendant's relationship to the State in
which the suit is being brought.\89\
\87\The first principle, that a State may assert jurisdiction
over anyone or anything physically within its borders, no matter how
briefly there--the so-called ``transient'' rule of jurisdiction--
McDonald v. Mabee, 243 U.S. 90, 91 (1917), remains valid, although in
Shaffer v. Heitner, 433 U.S. 186, 204 (1977), the Court's dicta appeared
to assume it is not.
\88\326 U.S. 310 (1945). As the Court explained in McGee v.
International Life Ins. Co., 355 U.S. 220, 223 (1957), ``[w]ith this
increasing nationalization of commerce has come a great increase in the
amount of business conducted by mail across state lines. At the same
time modern transportation and communication have made it much less
burdensome for a party sued to defend himself in a State where he
engages in economic activity.'' See World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286, 293 (1980).
\89\Shaffer v. Heitner, 433 U.S. 186 (1977); World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980); Rush v. Savchuk, 444
U.S. 320 (1980); Kulko v. Superior Court, 436 U.S. 84 (1978).
---------------------------------------------------------------------------
[[Page 1707]]
Basis for the territorial concept of jurisdiction promulgated in
Pennoyer and modified over the years is a two-fold construction of due
process: a concern for ``fair play and substantial justice'' involved in
requiring defendants to litigate cases against them far from their
``home'' or place of business\90\ and, more important, a concern for the
preservation of federalism.\91\ The Framers, the Court has asserted,
while intending to tie the States together into a Nation, ``also
intended that the States retain many essential attributes of
sovereignty, including, in particular, the sovereign power to try causes
in their courts. The sovereignty of each State, in turn, implied a
limitation on the sovereignty of all its sister States--a limitation
express or implicit in both the original scheme of the Constitution and
the Fourteenth Amendment.''\92\ Thus, the federalism principle is
preeminent. ``[T]he Due Process Clause `does not contemplate that a
state may make binding a judgment in personam against an individual or
corporate defendant with which the state has no contacts, ties, or
relations.' . . . Even if the defendant would suffer minimal or no
inconvenience from being forced to litigate before the tribunals of
another State; even if the forum State has a strong interest in applying
its law to the controversy; even if the forum State is the most
convenient location for litigation, the Due Process Clause, acting as an
instrument of interstate federalism, may sometimes act to divest the
State of its power to render a valid judgment.''\93\
\90\International Shoe Co. v. Washington, 326 U.S. 310, 316, 317
(1945); Travelers Health Ass'n v. Virginia ex rel. State Corp. Comm.,
339 U.S. 643, 649 (1950); Shaffer v. Heitner, 433 U.S. 186, 204 (1977).
\91\International Shoe Co. v. Washington, 326 U.S. 310, 319
(1945); Hanson v. Denckla, 357 U.S. 235, 251 (1958).
\92\World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293
(1980).
\93\Id. at 294 (internal quotation from International Shoe Co.
v. Washington, 326 U.S. 310, 319 (1945)).
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In Personam Proceedings Against Individuals.--As has been noted,
presence within the State with service of process is sufficient to
create personal jurisdiction over an individual.\94\ In the case of a
resident, absence alone will not defeat the processes of courts in the
State of his domicile; domicile alone is deemed to be sufficient to keep
him within reach of the state courts for purposes of a personal
judgment, whether obtained by means of appropriate, substituted service
or by actual personal service on the resident
[[Page 1708]]
outside the State.\95\ However, if the defendant, although technically
domiciled therein, has left the State with no intention to return,
service by publication, as compared to a summons left at his last and
usual place of abode where his family continued to reside, is
inadequate, inasmuch as it is not reasonably calculated to give actual
notice of the proceedings and opportunity to be heard.\96\
\94\McDonald v. Mabee, 243 U.S. 90, 91 (1917). Cf. Michigan
Trust Co. v. Ferry, 228 U.S. 346 (1913). The rule has been strongly
criticized but persists. Ehrenzweig, The Transient Rule of Personal
Jurisdiction: The ``Power'' Myth and Forum Conveniens, 65 Yale L. J. 289
(1956). But in Burnham v. Superior Court, 495 U.S. 604 (1990), the Court
held that service of process on a nonresident physically present within
the state satisfies due process regardless of the duration or purpose of
the nonresident's visit.
\95\Milliken v. Meyer, 311 U.S. 457 (1940).
\96\McDonald v. Mabee, 243 U.S. 90 (1917).
---------------------------------------------------------------------------
With respect to a nonresident, it is clearly established that no
person can be deprived of property rights by a decree in a case in which
he neither appeared nor was served or effectively made a party.\97\ The
early cases held that the process of a court of one State could not run
into another and summon a party there domiciled to respond to
proceedings against him, when neither his person nor his property was
within the jurisdiction of the court rendering the judgment.\98\ The
attenuation of the rule proceeded in steps. Consent was, of course,
sufficient to create jurisdiction, even in the absence of any other
connection between the litigation and the forum, and for example, the
appearance of the defendant for any purpose other than to challenge the
jurisdiction of the court was deemed a voluntary submission to the
court's power,\99\ and even a special appearance may be treated as
consensual submission to the court.\100\ Constructive consent,
therefore, was seized upon as a basis for obtaining jurisdiction, and,
with the advent of the automobile, States were permitted, under the
fiction of conditioning the use of their highways on receipt of consent
to be sued in state courts for accidents or other transactions arising
out of such use, to designate a state official as a proper person to
receive service of process in such litigation, provided only that the
official receiving notice is obligated to communicate it to the person
sued.\101\ Although the Court verbalized the result in consent terms,
the basis was really the State's power to regulate local acts dangerous
to life or property.\102\ This extension was necessary in order
[[Page 1709]]
to permit States to assume jurisdiction over individuals ``doing
business'' within the State, inasmuch as the State could not withhold
from nonresident individuals the right of doing business subject to
consent to be sued.\103\ Thus, the Court soon recognized that ``doing
business'' within a State was itself a sufficient basis for jurisdiction
over a nonresident individual, at least where the business done was
exceptional enough to create a strong state interest in regulation, and
service could be effectuated within the State on an agent appointed to
carry out the business.\104\
\97\Rees v. Watertown, 86 U.S. (19 Wall.) 107 (1874); Coe v.
Armour Fertilizer Works, 237 U.S. 413, 423 (1915); Griffin v. Griffin,
327 U.S. 220 (1946).
\98\Sugg v. Thornton, 132 U.S. 524 (1889); Riverside Mills v.
Menefee, 237 U.S. 189, 193 (1915); Hess v. Pawloski, 274 U.S. 352, 355
(1927). See also Harkness v. Hyde, 98 U.S. 476 (1879); Wilson v.
Seligman, 144 U.S. 41 (1892).
\99\Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230 (1900);
Western Loan & Savings Co. v. Butte & Boston Min. Co., 210 U.S. 368
(1908); Houston v. Ormes, 252 U.S. 469 (1920). See also Adam v. Saenger,
303 U.S. 59 (1938) (plaintiff suing defendants deemed to have consented
to jurisdiction with respect to counterclaims asserted against him).
\100\York v. Texas, 137 U.S. 15 (1890); Kauffman v. Wootters,
138 U.S. 285 (1891); Western Indemnity Co. v. Rupp, 235 U.S. 261 (1914).
\101\Hess v. Pawloski, 274 U.S. 352 (1927): Wuchter v. Pizzutti,
276 U.S. 13 (1928); Olberding v. Illinois Central R. Co., 346 U.S. 338,
341 (1953).
\102\Hess v. Pawloski, 274 U.S. 352, 356-57 (1927).
\103\Id. at 355. See Flexner v. Farson, 248 U.S. 289, 293
(1919).
\104\Henry L. Doherty & Co. v. Goodman, 294 U.S. 623 (1935).
---------------------------------------------------------------------------
Culmination of the trend was, of course, the promulgation in
International Shoe Co. v. Washington,\105\ a corporations case, of the
``minimum contacts'' test of jurisdiction. In the context of in personam
jurisdiction over individuals, the test is illustrated by Kulko v.
Superior Court,\106\ in which the Court held that California could not
obtain personal jurisdiction over a New York resident whose sole
relevant contact with the State was to send his daughter to live with
her mother in California.\107\ ``Like any standard that requires a
determination of `reasonableness,' the `minimum contacts' test . . . is
not susceptible of mechanical application; rather, the facts of each
case must be weighed to determine whether the requisite `affiliating
circumstances' are present.''\108\ Without deciding that the standard
was relevant, the Court noted that the ``effects'' test of contacts,
that Kulko had ``caused an effect'' in the State by availing himself of
the benefits and protections of California's laws and by deriving an
economic benefit in the lessened expense of maintaining the daughter in
New York, was not applicable; it was deemed by the Court to involve
wrongful activity outside a State which causes injury within the State
or commercial activity affecting state residents, factors not present in
this case. Any economic benefit to Kulko was derived in New York and not
in California.\109\ As with many such cases, the decision was narrowly
limited to its facts and does little to clarify the standards applicable
to state jurisdiction over nonresidents.
\105\326 U.S. 310, 316 (1945).
\106\436 U.S. 84 (1978).
\107\Kulko had visited the State twice, seven and six years
respectively before initiation of the present action, his marriage
occurring in California on the second visit, but neither the visits nor
the marriage was sufficient or relevant to jurisdiction. Id. at 92-93.
\108\Id. at 92.
\109\Id. at 96-98.
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[[Page 1710]]
Suability of Foreign Corporations.--Because of the curious
status of corporations in American law,\110\ the basis of the assertion
of jurisdiction of the courts of a State over a foreign corporation has
been even more uncertain than that with respect to individuals, although
the terms have been common. First, it was asserted that inasmuch as a
corporation could not carry on business in a State without the State's
permission, the State could condition its permission upon the
corporation's consent to submit to the jurisdiction of the State's
courts, either by appointment of someone to receive process or in the
absence of such designation.\111\ Second, the corporation by doing
business in a State was deemed to be present there and thus subject to
service of process and suit because it was present.\112\ Presence
conflicted with the prevailing idea of corporations as having no
existence outside their State of incorporation, but the theory was
nonetheless accepted that a corporation ``doing business'' in a State to
a sufficient degree was ``present'' for service of process upon its
agents in the State who carried out that business.\113\ Generally, with
rare exceptions, even continuous activity of some sort by a foreign
corporation within a State did not suffice to render it amenable to
suits therein unrelated to that activity. Without the protection of such
a rule, it was maintained, foreign corporations would be exposed to the
manifest hardship and inconvenience of defending, in any State in which
they happened to be carrying on business, suits for torts wherever
committed and claims on contracts wherever made.\114\ And if the
corporation stopped doing business in the forum State before suit
against it was commenced, it might well escape jurisdiction alto
[[Page 1711]]
gether.\115\ The issue of the degree of activity required, in particular
the degree of solicitation necessary to constitute doing business by a
foreign corporation, was much disputed and led to very particularistic
holdings.\116\ In the absence of enough activity to constitute doing
business, the mere presence within its territorial limits of an agent,
officer, or stockholder, upon whom service might readily be had, was not
effective to enable a State to acquire jurisdiction over the foreign
corporation.\117\
\110\Cf. Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 588
(1839) (corporation has no legal existence outside the boundaries of the
State chartering it).
\111\Lafayette Ins. Co. v. French, 59 U.S. (18 How.) 404 (1855);
St. Clair v. Cox, 196 U.S. 350 (1882); Commercial Mutual Accident Co. v.
Davis, 213 U.S. 245 (1909); Simon v. Southern Ry., 236 U.S. 115 (1915);
Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U.S.
93 (1917).
\112\Presence was first independently used to sustain
jurisdiction in International Harvester Co. v. Kentucky, 234 U.S. 579
(1914), although the possibility was suggested as early as St. Clair v.
Cox, 106 U.S. 350 (1882). See also Philadelphia & Reading Ry. v.
McKibbin, 243 U.S. 264, 265 (1917) (Justice Brandeis for Court).
\113\E.g., Pennsylvania Fire Ins. Co. v. Gold Issue Mining &
Milling Co., 243 U.S. 93 (1917); St. Louis S. W. Ry. v. Alexander, 227
U.S. 218 (1913).
\114\E.g., Old Wayne Life Ass'n v. McDonough, 204 U.S. 8 (1907);
Simon v. Southern Railway, 236 U.S. 115, 129-130 (1915); Green v.
Chicago, B. & Q. Ry., 205 U.S. 530 (1907); Rosenberg Co. v. Curtis Brown
Co., 260 U.S. 516 (1923); Davis v. Farmers Co-operative Co., 262 U.S.
312 (1923); Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408
(1984). Continuous operations were sometimes sufficiently substantial
and of a nature to warrant assertions of jurisdiction. St. Louis S. W.
Ry. v. Alexander, 227 U.S. 218 (1913).
\115\Robert Mitchell Furn. Co. v. Selden Breck Constr. Co., 257
U.S. 213 (1921): Chipman, Ltd. v. Thomas B. Jeffery Co., 251 U.S. 373,
379 (1920). On a consent theory, jurisdiction would continue. Washington
ex rel Bond & Goodwin & Tucker v. Superior Court, 289 U.S. 361, 364
(1933).
\116\Solicitation of business alone was inadequate to constitute
``doing business,'' Green v. Chicago, B. & Q. Ry., 205 U.S. 530 (1907),
but when connected with other activities would suffice to confer
jurisdiction. International Harvester Co. v. Kentucky, 234 U.S. 579
(1914). See the survey of cases by Judge Hand in Hutchinson v. Chase and
Gilbert, 45 F.2d 139, 141-42 (2d Cir. 1930).
\117\E.g. Goldey v. Morning News, 156 U.S. 518 (1895); Conley v.
Mathieson Alkali Works, 190 U.S. 406 (1903); Riverside Mills v. Menefee,
237 U.S. 189, 195 (1915). But see Connecticut Mutual Life Ins. Co. v.
Spratley, 172 U.S. 602 (1899).
---------------------------------------------------------------------------
The rationales and premises of these cases were swept away in
International Shoe Co. v. Washington,\118\ although, of course, the
results in many of them would stand on the basis of the ``minimum
contacts'' analysis there adopted. International Shoe, a foreign
corporation, had not been issued a license to do business in the State,
but it systematically and continuously employed a force of salesmen,
residents thereof, to canvass for orders therein, and was held suable in
Washington for unpaid unemployment compensation contributions in respect
to such salesmen. Service of the notice of assessment personally upon
one of its local sales solicitors plus the forwarding of a copy thereof
by registered mail to the corporation's principal office in Missouri was
deemed sufficient to apprise the corporation of the proceeding.
\118\326 U.S. 310 (1945).
---------------------------------------------------------------------------
To reach this conclusion the Court not only overturned prior
holdings to the effect that mere solicitation of patronage does not
constitute doing of business in a state sufficient to subject a foreign
corporation to the jurisdiction thereof,\119\ but also rejected the
``presence'' test as begging ``the question to be decided. . . . The
terms `present' or `presence,''' according to Chief Justice Stone, ``are
used merely to symbolize those activities of the corporation's agent
within the State which courts will deem to be sufficient to satisfy the
demands of due process. . . . Those demands may be met by
[[Page 1712]]
such contacts of the corporation with the State of the forum as make it
reasonable, in the context of our federal system . . . , to require the
corporation to defend the particular suit which is brought there; [and]
. . . that the maintenance of the suit does not offend `traditional
notions of fair play and substantial justice'. . . . An `estimate of the
inconveniences' which would result to the corporation from a trial away
from its `home' or principal place of business is relevant in this
connection.''\120\ As to the scope of application to be accorded this
``fair play and substantial justice'' doctrine, the Court, at least
verbally, concluded that ``so far as . . . [corporate] obligations arise
out of or are connected with activities within the State, a procedure
which requires the corporation to respond to a suit brought to enforce
them can, in most instances, hardly be said to be undue.''\121\ Read
literally, these statements coupled with the terms of the new doctrine
lead to a reversal of former decisions which: (1) nullified the exercise
of jurisdiction by the forum State over actions arising outside the
State and brought by a resident plaintiff against a foreign corporation
doing business therein without having been legally admitted and without
having consented to service of process of a resident agent; and (2)
exempted a foreign corporation, which has been licensed by the forum
State to do business therein and has consented to the appointment of a
local agent to accept process, from suit on an action not arising in the
forum State and not related to activities pursued therein.
\119\This departure was recognized by Justice Rutledge
subsequently in Nippert v. City of Richmond, 327 U.S. 416, 422 (1946).
Inasmuch as International Shoe, in addition to having its agents solicit
orders, also permitted them to rent quarters for the display of
merchandise, the Court could have utilized International Harvester Co.
v. Kentucky, 234 U.S. 579 (1914), to find it was ``present'' in the
State.
\120\International Shoe Co. v. Washington, 326 U.S. 310, 316-17
(1945).
\121\Id. at 319.
---------------------------------------------------------------------------
By an extended application of the logic of the position, a
majority of the Court ruled that, notwithstanding that it solicited
business in Virginia solely through recommendations of existing members
and was represented therein by no agents whatsoever, a foreign mail
order insurance company had through its policies developed such contacts
and ties with Virginia residents that the State, by forwarding notice to
the company by registered mail only, could institute enforcement
proceedings under its Blue Sky Law leading to a decree ordering
cessation of business pending compliance with that act.\122\ The due
process clause was declared not to ``forbid a State to protect its
citizens from such injustice'' of having to file suits on their claims
at a far distant home office of such company,
[[Page 1713]]
especially in view of the fact that such suits could be more
conveniently tried in Virginia where claims of loss could be
investigated.\123\ Likewise, under a California statute, subjecting
foreign mail order insurance companies to suit in California on
insurance contracts with residents thereof, petitioner was enabled to
obtain a valid judgment in a California court against a Texas insurer
served only by registered mail.\124\ The contract between the company
and the insured specified that Austin, Texas, was the place of
``making'' and the place where liability should be deemed to arise. The
company mailed premium notices to the insured in California, and he
mailed his premium payments to the company in Texas. Acknowledging that
the connection of the company with California was tenuous--it had no
office or agents in the State, no evidence had been presented that it
had solicited anyone other than this insured for business--the Court
sustained jurisdiction on the basis that the suit was on a contract
which had a substantial connection with California. ``The contract was
delivered in California, the premiums were mailed there and the insured
was a resident of that State when he died. It cannot be denied that
California has a manifest interest in providing effective means of
redress for its residents when their insurers refuse to pay
claims.''\125\
\122\Travelers Health Ass'n v. Virginia ex rel. State Corp.
Comm'n, 339 U.S. 643 (1950). The decision was 5-to-4 with one of the
majority Justices also contributing a concurring opinion. Id. at 651
(Justice Douglas). The possible significance of the concurrence is that
it appears to disagree with the implication of the majority opinion, id.
at 647-48, that a State's legislative jurisdiction and its judicial
jurisdiction are coextensive. Id. at 652-53 (distinguishing between the
use of the State's judicial power to enforce its legislative powers and
the judicial jurisdiction when a private party is suing). See id. at 659
(dissent).
\123\Id. at 647-49. The holding in Minnesota Commercial Men's
Ass'n v. Benn, 261 U.S. 140 (1923), that a similar mail order insurance
company could not be viewed as doing business in the forum State and
that the circumstances under which its contracts with forum State
citizens, executed and to be performed in its State of incorporation,
were consummated could not support an implication that the foreign
company had consented to be sued in the forum State, was distinguished
rather than formally overruled. 339 U.S. at 647. In any event, Benn,
although unmentioned in the opinion, could not survive McGee v.
International Life Ins. Co., 355 U.S. 220 (1957).
\124\McGee v. International Life Ins. Co., 355 U.S. 220 (1957).
\125\Id. at 223. The Court also noticed the proposition that the
insured could not bear the cost of litigation away from home as well as
the insurer. See also Perkins v. Benguet Consolidating Mining Co., 342
U.S. 437 (1952), a case too atypical on its facts to permit much
generalization but which does appear to verify the implication of
International Shoe that in personam jurisdiction may attach to a
corporation even where the cause of action does not arise out of the
business done by defendant in the forum State, as well as to state, in
dictum, that the mere presence of a corporate official within the State
on business of the corporation would suffice to create jurisdiction if
the claim arose out of that business and service were made on him within
the State. Id. at 444-45. The Court held that the State could, but was
not required to, assert jurisdiction over a corporation owning gold and
silver mines in the Philippines but temporarily (because of the Japanese
occupation) carrying on a part of its general business in the forum
State, including directors' meetings, business correspondence, banking,
and the like, although it owned no mining properties in the State.
---------------------------------------------------------------------------
``Looking back over the long history of litigation a trend is
clearly discernible toward expanding the permissible scope of state
[[Page 1714]]
jurisdiction over foreign corporations and other nonresidents.''\126\
However, during the same Term, the Court found in personam jurisdiction
lacking for the first time since International Shoe, and after a long
period of declining to review the exercise of state court jurisdiction
the Court pronounced firm due process limitations. Thus, in Hanson v.
Denckla,\127\ the issue was whether Florida courts obtained through use
of ordinary mail and publication jurisdiction over corporate trustees of
property the subject of a contest over a will; the will had been entered
into and probated in Florida, the trustees were resident in Delaware and
were indispensable parties with claimants who were resident in Florida
and who had been personally served. Noting the trend in enlarging the
ability of the States to obtain in personam jurisdiction over absent
defendants, the Court denied that the States could exercise nationwide
in personam jurisdiction and said that ``it would be a mistake to assume
that this trend heralds the eventual demise of all restrictions on the
personal jurisdiction of state courts.''\128\ The Court recognized that
Florida law was the most appropriate law to be applied in determining
the validity of the will and that the corporate defendants might be
little inconvenienced by having to appear in Florida courts, but it
denied that either circumstance satisfied the due process clause. The
due process restrictions did more than guarantee immunity from
inconvenient or distant litigation. ``They are consequences of
territorial limitations on the power of the respective States. However
minimal the burden of defending in a foreign tribunal, a defendant may
not be called upon to do so unless he has the `minimum contacts' with
that State that are a prerequisite to its exercise of power over him.''
The only contacts the corporate defendants had in Florida consisted of a
relationship with the individual defendants. ``The unilateral activity
of those who claim some relationship with a nonresident defendant cannot
satisfy the requirement of contact with the forum State. The application
of that rule will vary with the quality and nature of the defendant's
activity, but it is essential in each case that there be some act by
which the defendant purposefully avails himself of the
[[Page 1715]]
privilege of conducting activities within the forum State, thus invoking
the benefits and protections of its laws. . . . The settlor's execution
in Florida of her power of appointment cannot remedy the absence of such
an act in this case.''\129\
\126\McGee v. International Life Ins. Co., 355 U.S. 220, 222
(1957). An exception exists with respect to in personam jurisdiction in
domestic relations cases, at least in some instances. E.g., Vanderbilt
v. Vanderbilt, 354 U.S. 416 (1957) (holding that sufficient contacts
afforded Nevada in personam jurisdiction over a New York resident wife
for purposes of dissolving the marriage but Nevada did not have
jurisdiction to terminate the wife's claims for support).
\127\357 U.S. 235 (1958). The decision was 5-to-4. See id. at
256 (Justice Black dissenting), 262 (Justice Douglas dissenting).
\128\Id. at 251. In dissent, Justice Black observed that ``of
course we have not reached the point where state boundaries are without
significance and I do not mean to suggest such a view here.'' Id. at
260.
\129\Id. at 251, 253-54. Justice Black argued that the
relationship of the nonresident defendants, of the subject of the
litigation to the forum State, upon an analogy of choice of law and
forum non conveniens, made Florida the natural and constitutional basis
for asserting jurisdiction. Id. at 258-59. The Court has numerous times
asserted that contacts sufficient for the purpose of designating a
particular State's law as appropriate may be insufficient for the
purpose of asserting jurisdiction. See Shaffer v. Heitner, 433 U.S. 186,
215 (1977); Kulko v. Superior Court, 436 U.S. 84, 98 (1978); World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 294-95 (1980). On the due
process limits on choice of law decisions, see Allstate Insurance Co. v.
Hague, 449 U.S. 302 (1981).
---------------------------------------------------------------------------
In World-Wide Volkswagen Corp. v. Woodson,\130\ the Court
applied its ``minimum contacts'' test to preclude the assertion of
jurisdiction over two foreign corporations that did no business in the
forum State. Plaintiffs sustained personal injuries in Oklahoma in an
accident involving an alleged defect in their automobile, which they had
purchased the previous year in New York, while they were New York
residents, and which they were driving through Oklahoma on their way to
a new residence in Arizona. Defendants were the automobile retailer and
its wholesaler, New York corporations that did no business in Oklahoma.
The Court found no circumstances justifying assertion by Oklahoma courts
of jurisdiction over defendants. They (1) carried on no activity in
Oklahoma, (2) closed no sales and performed no services there, (3)
availed themselves of none of the benefits of the State's laws, (4)
solicited no business there either through salespersons or through
advertising reasonably calculated to reach the State, and (5) sold no
cars to Oklahoma residents or indirectly served or sought to serve the
Oklahoma market. The unilateral action of the purchasers in driving the
car to Oklahoma was insufficient to create the kinds of requisite
contacts. While it might have been foreseeable that the automobile would
travel to Oklahoma, foreseeability is relevant only insofar as ``the
defendant's conduct and connection with the forum State are such that he
should reasonably anticipate being haled into court there.''\131\
Further, ``whatever marginal revenues petitioners may receive by virtue
of the fact that their products are capable of use in Oklahoma is far
too attenuated a contact to justify that State's exercise of in personam
jurisdiction over them.''\132\ Thus, a defendant must, as the Court said
in Denckla, ``purposefully [avail] itself of the privilege of conducting
activities within the
[[Page 1716]]
forum State,''\133\ if not by carrying on business there within the
constitutional sense, at least by delivering ``its products into the
stream of commerce with the expectation that they will be purchased by
consumers in the forum State.''\134\
\130\444 U.S. 286 (1980).
\131\Id. at 297.
\132\Id. at 299.
\133\Hanson v. Denckla, 357 U.S. 235, 253 (1985), quoted in
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
\134\Id. at 298. Of the three dissenters, Justice Brennan argued
that the ``minimum contacts'' test was obsolete and that jurisdiction
should be predicated upon the balancing of the interests of the forum
State and plaintiffs against the actual burden imposed on defendant, id.
at 299, while Justices Marshall and Blackmun applied the test and found
jurisdiction because of the foreseeability of defendants that a
defective product of theirs might cause injury in a distant State and
because the defendants had entered into an interstate economic network.
Id. at 313. The balancing of interests test was applied in Asahi Metal
Industry Co. v. Superior Court, 480 U.S. 102 (1987), holding
unreasonable exercise of jurisdiction by a California court over an
indemnity action by a Taiwan tire manufacturer against a Japanese
manufacturer of tire valves, the underlying damage action by a
California motorist having been settled.
---------------------------------------------------------------------------
The Court has applied International Shoe principles in several
more situations. Circulation of a magazine in the forum state is an
adequate basis for jurisdiction over the corporate magazine publisher in
a libel action; the fact that the plaintiff has no contact with the
forum state is not dispositive since the inquiry focuses on the
relations among the defendant, the forum, and the litigation.\135\ On
the other hand, damage done to the plaintiff's reputation in his home
state caused by circulation of a defamatory magazine article there may
justify assertion of jurisdiction that would otherwise be absent.\136\
While there is no per se rule that a contract with an out-of-state party
automatically establishes jurisdiction to enforce the contract in the
other party's forum, a franchisee who has entered into a franchise
contract with an out-of-state corporation may be subject to suit in the
corporation's home state where the overall circumstances (contract terms
themselves, course of dealings) demonstrate a deliberate reaching out to
establish contacts with the franchisor in the franchisor's home
state.\137\
\135\Keeton v. Hustler Magazine, 465 U.S. 770 (1984) (holding as
well that the forum state may apply ``single publication rule'' making
defendant liable for nationwide damages).
\136\Calder v. Jones, 465 U.S. 783 (1984) (jurisdiction over
reporter and editor responsible for defamatory article which they knew
would be circulated in subject's home state).
\137\Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). But
cf. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 (1984)
(purchases and training within state, both unrelated to cause of action,
are insufficient to justify general in personam jurisdiction).
---------------------------------------------------------------------------
Actions in Rem: Proceedings Against Land.--The basis of in rem
jurisdiction is the power of a State to determine title to all property,
whether tangible or intangible, located within its bor
[[Page 1717]]
ders.\138\ Unlike jurisdiction in personam, a judgment entered by a
court with in rem jurisdiction does not bind the defendant personally
but determines the title to or status of only the property in
question.\139\ Proceedings brought to register title to land,\140\ to
condemn\141\ or confiscate\142\ real or personal property, or to
administer a decedent's estate\143\ are typical in rem actions. Due
process is satisfied by seizure of the res and notice to all who have or
may have interests therein.\144\ It was formally the case that in in rem
actions a court could acquire jurisdiction over nonresidents by mere
constructive service of process,\145\ under the theory that property was
always in possession of its owners and that seizure would afford them
notice, inasmuch as they would keep themselves apprised of the state of
their property. That this was a fiction not satisfying the requirements
of due process has been established and, whatever the nature of the
proceeding, notice must be given in a manner that actually notifies the
person being sought or that has a reasonable certainty of resulting in
such notice.\146\
\138\Arndt v. Griggs, 134 U.S. 316, 320-21, 323 (1890); Pennoyer
v. Neff, 95 U.S. 714 (1878).
\139\Boswell's Lessee v. Otis, 50 U.S. (9 How.) 336, 348 (1850).
\140\American Land Co. v. Zeiss, 219 U.S. 47 (1911); Tyler v.
Judges of the Court of Registration, 175 Mass. 71, 76, 55 N.E. 812, 814
(Chief Justice Holmes), appeal dismissed, 179 U.S. 405 (1900).
\141\Huling v. Kaw Valley Ry. & Improvement Co., 130 U.S. 559
(1889).
\142\The Confiscation Cases, 87 U.S. (20 Wall.) 92 (1874).
\143\Clarke v. Clarke, 178 U.S. 186 (1900); Riley v. New York
Trust Co., 315 U.S. 343 (1942).
\144\Pennoyer v. Neff, 95 U.S. 714 (1878).
\145\Arndt v. Griggs, 134 U.S. 316 (1890); Ballard v. Hunter,
204 U.S. 241 (1907); Security Savings Bank v. California, 263 U.S. 282
(1923).
\146\Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306
(1950); Walker v. City of Hutchinson, 352 U.S. 112 (1956); Schroeder v.
City of New York, 371 U.S. 208 (1962); Robinson v. Hanrahan, 409 U.S. 38
(1972).
---------------------------------------------------------------------------
Although the Court's holding in Shaffer v. Heitner\147\ ``that
all assertions of state-court jurisdiction must be evaluated according
to the [`minimum contacts'] standards set forth in International
Shoe''\148\ requires an assessment of all decided cases based upon now
disavowed tests, it does not appear that the results will appreciably
change for in rem jurisdiction over property. ``[T]he presence of
property in a State may bear on the existence of jurisdiction by
providing contacts among the forum State, the defendant, and the
litigation. For example, when claims to the property itself are the
source of the underlying controversy between the plaintiff and the
defendant, it would be unusual for the State where the property is
located not to have jurisdiction. In such cases, the defendant's claim
to property located in the State would normally indicate that
[[Page 1718]]
he expected to benefit from the State's protection of his interest. The
State's strong interests in assuring the marketability of property
within its borders and in providing a procedure for peaceful resolution
of disputes about the possession of that property would also support
jurisdiction, as would the likelihood that important records and
witnesses will be found in the State.''\149\ Thus, for ``true'' in rem
actions, the old results likely still prevail.
\147\433 U.S. 186 (1977).
\148\Id. at 212.
\149\Id. at 207-08 (footnote citations omitted). The Court also
suggested that the State would usually have jurisdiction in cases such
as those arising from injuries suffered on the property of an absentee
owner, where the defendant's ownership of the property is conceded but
the cause of action is otherwise related to rights and duties growing
out of that controversy. Id.
---------------------------------------------------------------------------
Actions in Rem: Attachment Proceedings.--Although the practice
of attachment goes back to colonial times, Pennoyer v. Neff\150\ was
also the most relevant case for a long time respecting the power of a
State to permit an attachment of real and personal property situated
within its borders belonging to a nonresident to satisfy a debt owed by
the nonresident to one of its citizens or to settle a claim for damages
founded upon a wrong inflicted on the citizen by the nonresident. Being
neither present within the State nor domiciled therein, the nonresident
defendant could not be served personally, and any judgment in money
obtained against him would be unenforceable. The solution was a form of
in rem proceeding, sometimes called ``quasi in rem,'' involving a levy
of a writ of attachment on the local property of the defendant, of which
proceeding the non-resident need be notified merely by publication,\151\
and satisfaction of the judgment from the property attached; if the
attached property was insufficient to satisfy the claim, the plaintiff
could go no further.
\150\95 U.S. 714 (1878). Cf. Pennington v. Fourth Nat'l Bank,
243 U.S. 269, 271 (1917); Corn Exch. Bank v. Commissioner, 280 U.S. 218,
222 (1930); Endicott Co. v. Encyclopedia Press, 266 U.S. 285, 288
(1924).
\151\This theory of notice was disavowed sooner than the theory
of jurisdiction. Supra, p. 1716.
---------------------------------------------------------------------------
This form of proceeding raised many questions. Of course, there
were always instances in which it was fair to subject a person to suit
on his property located in the forum State, as where the property was
related to the matter sued over.\152\ In others, the question was more
disputed, as in the famous case in which the property subject to
attachment was the obligation of the defendant's insurance company to
defend and pay the judgment.\153\ But
[[Page 1719]]
the extension of the principle in Harris v. Balk\154\ squarely raised
the issue of fairness and territoriality. The claimant was a Maryland
resident who was owed a debt by Balk, a North Carolina resident.
Apparently adventitiously, Harris, also a North Carolina resident and
owing Balk an amount of money, was found passing through Maryland by the
Maryland resident and his debt to Balk was attached to satisfy the debt
owed to the Marylander. Balk had no notice of the action and a default
judgment was entered, after which Harris paid over the judgment to the
Marylander. When Balk later sued Harris in North Carolina to recover on
his debt, Harris defended that he had been relieved of any further
obligation by satisfying the judgment in Maryland, and the Supreme Court
sustained his defense, ruling that jurisdiction had been properly
obtained and the Maryland judgment was thus valid.\155\
\152\Atkinson v. Superior Court, 49 Cal. 2d 338, 316 P. 2d 960
(1957), appeal dismissed, 357 U.S. 569 (1958) (debt seized in California
was owed to a New Yorker, but it had arisen out of transactions in
California involving the New Yorker and the California plaintiff).
\153\Seider v. Roth, 17 N.Y. 2d 111, 269 N.Y.S. 2d 99, 216 N.E.
2d 312 (1966).
\154\198 U.S. 215 (1905).
\155\Compare New York Life Ins. Co. v. Dunlevy, 241 U.S. 518
(1916) (action purportedly against property within State, proceeds of an
insurance policy, was really an in personam action against claimant and,
claimant not having been served, the judgment is void). But see Western
Union Tel. Co. v. Pennsylvania, 368 U.S. 71 (1961).
---------------------------------------------------------------------------
Harris v. Balk was overruled in Shaffer v. Heitner,\156\ in
which the Court held that the ``minimum contacts'' test of International
Shoe applied to all in rem and quasi in rem actions. The case arose
under a Delaware sequestration statute under which plaintiffs were
authorized to bring actions against nonresident defendants by attaching
their ``property'' within Delaware, the property consisting of shares of
corporate stock and options to stock in the defendant corporation, the
stock being considered to be in Delaware because of the incorporation in
Delaware, although none of the certificates representing the seized
stocks was physically present in Delaware. The reason for applying the
same test as is applied in in personam cases, the Court said, ``is
simple and straightforward. It is premised on recognition that `[t]he
phrase ``judicial jurisdiction over a thing,'' is a customary elliptical
way of referring to jurisdiction over the interests of persons in a
thing.'''\157\ Thus, ``[t]he recognition leads to the conclusion that in
order to justify an exercise of jurisdiction in rem, the basis for
jurisdiction must be sufficient to justify exercising `jurisdiction over
the interests of persons in a thing.'''\158\
\156\433 U.S. 186 (1977).
\157\Id. at 207 (internal quotation from Restatement (Second) of
Conflict of Laws 56, Introductory Note (1971)).
\158\Id. The characterization of actions in rem as being not
actions against a res but against persons with interests merely reflects
Justice Holmes' insight in Tyler v. Judges of the Court of Registration,
175 Mass. 71, 76-77, 55 N.E., 812, 814, appeal dismissed, 179 U.S. 405
(1900).
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[[Page 1720]]
A further tightening of jurisdictional standards occurred in
Rush v. Savchuk.\159\ The plaintiff was injured in a one-automobile
accident in Indiana while a passenger in an automobile driven by
defendant. Plaintiff later moved to Minnesota and sued defendant, still
resident in Indiana, in state court in Minnesota. There were no contacts
between the defendant and Minnesota, but defendant's insurance company
did business there and plaintiff garnished the insurance contract,
signed in Indiana, under which the company was obligated to defend
defendant in litigation and indemnify him to the extent of the policy
limits. The Court refused to permit jurisdiction to be grounded on the
contract; the contacts justifying jurisdiction must be those of the
defendant engaging in purposeful activity related to the forum.\160\
Rush thus resulted in the demise of the controversial Seider v. Roth
doctrine, which lower courts had struggled to save after Shaffer v.
Heitner.\161\
\159\444 U.S. 320 (1980).
\160\Id. 328-30. In dissent, Justices Brennan and Stevens argued
that what the state courts had done was the functional equivalent of
direct-action statutes. Id. at 333 (Justice Stevens); World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 299 (1980) (Justice Brennan).
The Court, however, refused so to view the Minnesota garnishment action,
saying that ``[t]he State's ability to exert its power over the `nominal
defendant' is analytically prerequisite to the insurer's entry into the
case as a garnishee.'' Id. at 330-31. Presumably, the comment is not
meant to undermine the validity of such direct-action statutes, which
was upheld in Watson v. Employers Liability Assurance Corp., 348 U.S. 66
(1954), a choice-of-law case rather than a jurisdiction case.
\161\Supra, p. 1718 n.153. See O'Conner v. Lee-Hy Paving Corp.,
579 F.2d 194 (2d Cir.), cert. denied, 439 U.S. 1034 (1978).
---------------------------------------------------------------------------
Actions in Rem: Estates, Trusts, Corporations.--Probate
administration, being in the nature of a proceeding in rem, is one to
which all the world is charged with notice.\162\ Generally, probate will
be opened in the proper court of the decedent's domicile, and as to the
assets in that State the probate judgment is in rem and determinative as
to all; insofar as it affects property, land or personalty, beyond the
State, the judgment is in personam and can bind only parties thereto or
their privies.\163\ That is, the full faith and credit clause and
statute would not prevent an attack in the forum of the situs of the
property on the first court's finding of domicile as a predicate to
deciding the disposition of the property.\164\ The difficulty of
characterization of the existence of the res in a particular
jurisdiction is illustrated by the in rem aspects of
[[Page 1721]]
Hanson v. Denckla.\165\ There, the decedent, while a resident of
Pennsylvania, created a trust with a Delaware corporation as trustee.
She reserved the power to appoint the remainder, after her reserved life
estate, either by testamentary disposition or by inter vivos instrument.
After she moved to Florida, she executed a new will and a new power of
appointment under the trust, which did not satisfy the requirements for
testamentary disposition under Florida law. Upon her death, dispute
arose as to whether the property passed pursuant to the terms of the
power of appointment or in accordance with the residuary clause of the
will. While the Florida courts had in personam jurisdiction over
individual defendants, they attempted to assert in rem jurisdiction over
the Delaware corporation. Asserting the old theory that a court's in rem
jurisdiction ``is limited by the extent of its power and by the
coordinate authority of sister States,''\166\ i.e., whether the court
has jurisdiction over the thing, the Court thought it clear that the
trust assets that were the subject of the suit were located in Delaware
and thus the Florida courts had no in rem jurisdiction. The Court did
not expressly consider whether the International Shoe test should apply
to such in rem jurisdiction, as it has now held it generally must, but
it did briefly consider whether Florida's interests arising from its
authority to probate and construe its domiciliary's will, under which
the foreign assets might pass, were a sufficient basis of in rem
jurisdiction and decided they were not.\167\ The effort of International
Shoe in this area is still to be discerned.
\162\Goodrich v. Ferris, 214 U.S. 71, 80 (1909); McCaughey v.
Lyall, 224 U.S. 558 (1912).
\163\Baker v. Baker, Eccles & Co., 242 U.S. 394 (1917); Riley v.
New York Trust Co., 315 U.S. 343 (1942).
\164\Id. at 353.
\165\357 U.S. 235 (1957). The in personam aspect of this
decision is considered supra, p. 1714.
\166\Id. at 246.
\167\Id. at 247-50. The four dissenters, Justices Black, Burton,
Brennan, and Douglas, believed that the transfer in Florida of $400,000
made by a domiciliary and affecting beneficiaries, almost all of whom
lived in that State, gave rise to a sufficient connection with Florida
to support an adjudication by its courts of the effectiveness of the
transfer. Id. at 256, 262.
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The old Pennoyer rule, that seizure of property was sufficient
to give notice to nonresident or absent defendants, was likewise applied
in statutory proceedings for the forfeiture of abandoned property.
Judgments in proceedings to determine succession to property in escheat
were held binding on all when personal service of summons was made on
all known claimants and constructive notice by publication to all
claimants who were unknown or nonresident.\168\ But in Mullane v.
Central Hanover Bank & Trust Co.,\169\ the Court held that the
characterization of an action as in rem or in personam did not determine
what process was due in a statutory proce
[[Page 1722]]
dure whereby a bank managing a common trust fund in favor of nonresident
as well as resident beneficiaries could obtain a judicial settlement of
accounts which was conclusive on all, with the only notice being
publication in a local paper. Such notice by publication was necessarily
sufficient as to beneficiaries whose interests or addresses were unknown
to the bank, the Court held, but as to those, resident and nonresident
alike, whose whereabouts were known, it was feasible to make serious
efforts to notify them at least by mail to their addresses on record
with the bank. The rule has been applied in the escheat situation, and
the Court finding that a ``contacts'' test would not be workable in this
field has held that, inasmuch as due process would prevent more than one
State from escheating a given item of property, because of ease of
administration rather than logic and jurisdiction, the State of
residence shown by the last known address on a company's books would
have the authority to take by escheat the uncollected claims against a
corporation located in a particular State.\170\
\168\Hamilton v. Brown, 161 U.S. 256 (1896); Security Savings
Bank v. California, 263 U.S. 282 (1923). See also Voeller v. Neilston
Co., 311 U.S. 531 (1941).
\169\339 U.S. 306 (1950).
\170\Western Union Telegraph Co. v. Pennsylvania, 368 U.S. 71
(1961); Texas v. New Jersey, 379 U.S. 674 (1965).
---------------------------------------------------------------------------
Notice: Service of Process.--It is not enough, however, that a
State be potentially capable of exercising control over persons and
property. Before a State legitimately can exercise such power to alter
private interests, its jurisdiction must be perfected by the employment
of an appropriate mode of serving process deemed effective to acquaint
all parties of the institution of proceedings calculated to affect their
rights.\171\ ``An elementary and fundamental requirement of due process
in any proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested parties
of the pendency of the action and afford them an opportunity to present
their objections.''\172\ Personal service guarantees actual notice of
the pendency of a legal action; it thus presents the ideal circumstance
under which to commence legal proceedings against a person, and has
traditionally been deemed necessary in actions styled in personam.\173\
But less rigorous notice procedures have been accepted, in light of
history and of the practical obstacles to providing personal service in
every instance, and these procedures do not carry with them the same
certainty of actual notice that inheres in personal service.\174\ But,
whether the action be in rem or in personam, there is a constitu
[[Page 1723]]
tional minimum; if it be shown that the notice used was not reasonably
calculated to provide the necessary information, its age and history
will not sustain it.\175\
\171\``There . . . must be a basis for the defendant's
amenability to service of summons. Absent consent, this means there must
be authorization for service of summons on the defendant.'' Omni Capital
Int'l v. Rudolph Wolff & Co., 484 U.S. 97 (1987).
\172\Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314 (1950).
\173\McDonald v. Mabee, 243 U.S. 90, 92 (1971).
\174\Greene v. Lindsey, 456 U.S. 444, 449 (1982).
\175\In Greene v. Lindsey, 456 U.S. 444 (1982), the Court held
that in light of substantial evidence that notices posted on the doors
of apartments in a housing project in an eviction proceeding were often
torn down by children and others before tenants ever saw them, service
by posting did not comport with due process. Without requiring it, the
Court observed that the mails provided an efficient and inexpensive
means of communication upon which prudent men could rely and that notice
by mail would provide a reasonable assurance of notice. Id. at 455. See
also Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983) (personal
service or notice by mail is required for mortgagee of real property
subject to tax sale); Tulsa Professional Collection Servs. v. Pope, 485
U.S. 478 (1988) (notice by mail or other appropriate means to reasonably
ascertainable creditors of probated estate).
---------------------------------------------------------------------------
The function of mail, indeed, as conveying sufficient notice,
has become quite established,\176\ and the development of the ability of
States, quite contrary to the Pennoyer theory, to assert in personam
jurisdiction extraterritorially upon individuals and corporations having
``minimum contacts'' with the forum State, resulted in the passage of
``long-arm'' jurisdictional statutes under which notice was practically
always by mail.\177\ In a class action, due process is satisfied by
notification by mail of out-of-state class members, with opportunity to
``opt out'' but with no requirement that inclusion in the class be
contingent upon affirmative response.\178\ Other service devices, and
substitutions, have been pursued and show some promise of further
loosening of the concept of territoriality even while complying with
minimum due process standards of notice.\179\
\176\E.g., McGee v. International Life Ins. Co., 355 U.S. 220
(1957); Travelers Health Ass'n ex rel. State Corp. Comm'n, 339 U.S. 643
(1950).
\177\See, e.g., G.D. Searle & Co. v. Cohn, 455 U.S. 404, 409-12
(1982) (discussing New Jersey's ``long-arm'' rule, under which a
plaintiff must make every effort to serve process upon someone within
the State and then only if ``after diligent inquiry and effort personal
service cannot be made'' within the State, then ``service may be made by
mailing, by registered or certified mail, return receipt requested, a
copy of the summons and complaint to a registered agent for service, or
to its principal place of business, or to its registered office.''). Cf.
Velmohos v. Maren Engineering Corp., 83 N.J. 282, 416 A.2d 372 (1980),
vacated and remanded, 455 U.S. 985 (1982).
\178\Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985).
\179\E.g., Watson v. Employers Liability Assurance Corp., 348
U.S. 66 (1954) (authorizing direct action against insurance carrier
rather than against the insured).
---------------------------------------------------------------------------
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
PROCEDURAL DUE PROCESS: CIVIL
The Procedure Which Is Due Process
The Interests Protected: Entitlements and Positivist
Recognition.--``The requirements of procedural due process apply only to
the deprivation of interests encompassed by the Fourteenth Amendment's
protection of liberty and property. When protected interests are
implicated, the right to some kind of prior hearing is paramount. But
the range of interests protected by procedural due
[[Page 1724]]
process is not infinite.''\180\ Whether any procedural protections are
due depends upon an analysis which of ``whether the nature of the
interest is one within the contemplation of the `liberty or property'
language of the Fourteenth Amendment.''\181\ Traditionally, the Court
has accorded due process recognition to one's ``life, liberty, or
property'' as determined by reference to common understanding, as
embodied in the development of the common law. One's right of life
existed independently of any formal guarantee of it and could be taken
away only by the state pursuant to the formal processes of law for
offenses against law deemed by a legislative body to be particularly
heinous. One's liberty, one's freedom from bodily restraint, was a
natural right to be forfeited only pursuant to law and strict formal
procedures. One's ownership of lands, chattels, and other properties, to
be sure, was highly dependent upon legal protections of rights commonly
associated with that ownership, but it was a concept universally
understood in Anglo-American countries.
\180\Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972).
Developments under the Fifth Amendment's due process clause have been
interchangeable. Cf. Arnett v. Kennedy, 416 U.S. 134 (1974).
\181\Morrissey v. Brewer, 408 U.S. 471, 481 (1982).
---------------------------------------------------------------------------
Expansion of the understanding embodied in the ``liberty and
property'' aspects of the clause began in the 1960s and followed an
inconsistent path of acceleration and reining-in to the present. It has
previously been noted that the Court's construction of ``liberty'' has
long been much broader than would be encompassed within freedom from
bodily restraint; while liberty of contract met its demise, the rise of
rights of privacy, which included marital and intimate relationships,
interests in one's dignity and reputational concerns, and the like,
continues to lead to enlargement of the compass of the doctrine. A
widening of the ``property'' concept in the 1960s occurred with respect
to according protection to such public benefits as welfare assistance
and other benefits and privileges that government conferred and that it
could withdraw altogether for everyone, but as to which individual
recipients and claimants had to be accorded proper procedures before
they could lose their entitlement. Similarly, other kinds of conditional
property rights, such as the interest of an installment buyer of goods
in retaining control until it could be shown he was in default, were
accorded greater protection.
The key to this expansion may be found in the intertwined
doctrinal strands of jurisprudential theory under which the ``right-
privilege'' distinction was abandoned and a positivist conception of
entitlements arose. The former principle, discussed previously in
[[Page 1725]]
the First Amendment context,\182\ was pithily summarized by Justice
Holmes years ago in dismissing a suit by a policeman protesting the
dismissal from his job. ``The petitioner may have a constitutional right
to talk politics, but he has no constitutional right to be a
policeman.''\183\ Most often, the assertion that one had no ``vested
property interest'' in something was made to justify the taking of that
interest or the disregarding of that interest without substantive
restraints being relevant, but it was also true that it was said that if
something was ``only'' a privilege, such as government employment\184\
or some form of public assistance,\185\ procedural due process
guarantees were also inapplicable.\186\ In other words, if government
need not provide something, it could provide it with any attached
conditions it might choose. This line of thought was always opposed by
the ``unconstitutional conditions'' doctrine, under which it was said
that ``even though a person has no `right' to a valuable government
benefit and even though the government may deny him the benefit for any
number of reasons, it may not do so on a basis that infringes his
constitutionally protected interests--especially, his interest in
freedom of speech.''\187\ Nonetheless, the two doctrines coexisted in an
unstable relationship, until, in the 1960s and thereafter, the right-
privilege distinction was largely shelved.\188\
\182\Supra, pp. 1084-90.
\183\McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29
N.E. 2d 517, 522 (1892).
\184\Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950), aff'd
by an equally divided Court, 314 U.S. 918 (1951); Adler v. Board of
Educ., 342 U.S. 485 (1952).
\185\Flemming v. Nestor, 363 U.S. 603 (1960).
\186\Barsky v. Board of Regents, 347 U.S. 442 (1954).
\187\Perry v. Sinderman, 408 U.S. 593, 597 (1972). See Speiser
v. Randall, 357 U.S. 513 (1958).
\188\See William Van Alstyne, The Demise of the Right-Privilege
Distinction in Constitutional Law, 81 Harv. L. Rev. 1439 (1968). Much of
the old fight had to do with imposition of conditions on admitting
corporations into a State. Cf. Western & Southern Life Ins. Co. v. State
Bd. of Equalization, 451 U.S. 648, 656-68 (1981) (reviewing the cases).
That the right-privilege distinction is not totally moribund is evident.
See Buckley v. Valeo, 424 U.S. 1, 108-09 (1976) (sustaining as
qualification for public financing of campaign agreement to abide by
expenditure limitations otherwise unconstitutional); Wyman v. James, 400
U.S. 309 (1971).
---------------------------------------------------------------------------
Concurrently with the virtual demise of the ``right-privilege''
distinction, there arose the ``entitlement'' doctrine, under which the
Court erected a barrier of procedural--but not substantive--protections
against erroneous governmental deprivation of something it might within
its discretion have bestowed.\189\ Thus, the Court found protected
interests created by positive state enactments or
[[Page 1726]]
practices; that is, the source of a right was ascertained not from
tradition or the common law or ``natural rights,'' but rather a property
or liberty interest was discerned in the governmental statute or
practice that gave rise to it. Indeed, for a time it appeared that this
positivist conception of rights was going to displace the previous
traditional sources.
\189\That is, Congress or a state legislature could simply take
away part or all of the benefit. Richardson v. Belcher, 404 U.S. 78
(1971); United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166,
174 (1980); Logan v. Zimmerman Brush Co., 455 U.S. 422, 432-33 (1982).
---------------------------------------------------------------------------
That advent of the new doctrine may be placed in Goldberg v.
Kelly.\190\ The Court held that, inasmuch as termination of welfare
assistance pending resolution of a controversy over eligibility may
deprive an eligible recipient of the means of livelihood, government
must provide a pre-termination evidentiary hearing in which an initial
determination of the validity of the dispensing agency's grounds for
discontinuance of payment could be made. It was observed that the state
agency did ``not contend that procedural due process is not applicable
to the termination of welfare benefits. Such benefits are a matter of
statutory entitlement for persons qualified to receive them.''\191\
Provisions for loss of some benefit or privilege upon the establishing
of some ground for taking it away was perceived as giving the holder a
property interest entitling him to proper procedure before termination
or revocation.
\190\397 U.S. 254 (1970).
\191\Id. at 261-62. See also Mathews v. Eldridge, 424 U.S. 319
(1976) (Social Security benefits).
---------------------------------------------------------------------------
Therefore, a wage garnishment statute which failed to provide
for notice to the garnishee and an opportunity for the making of some
form of determination that the garnisher is likely to prevail before the
garnishee is deprived of the use of his money, even temporarily, was
held not to accord due process.\192\ Similarly voided was a repleven
statute which authorized the authorities to seize goods simply upon the
filing of an ex parte application and the posting of bond and the
allegation that the possessor of the property was in arrears on payment
on the goods and that they reverted to the seller.\193\ A state motor
vehicle financial responsibility law which provided that the
registration and license of an uninsured motorist involved in an
accident was to be suspended unless he posted security for the amount of
damages claimed by an aggrieved party without affording the driver any
opportunity to raise the issue of liability prior to suspension violated
the due process clause.\194\
\192\Sniadach v. Family Finance Corp., 395 U.S. 337 (1969).
\193\Fuentes v. Shevin, 407 U.S. 67 (1972).
\194\Bell v. Burson, 402 U.S. 535 (1971). Compare Dixon v. Love,
431 U.S. 105 (1977) with Mackey v. Montrym, 443 U.S. 1 (1979).
---------------------------------------------------------------------------
The Court's emphasis in these cases upon the importance to the
claimant of retention of the rights led some lower courts to de
[[Page 1727]]
termine the application of the due process clause by assessing the
weights of the interests involved and the harm done to one who lost what
he was claiming. This approach, the Court held, was inappropriate.
``[W]e must look not to the `weight' but to the nature of the interest
at stake. . . . We must look to see if the interest is within the
Fourteenth Amendment's protection of liberty and property.''\195\ To
have a property interest in the constitutional sense, the Court held, it
was not enough that one have an abstract need or desire for a benefit,
that one have only a unilateral expectation. He must rather ``have a
legitimate claim of entitlement'' to the benefit. ``Property interests,
of course, are not created by the Constitution. Rather, they are created
and their dimensions are defined by existing rules or understandings
that stem from an independent source such as state law--rules or
understandings that secure certain benefits and that support claims of
entitlement to those benefits.''\196\ Thus, in Roth, the Court held that
the refusal to renew a teacher's contract upon expiration of his one-
year term implicated no due process values because there was nothing in
the public university's contract, regulations, or policies that
``created any legitimate claim'' to reemployment.\197\ On the other
hand, in Perry v. Sindermann,\198\ while there was no contract with a
tenure provision nor any statutory assurance of it, the ``existing rules
or understandings'' were deemed to provide a legitimate expectation
independent of any contract provision, so that a professor employed for
several years at a public college, in which the actual practice had the
characteristics of tenure, had a protected interest. A statutory
assurance was found in Arnett v. Kennedy,\199\ in which the civil
service laws and regulations made the continued employment subject to
defeasance ``only for such cause as would promote the efficiency of the
service.'' On the other hand, a policeman who was a ``permanent
employee'' under an ordinance which appeared to afford him a continuing
position subject to conditions subsequent was held not to be protected
by the due process clause because the federal district court had
interpreted the ordinance as providing only
[[Page 1728]]
employment at the will and pleasure of the city and the Supreme Court
chose not to disturb that interpretation.\200\
\195\Board of Regents v. Roth, 408 U.S. 564, 569-71 (1972).
\196\Id. at 577.
\197\Id. at 576-78. The Court also held that no liberty interest
was implicated, because in declining to rehire Roth the State had not
made any charges against him or taken any actions that would damage his
reputation or stigmatize him. Id. at 572-75. For an instance of
protection accorded a claimant on the basis of such an action, see Codd
v. Vegler, 429 U.S. 624 (1977). See also Bishop v. Wood, 426 U.S. 341,
347-50 (1976); Vitek v. Jones, 445 U.S. 480, 491-494 (1980); Board of
Curators v. Horowitz, 435 U.S. 78, 82-84 (1978).
\198\408 U.S. 593 (1972). See Leis v. Flynt, 439 U.S. 438 (1979)
(finding no practice or mutually explicit understanding creating
interest).
\199\416 U.S. 134 (1974).
\200\Bishop v. Wood, 426 U.S. 341 (1976). ``On its face,'' the
Court noted, ``the ordinance on which [claimant relied] may fairly be
read as conferring'' both ``a property interest in employment . . .
[and] an enforceable expectation of continued public employment.'' Id.
at 344-45. The district court's decision had been affirmed by an equally
divided appeals court and the Supreme Court deferred to the presumed
greater expertise of the lower court judges in reading the ordinance.
Id. at 345.
---------------------------------------------------------------------------
Beyond employment the Court found ``legitimate entitlements'' in
a variety of situations. Thus, because Ohio included within its statutes
a provision for free education to all residents between five and 21
years of age and a compulsory-attendance at school requirement, the
State was deemed to have obligated itself to accord students some due
process hearing rights prior to suspending them, even for such a short
period as ten days.\201\ ``Having chosen to extend the right to an
education to people of appellees' class generally, Ohio may not withdraw
that right on grounds of misconduct, absent fundamentally fair
procedures to determine whether the misconduct has occurred.''\202\ The
Court is highly deferential, however, to dismissal decisions based on
academic grounds.\203\
\201\Goss v. Lopez, 419 U.S. 565 (1975). Cf. Carey v. Piphus,
435 U.S. 247 (1978) (measure of damages for violation of procedural due
process in school suspension context). And see Board of Curators v.
Horowitz, 435 U.S. 78 (1978) (whether liberty or property interest
implicated in academic dismissals and discipline, as contrasted to
disciplinary actions).
\202\Goss v. Lopez, 419 U.S. 565, 574 (1975). See also Barry v.
Barchi, 443 U.S. 55 (1979) (horse trainer's license); O'Bannon v. Town
Court Nursing Center, 447 U.S. 773 (1980) (statutory entitlement of
nursing home residents protecting them in the enjoyment of assistance
and care.)
\203\Regents of the University of Michigan v. Ewing, 474 U.S.
214 (1985). Although the Court ``assume[d] the existence of a
constitutionally protectible property interest in . . . continued
enrollment'' in a state university, this limited constitutional right is
violated only by a showing that dismissal resulted from ``such a
substantial departure from accepted academic norms as to demonstrate
that the person or committee responsible did not actually exercise
professional judgment.'' 474 U.S. at 225.
---------------------------------------------------------------------------
The most striking application of such due process analysis, to
date, is Logan v. Zimmerman Brush Co.,\204\ in which a state
antidiscrimination law required the enforcing agency to convene a
factfinding conference within 120 days of the filing of the complaint.
Inadvertently, the Commission scheduled the hearing after the expiration
of the 120 days and the state courts held the requirement to be
jurisdictional, necessitating dismissal of the complaint. The Court held
that Logan had been denied due process. His cause of action was a
property interest; older cases had clearly established causes of action
as property and, in any event, Logan's claim was an entitlement grounded
in state law and it could be removed only
[[Page 1729]]
``for cause.'' That property interest existed independently of the 120-
day time period and could not simply be taken away by agency action or
inaction.\205\ Beyond statutory entitlements, the Court has looked to
state decisional law to find that private utilities may not terminate
service at will but only for cause, for nonpayment of charges, so that
when there was a dispute about payment or the accuracy of charges, due
process required the utility to follow procedures to resolve the dispute
prior to terminating service.\206\
\204\455 U.S. 422 (1982). A different majority of the Court also
found an equal protection denial. Id. at 438, 443.
\205\Id. at 428-33.
\206\Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1
(1978).
---------------------------------------------------------------------------
With respect to liberty, the Court has followed a somewhat more
meandering path, but it has arrived at the same place. In Wisconsin v.
Constantineau,\207\ it invalidated a statutory scheme by which a person,
without any opportunity for a hearing and rebuttal, could be labeled an
``excessive drinker'' and barred from places where alcohol was served;
without discussing the source of the entitlement, the Court noted that
governmental action was stigmatizing the individual's reputation, honor,
and integrity. But, in Paul v. Davis,\208\ the Court looked exclusively
to positive statutory enactments to determine whether a liberty interest
was entitled to protection. Davis involved official defamation of
someone--the police included plaintiff's photograph and name on a list
of ``active shoplifters'' circulated to merchants--but the Court held
that damage to reputation alone did not constitute a deprivation of any
interest that the due process clause protected.\209\ ``Kentucky law does
not extend to respondent any legal guarantee of present enjoyment of
reputation which has been altered as a result of petitioners' actions.
Rather, his interest in reputation is simply one of a number which the
State may protect against injury by virtue of its tort law, providing a
forum for vindication of those interest by means of damage
actions.''\210\
\207\400 U.S. 433 (1971).
\208\424 U.S. 693 (1976).
\209\The Court, id. at 701-10, distinguished Constantineau as
being a ``reputation-plus'' case. That is, it involved not only the
stigmatizing of one posted but it also ``deprived the individual of a
right previously held under state law--the right to purchase or obtain
liquor in common with the rest of the citizenry.'' Id. at 708. How the
state law positively did this the Court did not explain. But, of course,
the reputation-plus concept is now well-settled. Supra, p.1727 n.197.
And see Board of Regents v. Roth, 408 U.S. 564, 573 (1972); Siegert v.
Gilley, 500 U.S. 226 (1991).
\210\Paul v. Davis, 424 U.S. 693, 711-12 (1976). In a subsequent
case, the Court looked to decisional law and the existence of common-law
remedies as establishing a protected property interest. Memphis Light,
Gas & Water Div. v. Craft, 436 U.S. 1, 9-12 (1978).
---------------------------------------------------------------------------
A number of liberty interest cases involve prisoner rights and
are dealt with in the section on criminal due process. But in terms of
the emphasis upon positive entitlements, it is useful to treat
[[Page 1730]]
them briefly here. In Meachum v. Fano,\211\ the Court held that a state
prisoner was not entitled to a factfinding hearing when he is
transferred to a different prison in which the conditions were
substantially less favorable to him, because (1) the due process clause
liberty interest by itself is satisfied by the initial valid conviction
which had deprived him of liberty, and (2) no state law guaranteed him
the right to remain in the prison to which he was initially assigned,
subject to transfer for cause of some sort. Under state law, a prisoner
could be transferred for any reason or for no reason, and the due
process clause did not mandate a different result. The decision of
prison officials, therefore, was not dependent upon any state of facts
that would be found upon a hearing. But in Vitek v. Jones,\212\ a
protected entitlement interest was found. The state statute at issue
permitted transfer of a prisoner to a state mental hospital for
treatment, but the transfer could be effectuated only upon a finding, by
a designated physician or psychologist, that the prisoner ``suffers from
a mental disease or defect'' and ``cannot be given treatment in that
facility.'' Because the transfer was conditioned upon a ``cause,'' the
establishment of the facts necessary to show the cause had to be done
through fair procedures.
\211\427 U.S. 215 (1976). See also Montanye v. Haymes, 427 U.S.
236 (1976).
\212\445 U.S. 480 (1980).
---------------------------------------------------------------------------
However, the Vitek Court also held that, independent of the
statutory entitlement, the prisoner had a ``residuum of liberty'' in
being free from the different confinement and from the stigma of
involuntary commitment for mental disease that the due process clause
protected. Thus, the Court has recognized, in this case and in the cases
involving revocation of parole or probation,\213\ a liberty interest
that is separate from a positivist entitlement and that can be taken
away only through proper procedures. But with respect to the possibility
of parole or commutation or otherwise more rapid release, no matter how
much the expectancy matters to a prisoner, in the absence of some form
of positive entitlement, the prisoner may be turned down without
observance of procedures.\214\ Summarizing its prior holdings, the Court
recently concluded that two requirements must be present before a
liberty interest is created in the prison context: the statute or
regulation must contain ``substantive predicates'' limiting the exercise
of discretion, and there
[[Page 1731]]
must be explicit ``mandatory language'' requiring a particular outcome
if substantive predicates are found.\215\
\213\Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v.
Scarpelli, 411 U.S. 778 (1973).
\214\Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979);
Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); Jago v. Van
Curen, 454 U.S. 14 (1981). See also Wolff v. McDonnell, 418 U.S. 539
(1974) (due process applies to forfeiture of good-time credits and other
positivist granted privileges of prisoners).
\215\Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454,
459-63 (1989) (prison regulations listing categories of visitors who may
be excluded, but not creating a right to have a visitor admitted,
contain ``substantive predicates'' but lack mandatory language).
---------------------------------------------------------------------------
In Ingraham v. Wright,\216\ the Court, unanimously, agreed that
freedom from wrongfully or excessively administered corporal punishment
was a liberty interest of school children protected by the due process
clause irrespective of positive state protection. ``The liberty
preserved from deprivation without due process included the right
`generally to enjoy those privileges long recognized at common law as
essential to the orderly pursuit of happiness by free men.' . . . Among
the historic liberties so protected was a right to be free from, and to
obtain judicial relief for, unjustified intrusions on personal
security.''\217\
\216\430 U.S. 651 (1977).
\217\Id. at 673. The family-related liberties discussed under
substantive due process, as well as the associational and privacy ones,
no doubt provide a fertile source of liberty interests for procedural
protection. See Armstrong v. Manzo, 380 U.S. 545 (1965) (natural father,
with visitation rights, must be given notice and opportunity to be heard
with respect to impending adoption proceedings); Stanley v. Illinois,
405 U.S. 645 (1972) (unwed father could not simply be presumed unfit to
have custody of his children because his interest in his children
warrants deference and protection). See also Smith v. Organization of
Foster Families, 431 U.S. 816 (1977); Little v. Streater, 452 U.S. 1
(1981); Lassiter v. Department of Social Services, 452 U.S. 18 (1981);
Santosky v. Kramer, 455 U.S. 745 (1982).
---------------------------------------------------------------------------
In Arnett v. Kennedy,\218\ three Justices sought to qualify the
principle laid down in the entitlement cases and to restore in effect
much of the right-privilege distinction in a new formulation. Dealing
with a federal law conferring upon employees the right not to be
discharged except for cause, the Justices acknowledged the prior
formulation that recognized that due process rights could be created
through statutory grants of entitlements, but they went on to observe
that the same law withheld the procedural provisions now contended for;
in other words, ``the property interest which appellee had in his
employment was itself conditioned by the procedural limitations which
had accompanied the grant of that interest.''\219\ Congress (and state
legislatures) could qualify the conferral of an interest the due process
clause might otherwise require.
\218\416 U.S. 134 (1974).
\219\Id. at 155 (Justices Rehnquist and Stewart and Chief
Justice Burger).
---------------------------------------------------------------------------
But the other six Justices, while disagreeing among themselves
in other respects, rejected this attempt so to formulate the issue.
``This view misconceives the origin of the right to procedural due
process,'' Justice Powell wrote. ``That right is conferred not by
legislative grace but by constitutional guarantee. While the legislature
[[Page 1732]]
may elect not to confer a property interest in federal employment, it
may not constitutionally authorize the deprivation of such an interest,
once conferred, without appropriate procedural safeguards.''\220\ Yet,
in Bishop v. Wood,\221\ the Court appeared to come close to adopting the
three-Justice Arnett position, the dissenters accusing the majority of
having repudiated the majority position in Arnett, and in Goss v.
Lopez,\222\ while the opinion of the Court stated the expressed
formulation of Justice Powell in Arnett, the Justice himself dissented,
using language quite similar to the Rehnquist Arnett language. More
recently, however, first in a liberty interest case and then in a
property interest case, the Court has squarely held that because
```minimum [procedural] requirements [are] a matter of federal law, they
are not diminished by the fact that the State may have specified its own
procedures that it may deem adequate for determining the preconditions
to adverse action.' . . . Indeed, any other conclusion would allow the
State to destroy at will virtually any state-created property
interest.''\223\ Substantive entitlements, therefore, may owe their
existence to positive enactment, but the procedural protections are
found in the judiciary's reading of the due process clause.
\220\Id. at 167 (Justices Powell and Blackmun concurring). See
id. at 177 (Justice White concurring and dissenting), 203 (Justice
Douglas dissenting), 206 (Justices Marshall, Douglas, and Brennan
dissenting).
\221\426 U.S. 341 (1976). A five-to-four decision, the opinion
was written by Justice Stevens, replacing Justice Douglas, and was
joined by Justice Powell, who had disagreed with the theory in Arnett.
See id. at 350, 353 n.4, 355 (dissenting opinions). The language is
ambiguous and appears at different points to adopt both positions. But
see id. at 345, 347.
\222\419 U.S. 565, 573-74 (1975). See id. at 584, 586-87
(Justice Powell dissenting).
\223\Logan v. Zimmerman Brush Co., 455 U.S. 422, 432 (1982)
(quoting Vitek v. Jones, 445 U.S. 480, 491 (1980)).
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Proceedings in Which Procedural Due Process Must Be Observed.--
While due notice and a reasonable opportunity to be heard to present
one's claim or defense have been declared to be two fundamental
conditions almost universally prescribed in all systems of law
established by civilized countries,\224\ there are certain proceedings
appropriate for the determination of various rights in which the
enjoyment of these two conditions has not been deemed to be
constitutionally necessary. Thus, persons adversely affected by a
specific law cannot challenge its validity on the ground that the
legislative body or one of its committees gave no notice of proposed
legislation, held no hearings at which the person could have presented
his arguments, and gave no consideration to particular points of view.
``Where a rule of conduct applies to more
[[Page 1733]]
than a few people it is impracticable that everyone should have a direct
voice in its adoption. The Constitution does not require all public acts
to be done in town meeting or an assembly of the whole. General statutes
within the state power are passed that affect the person or property of
individuals, sometimes to the point of ruin, without giving them a
chance to be heard. Their rights are protected in the only way that they
can be in a complex society, by their power, immediate or remote, over
those who make the rule.''\225\ Similarly, when an administrative agency
engages in a legislative function, as, for example, when in pursuance of
statutory authorization it drafts regulations of general application
affecting an unknown number of persons, it need not, any more than does
a legislative assembly, afford a hearing prior to promulgation.\226\ On
the other hand, if a regulation, sometimes denominated an ``order,'' is
of limited application, that is, affects the property or interests of
specific named or nameable individuals or an identifiable class of
persons, the question whether notice and hearing is required and, if so,
whether it must precede such action becomes a matter of greater urgency
and must be determined by evaluation of the factors discussed
herein.\227\
\224\Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v.
Roberts, 223 U.S. 261, 265 (1912).
\225\Bi-Metallic Investment Co. v. State Bd. of Equalization,
239 U.S. 441, 445-46 (1915). See also Bragg v. Weaver, 251 U.S. 57, 58
(1919). And cf. Logan v. Zimmerman Brush Co., 445 U.S. 422, 432-33
(1982).
\226\United States v. Florida East Coast Ry., 410 U.S. 224
(1973).
\227\Id. at 245 (distinguishing between rule-making, at which
legislative facts are in issue, and adjudication, at which adjudicative
facts are at issue, requiring a hearing in latter proceedings but not in
the former). See Londoner v. City of Denver, 210 U.S. 373 (1908).
---------------------------------------------------------------------------
``It is not an indispensable requirement of due process that
every procedure affecting the ownership or disposition of property be
exclusively by judicial proceeding. Statutory proceedings affecting
property rights which, by later resort to the courts, secures to adverse
parties an opportunity to be heard, suitable to the occasion, do not
deny due process.''\228\ In one of the initial decisions construing the
due process clause (this of the Fifth Amendment), the Court upheld the
actions of the Secretary of the Treasury, acting pursuant to statute, to
obtain from a collector of customs a substantial amount of money on
which it was claimed he was in arrears. The Treasury simply issued a
distress warrant and seized the collector's property, affording him no
opportunity for a hearing, and remitting him to suit (the statute
waiving the immunity of the United States) for recovery of his property
upon proof that he had not withheld funds from the Treasury. While
acknowledging that history and settled practice required proceedings in
which pleas,
[[Page 1734]]
answers, and trials were requisite before property could be taken, the
Court observed that the distress collection of debts due the crown had
been the exception to the rule in England and was of long usage in the
United States, and was thus sustainable.\229\ In more modern times, the
Court upheld a procedure under which a state banking superintendent,
after having taken over a closed bank and issued notices to stockholders
of their assessment, could issue execution for the amounts due, subject
to the right of each stockholder, by affidavit of illegality, to contest
his liability for such an assessment. The fact that the execution was
issued in the first instance by a governmental officer and not from a
court, followed by personal notice and a right to take the case into
court, was seen as unobjectionable.\230\
\228\Anderson Nat'l Bank v. Luckett, 321 U.S. 233, 246-47
(1944).
\229\Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S.
(18 How.) 272 (1856).
\230\Coffin Brothers & Co. v. Bennett, 277 U.S. 29 (1928).
---------------------------------------------------------------------------
A State may not, consistent with the due process clause, enforce
a judgment against a party named in the proceeding without having given
him an opportunity to be heard sometime before final judgment is
entered.\231\ With regard to the presentation of every available
defense, however, the requirements of due process do not necessarily
entail affording an opportunity to do so before entry of judgment. The
person may be remitted to other actions initiated by him\232\ or an
appeal may suffice. Accordingly, a surety company, objecting to the
entry of a judgment against it on a supersedeas bond, without notice and
an opportunity to be heard on the issue of liability, was not denied due
process where the state practice provided the opportunity for such a
hearing by an appeal from the judgment so entered. Nor could the company
found its claim of denial of due process upon the fact that it lost this
opportunity for a hearing by inadvertently pursuing the wrong procedure
in the state courts.\233\ On the other hand, where a state appellate
court reversed a trial court and entered a final judgment for the
defendant, a plaintiff who had never had an opportunity to introduce
evidence in rebuttal to certain testimony which the trial court deemed
immaterial but which the appellate court considered material was
[[Page 1735]]
held to have been deprived of his rights without due process of
law.\234\
\231\Postal Telegraph Cable Co. v. Newport, 247 U.S. 464, 476
(1918); Baker v. Baker, Eccles & Co., 242 U.S. 294, 403 (1917);
Louisville & Nashville R.R. v. Schmidt, 177 U.S. 230, 236 (1900).
\232\Lindsey v. Normet, 405 U.S. 56, 65-69 (1972). However, if
one would suffer too severe an injury between the doing and the undoing,
he may avoid the alternative means. Stanley v. Illinois, 405 U.S. 645,
647 (1972).
\233\American Surety Co. v. Baldwin, 287 U.S. 156 (1932). Cf.
Logan v. Zimmerman Brush Co., 455 U.S. 422, 429-30, 432-33 (1982).
\234\Saunders v. Shaw, 244 U.S. 317 (1917).
---------------------------------------------------------------------------
When Is Process Due.--``The extent to which procedural due
process must be afforded the recipient is influenced by the extent to
which he may be `condemned to suffer grievous loss,' . . . and depends
upon whether the recipient's interest in avoiding that loss outweighs
the governmental interest in summary adjudication.''\235\ ``The very
nature of due process negates any concept of inflexible procedures
universally applicable to every imaginable situation.''\236\ Due process
application, as has been noted, depends upon the nature of the interest;
the form of the due process to be applied is determined by the weight of
that interest balanced against the opposing interests. The currently
prevailing standard is that formulated in Mathews v. Eldridge.\237\
``[I]dentification of the specific dictates of due process generally
requires consideration of three distinct factors: first, the private
interest that will be affected by the official action; second, the risk
of erroneous deprivation of such interest through the procedures used,
and probable value, if any, of additional or substitute procedural
safeguards; and, finally, the Government's interest, including the
function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirements would entail.''
\235\Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970), (quoting
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168
(1951) (Justice Frankfurter concurring)).
\236\Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S.
886, 894-95 (1961).
\237\424 U.S. 319, 335 (1976).
---------------------------------------------------------------------------
Whereas, in Goldberg v. Kelly,\238\ the effect of termination of
welfare benefits could be ``devastating,'' a matter of loss of food and
shelter, thus mandating a pre-deprivation hearing, the termination of
Social Security benefits would be considerably different, inasmuch as
they are not based on financial need and a terminated recipient would be
able to apply for welfare if need be. Moreover, the determination of
ineligibility for Social Security benefits more often turns upon routine
and uncomplicated evaluations of data, reducing the likelihood of error,
a likelihood found significant in Goldberg. Finally, the administrative
burden and other societal costs involved in giving Social Security
recipients a pre-termination hearing would be high. Therefore, a post-
termination hearing, with full retroactive restoration of benefits, if
the claimant prevails, was found satisfactory.\239\
\238\397 U.S. 254, 264 (1970).
\239\Mathews v. Eldridge, 424 U.S. 319, 339-49 (1976).
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[[Page 1736]]
Application of the standard and other considerations brought
some noteworthy changes to the process accorded debtors and installment
buyers. For example, the previous cases had focused upon the interests
of the holders of the property in not being unjustly deprived of the
goods and funds in their possession, in requiring pre-deprivation
hearings. The newer cases looked to the interests of creditors as well.
``The reality is that both seller and buyer had current, real interests
in the property, and the definition of property rights is a matter of
state law. Resolution of the due process question must take account not
only of the interests of the buyer of the property but those of the
seller as well.''\240\
\240\Mitchell v. W.T. Grant Co., 416 U.S. 600, 604 (1975). See
also id. at 623 (Justice Powell concurring), 629 (Justices Stewart,
Douglas, and Marshall dissenting). Justice White, who wrote Mitchell and
included the balancing language in his dissent in Fuentes v. Shevin, 407
U.S. 67, 99-100 (1972), did not repeat it in North Georgia Finishing v.
Di-Chem, 419 U.S. 601 (1975), but it presumably underlies the
reconciliation of Fuentes and Mitchell in the latter case and the
application of Di-Chem.
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Thus, Sniadach v. Family Finance Corp.,\241\ mandating a pre-
deprivation hearing before wages may be garnished, is apparently to be
limited to instances when wages, and perhaps certain other basic
necessities, are in issue and the consequences of deprivation would be
severe.\242\ Fuentes, which extended the Sniadach principle to all
``significant property interests'' and thus mandated pre-deprivation
hearings, has been limited, so that when government provides certain
procedural protections in structuring the ex parte judicial
determinations that seizure should take place and provides for a prompt
and adequate post-deprivation (but pre-judgment) hearing, the due
process clause is satisfied.\243\ To be valid, laws authorizing
sequestration, garnishment, or other seizure of property of an alleged
defaulting debtor must require that (1) the creditor furnish adequate
security to protect the debtor's interest, (2) the creditor make a
specific factual showing before a neutral officer or magistrate, not a
clerk or other such functionary, of probable cause to believe that he is
entitled to the relief requested, and (3) an op
[[Page 1737]]
portunity be assured for an adversary hearing promptly after seizure to
determine the merits of the controversy, with the burden of proof on the
creditor.\244\ Efforts to litigate challenges to seizures in actions
involving two private parties can be thwarted by findings of ``no state
action,'' but there often is sufficient participation by state officials
to constitute state action and implicate due process.\245\
\241\395 U.S. 337 (1969).
\242\North Georgia Finishing v. Di-Chem, 419 U.S. 601, 611 n.2
(1975) (Justice Powell concurring). The majority opinion draws no such
express distinction, see id. at 605-06, rather emphasizing that
Sniadach-Fuentes do require observance of some due process procedural
guarantees. But see Mitchell v. W.T. Grant Co., 416 U.S. 600, 614 (1974)
(opinion of the Court by Justice White emphasizing the wages aspect of
the earlier case).
\243\Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); North
Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975). Fuentes was a
decision of uncertain viability from the beginning, inasmuch as it was
four-to-three; argument had been heard prior to the date Justices Powell
and Rehnquist joined the Court, hence neither participated in the
decision. See Di-Chem, supra, 616-19 (Justice Blackmun dissenting);
Mitchell, supra, 635-36 (Justice Stewart dissenting).
\244\Mitchell v. W.T. Grant Co., 416 U.S. 600, 615-18 (1974),
and id. at 623 (Justice Powell concurring). And see Arnett v. Kennedy,
416 U.S. 134, 188 (1974) (Justice White concurring in part and
dissenting in part). More recently, the Court has applied a variant of
the Mathews v. Eldridge formula in holding that Connecticut's
prejudgment attachment statute, which ``fail[ed] to provide a
preattachment hearing without at least requiring a showing of some
exigent circumstance,'' operated to deny equal protection. Connecticut
v. Doehr, 501 U.S. 1, 18 (1991). ``[T]he relevant inquiry requires, as
in Mathews, first, consideration of the private interest that will be
affected by the prejudgment measure; second, an examination of the risk
of erroneous deprivation through the procedures under attack and the
probable value of additional or alternative safeguards; and third, in
contrast to Mathews, principal attention to the interest of the party
seeking the prejudgment remedy, with, nonetheless, due regard for any
ancillary interest the government may have in providing the procedure or
forgoing the added burden of providing greater protections.'' Id. at 11.
\245\Compare Flagg Brothers v. Brooks, 436 U.S. 149 (1978) (no
state action in warehouseman's sale of goods for nonpayment of storage,
as authorized by state law), with Lugar v. Edmondson Oil Co., 457 U.S.
922 (1982) (state officials' joint participation with private party in
effecting prejudgment attachment of property); and Tulsa Professional
Collection Servs. v. Pope, 485 U.S. 478 (1988) (probate court was
sufficiently involved with actions activating time bar in ``nonclaim''
statute).
---------------------------------------------------------------------------
Similarly, applying the tripartite test of Mathews v. Eldridge
in the context of government employment, the Court has held, albeit by a
combination of divergent opinions, that the interest of the employee in
retaining his job, the governmental interest in the expeditious removal
of unsatisfactory employees and the avoidance of administrative burdens,
and the risk of an erroneous termination require the provision of some
minimum pre-termination notice and opportunity to respond, although
there need not be a formal adversary hearing, followed by a full post-
termination hearing, complete with all the procedures normally accorded
and back pay if the employee is successful.\246\ In other cases,
hearings of even minimum procedures have been dispensed with when what
is to be estab
[[Page 1738]]
lished is so pro forma or routine that the likelihood of error is very
small.\247\ In the case dealing with the negligent state failure to
observe a procedural deadline, the Court held that the claimant was
entitled to a hearing with the agency to pass upon the merits of his
claim prior to dismissal of his action.\248\
\246\Arnett v. Kennedy, 416 U.S. 134, 170-71 (1974) (Justice
Powell concurring), and id. at 195-96 (Justice White concurring in part
and dissenting in part); Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532 (1985) (discharge of state government employee). In Barry v. Barchi,
443 U.S. 55 (1979), the Court held that the state interest in assuring
the integrity of horse racing carried on under its auspices justified an
interim suspension without a hearing once it established the existence
of certain facts, provided that a prompt judicial or administrative
hearing would follow suspension at which the issues could be determined
was assured. FDIC v. Mallen, 486 U.S. 230 (1988) (strong public interest
in the integrity of the banking industry justifies suspension of
indicted bank official with no pre-suspension hearing, and with 90-day
delay before decision resulting from post-suspension hearing).
\247\E.g., Dixon v. Love, 431 U.S. 105 (1977) (when suspension
of drivers' license is automatic upon conviction of a certain number of
offenses, no hearing is required because there can be no dispute about
facts).
\248\Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).
---------------------------------------------------------------------------
In Brock v. Roadway Express, Inc., a Court plurality applied
similar analysis to governmental regulation of private employment,
determining that a full evidentiary hearing is not required to safeguard
the interests of an employer prior to the ordered reinstatement of an
employee dismissed for cause, but that the employer is entitled to be
informed of the substance of the employee's charges, and to have an
opportunity for informal rebuttal.\249\ The principal difference with
the Mathews v. Eldridge test was that here the Court acknowledged two
conflicting private interests to weigh in the equation: that of the
employer ``in controlling the makeup of its workforce'' and that of the
employee in not being discharged for whistleblowing. Whether the case
signals a shift away from evidentiary hearing requirements in the
context of regulatory adjudication will depend on future
developments.\250\
\249\481 U.S. 252 (1987). Justice Marshall's plurality opinion
was joined by Justices Blackmun, Powell, and O'Connor; Chief Justice
Rehnquist and Justice Scalia joined Justice White's opinion taking a
somewhat narrower view of due process requirements but supporting the
plurality's general approach. Justices Brennan and Stevens would have
required confrontation and cross-examination.
\250\For analysis of the case's implications, see Rakoff, Brock
v. Roadway Express, Inc., and the New Law of Regulatory Due Process,
1987 Sup. Ct. Rev. 157.
---------------------------------------------------------------------------
In another respect, the balancing standard has resulted in an
alteration of previously existing law, requiring neither a pre- nor
post-termination hearing in some instances when the State affords the
claimant an alternative remedy, such as a judicial action for damages.
Thus, passing on the infliction of corporal punishment in the public
schools, a practice which implicated protected liberty interests, the
Court held that the existence of common-law tort remedies for wrongful
or excessive administration of punishment, plus the context in which it
was administered (i.e., the ability of the teacher to observe directly
the infraction in question, the openness of the school environment, the
visibility of the confrontation to other students and faculty, and the
likelihood of parental reaction to unreasonableness in punishment), made
reasonably assured the probability that a child would be not punished
without cause or excessively. The Court did not inquire about the
availability of judi
[[Page 1739]]
cial remedies for such violation in the State in which the case
arose.\251\
\251\Ingraham v. Wright, 430 U.S. 651, 680-82 (1977). In Memphis
Light, Gas & Water Div. v. Craft, 436 U.S. 1, 19-22 (1987), involving
cutoff of utility service for non-payment of bills, the Court rejected
the argument that common-law remedies were sufficient to obviate the
pre-termination hearing requirement.
---------------------------------------------------------------------------
More expressly adopting the tort remedy theory, the Court in
Parratt v. Taylor\252\ held that the loss of a prisoner's mail-ordered
goods through the negligence of prison officials constituted a
deprivation of property, but that the State's post-deprivation tort-
claims procedure afforded adequate due process. When a state officer or
employee acts negligently, the Court recognized, there is no way that
the State can provide a pre-termination hearing; the real question,
therefore, is what kind of post-deprivation hearing is sufficient. When
the action complained of is the result of the unauthorized failure of
agents to follow established procedures and there is no contention that
the procedures themselves are inadequate, the due process clause is
satisfied by the provision of a judicial remedy which the claimant must
initiate.\253\ Five years later, however, the Court overruled Parratt,
holding that ``the Due Process Clause is simply not implicated by a
negligent act of an official causing unintended loss of or injury to
life, liberty, or property.''\254\ Hence, there is no requirement for
procedural due process stemming from such negligent acts and no
resulting basis for suit under 42 U.S.C. Sec. 1983 for deprivation of
rights deriving from the Constitution. Prisoners may resort to state
tort law in such circumstances, but neither the Constitution nor
Sec. 1983 provides a federal remedy.
\252\451 U.S. 527 (1981).
\253\Id. at 541, 543-44.
\254\Daniels v. Williams, 474 U.S. 327, 328 (1986) (involving
negligent acts by prison officials).
---------------------------------------------------------------------------
In Logan v. Zimmerman Brush Co.,\255\ the Court had
distinguished between property\256\ deprivations resulting from random
and unauthorized acts of state employees and those resulting from
operation of established state procedures, and presumably this
distinction still holds. Post deprivation procedures would not satisfy
[[Page 1740]]
due process deprivations if it is ``the state system itself that
destroys a complainant's property interest.''
\255\455 U.S. 422, 435-36 (1982). The Court also emphasized that
a post-deprivation hearing in the context of this case would be
inadequate. ``That is particularly true where, as here, the State's only
post-termination process comes in the form of an independent tort
action. Seeking redress through a tort suit is apt to be a lengthy and
speculative process, which in a situation such as this one will never
make the complainant entirely whole.'' Id. at 436-37.
\256\Parratt was a property loss case and while Ingraham was a
liberty case the holding there was not that, standing alone, a tort
remedy was an adequate process. It is not clear, therefore, that a tort
remedy could ever be an adequate substitute for some kind of hearing in
a liberty loss situation.
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In ``rare and extraordinary situations,''\257\ where summary
action is necessary to prevent imminent harm to the public, and the
private interest infringed is reasonably deemed to be of less
importance, government can take action with no notice and no opportunity
to defend, subject to a full later hearing. Examples are seizure of
contaminated foods or drugs or other such commodities to protect the
consumer.\258\ Other possibilities are the collection of governmental
revenues\259\ and the seizure of enemy property in wartime.\260\ Citing
national security interests, the Court upheld an order, issued without
notice and an opportunity to be heard, excluding a short-order cook
employed by a concessionaire from a Naval Gun Factory, but the basis of
the five-to-four decision is unclear.\261\ On the one hand, the Court
was ambivalent about a right-privilege distinction;\262\ on the other
hand, it contrasted the limited interest of the cook--barred from the
base, she was still free to work at a number of the concessionaire's
other premises--with the Government's interest in conducting a high-
security program.\263\
\257\Board of Regents v. Roth, 408 U.S. 564, 570 n.7 (1972);
Bell v. Burson, 402 U.S. 535, 542 (1971). See Parratt v. Taylor, 451
U.S. 527, 538-40 (1981).
\258\North American Cold Storage Co. v. City of Chicago, 211
U.S. 306 (1908); Ewing v. Mytinger & Casselberry, 339 U.S. 594 (1950).
See also Fahey v. Mallonee, 332 U.S. 245 (1948). Cf. Mackey v. Montrym,
443 U.S. 1, 17-18 (1979).
\259\Phillips v. Commissioner, 283 U.S. 589, 597 (1931).
\260\Central Union Trust Co. v. Garvan, 254 U.S. 554, 566
(1921). See also Bowles v. Willingham, 321 U.S. 503 (1944).
\261\Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S.
886 (1961).
\262\Id. at 894, 895, 896.
\263\Id. at 896-98. See Goldberg v. Kelly, 397 U.S. 254, 263
n.10 (1970); Board of Regents v. Roth, 408 U.S. 564, 575 (1972); Arnett
v. Kennedy, 416 U.S. 134, 152 (1974) (plurality opinion), and id. at
181-83 (Justice White concurring in part and dissenting in part).
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Finally, one may waive his due process rights, though as with
other constitutional rights the waiver must be knowing and
voluntary.\264\
\264\D.H. Overmyer Co. v. Frick Co., 405 U.S. 174 (1972). See
also Fuentes v. Shevin, 407 U.S. 67, 94-96 (1972).
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The Requirements of Due Process.--Bearing in mind that due
process tolerates variances in form ``appropriate to the nature of the
case,''\265\ it is nonetheless possible to indicate generally the basic
requirements. ``[P]rocedural due process rules are shaped by the risk of
error inherent in the truth-finding process as applied to the generality
of cases.''\266\ ``Procedural due process rules are meant to protect
persons not from the deprivation, but from the
[[Page 1741]]
mistaken or unjustified deprivation of life, liberty, or
property.''\267\ The rules ``minimize substantively unfair or mistaken
deprivations'' by enabling persons to contest the basis upon which a
State proposes to deprive them of protected interests.\268\ Thus, after
the determination of the existence of a protected interest at issue, it
must still be determined what procedure is adequate.
\265\Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313
(1950).
\266\Mathews v. Eldridge, 424 U.S. 319, 344 (1976).
\267\Carey v. Piphus, 435 U.S. 247, 259 (1978).
\268\Fuentes v. Shevin, 407 U.S. 67, 81 (1972). At times, the
Court has also stressed the dignitary importance of procedural rights,
the worth of being able to defend one's interests even if one cannot
change the result. Carey v. Piphus, 435 U.S. 247, 266-67 (1978);
Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980).
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(1) Notice. ``An elementary and fundamental requirement of due
process in any proceeding which is to be accorded finality is notice
reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an
opportunity to present their objections.''\269\ The notice must be
sufficient to enable the recipient to determine what is being proposed
and what he must do to prevent the deprivation of his interest.\270\
Ordinarily, service of the notice must be reasonably structured to
assure that the person to whom it is directed receives it.\271\
\269\Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314
(1950).
\270\Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970).
\271\Armstrong v. Manzo, 380 U.S. 545, 550 (1965); Robinson v.
Hanrahan, 409 U.S. 38 (1974); Greene v. Lindsey, 456 U.S. 444 (1982).
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(2) Hearing. ``[S]ome form of hearing is required before an
individual is finally deprived of a property [or liberty]
interest.''\272\ ``Parties whose rights are to be affected are entitled
to be heard.''\273\ The notice of hearing and the opportunity to be
heard ``must be granted at a meaningful time and in a meaningful
manner.''\274\ ``The constitutional right to be heard is a basic aspect
of the duty of government to follow a fair process of decision making
when it acts to deprive a person of his possessions. The purpose of this
requirement is not only to ensure abstract fair play to the individual.
Its purpose, more particularly, is to protect his use and possession of
property from arbitrary encroachment. . . .''\275\ The Court has in
recent years developed a complex calculus to determine whether a hearing
should precede the deprivation or whether a prompt post-deprivation
hearing would be adequate. Generally, where the loss, even temporarily,
would be severe or catastrophic, the hearing must come first;\276\ where
a temporary deprivation
[[Page 1742]]
would be less severe and the opposing interest is important, the hearing
may come later,\277\ so long as it is promptly assured.\278\ Too, the
nature of what must be shown will be taken into account. Where the
showing to be established is largely formal or subject to substantial
documentary evidence, a post-termination hearing may suffice,\279\ while
in cases in which the evidence is largely subjective and dependent upon
the personal appearance of the claimant the hearing must ordinarily
precede the loss and the circumstance may require a more highly
structured proceeding.\280\ Sometimes, because of the nature of the
opposing interest and the circumstances of the determination, the
hearing need involve only minimal formality.\281\ The hearing
requirement does not depend upon an advance showing that the claimant
will prevail at such a hearing.\282\ While written presentations may be
acceptable in some situations, in others the issue of veracity may
necessitate oral presentation or oral examination of witnesses, or the
petitioner may not have the ability to present his case in writing.\283\
\272\Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
\273\Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863).
\274\Armstrong v. Manzo, 380 U.S. 545, 552 (1965).
\275\Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972). See Joint
Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-71 (1951)
(Justice Frankfurter concurring).
\276\Goldberg v. Kelly, 397 U.S. 254 (1970); Sniadach v. Family
Finance Corp., 395 U.S. 337 (1969).
\277\Arnett v. Kennedy, 416 U.S. 134 (1974); Mathews v.
Eldridge, 424 U.S. 319 (1976); Barry v. Barchi, 443 U.S. 55 (1979).
\278\Id. at 66.
\279\Mathews v. Eldridge, 424 U.S. 319, 343-45 (1976); Mitchell
v. W.T. Grant Co., 416 U.S. 600 (1974); Mackey v. Montrym, 443 U.S. 1,
13-17 (1979); Barry v. Barchi, 443 U.S. 55, 65-66 (1979).
\280\Goldberg v. Kelly, 397 U.S. 254 (1970).
\281\Goss v. Lopez, 419 U.S. 565 (1975) (temporary suspension of
student from school). See also Board of Curators v. Horowitz, 435 U.S.
78 (1978).
\282\Coe v. Armour Fertilizer Works, 237 U.S. 413, 424 (1915).
\283\Goldberg v. Kelly, 397 U.S. 254, 266-67 (1970); Mathews v.
Eldridge, 424 U.S. 319, 343-45 (1976). See also FCC v. WJR, 337 U.S.
265, 275-77 (1949).
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(3) Impartial Tribunal. Just as in criminal and quasi-criminal
cases,\284\ ``an impartial decision maker'' is an ``essential'' right in
civil proceedings as well.\285\ ``The neutrality requirement helps to
guarantee that life, liberty, or property will not be taken on the basis
of an erroneous or distorted conception of the facts or the law. . . .
At the same time, it preserves both the appearance and reality of
fairness . . . by ensuring that no person will be deprived of his
interests in the absence of a proceeding in which he may present his
case with assurance that the arbiter is not predisposed to find against
him.''\286\ Thus, the conduct of deportation hearings by a person who,
while he had not investigated the case heard, was also an investigator
who must judge the results of others' investigations just as one of them
would some day judge his, raised a substantial problem which was
resolved through statutory construction.\287\ But
[[Page 1743]]
there is a ``presumption of honesty and integrity in those serving as
adjudicators,''\288\ so that the burden is on the objecting party to
show a conflict of interest or some other specific reason for
disqualification of a specific officer or for disapproval of the system.
It is not, without more, a violation of due process to combine
investigating and adjudicating functions in the same agency,\289\
although the question of combination of functions is a substantial one
in administrative law.\290\ A showing of bias or of strong implications
of bias was deemed made in a case in which the state optometry board,
which was made up only of private practitioners, was proceeding against
other licensed optometrists for unprofessional conduct, because they
were employed by corporations. Since success in the board's effort would
redound to the personal benefit of private practitioners, the Court
thought the interest of the board members to be sufficient to disqualify
them.\291\ However, the Court held that school board members did not
have such an official or personal stake in the decision as to disqualify
them from making the decision whether to fire teachers who had engaged
in a strike against the school system in violation of state law.\292\ A
lesser standard of impartiality applies to an administrative officer who
acts in a prosecutorial role.\293\
\284\Tumey v. Ohio, 273 U.S. 510 (1927); In re Murchison, 349
U.S. 133 (1955).
\285\Goldberg v. Kelly, 397 U.S. 254, 271 (1970).
\286\Marshall v. Jerrico, 446 U.S. 238, 242 (1980); Schweiker v.
McClure, 456 U.S. 188, 195 (1982).
\287\Wong Yang Sung v. McGrath, 339 U.S. 33 (1950).
\288\Schweiker v. McClure, 456 U.S. 188, 195 (1982); Withrow v.
Larkin, 421 U.S. 35, 47 (1975); United States v. Morgan, 313 U.S. 409,
421 (1941).
\289\Withrow v. Larkin, 421 U.S. 35 (1975).
\290\Id. at 51.
\291\Gibson v. Berryhill, 411 U.S. 564 (1973).
\292\Hortonville Joint School Dist. v. Hortonville Educ. Ass'n,
426 U.S. 482 (1976). Compare Arnett v. Kennedy, 416 U.S. 134, 170 n.5
(1974) (Justice Powell), with id. at 196-99 (Justice White), and 216
(Justice Marshall).
\293\Marshall v. Jerrico, 446 U.S. 238, 248-50 (1980) (regional
administrator assessing fines for child labor violations, with penalties
going into fund to reimburse cost of system of enforcing child labor
laws). But ``traditions of prosecutorial discretion do not immunize from
judicial scrutiny cases in which enforcement decisions of an
administrator were motivated by improper factors or were otherwise
contrary to law.'' Id. at 249.
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(4) Confrontation and Cross-Examination. ``In almost every
setting where important decisions turn on questions of fact, due process
requires an opportunity to confront and cross-examine adverse
witnesses.''\294\ Where the ``evidence consists of the testimony of
individuals whose memory might be faulty or who, in fact, might be
perjurers or persons motivated by malice, vindictiveness, intolerance,
prejudice, or jealously,'' the individual's right to show that it is
untrue depends on the rights of confrontation and cross-examination.
``This Court has been zealous to protect these rights from ero
[[Page 1744]]
sion. It has spoken out not only in criminal cases, . . . but also in
all types of cases where administrative . . . actions were under
scrutiny.''\295\
\294\Goldberg v. Kelly, 397 U.S. 254, 269 (1970). See also ICC
v. Louisville & Nashville R.R., 227 U.S. 88, 93-94 (1913); Willner v.
Committee on Character, 373 U.S. 96, 103-04 (1963). Cf. Sec. 7(c) of the
Administrative Procedure Act, 5 U.S.C. Sec. 556(d).
\295\Greene v. McElroy, 360 U.S. 474, 496-97 (1959). But see
Richardson v. Perales, 402 U.S. 389 (1971) (where authors of documentary
evidence are known to petitioner and he did not subpoena them, he may
not complain that agency relied on that evidence). Cf. Mathews v.
Eldridge, 424 U.S. 319, 343-45 (1976).
---------------------------------------------------------------------------
(5) Discovery. The Court has never directly confronted this
issue, but in one case it did observe in dictum. ``[W]here governmental
action seriously injures an individual, and the reasonableness of the
action depends on fact findings, the evidence used to prove the
Government's case must be disclosed to the individual so that he has an
opportunity to show that it is untrue.''\296\ Some federal agencies have
adopted discovery rules modeled on the Federal Rules of Civil Procedure,
and the Administrative Conference has recommended that all do so.\297\
There appear to be no cases, however, holding they must, and there is
some authority that they cannot absent congressional authorization.\298\
\296\Greene v. McElroy, 360 U.S. 474, 496 (1959), quoted with
approval in Goldberg v. Kelly, 397 U.S. 254, 270 (1970).
\297\Recommendations and Reports of the Administrative
Conference of the United States 571 (1968-1970).
\298\FMC v. Anglo-Canadian Shipping Co., 335 F.2d 255 (9th Cir.
1964); Fairbank v. Hardin, 429 F.2d 264, 268 (9th Cir.), cert. denied,
400 U.S. 943 (1970).
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(6) Decision on the Record. [T]he decisionmaker's conclusion as
to a recipients' eligibility must rest solely on the legal rules and
evidence adduced at the hearing. . . . To demonstrate compliance with
this elementary requirement, the decisionmaker should state the reasons
for his determination and indicate the evidence he relied on . . .
though his statement need not amount to a full opinion or even formal
findings of fact and conclusions of law.''\299\
\299\Goldberg v. Kelly, 397 U.S. 254, 271 (1970). The
exclusiveness of the record is fundamental in administrative law. See
7(d) of the Administrative Procedure Act, 5 U.S.C. Sec. 556(e). However,
one must show not only that the agency used ex parte evidence but that
he was prejudiced thereby. Market Street Ry. v. Railroad Comm'n, 324
U.S. 548 (1945) (agency decision supported by evidence in record, its
decision sustained, disregarding ex parte evidence).
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(7) Counsel. In Goldberg v. Kelly,\300\ the Court held that an
agency must permit the recipient to be represented by and assisted by
counsel. It did not, however, decide that the agency must provide
counsel for one unable to afford his own and did not decide that the
agency need not do so. In the years since, the right of civil litigants
in court and persons before agencies who could not afford retained
counsel has excited much controversy, and while quite recently the Court
has applied its balancing standard to require a case-by-case
determination with respect to the right to appointed
[[Page 1745]]
counsel, the matter seems far from settled. In a case involving a state
proceeding to terminate the parental rights of an indigent without
providing her counsel, the Court recognized as ``an extremely important
one'' the parent's interest, but observed that the State's interest in
protecting the welfare of children was likewise very important. The
interest in correct factfinding was strong on both sides, but, the Court
thought, the proceeding was relatively simple, no features were present
raising a risk of criminal liability, no expert witnesses were present,
and no ``specially troublesome'' substantive or procedural issues had
been raised.\301\ But what tipped the scale in the Court's decision not
to require counsel in this case was the ``pre-eminent generalization it
drew from its precedents that an indigent has an absolute right to
appointed counsel only where he may lose his physical liberty if he
loses the litigation.\302\ Thus, in all other situations when liberty or
property interests are present, the right of an indigent to appointed
counsel is to be determined on a case-by-case basis, initially by the
trial judge, subject to appellate review.\303\ In other due process
cases involving parental rights, the Court has held that due process
requires special state attention to parental rights,\304\ and it is to
be supposed that the counsel issue will recur.
\300\397 U.S. 254, 270-71 (1970).
\301\Lassiter v. Department of Social Services, 452 U.S. 18
(1981). The decision was a five-to-four one, Justices Stewart, White,
Powell, and Rehnquist and Chief Justice Burger in the majority, Justices
Blackmun, Brennan, Marshall, and Stevens in dissent. Id. at 35, 59.
\302\Id. at 25-27. The Court purported to draw the distinction
from Gagnon v. Scarpelli, 411 U.S. 778 (1973) (no per se right to
counsel in probation revocation proceedings). To introduce this
presumption into the balancing, however, appears to disregard the fact
that the first factor of Mathews v. Eldridge, upon which the Court (and
dissent) relied, relates to the importance of the interest to the person
claiming the right, thus, at least in this context, reducing the value
of the first Eldridge factor.
\303\Id. at 452 U.S., 31-32. The Mathews v. Eldridge standards
were drafted in the context of the generality of cases and were not
intended for case-by-case application Cf. 424 U.S. 319, 344 (1976).
\304\E.g., Little v. Streater, 452 U.S. 1 (1981) (indigent
entitled to state-funded blood testing in a paternity action the State
required to be instituted); Santosky v. Kramer, 455 U.S. 745 (1982)
(imposition of higher standard of proof in case involving state
termination of parental rights).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED:
PROCEDURAL DUE PROCESS--CRIMINAL
Generally
The Supreme Court's guardianship of state criminal justice
systems under the due process clause has never been subject to precise
statement of metes and bounds. Rather, the Court in each case must ask
whether the challenged practice or policy violates ``a fundamental
principle of liberty and justice which inheres in the
[[Page 1746]]
very idea of a free government and is the inalienable right of a citizen
of such government.''\1\ The question is whether a claimed right is
``implicit in the concept of ordered liberty,'' whether it partakes ``of
the very essence of a scheme of ordered liberty.''\2\ Inevitably,
judgment expresses a determination that certain practices do or do not
``offend those canons of decency and fairness which express the notions
of justice of English-speaking peoples even toward those charged with
the most heinous offenses.''\3\ More recently, the Court has eschewed as
too abstract an inquiry as to whether some procedural safeguard was
necessary before a system could be imagined which would be regarded as
civilized without that safeguard. Rather, ``[t]he recent cases . . .
have proceeded upon the valid assumption that state criminal processes
are not imaginary and theoretical schemes but actual systems bearing
virtually every characteristic of the common-law system that has been
developing contemporaneously in England and in this country. The
question thus is whether given this kind of system a particular
procedure is fundamental--whether, that is, a procedure is necessary to
an Anglo-American regime of ordered liberty. . . . [Therefore the
limitations imposed by the Court on the States are] not necessarily
fundamental to fairness in every criminal system that might be imagined
but [are] fundamental in the context of the criminal processes
maintained by the American States.''\4\
\1\Twining v. New Jersey, 211 U.S. 78, 106 (1908).
\2\Palko v. Connecticut, 302 U.S. 319, 325 (1937).
\3\Rochin v. California, 342 U.S. 165, 169 (1952).
\4\Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968).
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Applying this analysis the Court in recent years has held that
practically all the criminal procedural guarantees of the Bill of
Rights--the Fourth, Fifth, Sixth, and Eighth Amendments--contain
limitations which are fundamental to state criminal justice systems and
that the absence of one or the other particular guarantees denies a
suspect or a defendant due process of law.\5\ However, the due process
clause of the Fourteenth Amendment is not limited to those specific
guarantees spelled out in the Bill of Rights,\6\ but rather contains
protection against practices and policies which may fall short of
fundamental fairness without running afoul of a specific provision.\7\
\5\Supra, pp. 957-64.
\6\Justice Black thought the Fourteenth Amendment should be
limited in this regard to the specific guarantees found elsewhere in the
Bill of Rights. See, e.g., In re Winship, 397 U.S. 358, 377 (1970)
(dissenting). For Justice Harlan's response, see id. at 372 n.5
(concurring).
\7\In re Winship, 397 U.S. 358 (1970), held that, despite the
absence of a specific constitutional provision requiring proof beyond a
reasonable doubt in criminal cases, such proof is a due process
requirement. For other recurrences to general due process reasoning, as
distinct from reliance on more specific Bill of Rights provisions, see,
e.g., Chambers v. Mississippi, 410 U.S. 284 (1973); Wardius v. Oregon,
412 U.S. 470 (1973); Mullaney v. Wilbur, 421 U.S. 684 (1975); Estelle v.
Williams, 425 U.S. 501 (1976); Henderson v. Kibbe, 431 U.S. 145 (1977);
Patterson v. New York, 432 U.S. 197 (1977); Taylor v. Kentucky, 436 U.S.
478 (1978); Kentucky v. Whorton, 441 U.S. 786 (1979); Sandstrom v.
Montana, 442 U.S. 510 (1979); Hicks v. Oklahoma, 447 U.S. 343 (1980).
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[[Page 1747]]
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
PROCEDURAL DUE PROCESS--CRIMINAL
The Elements of Due Process
Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine.--
``Legislation may run afoul of the Due Process Clause because it fails
to give adequate guidance to those who would be law-abiding, to advise
defendants of the nature of the offense with which they are charged, or
to guide courts in trying those who are accused.''\8\ Acts which are
made criminal ``must be defined with appropriate definiteness.''\9\
``There must be ascertainable standards of guilt. Men of common
intelligence cannot be required to guess at the meaning of the
enactment. The vagueness may be from uncertainty in regard to persons
within the scope of the act . . . or in regard to the applicable tests
to ascertain guilt.''\10\ Statutes which lack the requisite definiteness
or specificity are commonly held ``void for vagueness.'' Such a statute
may be pronounced wholly unconstitutional (unconstitutional ``on its
face''),\11\ or, if the statute could be applied to both prohibitable
and to protected conduct and its valuable effects outweigh its potential
general harm, it could be held unconstitutional as applied.\12\
Generally, a vague statute that regulates in the area of First Amendment
guarantees will be pronounced wholly void,\13\ while one that does not
reach such protected conduct will either be upheld because it is applied
to clearly proscribable conduct, or voided as applied when the conduct
is marginal and the proscription is unclear.\14\
\8\Musser v. Utah, 333 U.S. 95, 97 (1948). ``Vague laws offend
several important values. First, because we assume that man is free to
steer between lawful and unlawful conduct, we insist that laws give the
person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly. Vague laws may trap the
innocent by not providing fair warnings. Second, if arbitrary and
discriminatory enforcement is to be prevented, laws must provide
explicit standards for those who apply them. A vague law impermissibly
delegates basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant dangers
of arbitrary and discriminatory applications.'' Grayned v. City of
Rockford, 408 U.S. 104, 108-09 (1972), quoted in Village of Hoffman
Estates v. The Flipside, 455 U.S. 489, 498 (1982).
\9\Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).
\10\Winters v. New York, 333 U.S. 507, 515-16 (1948). Cf. Colten
v. Kentucky, 407 U.S. 104, 110 (1972).
\11\Papachristou v. City of Jacksonville, 405 U.S. 156 (1972);
Smith v. Goguen, 415 U.S. 566 (1974).
\12\Palmer v. City of Euclid, 402 U.S. 544 (1971); Village of
Hoffman Estates v. The Flipside, 455 U.S. 489, 494-95 (1982).
\13\Winters v. New York, 333 U.S. 507, 509-10 (1948); Thornhill
v. Alabama, 310 U.S. 88 (1940).
\14\E.g., United States v. National Dairy Corp., 372 U.S. 29
(1963).
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[[Page 1748]]
The Court voided for vagueness a statute providing that any
person not engaged in any lawful occupation, known to be a member of any
gang consisting of two or more persons, who had been convicted at least
three times of being a disorderly person, or who had been convicted of
any crime in that or any other State, is to be considered a gangster and
subject to fine or imprisonment. The Court observed that neither at the
common law nor by statute are the words ``gang'' and ``gangster'' given
definite meaning, that the enforcing agencies and courts were free to
construe the terms broadly or narrowly, and that the phrase ``known to
be a member'' was ambiguous. The statute was held void on its face, and
the Court refused to allow specification of details in the particular
indictment to save it because it was the statute, not the accusation,
that prescribed the rule to govern conduct.\15\
\15\Lanzetta v. New Jersey, 306 U.S. 451 (1939); Edelman v.
California, 344 U.S. 357 (1953).
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Possibly concluding a controversy of long standing with regard
to the validity of vagrancy laws as generally written,\16\ a unanimous
Court in Papachristou v. City of Jacksonville\17\ struck down for
vagueness an ordinance which punished ``dissolute persons who go about
begging, . . . common night walkers, . . . common railers and brawlers,
persons wandering or strolling around from place to place without any
lawful purpose or object, habitual loafers, . . . persons neglecting all
lawful business and habitually spending their time by frequenting house
of ill fame, gaming houses, or places where alcoholic beverages are sold
or served, persons able to work but habitually living upon the earnings
of their wives or minor children. . . .'' The ordinance was invalid,
said Justice Douglas for the Court, because it did not give fair notice,
did not require specific intent to commit an unlawful act, permitted and
encouraged arbitrary and erratic arrests and convictions, committed too
much discretion to policemen, and criminalized activities which by
modern standards are normally innocent. Similarly, an ordinance making
it a criminal offense for three or more persons to assemble on a
sidewalk and conduct themselves in a manner annoying to passers-by was
impermissibly vague; because it encroached on the freedom of assembly it
was void on its face.\18\ But an ordinance
[[Page 1749]]
punishing ``suspicious persons'' was void only as applied to a person
engaging in ambiguous conduct which it was possible to fit within the
ordinance's definition.\19\ A statute authorizing conviction for
disorderly conduct of any person who refuses to move on upon police
request and who is intent on causing inconvenience, annoyance, or alarm
was upheld against facial challenge and as applied to one interfering
with police ticketing of a car for valid reasons.\20\
\16\E.g., Winters v. New York, 333 U.S. 507, 540 (1948) (Justice
Frankfurter dissenting); Edelman v. California, 344 U.S. 357, 362 (1953)
(Justice Black dissenting); Hicks v. District of Columbia, 383 U.S. 252
(1966) (Justice Douglas dissenting).
\17\405 U.S. 156 (1972).
\18\Coates v. City of Cincinnati, 402 U.S. 611 (1971). See also
Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965). Bouie v. City
of Columbia, 378 U.S. 347 (1964), voided conviction on trespass charges
arising out of a sit-in at a drugstore lunch counter since the trespass
statute did not give fair notice that it was a crime to refuse to leave
private premises after being requested to do so. And see Kolender v.
Lawson, 461 U.S. 352 (1983) (requirement that person detained in valid
Terry stop provide ``credible and reliable'' identification is facially
void as encouraging arbitrary enforcement).
\19\Palmer v. City of Euclid, 402 U.S. 544 (1971).
\20\Colten v. Kentucky, 407 U.S. 104 (1972).
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A state statute imposing severe, cumulative punishments upon
contractors with the State who pay their workmen less than the ``current
rate of per diem wages in the locality where the work is performed'' was
held to be ``so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application.''\21\ Similarly,
a statute which allowed jurors to require an acquitted defendant to pay
the costs of the prosecution, elucidated only by the judge's instruction
to the jury that the defendant should only have to pay the costs if it
thought him guilty of ``some misconduct'' though innocent of the crime
with which he was charged, was found to fall short of the requirements
of due process.\22\ But the Court sustained as neither too vague nor
indefinite a state law which provided for commitment of a psychopathic
personality by probate action akin to a lunacy proceeding and which had
been construed by the state court as applying to those persons who, by
habitual course of misconduct in sexual matters, have evidenced utter
lack of power to control their sexual impulses and are likely to inflict
injury. The underlying conditions--habitual course of misconduct in
sexual matters and lack of power to control impulses and likelihood of
attack on others--were viewed as calling for evidence of past conduct
pointing to probable consequences and as being as susceptible of proof
as many of the criteria constantly applied in criminal proceedings.\23\
\21\Connally v. General Construction Co., 269 U.S. 385 (1926).
\22\Giaccio v. Pennsylvania, 382 U.S. 399 (1966).
\23\Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270
(1940).
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Other Aspects of Statutory Notice.--Conceptually related to the
problem of definiteness in criminal statutes is the problem of the
requisite notice a person must have that a statute commands that
something not be done or alternatively that unless something is done
criminal liability will result. Ordinarily, it can be said that
ignorance of the law affords no excuse, that everyone is presumed to
know that certain things may not be done. Moreover, in other
[[Page 1750]]
instances, the subject matter or conduct may be sufficient to alert one
that there are regulatory laws which must be observed.\24\ In still
other instances, the requirement of ``scienter'' may take care of the
problem in that there may be a statutory requirement of intent expressed
through some form of the word ``willful,''\25\ but the Court has so far
failed in dealing with those cases involving strict liability to develop
the implications of the mens rea requirement.\26\ There remains the case
of Lambert v. California,\27\ invalidating a municipal code that made it
a crime for anyone who had ever been convicted of a felony to remain in
the city for more than five days without registering. Emphasizing that
the act of being in the city was not itself blameworthy, the Court
voided the conviction, holding that the failure to register was quite
``unlike the commission of acts, or the failure to act under
circumstances that should alert the doer to the consequences of his
deed.'' ``Where a person did not know of the duty to register and where
there was no proof of the probability of such knowledge, he may not be
convicted consistently with due process. Were it otherwise, the evil
would be as great as it is when the law is written in print too fine to
read or in a language foreign to the community.''\28\
\24\E.g., United States v. Freed, 401 U.S. 601 (1971).
\25\E.g., Boyce Motor Lines v. United States, 342 U.S. 337
(1952); Colautti v. Franklin, 439 U.S. 379, 395 (1979). Cf. Screws v.
United States, 325 U.S. 91, 101-03 (1945) (plurality opinion).
\26\E.g., Morissette v. United States, 342 U.S. 246 (1952).
\27\355 U.S. 225 (1957).
\28\Id. at 228, 229-30.
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Entrapment.--Certain criminal offenses, because they are
consensual actions taken between and among willing parties, present
police with difficult investigative problems. Some of that difficulty
may be alleviated through electronic and other surveillance, which is
covered by the search and seizure provisions of the Fourth Amendment,
and in other respects informers may be utilized, which may implicate
several constitutional provisions. Sometimes, however, police agents may
``encourage'' persons to engage in criminal behavior, by seeking to buy
from them or to sell to them narcotics or contraband or by seeking to
determine if public employees or officers are corrupt by offering them
bribes. The Court has dealt with this issue in terms of the
``entrapment'' defense, though it is unclear whether the basis of the
defense is one of statutory construction--the legislature would not have
intended to punish conduct induced by police agents--one of supervisory
authority of the federal courts to deter wrongful police conduct, or one
of due process command.\29\
\29\For a thorough evaluation of the basis for and the nature of
the entrapment defense, see Seidman, The Supreme Court, Entrapment, and
Our Criminal Justice Dilemma, 1981 Sup. Ct. Rev. 111. The statutory
basis was said to be the ground in the Court's first discussion of the
issue, Sorrells v. United States, 287 U.S. 435, 446-49 (1932), and that
basis remains the choice of some Justices. Hampton v. United States, 425
U.S. 484, 488-89 (1976) (plurality opinion of Justices Rehnquist and
White and Chief Justice Burger). The supervisory power basis was argued
by Justice Frankfurter in Sherman v. United States, 356 U.S. 369, 380
(1958) (concurring). Utilization of that power was rejected in United
States v. Russell, 411 U.S. 423, 490 (1973), and by the plurality in
Hampton, supra, 490. The Hampton plurality thought the due process
clause would never be applicable, no matter what conduct government
agents engaged in, unless they violated some protected right of the
defendant, and that inducement and encouragement could never do that;
Justices Powell and Blackmun, id. at 491, thought that police conduct,
even in the case of a predisposed defendant, could be so outrageous as
to violate due process. The Russell and Hampton dissenters did not
clearly differentiate between the supervisory power and due process but
seemed to believe that both were implicated. Id. at 495 (Justices
Brennan, Stewart, and Marshall); Russell, supra, 439 (Justices Stewart,
Brennan, and Marshall). The Court again failed to clarify the basis for
the defense in Mathews v. United States, 485 U.S. 58 (1988), holding
that a defendant in a federal criminal case who denies commission of the
crime is entitled to assert an ``inconsistent'' entrapment defense where
the evidence warrants, and in Jacobson v. United States, 112 S. Ct.
1535, 1540 (1992) (invalidating a conviction under the Child Protection
Act of 1984 because government solicitation induced the defendant to
purchase child pornography).
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[[Page 1751]]
The Court has employed the so-called ``subjective approach'' to
evaluating the defense of entrapment. This subjective approach follows a
two-pronged analysis. First, the question is asked whether the offense
was induced by a government agent. Second, if the government has induced
the defendant to break the law, ``the prosecution must prove beyond
reasonable doubt that the defendant was disposed to commit the criminal
act prior to first being approached by Government agents.''\30\ If the
defendant can be shown to have been ready and willing to commit the
crime whenever the opportunity presented itself, the defense of
entrapment is unavailing, no matter the degree of inducement.\31\ On the
other hand, ``[w]hen the Government's quest for conviction leads to the
apprehension of an otherwise law-abiding citizen who, if left to his own
devices, likely would never run afoul of the law, the courts should
intervene.''\32\ An ``objective approach,'' while rejected by the
Supreme Court, has been advocated by some Justices and recommended for
codification
[[Page 1752]]
by Congress and the state legislatures.\33\ The objective approach
disregards the defendant's predisposition and looks to the inducements
used by government agents. If the government employed means of
persuasion or inducement creating a substantial risk that the person
tempted will engage in the conduct, the defense is available.\34\
Typically, entrapment cases have risen in the narcotics area,\35\ but
more recently, as in the ``Abscam'' controversy, the focus has been on
public corruption and the offering of bribes to public officials.\36\
\30\Jacobson v. United States, 112 S. Ct. 1535, 1540 (1992).
Here the Court held that the government had failed to prove that the
defendant was initially predisposed to purchase child pornography, even
though he had become so predisposed following solicitation through an
undercover ``sting'' operation. For several years government agents had
sent the defendant mailings soliciting his views on pornography and
child pornography, and urging him to obtain materials in order to fight
censorship and stand up for individual rights.
\31\Sorrells v. United States, 287 U.S. 435, 451-52 (1932);
Sherman v. United States, 356 U.S. 369, 376-78 (1958); Masciale v.
United States, 356 U.S. 386, 388 (1958); United States v. Russell, 411
U.S. 423, 432-36 (1973); Hampton v. United States, 425 U.S. 484, 488-489
(1976) (plurality opinion), and id. at 491 (Justices Powell and Blackmun
concurring).
\32\Jacobson v. United States, 112 S. Ct. 1535, 1543 (1992).
\33\See American Law Institute, Model Penal Code Sec. 2.13
(Official Draft, 1962); National Commission on Reform of Federal
Criminal Laws, A Proposed New Federal Criminal Code Sec. 702(2) (Final
Draft, 1971).
\34\Sorrells v. United States, 287 U.S. 435, 458-59 (1932)
(separate opinion of Justice Roberts); Sherman v. United States, 356
U.S. 369, 383 (1958) (Justice Frankfurter concurring); United States v.
Russell, 411 U.S. 423, 441 (1973) (Justice Stewart dissenting); Hampton
v. United States, 425 U.S. 484, 496-97 (1976) (Justice Brennan
dissenting).
\35\Thus, in Sorrells and Sherman government agents solicited
defendants, in Russell the agents supplied an ingredient, which was
commonly available, and in Hampton the agents supplied an essential and
difficult to obtain ingredient.
\36\The defense was rejected as to all the ``Abscam''
defendants. E.g., United States v. Kelly, 707 F.2d 1460 (D.C. Cir.
1983); United States v. Williams, 705 F.2d 603 (2d Cir. 1983); United
States v. Jannotti, 673 F.2d 578 (3d Cir.), cert. denied, 457 U.S. 1106
(1982).
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Criminal Identification Process.--The conduct by police of
identification processes seeking to identify the perpetrators of
crimes--by lineups, showups, photographic displays, and the like--can
raise due process problems. For postindictment lineups and showups
conducted before June 12, 1967,\37\ for preindictment lineups and
showups,\38\ and for identification processes at which the defendant is
not present,\39\ the question of the admissibility of an in-court
identification or of testimony about an out-of-court identification is
whether there is ``a very substantial likelihood of misidentification,''
and that question must be determined ``on the totality of the
circumstances.''\40\
\37\Stovall v. Denno, 388 U.S. 293 (1967).
\38\Kirby v. Illinois, 406 U.S. 682 (1972).
\39\United States v. Ash, 413 U.S. 300 (1973).
\40\Neil v. Biggers, 409 U.S. 188, 196-201 (1972); Manson v.
Brathwaite, 432 U.S. 98, 114-17 (1977). The factors to be considered in
evaluating the likelihood of misidentification include the opportunity
of the witness to view the suspect at the time of the crime, the
witness' degree of attention, the accuracy of the witness' prior
description of the suspect, the level of certainty demonstrated by the
witness at the confrontation, and the length of time between the crime
and the confrontation. See also Stovall v. Denno, 388 U.S. 293 (1967);
Simmons v. United States, 390 U.S. 377 (1968); Foster v. California, 394
U.S. 440 (1969); Coleman v. Alabama, 399 U.S. 1 (1970).
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``Suggestive confrontations are disapproved because they
increase the likelihood of misidentification, and unnecessarily
suggestive ones are condemned for the further reason that the increased
[[Page 1753]]
chance of misidentification is gratuitous.''\41\ But, balancing the
factors that it thought furnished the guidance for decision, the Court
declined to lay down a per se rule of exclusion of an identification
because it was obtained under conditions of unnecessary suggestiveness
alone, feeling that the fairness standard of due process does not
require an evidentiary rule of such severity.\42\
\41\Neil v. Biggers, 409 U.S. 188, 198 (1972).
\42\Manson v. Brathwaite, 432 U.S. 98, 107-14 (1977). The
evaluative factors were what the per se rule and the less strict rule
contributed to excluding unreliable eyewitness testimony from jury
consideration, to deterrence of suggestive procedures, and to the
administration of justice. The possibility of a per se rule in post-
Stovall cases had been left open in Neil v. Biggers, 409 U.S. 188, 199
(1972). Due process does not require that the in-court hearing to
determine whether to exclude a witness' identification as arrived at
improperly be out of the presence of the jury. Watkins v. Sowders, 449
U.S. 341 (1981).
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Initiation of the Prosecution.--Indictment by a grand jury is
not a requirement of due process; a State may proceed instead by
information.\43\ Due process does require that, whatever the procedure,
a defendant must be given adequate notice of the offense charged against
him and for which he is to be tried,\44\ even aside from the
requirements of the Sixth Amendment. Where, of course, a grand jury is
utilized, it must be fairly constituted and free from prejudicial
influences.\45\
\43\Hurtado v. California, 110 U.S. 516 (1884).
\44\Smith v. O'Grady, 312 U.S. 329 (1941) (guilty plea of layman
unrepresented by counsel to what prosecution represented as a charge of
simple burglary but which was in fact a charge of ``burglary with
explosives'' carrying a much lengthier sentence is void). See also Cole
v. Arkansas, 333 U.S. 196 (1948) (affirmance by appellate court of
conviction and sentence on ground that evidence showed defendant guilty
under a section of the statute not charged violated due process); In re
Ruffalo, 390 U.S. 544 (1968) (disbarment in proceeding on charge which
was not made until after lawyer had testified denied due process); Rabe
v. Washington, 405 U.S. 313 (1972) (affirmance of obscenity conviction
because of the context in which a movie was shown--grounds neither
covered in the statute nor listed in the charge--was invalid).
\45\Norris v. Alabama, 294 U.S. 587 (1935); Cassell v. Texas,
339 U.S. 282 (1950); Eubanks v. Louisiana, 356 U.S. 584 (1958);
Hernandez v. Texas, 347 U.S. 475 (1954); Pierre v. Louisiana, 306 U.S.
354 (1939). See infra, pp. 1854-57. On prejudicial publicity, see Beck
v. Washington, 369 U.S. 541 (1962).
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Fair Trial.--The provisions of the Bill of Rights now applicable
to the States contain basic guarantees of a fair trial--right to
counsel, right to speedy and public trial, right to be free from use of
unlawfully seized evidence and unlawfully obtained confessions, and the
like. But this does not exhaust the requirements of fairness. ``Due
process of law requires that the proceedings shall be fair, but fairness
is a relative, not an absolute concept. . . . What is fair in one set of
circumstances may be an act of tyranny in others.''\46\ Conversely, ``as
applied to a criminal trial, denial of due
[[Page 1754]]
process is the failure to observe that fundamental fairness essential to
the very concept of justice. In order to declare a denial of it . . .
[the Court] must find that the absence of that fairness fatally infected
the trial; the acts complained of must be of such quality as necessarily
prevents a fair trial.''\47\
\46\Snyder v. Massachusetts, 291 U.S. 97, 116, 117 (1934). See
also Buchalter v. New York, 319 U.S. 427, 429 (1943).
\47\Lisenba v. California, 314 U.S. 219, 236 (1941).
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Bias or prejudice either inherent in the structure of the trial
system or as imposed by external events will deny one's right to a fair
trial. Thus, in Tumey v. Ohio\48\ it was held to violate due process to
vest trial of offenders in a judge who received, in addition to his
salary, the costs imposed on a convicted defendant, and who was also
mayor of the municipality which received part of the money collected in
fines. The influence of contemptuous misbehavior in court upon the
impartiality of the presiding judge who may cite for contempt and
sentence contemnors has divided the Court.\49\ Due process is also
violated by the participation of a biased or otherwise partial juror,
but there is no presumption that jurors who are potentially compromised
are in fact prejudiced; ordinarily the proper avenue of relief is a
hearing at which the juror may be questioned and the defense afforded an
opportunity to prove actual bias.\50\ Exposure to pretrial publicity
does not necessarily bias jurors. Thus, a trial judge's refusal to
question potential jurors about the contents of news reports to which
they had been exposed did not violate the defendant's right to due
process, it being sufficient that the judge on voir dire asked the
jurors whether they could put aside what they had heard about the case,
listen to the evidence with an open mind, and render an impartial
verdict.\51\ It is not a denial of due process for the prosecution to
[[Page 1755]]
call the jury's attention to the defendant's prior criminal record when
the object is to enable the jury, which has the sentencing function as
well as the guilt-determination function, once it has determined guilt
or innocence and if the former, to increase the sentence which would
otherwise be given under a recidivist statute.\52\
\48\273 U.S. 510 (1927). See also Ward v. Village of
Monroeville, 409 U.S. 57 (1972). But see Dugan v. Ohio, 277 U.S. 61
(1928). Bias or prejudice of an appellate judge can also deprive a
litigant of due process. Aetna Life Ins. Co. v. LaVoie, 475 U.S. 813
(1986) (failure of state supreme court judge with pecuniary interest--a
pending suit on an indistinguishable claim--to recuse).
\49\E.g., Fisher v. Pace, 336 U.S. 155 (1949); Ungar v.
Sarafite, 376 U.S. 575 (1964); Holt v. Virginia, 381 U.S. 131 (1965);
Mayberry v. Pennsylvania, 400 U.S. 455 (1971); Johnson v. Mississippi,
403 U.S. 212 (1971); Taylor v. Hayes, 418 U.S. 488 (1974). See generally
Illinois v. Allen, 397 U.S. 337 (1970). In the context of alleged
contempt before a judge acting as a one-man grand jury, the Court
reversed criminal contempt convictions, saying: ``A fair trial in a fair
tribunal is a basic requirement of due process. Fairness of course
requires an absence of actual bias in the trial of cases. But our system
of law has always endeavored to prevent even the probability of
unfairness.'' In re Murchison, 349 U.S. 133, 136 (1955).
\50\Smith v. Phillips, 455 U.S. 209 (1982) (juror had job
application pending with prosecutor's office during trial). See also
Remmer v. United States, 347 U.S. 227 (1954) (bribe offer to sitting
juror); Dennis v. United States, 339 U.S. 162, 167-72 (1950) (government
employees on jury).
\51\Mu'Min v. Virginia, 500 U.S. 415 (1991). For discussion of
the requirements of jury impartiality about capital punishment, see
discussion under Sixth Amendment, supra p. 1415.
\52\Spencer v. Texas, 385 U.S. 554 (1967).
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Mob domination of a trial so as to rob the jury of its judgment
on the evidence presented, is, of course, a classic due process
violation.\53\ More recently, concern with the impact of prejudicial
publicity upon jurors and potential jurors has caused the Court to
instruct trial courts that they should be vigilant to guard against such
prejudice and to curb both the publicity and the jury's exposure to
it.\54\ A state rule permitting the televising of certain trials was
struck down on the grounds that the harmful potential effect on the
jurors was substantial, that the testimony presented at trial may be
distorted by the multifaceted influence of television upon the conduct
of witnesses, that the judge's ability to preside over the trial and
guarantee fairness is considerably encumbered to the possible detriment
of fairness, and that the defendant is likely to be harassed by his
television exposure.\55\ Subsequently, however, in part because of
improvements in technology which caused much less disruption of the
trial process and in part because of the lack of empirical data showing
that the mere presence of the broadcast media in the courtroom
necessarily has an adverse effect on the process, the Court has held
that due process does not altogether preclude the televising of state
criminal trials.\56\
\53\Frank v. Mangum, 237 U.S. 309 (1915); Moore v. Dempsey, 261
U.S. 86 (1923).
\54\Sheppard v. Maxwell, 384 U.S. 333 (1966); Rideau v.
Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, 366 U.S. 717 (1961); But
see Stroble v. California, 343 U.S. 181 (1952); Murphy v. Florida, 421
U.S. 794 (1975).
\55\Estes v. Texas, 381 U.S. 532 (1965).
\56\Chandler v. Florida, 449 U.S. 560 (1981). The decision was
unanimous but Justices Stewart and White concurred on the basis that
Estes had established a per se constitutional rule which had to be
overruled, id. at 583, 586, contrary to the Court's position. Id. at
570-74.
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It is permissible for the State to require a defendant to give
pretrial notice of an intention to rely on an alibi defense and to
furnish the names of supporting witnesses, but due process requires
reciprocal discovery in such circumstances, necessitating that the State
give defendant pretrial notice of its rebuttal evidence on the alibi
issue.\57\ Because of the possible impairment of the presumption of
innocence in the minds of the jurors, due process is violated when the
accused is compelled to stand trial before a jury while
[[Page 1756]]
dressed in identifiable prison clothes.\58\ Ordinary evidentiary rules
of criminal trials may in some instances deny a defendant due process.
Thus, the combination in a trial of two rules (1) that denied defendant
the right to cross-examine his own witness, whom he had called because
the prosecution would not, in order to elicit evidence exculpatory to
defendant and (2) that denied defendant the right to introduce the
testimony of witnesses about matters told them out of court on the
ground the testimony would be hearsay, under all the circumstances,
denied defendant his constitutional right to present his own defense in
a meaningful way.\59\ Basic to due process is the right to testify in
one's own defense; this right may not be restricted, the Court has held,
by a state's per se rule excluding all hypnotically refreshed
testimony.\60\ Even though the burden on defendant is heavy to show that
an erroneous instruction or the failure to give a requested instruction
tainted his conviction, under some circumstances it is a violation of
due process and reversible error to fail to instruct the jury that the
defendant is entitled to a presumption of innocence.\61\ It does not
deny a de
[[Page 1757]]
fendant due process to subject him initially to trial before a nonlawyer
police court judge when there is a later trial de novo available under
the State's court system.\62\
\57\Wardius v. Oregon, 412 U.S. 470 (1973).
\58\Estelle v. Williams, 425 U.S. 501 (1976). The convicted
defendant was denied habeas relief, however, because of failure to
object at trial. But cf. Holbrook v. Flynn, 475 U.S. 560 (1986)
(presence in courtroom of uniformed state troopers serving as security
guards was not the same sort of inherently prejudicial situation).
\59\Chambers v. Mississippi, 410 U.S. 284 (1973). See also Davis
v. Alaska, 415 U.S. 786 (1974) (refusal to permit defendant to examine
prosecution witness about his adjudication as juvenile delinquent and
status on probation at time, in order to show possible bias, was due
process violation, although general principle of protecting anonymity of
juvenile offenders was valid); Crane v. Kentucky, 476 U.S. 683 (1986)
(exclusion of testimony as to circumstances of a confession can deprive
a defendant of a fair trial when the circumstances bear on the
credibility as well as the voluntariness of the confession).
\60\Rock v. Arkansas, 483 U.S. 44 (1987).
\61\Taylor v. Kentucky, 436 U.S. 478 (1978). However, an
instruction on the presumption of innocence need not be given in every
case, Kentucky v. Whorton, 441 U.S. 786 (1979), the Court reiterating
that the totality of the circumstances must be looked to in order to
determine if failure to so instruct denied due process. The
circumstances emphasized in Taylor included the skeletal instruction on
burden of proof combined with the prosecutor's remarks in his opening
and closing statements inviting the jury to consider the defendant's
prior record and his indictment in the present case as indicating guilt.
See also Sandstrom v. Montana, 442 U.S. 510 (1979) (instructing jury
trying person charged with ``purposely or knowingly'' causing victim's
death that ``law presumes that a person intends the ordinary
consequences of his voluntary acts'' denied due process because jury
could have treated the presumption as conclusive or as shifting burden
of persuasion and in either event State would not have carried its
burden of proving guilt). And see Cupp v. Naughten, 414 U.S. 141 (1973);
Henderson v. Kibbe, 431 U.S. 145, 154-55 (1973). For other cases
applying Sandstrom, see Francis v. Franklin, 471 U.S. 307 (1985)
(contradictory but ambiguous instruction not clearly explaining state's
burden of persuasion on intent does not erase Sandstrom error in earlier
part of charge); Rose v. Clark, 478 U.S. 570 (1986) (Sandstrom error can
in some circumstances constitute harmless error under principles of
Chapman v. California, 386 U.S. 18 (1967)). Similarly, improper
arguments by a prosecutor do not necessarily constitute ``plain error,''
and a reviewing court may consider in the context of the entire record
of the trial the trial court's failure to redress such error in the
absence of contemporaneous objection. United States v. Young, 470 U.S. 1
(1985).
\62\North v. Russell, 427 U.S. 328 (1976).
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Guilty Pleas.--A defendant may plead guilty instead of insisting
that the prosecution prove him guilty. There are a number of different
reasons why a defendant may be willing to plead guilty, perhaps because
of overwhelming evidence against him, perhaps because, while the
evidence leaves the outcome in doubt, should he go to trial and be
convicted his sentence will be more severe than if he pleads guilty,
perhaps to secure some other advantage. Often the defendant and his
attorney engage in ``plea bargaining'' with the prosecution so that he
is guaranteed a light sentence or is allowed to plead to a lesser
offense. While the government may not structure its system so as to
coerce a guilty plea,\63\ a guilty plea that is entered voluntarily,
knowingly, and understandingly, even to obtain an advantage, is
sufficient to overcome constitutional objections.\64\ The guilty plea
and the often concomitant plea bargain are important and necessary
components of the criminal justice system,\65\ and it is not
impermissible for a prosecutor during such plea bargains to put a
defendant to a hard choice, requiring him to forego his right to go to
trial in return for escaping what is likely to be a much more severe
penalty if he does elect to go to trial.\66\
\63\United States v. Jackson, 390 U.S. 570 (1968).
\64\North Carolina v. Alford, 400 U.S. 25 (1971); Parker v.
North Carolina, 397 U.S. 790 (1970). See also Brady v. United States,
397 U.S. 742 (1970). A guilty plea will ordinarily waive challenges to
alleged unconstitutional police practices occurring prior to the plea,
unless the defendant can show that the plea resulted from incompetent
counsel. Tollett v. Henderson, 411 U.S. 258 (1973); Davis v. United
States, 411 U.S. 233 (1973). But see Blackledge v. Perry, 417 U.S. 21
(1974). The State can permit pleas of guilty in which the defendant
reserves the right to raise constitutional questions on appeal, and
federal habeas courts will honor that arrangement. Lefkowitz v. Newsome,
420 U.S. 283 (1975). Release-dismissal agreements, pursuant to which the
prosecution agrees to dismiss criminal charges in exchange for the
defendant's agreement to release his right to file a civil action for
alleged police or prosecutorial misconduct, are not per se invalid. Town
of Newton v. Rumery, 480 U.S. 386 (1987).
\65\Blackledge v. Allison, 431 U.S. 63, 71 (1977).
\66\Bordenkircher v. Hayes, 434 U.S. 357 (1978). Charged with
forgery, Hayes was informed during plea negotiations that if he would
plead guilty the prosecutor would recommend a five-year sentence; if he
did not plead guilty, the prosecutor would also seek an indictment under
the habitual criminal statute under which Hayes, because of two prior
felony convictions, would receive a mandatory life sentence if
convicted. Hayes refused to plead, was reindicted, and upon conviction
was sentenced to life. Four Justices dissented, id. at 365, 368,
contending that the Court had watered down North Carolina v. Pearce, 395
U.S. 711 (1969). See also United States v. Goodwin, 457 U.S. 368 (1982).
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[[Page 1758]]
The court must inquire whether the defendant is pleading
voluntarily, knowingly, and understandingly,\67\ and ``the adjudicative
element inherent in accepting a plea of guilty must be attended by
safeguards to insure the defendant what is reasonably due in the
circumstances. Those circumstances will vary, but a constant factor is
that when a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the
inducement or consideration, such promise must be fulfilled.''\68\
\67\Boykin v. Alabama, 395 U.S. 238 (1969). In Henderson v.
Morgan, 426 U.S. 637 (1976), the Court held that a defendant charged
with first degree murder who elected to plead guilty to second degree
murder had not voluntarily, in the constitutional sense, entered the
plea because neither his counsel nor the trial judge had informed him
that an intent to cause the death of the victim was an essential element
of guilt in the second degree; consequently no showing was made that he
knowingly was admitting such intent. ``A plea may be involuntary either
because the accused does not understand the nature of the constitutional
protections that he is waiving . . . or because he has such an
incomplete understanding of the charge that his plea cannot stand as an
intelligent admission of guilt.'' Id. at 645 n.13. See also Blackledge
v. Allison, 431 U.S. 63 (1977).
\68\Santobello v. New York, 404 U.S. 257, 262 (1971). Defendant
and a prosecutor reached agreement on a guilty plea in return for no
sentence recommendation by the prosecution. At the sentencing hearing
months later, a different prosecutor recommended the maximum sentence,
and that sentence was imposed. The Court vacated the judgment, holding
that the prosecutor's entire staff was bound by the promise. Prior to
the plea, however, the prosecutor may withdraw his first offer, and a
defendant who later pled guilty after accepting a second, less
attractive offer has no right to enforcement of the first agreement.
Mabry v. Johnson, 467 U.S. 504 (1984).
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Prosecutorial Misconduct.--When a conviction is obtained by the
presentation of testimony known to the prosecuting authorities to have
been perjured, due process is violated. The clause ``cannot be deemed to
be satisfied by mere notice and hearing if a State has contrived a
conviction through the pretense of a trial which in truth is but used as
a means of depriving a defendant of liberty through a deliberate
deception of court and jury by the presentation of testimony known to be
perjured. Such a contrivance . . . is as inconsistent with the
rudimentary demands of justice as is the obtaining of a like result by
intimidation.''\69\ The quoted language was dictum in the case in which
it was uttered,\70\ but the principle enunciated has been utilized to
require state officials to controvert allegations of convicted persons
that knowingly false tes
[[Page 1759]]
timony had been used to convict,\71\ and to upset convictions found to
have been so procured.\72\ Extending the principle, the Court in Miller
v. Pate\73\ upset a conviction obtained after the prosecution had
represented to the jury that a pair of men's shorts found near the scene
of a sex attack belonged to the defendant and that they were stained
with blood; the defendant showed in a habeas corpus proceeding that no
evidence connected him with the shorts and furthermore that the shorts
were not in fact bloodstained, and that the prosecution had known these
facts.
\69\Mooney v. Holahan, 294 U.S. 103, 112 (1935).
\70\The Court dismissed the petitioner's suit on the ground that
adequate process existed in the state courts to correct any wrong and
that petitioner had not availed himself of it. A state court
subsequently appraised the evidence and ruled that the allegations had
not been proved in Ex parte Mooney, 10 Cal. 2d 1, 73 P.2d 554 (1937),
cert. denied 305 U.S. 598 (1938).
\71\Pyle v. Kansas, 317 U.S. 213 (1942); White v. Ragen, 324
U.S. 760 (1945). See also New York ex rel. Whitman v. Wilson, 318 U.S.
688 (1943); Ex parte Hawk, 321 U.S. 114 (1914). But see Hysler v.
Florida, 315 U.S. 411 (1942); Lisenba v. California, 314 U.S. 219
(1941).
\72\Napue v. Illinois, 360 U.S. 264 (1959); Alcorta v. Texas,
355 U.S. 28 (1957). In the former case, the principal prosecution
witness was defendant's accomplice, and he testified that he had
received no promise of consideration in return for his testimony. In
fact, the prosecutor had promised him consideration, but did nothing to
correct the false testimony. See also Giglio v. United States, 405 U.S.
150 (1972) (same). In the latter case, involving a husband's killing of
his wife because of her infidelity, a prosecution witness testified at
the habeas corpus hearing that he told the prosecutor that he had been
intimate with the woman but that the prosecutor had told him to
volunteer nothing of it, so that at trial he had testified his
relationship with the woman was wholly casual. In both cases, the Court
deemed it irrelevant that the false testimony had gone only to the
credibility of the witness rather than to the defendant's guilt. What if
the prosecution should become aware of the perjury of a prosecution
witness following the trial? Cf. Durley v. Mayo, 351 U.S. 277 (1956).
But see Smith v. Phillips, 455 U.S. 209, 218-21 (1982) (prosecutor's
failure to disclose that one of the jurors has a job application pending
before him, thus rendering him possibly partial, does not go to fairness
of the trial and due process is not violated).
\73\386 U.S. 1 (1967).
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Furthermore, in Brady v. Maryland,\74\ the Court held ``that the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.'' In that case, the prosecution had suppressed an
extrajudicial confession of defendant's accomplice that he had actually
committed the murder; the accomplice's confession could have influenced
the jury's determination of punishment but not its judgment of guilt.
But this beginning toward the development of criminal discovery was not
carried forward,\75\ and the Court has waivered in its application of
Brady.
\74\373 U.S. 83, 87 (1963). In Jencks v. United States, 353 U.S.
657 (1957), in the exercise of its supervisory power over the federal
courts, the Court held that the defense was entitled to obtain, for
impeachment purposes, statements which had been made to government
agents by government witnesses during the investigatory stage. Cf.
Scales v. United States, 367 U.S. 203, 257-58 (1961). A subsequent
statute modified but largely codified the decision and was upheld by the
Court. Palermo v. United States, 360 U.S. 343 (1959), sustaining 18
U.S.C. Sec. 3500.
\75\See the division of opinion in Giles v. Maryland, 386 U.S.
66 (1967).
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[[Page 1760]]
In finding Brady inapplicable because the evidence withheld was
not material and not exculpatory, the Court in Moore v. Illinois,\76\
restated the governing principles. ``The heart of the holding in Brady
is the prosecution's suppression of evidence, in the face of a defense
production request, where the evidence is favorable to the accused and
is material either to guilt or to punishment. Important, then, are (a)
suppression by the prosecution after a request by the defense, (b) the
evidence's favorable character for the defense, and (c) the materiality
of the evidence.''
\76\408 U.S. 786, 794-95 (1972). Joining Justice Blackmun's
opinion were Justices Brennan, White, Rehnquist, and Chief Justice
Burger. Dissenting were Justices Douglas, Stewart, Marshall, and Powell.
Id. at 800.
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In United States v. Agurs,\77\ the Court summarized and somewhat
expanded the prosecutor's obligation to disclose to the defense
exculpatory evidence in his possession, even in the absence of a
request, or upon a general request, by defendant. The obligation is
expressed in a tripartite test of materiality of the exculpatory
evidence in the context of the trial record. First, if the prosecutor
knew or should have known that testimony given to the trial was
perjured, the conviction must be set aside if there is any reasonable
likelihood that the false testimony could have affected the judgment of
the jury.\78\ Second, if the defense specifically requested certain
evidence and the prosecutor withheld it, the conviction must be set
aside if the suppressed evidence might have affected the outcome of the
trial.\79\ Third (the new law created in Agurs), if the defense did not
make a request at all, or simply asked for ``all Brady material'' or for
``anything exculpatory,'' a duty resides in the prosecution to reveal to
the defense obviously exculpatory evidence; if the prosecutor does not
reveal it, reversal of a conviction may be required, but only if the
undisclosed evidence creates a reasonable doubt as to the defendant's
guilt.\80\
\77\427 U.S. 97 (1976).
\78\Id. at 103-04. This situation is the Mooney v. Holohan type
of case.
\79\Id. at 104-06. This the Brady situation.
\80\Id. at 106-14. This was the Agurs fact situation. Similarly,
there is no obligation that law enforcement officials preserve breath
samples which have been utilized in a breath-analysis test; the Agurs
materiality standard is met only by evidence which ``possess[es] an
exculpatory value . . . apparent before [it] was destroyed, and also
[is] of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.'' California v.
Trombetta, 467 U.S. 479, 489 (1984). See also Arizona v. Youngblood, 488
U.S. 51 (1988) (negligent failure to refrigerate and otherwise preserve
potentially exculpatory physical evidence from sexual assault kit does
not violate a defendant's due process rights absent bad faith on the
part of the police).
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A prosecutor does not violate the due process clause when, in
negotiating with a defendant to obtain a guilty plea or some other
action that will lessen the trial burden, such as trial before a judge
[[Page 1761]]
rather than jury, he threatens and carries out the threat to seek a more
severe sentence, either by charging a greater offense or recommending a
longer sentence.\81\ But the prosecutor does deny due process if he
penalizes the assertion of a right or privilege by the defendant by
charging more severely or recommending a longer sentence.\82\ The
distinction appears to represent very fine line-drawing, but it appears
to be one the Court is committed to.
\81\Bordenkircher v. Hayes, 434 U.S. 357 (1978); United States
v. Goodwin, 457 U.S. 368 (1982). In the former case, during plea
negotiations, the prosecutor told defendant that if he did not plead
guilty to the charges he would bring additional charges, and he did so
upon defendant's continued refusal. In the latter case, defendant was
charged with a misdemeanor and could have been tried before a
magistrate; he refused to plead guilty and sought a jury trial in
district court. The Government obtained a four-count felony indictment
based upon the same conduct and acquired a conviction.
\82\Blackledge v. Perry, 417 U.S. 21 (1974). Defendant was
convicted in an inferior court of a misdemeanor. He had a right to a de
novo trial in superior court, but when he exercised the right the
prosecutor obtained a felony indictment based upon the same conduct. The
distinction the Court draws between this case and Bordenkircher and
Goodwin is that of pretrial conduct, in which vindictiveness is not
likely, and posttrial conduct, in which vindictiveness is more likely
and is not permitted. Accord, Thigpen v. Roberts, 468 U.S. 27 (1984).
---------------------------------------------------------------------------
Proof, Burden of Proof, and Presumptions.--The due process
clauses of the Fifth and Fourteenth Amendments ``[protect] the accused
against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.''\83\
``The reasonable doubt standard plays a vital role in the American
scheme of criminal procedure. It is a prime instrument for reducing the
risk of convictions resting on factual error. The standard provides
concrete substance for the presumption of innocence--that bedrock
`axiomatic and elementary' principle whose `enforcement lies at the
foundation of the administration of our criminal law.'''\84\ In many
past cases, this standard was assumed to be the required one,\85\ but
because it was so widely accepted only recently has the Court had the
opportunity to pronounce it guaranteed by due process.\86\ The
presumption of inno
[[Page 1762]]
cence is valuable in assuring defendants a fair trial,\87\ and it
operates to ensure that the jury considers the case solely on the
evidence.\88\
\83\In re Winship, 397 U.S. 358, 364 (1970).
\84\Id. at 363 (quoting Coffin v. United States, 156 U.S. 432,
453 (1895)). Justice Harlan's Winship concurrence, id. at 368, proceeded
on the basis that inasmuch as there is likelihood of error in any system
of reconstructing past events, the error of convicting the innocent
should be reduced to the greatest extent possible through the use of the
reasonable doubt standard.
\85\Miles v. United States, 103 U.S. 304, 312 (1881); Davis v.
United States, 160 U.S. 469, 488 (1895); Holt v. United States, 218 U.S.
245, 253 (1910); Speiser v. Randall, 357 U.S. 513, 525-26 (1958).
\86\In addition to Winship, see also Estelle v. Williams, 425
U.S. 501, 503 (1976); Henderson v. Kibbe, 431 U.S. 145, 153 (1977);
Ulster County Court v. Allen, 442 U.S. 140, 156 (1979); Sandstorm v.
Montana, 442 U.S. 510, 520-24 (1979). On the interrelated concepts of
the burden of the prosecution to prove guilt beyond a reasonable doubt
and defendant's entitlement to a presumption of innocence, see Taylor v.
Kentucky, 436 U.S. 478, 483-86 (1978), and Kentucky v. Whorton, 441 U.S.
786 (1979).
\87\E.g., Deutch v. United States, 367 U.S. 456, 471 (1961). See
also Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam) (jury
instruction that explains ``reasonable doubt'' as doubt that would give
rise to a ``grave uncertainty,'' as equivalent to a ``substantial
doubt,'' and as requiring ``a moral certainty,'' suggests a higher
degree of certainty than is required for acquittal, and therefore
violates the Due Process Clause).
\88\Holt v. United States, 218 U.S. 245 (1910); Agnew v. United
States, 165 U.S. 36 (1897). These cases overturned Coffin v. United
States, 156 U.S. 432, 460 (1895), in which the Court held that the
presumption of innocence was evidence from which the jury could find a
reasonable doubt.
---------------------------------------------------------------------------
The Court has long held it would set aside under the due process
clause convictions that are supported by no evidence at all,\89\ but
Winship necessitated a reconsideration of whether it should in reviewing
state cases weigh the sufficiency of the evidence. Thus, in Jackson v.
Virginia,\90\ it held that federal courts, on direct appeal of federal
convictions or collateral review of state convictions, must satisfy
themselves whether the record evidence could reasonably support a
finding of guilt beyond a reasonable doubt. The question the reviewing
court is to ask itself is not whether it believes the evidence at the
trial established guilt beyond a reasonable doubt, but whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.\91\
\89\Thompson v. City of Louisville, 362 U.S. 199 (1960); Garner
v. Louisiana, 368 U.S. 157 (1961); Taylor v. Louisiana, 370 U.S. 154
(1962); Barr v. City of Columbia, 378 U.S. 146 (1964); Johnson v.
Florida, 391 U.S. 596 (1968). See also Chessman v. Teets, 354 U.S. 156
(1957).
\90\443 U.S. 307 (1979).
\91\Id. at 316, 318-19. On a somewhat related point, the Court
has ruled that a general guilty verdict on a multiple-object conspiracy
need not be set aside if the evidence is inadequate to support
conviction as to one of the objects of the conspiracy, but is adequate
to support conviction as to another. Griffin v. United States, 112 U.S.
466 (1991).
---------------------------------------------------------------------------
Inasmuch as due process requires the prosecution to prove beyond
a reasonable doubt every fact necessary to constitute the crime charged,
the Court held in Mullaney v. Wilbur\92\ that it was a denial of this
constitutional guarantee to require a defendant charged with murder to
prove that he acted ``in the heat of passion on sudden provocation'' in
order to reduce the homicide to manslaughter. The Court indicated that a
balancing of interests test was to be employed to determine when the due
process clause re
[[Page 1763]]
quired the prosecution to carry the burden and when some part of the
burden might be shifted to the defendant, but the decision called into
question the practice in many States under which some burdens of
persuasion were borne by the defense, and raised the prospect that the
prosecution must bear all burdens of persuasion, a significant and
weighty task given the large numbers of affirmative defenses.
\92\421 U.S. 684 (1975). See also Sandstrom v. Montana, 442 U.S.
510, 520-24 (1979).
---------------------------------------------------------------------------
But the Court soon summarily rejected the argument that Mullaney
means that the prosecution must negate the insanity defense,\93\ and in
full-scale consideration upheld a state statute that provided that an
intentional killing is murder but permitted the defendant to assert
``extreme emotional disturbance'' as an affirmative defense which, if
proved by the defense by a preponderance of the evidence, would reduce
the murder offense to manslaughter.\94\ According to the Court, the
constitutional deficiency in Mullaney was that the statute made malice
an element of the offense but permitted malice to be presumed upon proof
of the other elements and required the defendant to prove the absence of
malice. In Patterson the statute obligated the State to prove each
element of the offense (the death, the intent to kill, and the
causation) beyond a reasonable doubt, but allowed the defendant to
present an affirmative defense that would reduce the degree of the
offense, and as to which the defendant bears the burden of persuasion by
a preponderance of the evidence. The decisive issue, then, was whether
the statute required the state to prove beyond a reasonable doubt each
element of the offense. So defined, the distinction and the
constitutional mandate are formalistic, and the legislature can shift
burdens of persuasion between prosecution and defense easily through the
statutory definitions of the offenses.\95\ Also formalistic is the
[[Page 1764]]
distinction between elements of the crime and sentencing factors; a
state may treat as a sentencing consideration provable by a
preponderance of the evidence the fact that the defendant ``visibly
possessed a firearm'' during commission of the offense.\96\
\93\Rivera v. Delaware, 429 U.S. 877 (1976), dismissing as not
presenting a substantial federal question an appeal from a holding that
Mullaney did not prevent a State from placing on the defendant the
burden of proving insanity by a preponderance of the evidence. See
Patterson v. New York, 432 U.S. 197, 202-05 (1977) (explaining the
import of Rivera). Justice Rehnquist and Chief Justice Burger concurring
in Mullaney, 421 U.S. at 704, 705, had argued that the case did not
require any reconsideration of the holding in Leland v. Oregon, 343 U.S.
790 (1952), that the defense may be required to prove insanity beyond a
reasonable doubt.
\94\Patterson v. New York, 432 U.S. 197 (1977).
\95\Dissenting in Patterson, Justice Powell argued that the two
statutes were functional equivalents that should be treated alike
constitutionally. He would hold that as to those facts which
historically have made a substantial difference in the punishment and
stigma flowing from a criminal act the State always bears the burden of
persuasion but that new affirmative defenses may be created and the
burden of establishing them placed on the defendant. Id. at 216.
Patterson was followed in Martin v. Ohio, 480 U.S. 228 (1987) (state
need not disprove defendant acted in self-defense based on honest belief
she was in imminent danger, when offense is aggravated murder, an
element of which is ``prior calculation and design''). Justice Powell,
again dissenting, urged a distinction between defenses that negate an
element of the crime and those that do not. Id. at 236, 240.
\96\McMillan v. Pennsylvania, 477 U.S. 79 (1986) (the finding
increased the minimum sentence that could be imposed but did not affect
the maximum sentence).
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Quite closely related is the issue of statutory presumptions;
these generally provide for the proof of the presumed fact, an element
of a crime, by the establishment of another fact, the basic fact.\97\ In
Tot v. United States,\98\ the Court held that a statutory presumption
was valid under the due process clause if it met a ``rational
connection'' test. ``Under our decisions, a statutory presumption cannot
be sustained if there be no rational connection between the fact proved
and the ultimate fact presumed, if the inference of the one from the
proof of the other is arbitrary because of lack of connection between
the two in common experience.'' In Leary v. United States,\99\ however,
the due process test was stiffened to require that for such a ``rational
connection'' to exist, it must ``at least be said with substantial
assurance that the presumed fact is more likely than not to flow from
the proved fact on which it is made to depend.'' Thus, a provision which
permitted a jury to infer from defendant's possession of marijuana his
knowledge of its illegal importation was voided. A lengthy canvass of
factual materials established to the Court's satisfaction that while the
greater part of marijuana consumed here is of foreign origin there was
still a good amount produced domestically and there was thus no way to
assure that the majority of those possessing marijuana have any reason
to know their marijuana is imported.\100\ The Court left open the
question whether a presumption which survived the ``rational
connection'' test ``must also satisfy the criminal `reasonable doubt'
[[Page 1765]]
standard if proof of the crime charged or an essential element thereof
depends upon its use.''\101\
\97\See, e.g., Yee Hem v. United States, 268 U.S. 178 (1925)
(upholding statute that proscribed possession of smoking opium that had
been illegally imported and authorized jury to presume illegal
importation from fact of possession); Manley v. Georgia, 279 U.S. 1
(1929) (invalidating statutory presumption that every insolvency of a
bank shall be deemed fraudulent).
\98\319 U.S. 463, 467 (1943) (voiding presumption of
transportation of firearm in interstate commerce from possession).
Compare United States v. Gainey, 380 U.S. 63 (1965) (upholding
presumption from presence at site of illegal still that defendant was
``carrying on'' or aiding in ``carrying on'' its operation), with United
States v. Romano, 382 U.S. 136 (1965) (voiding presumption from presence
at site of illegal still that defendant had possession, custody, or
control of still).
\99\395 U.S. 6, 36 (1969).
\100\Id. at 37-54. While some of the reasoning in Yee Hem, supra
n.97, was disapproved, it was factually distinguished as involving users
of ``hard'' narcotics.
\101\Id. at 36 n.64. The matter was also left open in Turner v.
United States, 396 U.S. 398 (1970) (judged by either ``rational
connection'' or ``reasonable doubt,'' a presumption that the possessor
of heroin knew it was illegally imported was valid, but the same
presumption with regard to cocaine was invalid under the ``rational
connection'' test because a great deal of the substance was produced
domestically), and in Barnes v. United States, 412 U.S. 837 (1973)
(under either test a presumption that possession of recently stolen
property, if not satisfactorily explained, is grounds for inferring
possessor knew it was stolen satisfies due process).
---------------------------------------------------------------------------
In its most recent case, a closely divided Court drew a
distinction between mandatory presumptions, which a jury must accept,
and permissive presumptions, which may be presented to the jury as part
of all the evidence to be considered. With respect to mandatory
presumptions, ``since the prosecution bears the burden of establishing
guilt, it may not rest its case entirely on a presumption, unless the
fact proved is sufficient to support the inference of guilt beyond a
reasonable doubt.'' But, with respect to permissive presumptions, ``the
prosecution may rely on all of the evidence in the record to meet the
reasonable doubt standard. There is no more reason to require a
permissive statutory presumption to meet a reasonable-doubt standard
before it may be permitted to play any part in a trial than there is to
require that degree of probative force for other relevant evidence
before it may be admitted.''\102\ Thus, because the jury was told it had
to believe in defendants' guilt beyond a reasonable doubt and that it
could consider the inference, due process was not violated by the
application of the statutory presumption that the presence of a firearm
in an automobile is presumptive evidence of its illegal possession by
all persons then occupying the vehicle.\103\
\102\Ulster County Court v. Allen, 442 U.S. 140, 166-67 (1979).
\103\The majority thought that possession was more likely than
not the case from the circumstances, while the four dissenters
disagreed. Id. at 168 (Justices Powell, Brennan, Stewart, and Marshall).
See also Estelle v. McGuire, 112 S. Ct. 475 (1991) (upholding a jury
instruction that, to dissenting Justices O'Connor and Stevens, id. at
484, seemed to direct the jury to draw the inference that evidence that
a child had been ``battered'' in the past meant that the defendant, the
child's father, had necessarily done the battering).
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The division of the Court in these cases and in the Mullaney v.
Wilbur line of cases clearly shows the unsettled doctrinal nature of the
issues.
Sentencing.--In Townsend v. Burke\104\ the Court overturned a
sentence imposed on an uncounseled defendant by a judge who
[[Page 1766]]
in reciting defendant's record from the bench made several errors and
facetious comments. ``[W]hile disadvantaged by lack of counsel, this
prisoner was sentenced on the basis of assumptions concerning his
criminal record which were materially untrue. Such a result, whether
caused by carelessness or design, is inconsistent with due process of
law, and such a conviction cannot stand.'' But in the absence of
revelations of errors by the sentencing judge, the content of procedural
due process at sentencing is vague.
\104\334 U.S. 736, 740-41 (1948). In Hicks v. Oklahoma, 447 U.S.
343 (1980), the jury had been charged in accordance with an habitual
offender statute that if it found defendant guilty of the offense
charged, which would be a third felony conviction, it should assess
punishment at 40 years imprisonment. The jury convicted and gave
defendant 40 years. Subsequently, in another case, the habitual offender
under which Hicks had been sentenced was declared unconstitutional, but
Hicks' conviction was affirmed on the basis that his sentence was still
within the permissible range open to the jury. The Supreme Court
reversed. Hicks was denied due process because he was statutorily
entitled to the exercise of the jury's discretion and could have been
given a sentence as low as ten years. That the jury might still have
given the stiffer sentence was only conjectural. On other due process
restrictions on the determination of the applicability of recidivist
statutes to convicted defendants, see Chewing v. Cunningham, 368 U.S.
443 (1962); Oyler v. Boles, 368 U.S. 448 (1962); and Spencer v. Texas,
385 U.S. 554 (1967). On Eighth Amendment relevance, see supra, pp. 1495-
96.
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Williams v. New York\105\ upheld the imposition of the death
penalty although the jury in convicting had recommended mercy, the judge
indicating that he was disregarding the recommendation because of
information in the presentence report prepared by a probation officer
and not shown to the defendant or his counsel. The Court viewed as
highly undesirable the restriction of judicial discretion in sentencing
by requiring adherence to rules of evidence which would exclude highly
relevant and informative material; similarly, disclosure of such
information to the defense could well dry up sources which feared
retribution or embarrassment. Thus, hearsay and rumors would be
considered and there would be no opportunity of rebuttal. Still in the
context of capital cases, the Court has now, although by no consistent
rationale, limited Williams. In Gardner v. Florida,\106\ the jury had
recommended a life sentence upon convicting defendant of murder, but the
trial judge sentenced the defendant to death, relying in part on a
confidential presentence report which he did not characterize or make
available to defense or prosecution. Three Justices found that because
death was significantly different from other punishments and because
sentencing procedures were subject to higher due process standards than
when Williams was decided, the report must be made part of the record
for review so that the factors motivating imposition of the death
penalty may be known, and ordinarily must be made available to the
defense. All but one of the other Justices joined the result on various
other bases.\107\ On the other hand, in United
[[Page 1767]]
States v. Grayson,\108\ a noncapital case, the Court relied heavily on
Williams in holding that a sentencing judge may properly consider his
belief that the defendant was untruthful in his trial testimony in
deciding to impose a more severe sentence than he would otherwise have
imposed. Under the current scheme of individualized indeterminate
sentencing, the Court declared, the judge must be free to consider the
broadest range of information in assessing the defendant's prospects for
rehabilitation; defendant's truthfulness, as assessed by the trial judge
from his own observations, is relevant information.\109\
\105\337 U.S. 241 (1949). See also Williams v. Oklahoma, 358
U.S. 576 (1959).
\106\430 U.S. 349 (1977).
\107\Only Justices Stevens, Stewart, and Powell took the
position described in the text. Id. at 357-61. Justice Brennan without
elaboration thought the result compelled by due process, id. at 364,
Justices White and Blackmun thought the result necessitated by the
Eighth Amendment, id. at 362, 364, as did Justice Marshall in a
different manner. Id. at 365. Chief Justice Burger concurred only in the
result, id. at 362, and Justice Rehnquist dissented. Id. at 371. See
also Lankford v. Idaho, 500 U.S. 110 (1991) (due process denied where
judge sentenced defendant to death after judge's and prosecutor's
actions misled defendant and counsel into believing that death penalty
would not be at issue in sentencing hearing).
\108\438 U.S. 41 (1978).
\109\See also United States v. Tucker, 404 U.S. 443, 446 (1972);
Chaffin v. Stynchcombe, 412 U.S. 17, 32 (1973). Cf. 18 U.S.C. Sec. 3577.
---------------------------------------------------------------------------
In Specht v. Patterson,\110\ the Court specifically reaffirmed
Williams, but declined to apply it, finding that due process had been
denied under circumstances significantly different from those of
Williams. Specht had been convicted of taking indecent liberties, which
carried a maximum sentence of ten years, but was sentenced under a sex
offenders statute to an indefinite term of one day to life. The sex
offenders law, the Court observed, did not make the commission of the
particular offense the basis for sentencing. Instead, by triggering a
new hearing to determine whether the convicted person was a public
threat, an habitual offender, or mentally ill, the law in effect
constituted a new charge that must be accompanied by procedural
safeguards. Mempa v. Rhay\111\ held that when sentencing is deferred
subject to probation and the terms of probation are allegedly violated
so that the convicted defendant is returned for sentencing, he must then
be represented by counsel, inasmuch as it is a point in the process
where substantial rights of the defendant may be affected. Moreover, in
Kent v. United States\112\ the Court required that before a juvenile
court decided to waive jurisdiction and transfer a juvenile to an adult
court it must hold a hearing and permit defense counsel to examine the
probation officer's report which formed the basis for the court's
decision.
\110\386 U.S. 605 (1967).
\111\389 U.S. 128 (1967).
\112\383 U.S. 541, 554, 561, 563 (1966). Kent was ambiguous
whether it was based on statutory interpretation or constitutional
analysis; In re Gault, 387 U.S. 1 (1967), appears to have
constitutionalized the language.
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[[Page 1768]]
It is a denial of due process for a judge to sentence a
convicted defendant on retrial to a longer sentence than he received
after the first trial if the object of the sentence is to punish the
defendant for having successfully appealed his first conviction or to
discourage similar appeals by others.\113\ If the judge does impose a
longer sentence the second time, he must justify it on the record by
showing, for example, the existence of new information meriting a longer
sentence.\114\
\113\North Carolina v. Pearce, 395 U.S. 711 (1969). Pearce was
held to be nonretroactive in Michigan v. Payne, 412 U.S. 47 (1973). When
a State provides a two-tier court system in which one may have an
expeditious and somewhat informal trial in an inferior court with an
absolute right to trial de novo in a court of general criminal
jurisdiction if convicted, the second court is not bound by the rule in
Pearce, inasmuch as the potential for vindictiveness and inclination to
deter is not present. Colten v. Kentucky, 407 U.S. 104 (1972). But see
Blackledge v. Perry, 417 U.S. 21 (1974), discussed supra, p. 1761.
\114\An intervening conviction on other charges for acts
committed prior to the first sentencing may justify imposition of an
increased sentence following a second trial. Wasman v. United States,
468 U.S. 559 (1984).
---------------------------------------------------------------------------
Because the possibility of vindictiveness in resentencing is de
minimis when it is the jury that sentences, Pearce's requirement that a
judge resentencing on a subsequent trial must justify a more severe
sentence is inapplicable to jury sentencing, at least in the absence of
a showing that the jury knew of the prior vacated sentence. The Court
concluded that the possibility of vindictiveness was so low because
normally the jury would not know of the result of the prior trial nor
the sentence imposed, nor would it feel either the personal or
institutional interests of judges leading to efforts to discourage the
seeking of new trials.\115\ The presumption of vindictiveness is also
inapplicable if the first sentence was imposed following a guilty plea.
Here the Court reasoned that a trial may well afford the court insights
into the nature of the crime and the character of the defendant that
were not available following the initial guilty plea.\116\
\115\Chaffin v. Stynchcombe, 412 U.S. 17 (1973). Justices
Stewart, Brennan, and Marshall thought the principle was applicable to
jury sentencing and that prophylactic limitations appropriate to the
problem should be developed. Id. at 35, 38. Justice Douglas dissented on
other grounds. Id. at 35. The Pearce presumption that an increased,
judge-imposed second sentence represents vindictiveness also is
inapplicable if the second trial came about because the trial judge
herself concluded that a retrial was necessary due to prosecutorial
misconduct before the jury in the first trial. Texas v. McCullough, 475
U.S. 134 (1986).
\116\Alabama v. Smith, 490 U.S. 794 (1989).
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Due process does not impose any limitation upon the sentence
that a legislature may affix to any offense; that function is in the
Eighth Amendment.\117\
\117\Williams v. Oklahoma, 358 U.S. 576, 586-87 (1959). See also
Collins v. Johnston, 237 U.S. 502 (1915). On recidivist statutes, see
Graham v. West Virginia, 224 U.S. 616, 623 (1912); Ughbanks v.
Armstrong, 208 U.S. 481, 488 (1908), and, under the Eighth Amendment,
Rummel v. Estelle, 445 U.S. 263 (1980).
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[[Page 1769]]
The Problem of the Incompetent or Insane Defendant or Convict.--
It is a denial of due process to try or sentence a defendant who is
insane or incompetent to stand trial.\118\ When it becomes evident
during the trial that a defendant is or has become insane, or
incompetent to stand trial, the court on its own initiative must conduct
a hearing on the issue.\119\ What the state must do is to provide the
defendant with a chance to prove that he is incompetent to stand trial;
there is no further constitutional requirement that the state assume the
burden of proving the defendant competent. Due process is not offended,
therefore, by a statutory presumption that a criminal defendant is
competent to stand trial, or by a requirement that the defendant bear
the burden of proving incompetence by a preponderance of the
evidence.\120\ When a State determines that a person charged with a
criminal offense is incompetent to stand trial he cannot be committed
indefinitely for that reason. The court's power is to commit him to a
period no longer than is necessary to determine whether there is a
substantial probability that he will attain his capacity in the
foreseeable future. If it is determined that this is not the case, then
the State must either release the defendant or institute the customary
civil commitment proceeding that would be required to commit any other
citizen.\121\
\118\Pate v. Robinson, 383 U.S. 375, 378 (1966) (citing Bishop
v. United States, 350 U.S. 961 (1956)).
\119\Id. For treatment of the circumstances when a trial court
should inquire into the mental competency of the defendant, see Drope v.
Missouri, 420 U.S. 162 (1975). Also, an indigent who makes a preliminary
showing that his sanity at the time of his offense will be a substantial
factor in his trial is entitled to a court-appointed psychiatrist to
assist in presenting the defense. Ake v. Oklahoma, 470 U.S. 68 (1985).
\120\Medina v. California, 112 S. Ct. 2572 (1992).
\121\Jackson v. Indiana, 406 U.S. 715 (1972).
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Commitment to a mental hospital of a criminal defendant
acquitted by reason of insanity does not offend due process, and the
period of confinement may extend beyond the period for which the person
could have been sentenced if convicted.\122\ The purpose of the
confinement is not punishment, but treatment, and the Court explained
that the length of a possible criminal sentence ``therefore is
irrelevant to the purposes of . . . commitment.''\123\ Thus, the in
[[Page 1770]]
sanity acquittee may be confined for treatment ``until such time as he
has regained his sanity or is no longer a danger to himself or
society.''\124\ It follows, however, that a state may not indefinitely
confine an insanity acquittee who is no longer mentally ill but who has
an untreatable personality disorder that may lead to criminal
conduct.\125\
\122\Jones v. United States, 463 U.S. 354 (1983). The fact that
the affirmative defense of insanity need only be established by a
preponderance of the evidence, while civil commitment requires the
higher standard of clear and convincing evidence, does not render the
former invalid; proof beyond a reasonable doubt of commission of a
criminal act establishes dangerousness justifying confinement and
eliminates the risk of confinement for mere idiosyncratic behavior.
\123\463 U.S. at 368.
\124\Id. at 370.
\125\Foucha v. Louisiana, 112 S. Ct. 1780 (1992).
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The Court held in Ford v. Wainwright that the Eighth Amendment
prohibits the state from carrying out the death penalty on an individual
who is insane, and that properly raised issues of pre-execution sanity
must be determined in a proceeding satisfying the minimum requirements
of due process.\126\ Those minimum standards are not met when the
decision on sanity is left to the unfettered discretion of the governor;
rather, due process requires the opportunity to be heard before an
impartial officer or board.\127\
\126\477 U.S. 399 (1986).
\127\There was no opinion of the Court on the issue of
procedural requirements. Justice Marshall, joined by Justices Brennan,
Blackmun, and Stevens, would hold that ``the ascertainment of a
prisoner's sanity calls for no less stringent standards than those
demanded in any other aspect of a capital proceeding.'' 477 U.S. at 411-
12. Concurring Justice Powell thought that due process might be met by a
proceeding ``far less formal than a trial,'' that the state ``should
provide an impartial officer or board that can receive evidence and
argument from the prisoner's counsel.'' Id. at 427. Concurring Justice
O'Connor, joined by Justice White, emphasized Florida's denial of the
opportunity to be heard, and did not express an opinion on whether the
state could designate the governor as decisionmaker. Thus Justice
Powell's opinion, requiring the opportunity to be heard before an
impartial officer or board, sets forth the Court's holding.
---------------------------------------------------------------------------
Corrective Process: Appeals and Other Remedies.--``An appeal
from a judgment of conviction is not a matter of absolute right,
independently of constitutional or statutory provisions allowing such
appeal. A review by an appellate court of the final judgment in a
criminal case, however grave the offense of which the accused is
convicted, was not at common law and is not now a necessary element of
due process of law. It is wholly within the discretion of the state to
allow or not to allow such a review.''\128\ This holding has been
recently reaffirmed\129\ although the Court has also held that when a
State does provide appellate process it may not so condition the
privilege as to deny it irrationally to some persons, such as
indigents.\130\ But it is not the case that a State is
[[Page 1771]]
free to have no corrective process at all in which defendants may pursue
remedies for federal constitutional violations. In Frank v. Mangum,\131\
the Court asserted that a conviction obtained in a mob-dominated trial
was contrary to due process: ``if the State, supplying no corrective
process, carries into execution a judgment of death or imprisonment
based upon a verdict thus produced by mob domination, the State deprives
the accused of his life or liberty without due process of law.''
Consequently, it has been stated numerous times that the absence of some
form of corrective process when the convicted defendant alleges a
federal constitutional violation contravenes the Fourteenth
Amendment,\132\ and it has been held that to burden this process, such
as limiting the right to petition for habeas corpus, is to deny the
convicted defendant his constitutional rights.\133\
\128\McKane v. Durston, 153 U.S. 684, 687 (1894). See also
Andrews v. Swartz, 156 U.S. 272, 275 (1895); Murphy v. Massachusetts,
177 U.S. 155, 158 (1900); Reetz v. Michigan, 188 U.S. 505, 508 (1903).
\129\Griffin v. Illinois, 351 U.S. 12, 18 (1956); id. at 21
(Justice Frankfurter concurring), 27 (dissenting opinion); Ross v.
Moffitt, 417 U.S. 600 (1974).
\130\The line of cases begins with Griffin v. Illinois, 351 U.S.
12 (1956), in which it was deemed to violate both the due process and
the equal protection clauses for a State to deny to indigent defendants
free transcripts of the trial proceedings, which would enable them
adequately to prosecute appeals from convictions. See infra, pp. 1916-
20.
\131\237 U.S. 309, 335 (1915).
\132\Moore v. Dempsey, 261, U.S. 86, 90, 91 (1923); Mooney v.
Holohan, 294 U.S. 103, 113 (1935); New York ex rel. Whitman v. Wilson,
318, U.S. 688, 690 (1943); Young v. Ragan, 337 U.S. 235, 238-39 (1949).
\133\Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324
U.S. 760 (1945).
---------------------------------------------------------------------------
The mode by which federal constitutional rights are to be
vindicated after conviction is for the government concerned to
determine. ``Wide discretion must be left to the States for the manner
of adjudicating a claim that a conviction is unconstitutional. States
are free to devise their own systems of review in criminal cases. A
State may decide whether to have direct appeals in such cases, and if so
under what circumstances. . . . In respecting the duty laid upon them
. . . States have a wide choice of remedies. A State may provide that
the protection of rights granted by the Federal Constitution be sought
through the writ of habeas corpus or coram nobis. It may use each of
these ancient writs in its common law scope, or it may put them to new
uses; or it may afford remedy by a simple motion brought either in the
court of original conviction or at a place of detention. . . . So long
as the rights under the United States Constitution may be pursued, it is
for a State and not for this Court to define the mode by which they may
be vindicated.''\134\ If a State provides a mode of redress, a defendant
must first exhaust that mode, and if unsuccessful may seek relief in
federal court; if there is no adquate remedy in state court, the
defendant may petition a federal court for relief through a writ of
habeas corpus.\135\
\134\Carter v. Illinois, 329 U.S. 173, 175-76 (1946).
\135\Supra, pp. 811-12. Note that in Case v. Nebraska, 381 U.S.
336 (1965), the Court had taken for review a case which raised the issue
whether a State could simply omit any corrective process for hearing and
determining claims of federal constitutional violations, but it
dismissed the case when the State in the interim enacted provisions for
such process.
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[[Page 1772]]
When appellate or other corrective process is made available,
inasmuch as it is no less a part of the process of law under which a
defendant is held in custody, it becomes subject to scrutiny for any
alleged unconstitutional deprivation of life or liberty. At first, the
Court seemed content to assume that when a state appellate process
formally appeared to be sufficient to correct constitutional errors
committed by the trial court, the conclusion by the appellate court that
the trial court's sentence of execution should be affirmed was ample
assurance that life would not be forfeited without due process of
law.\136\ But in Moore v. Dempsey,\137\ while insisting that it was not
departing from precedent, the Court directed a federal district court in
which petitioners had sought a writ of habeas corpus to make an
independent investigation of the facts alleged by the petitioners--mob
domination of their trial--notwithstanding that the state appellate
court had ruled against the legal sufficiency of these same allegations.
Indubitably, Moore marked the abandonment of the Supreme Court's
deference, founded upon considerations of comity, to decisions of state
appellate tribunals on issues of constitutionality, and the proclamation
of its intention no longer to treat as virtually conclusive
pronouncements by the latter that proceedings in a trial court were
fair, an abandonment soon made even clearer in Brown v. Mississippi\138\
and now taken for granted.
\136\Frank v. Mangum, 237 U.S. 309 (1915).
\137\261 U.S. 86 (1923).
\138\297 U.S. 278 (1936).
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Rights of Prisoners.--Until relatively recently the view
prevailed that a prisoner ``has, as a consequence of his crime, not only
forfeited his liberty, but all his personal rights except those which
the law in its humanity accords to him. He is for the time being the
slave of the state.''\139\ This view is not now the law, and may never
have been wholly correct.\140\ In 1948 the Court declared that
``[l]awful incarceration brings about the necessary withdrawal or
limitation of many privileges and rights'';\141\ ``many,'' indicated
less than ``all,'' and it was clear that the due process and equal
protection clauses to some extent do apply to prisoners.\142\ More
direct acknowledgment of constitutional protection came in 1972:
``[f]ederal courts sit not to supervise prisons but to enforce the
constitutional rights of all `persons,' which include prisoners. We are
[[Page 1773]]
not unmindful that prison officials must be accorded latitude in the
administration of prison affairs, and that prisoners necessarily are
subject to appropriate rules and regulations. But persons in prison,
like other individuals, have the right to petition the Government for
redress of grievances. . . .''\143\ However, while the Court affirmed
that federal courts have the responsibility to scrutinize prison
practices alleged to violate the Constitution, at the same time concerns
of federalism and of judicial restraint caused the Court to emphasize
the necessity of deference to the judgments of prison officials and
others with responsibility for administering such systems.\144\
\139\Ruffin v. Commonwealth, 62 Va. 790, 796 (1871).
\140\Cf. In re Bonner, 151 U.S. 242 (1894).
\141\Price v. Johnston, 334 U.S. 266, 285 (1948).
\142\``There is no iron curtain drawn between the Constitution
and the prisons of this country.'' Wolff v. McDonnell, 418 U.S. 539,
555-56 (1974).
\143\Cruz v. Beto, 405 U.S. 319, 321 (1972). See also Procunier
v. Martinez, 416 U.S. 396, 404-05 (1974) (invalidating state prison mail
censorship regulations).
\144\Bell v. Wolfish, 441 U.S. 520, 545-548, 551, 555, 562
(1979) (federal prison); Rhodes v. Chapman, 452 U.S. 337, 347, 351-352
(1981).
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Save for challenges to conditions of confinement of pretrial
detainees,\145\ the Court has generally treated challenges to prison
conditions as a whole under the cruel and unusual punishments clause of
the Eighth Amendment,\146\ and challenges to particular incidents and
practices under the due process clause\147\ as well as under more
specific provisions, such as the First Amendment speech and religion
clauses.\148\ Prior to formulating its current approach, the Court
recognized several rights of prisoners. Prisoners have a right to be
free of racial segregation in prisons, except for the necessities of
prison security and discipline.\149\ They have the right to petition for
redress of grievances, which includes access to the courts for purposes
of presenting their complaints,\150\ and to bring actions in federal
courts to recover for damages wrongfully
[[Page 1774]]
done them by prison administrators.\151\ And they have a right,
circumscribed by legitimate prison administration considerations, to
fair and regular treatment during their incarceration.
\145\Bell v. Wolfish, 441 U.S. 520 (1979). Persons not yet
convicted of a crime may be detained by government upon the appropriate
determination of probable cause and the detention may be effectuated
through subjection of the prisoner to the restrictions and conditions of
the detention facility. But a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law. Therefore,
unconvicted detainees may not be subjected to conditions and
restrictions that amount to punishment. However, the Court limited its
concept of punishment to practices intentionally inflicted by prison
authorities and to practices which were arbitrary or purposeless and
unrelated to legitimate institutional objectives.
\146\Supra, pp. 1497-99.
\147\E.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Baxter v.
Palmigiano, 425 U.S. 308 (1976); Vitek v. Jones, 445 U.S. 480 (1980);
Washington v. Harper, 494 U.S. 210 (1990) (prison inmate has liberty
interest in avoiding the unwanted administration of antipsychotic
drugs).
\148\E.g., Procunier v. Martinez, 416 U.S. 396 (1974); Jones v.
North Carolina Prisoners' Labor Union, 433 U.S. 119 (1977). On religious
practices and ceremonies, see Cooper v. Pate, 378 U.S. 546 (1964); Cruz
v. Beto, 405 U.S. 319 (1972).
\149\Lee v. Washington, 390 U.S. 333 (1968).
\150\Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324
U.S. 760 (1945). Prisoners must have reasonable access to a law library
or to persons trained in the law. Younger v. Gilmore, 404 U.S. 15
(1971); Bounds v. Smith, 430 U.S. 817 (1978).
\151\Haines v. Kerner, 404 U.S. 519 (1972); Preiser v.
Rodriguez, 411 U.S. 475 (1973).
---------------------------------------------------------------------------
In Turner v. Safley,\152\ the Court announced a general standard
for measuring prisoners' claims of deprivation of constitutional rights.
``[W]hen a regulation impinges on inmates' constitutional rights, the
regulation is valid if it is reasonably related to legitimate
penological interests.''\153\ Several considerations, the Court
indicated, are appropriate in determining reasonableness of a prison
regulation. First, there must be a rational relation to a legitimate,
content-neutral objective, such as prison security, broadly defined.
Availability of other avenues for exercise of the inmate right suggests
reasonableness. A further indicium of reasonableness is present if
accommodation would have a negative effect on liberty or safety of
guards or other inmates. On the other hand, an alternative to regulation
``that fully accommodated the prisoner's rights at de minimis cost to
valid penological interests'' suggests unreasonableness.\154\
\152\482 U.S. 78 (1987) (upholding a Missouri rule barring
inmate-to-inmate correspondence, but striking down a prohibition on
inmate marriages absent compelling reason such as pregnancy or birth of
a child).
\153\482 U.S. at 89.
\154\Id. at 91.
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Fourth Amendment protection is incompatible with ``the concept
of incarceration and the needs and objectives of penal institutions,''
hence a prisoner has no reasonable expectation of privacy in his prison
cell protecting him from ``shakedown'' searches designed to root out
weapons, drugs, and other contraband.\155\ Avenues of redress ``for
calculated harassment unrelated to prison needs'' are not totally
blocked, the Court indicated; inmates may still seek protection in the
Eighth Amendment or in state tort law.\156\ Existence of ``a meaningful
postdeprivation remedy'' for unauthorized, intentional deprivation of an
inmate's property by prison personnel protects the inmate's due process
rights.\157\ Due process is not impli
[[Page 1775]]
cated at all by negligent deprivation of life, liberty, or property by
prison officials.\158\
\155\Hudson v. Palmer, 468 U.S. 517, 526 (1984); Block v.
Rutherford, 468 U.S. 576 (1984) (holding also that prison security needs
support a rule prohibiting pretrial detainees contact visits with
spouses, children, relatives, and friends).
\156\Hudson v. Palmer, 468 U.S. 517, 530 (1984).
\157\Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that
state tort law provided adequate postdeprivation remedies). But see
Zinermon v. Burch, 494 U.S. 113 (1990) (availability of postdeprivation
remedy is inadequate when deprivation is foreseeable, predeprivation
process was possible, and official conduct was not ``unauthorized'').
\158\Daniels v. Williams, 474 U.S. 327 (1986); Davidson v.
Cannon, 474 U.S. 344 (1986).
---------------------------------------------------------------------------
In Wolff v. McDonnell,\159\ the Court promulgated due process
standards to govern the imposition of discipline upon prisoners. Due
process applies, but since prison disciplinary proceedings are not part
of a criminal prosecution the full panoply of rights of a defendant is
not available. Rather, the analysis must proceed on a basis of
identifying the interest in ``liberty'' which the clause protects.
\159\418 U.S. 539 (1974).
---------------------------------------------------------------------------
Where the state provides for good-time credit or other
privileges and further provides for forfeiture of these privileges only
for serious misconduct, the interest of the prisoner in this degree of
``liberty'' entitles him to those minimum procedures appropriate under
the circumstances.\160\ What the minimum procedures consist of is to be
determined by balancing the prisoner's interest against the valid
interest of the prison in maintaining security and order in the
institution, in protecting guards and prisoners against retaliation by
other prisoners, and in reducing prison tensions. The Court held in
Wolff that the prison must afford the subject of a disciplinary
proceeding advance written notice of the claimed violation and a written
statement of the factfindings as to the evidence relied upon and the
reasons for the action taken; also, the inmate should be allowed to call
witnesses and present documentary evidence in defense when permitting
him to do so will not hazard the institution's interests.\161\
Confrontation and cross-examination of adverse witnesses is not required
inasmuch as these would no doubt hazard valid institutional interests.
Ordinarily, an inmate has no right to representation by retained or
appointed counsel. Finally, only a partial right to an impartial
tribunal was recognized, the Court ruling that limitations imposed on
the discretion of a committee of prison officials sufficed for this
purpose.\162\ Revocation of good time credits, the Court later ruled,
must be supported by ``some evidence in the record,'' but an amount that
``might be characterized as meager'' is constitutionally
sufficient.\163\
\160\Id. at 557. This analysis, of course tracks the interest
analysis discussed supra, pp. 1723-32.
\161\However, the Court later ruled, reasons for denying an
inmate's request to call witnesses need not be disclosed until the issue
is raised in court. Ponte v. Real, 471 U.S. 491 (1985).
\162\Id. at 418 U.S., 561-72. The Court continues to adhere to
its refusal to require appointment of counsel. Vitek v. Jones, 445 U.S.
480, 496-97 (1980), and id. at 497-500 (Justice Powell concurring);
Baxter v. Palmigiano, 425 U.S. 308 (1976).
\163\Superintendent v. Hill, 472 U.S. 445, 454, 457 (1985).
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[[Page 1776]]
Determination whether due process requires a hearing before a
prisoner is transferred from one institution to another requires a close
analysis of the applicable statutes and regulations as well as a
consideration of the particular harm suffered by the transferee. On the
one hand, the Court found that no hearing need be held prior to the
transfer from one prison to another prison in which the conditions were
substantially less favorable. Since the State had not conferred any
right to remain in the facility to which the prisoner was first
assigned, defeasible upon the commission of acts for which transfer is a
punishment, prison officials had unfettered discretion to transfer any
prisoner for any reason or for no reason at all; consequently, there was
nothing to hold a hearing about.\164\ The same principles govern
interstate prison transfers.\165\ On the other hand, transfer of a
prisoner to a mental hospital pursuant to a statute authorizing transfer
if the inmate suffers from a ``mental disease or defect'' must be
preceded by a hearing for two alternative reasons. First, the statute
gave the inmate a liberty interest since it presumed he would not be
moved absent a finding he was suffering from a mental disease or defect.
Second, unlike transfers from one prison to another, transfer to a
mental institution was not within the range of confinement covered by
the prisoner's sentence, and, moreover, imposed a stigma constituting a
deprivation of a liberty interest.\166\
\164\Meacham v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes,
427 U.S. 236 (1976).
\165\Olim v. Wakinekona, 461 U.S. 238 (1983).
\166\Vitek v. Jones, 445 U.S. 480 (1980).
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What kind of a hearing is required before a state may force a
mentally ill prisoner to take antipsychotic drugs against his will was
at issue in Washington v. Harper.\167\ There the Court held that a
judicial hearing was not required. Instead, the inmate's substantive
liberty interest (derived from the Due Process Clause as well as from
state law) was adequately protected by an administrative hearing before
independent medical professionals, at which hearing the inmate has the
right to a lay advisor but not an attorney.
\167\494 U.S. 210 (1990).
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Probation and Parole.--Sometimes convicted defendants are not
sentenced to jail, but instead are placed on probation subject to
incarceration upon violation of the conditions which are imposed; others
who are jailed may subsequently qualify for release on parole before
completing their sentence, and are subject to reincarceration upon
violation of imposed conditions. Because both of these dispositions are
statutory privileges granted by the govern
[[Page 1777]]
mental authority,\168\ it was long assumed that the administrators of
the systems did not have to accord procedural due process either in the
granting stage or in the revocation stage. Now, both granting and
revocation are subject to due process analysis, although the results
tend to be disparate. Thus, in Mempa v. Rhay,\169\ the trial judge had
deferred sentencing and placed the convicted defendant on probation;
when facts subsequently developed which indicated a violation of the
conditions of probation, he was summoned and summarily sentenced to
prison. The Court held that he had been entitled to counsel at the
deferred sentencing hearing.
\168\Ughbanks v. Armstrong, 208 U.S. 481 (1908), held that
parole is not a constitutional right but instead is a ``present'' from
government to the prisoner. In Escoe v. Zerbst, 295 U.S. 490 (1935), the
Court's premise was that as a matter of grace the parolee was being
granted a privilege and that he should neither expect nor seek due
process. Then-Judge Burger in Hyser v. Reed, 318 F. 2d 225 (D.C. Cir.),
cert. denied, 375 U.S. 957 (1963), reasoned that due process was
inapplicable because the parole board's function was to assist the
prisoner's rehabilitation and restoration to society and that there was
no adversary relationship between the board and the parolee.
\169\389 U.S. 128 (1967).
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In Morrissey v. Brewer\170\ a unanimous Court held that parole
revocations must be accompanied by the usual due process hearing and
notice requirements. ``[T]he revocation of parole is not part of a
criminal prosecution and thus the full panoply of rights due a defendant
in such a proceeding does not apply to parole revocation . . . [But] the
liberty of a parolee, although indeterminate, includes many of the core
values of unqualified liberty and its termination inflicts a `grievous
loss' on the parolee and often on others. It is hardly useful any longer
to try to deal with this problem in terms of whether the parolee's
liberty is a `right' or a `privilege.' By whatever name, the liberty is
valuable and must be seen as within the protection of the Fourteenth
Amendment. Its termination calls for some orderly process, however
informal.''\171\ What process is due, then, turned upon the State's
interests. Its principal interest was that having once convicted a
defendant, imprisoned him, and released him for rehabilitation purposes
at some risk, it should ``be able to return the individual to
imprisonment without the burden of a new adversary criminal trial if in
fact he has failed to abide by the conditions of his parole.'' But the
State has no interest in revoking parole without some informal
procedural guarantees, inasmuch as this will not interfere with its
reasonable interest.\172\
\170\408 U.S. 471 (1972).
\171\Id. at 480, 482.
\172\Id. at 483-84.
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Minimal due process, the Court held, requires that at both
stages of the revocation process--the arrest of the parolee and the
[[Page 1778]]
formal revocation--the parolee is entitled to certain rights. Promptly
following arrest of the parolee, there should be an informal hearing to
determine whether reasonable grounds exist for revocation of parole;
this preliminary hearing should be conducted at or reasonably near the
place of the alleged parole violation or arrest and as promptly as
convenient after arrest while information is fresh and sources are
available, and should be conducted by someone not directly involved in
the case, though he need not be a judicial officer. The parolee should
be given adequate notice that the hearing will take place and what
violations are alleged, he should be able to appear and speak in his own
behalf and produce other evidence, and he should be allowed to examine
those who have given adverse evidence against him unless it is
determined that the identity of such informant should not be revealed.
Also, the hearing officer should prepare a digest of the hearing and
base his decision upon the evidence adduced at the hearing.\173\
\173\Id. at 484-87.
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Prior to the final decision on revocation, there should be a
more formal revocation hearing at which there would be a final
evaluation of any contested relevant facts and consideration whether the
facts as determined warrant revocation. The hearing must take place
within a reasonable time after the parolee is taken into custody and he
must be enabled to controvert the allegations or offer evidence in
mitigation. The procedural details of such hearings are for the States
to develop but the Court specified minimum requirements of due process.
``They include (a) written notice of the claimed violations of parole;
(b) disclosure to the parolee of evidence against him; (c) opportunity
to be heard in person and to present witnesses and documentary evidence;
(d) the right to confront and cross-examine adverse witnesses (unless
the hearing officer specifically finds good cause for not allowing
confrontation); (e) a `neutral and detached' hearing body such as a
traditional parole board, members of which need not be judicial officers
or lawyers; and (f) a written statement by the factfinders as to the
evidence relied on and the reasons for revoking parole.''\174\
Ordinarily the written statement need not indicate that the sentencing
court or review board considered alternatives to incarceration,\175\ but
a sentencing court must consider such alternatives if the probation
violation consists of the failure of an indigent probationer, through no
fault of his own, to pay a fine or restitution.\176\
\174\Id. at 487-89.
\175\Black v. Romano, 471 U.S. 606 (1985).
\176\Bearden v. Georgia, 461 U.S. 660, 672 (1983).
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[[Page 1779]]
The Court has applied a flexible due process standard to the
provision of counsel. Counsel is not invariably required in parole or
probation revocation proceedings. The State should, however, provide the
assistance of counsel where an indigent person may have difficulty in
presenting his version of disputed facts without cross-examination of
witnesses or presentation of complicated documentary evidence.
Presumptively, counsel should be provided where the person requests
counsel, based on a timely and colorable claim that he has not committed
the alleged violation, or if that issue be uncontested, there are
reasons in justification or mitigation that might make revocation
inappropriate.\177\
\177\Gagnon v. Scarpelli, 411 U.S. 778 (1973).
---------------------------------------------------------------------------
With respect to the granting of parole, the Court's analysis of
the due process clause's meaning in Greenholtz v. Nebraska Penal
Inmates\178\ is much more problematical. Rejected was the theory that
the mere establishment of the possibility of parole was sufficient to
create a liberty interest entitling any prisoner meeting the general
standards of eligibility to a due process protected expectation of being
dealt with in any particular way. On the other hand, the Court did
recognize in the particular statute before it the creation of some
expectancy of release that was entitled to some measure of
constitutional protection, while cautioning that only by a case-by-case
analysis could it be said whether other parole statutes similarly
created such expectancy.\179\ In any event, the Court considered the
nature of the decisions that parole authorities must make to hold that
the full panoply of due process guarantees is not required; procedures
designed to elicit specific facts are inappropriate under the
circumstances. Rather, minimizing the risk of error is the prime
consideration, and that goal was achieved by the board's largely
informal methods; the lower court erred, therefore, in imposing
requirements of formal hearings, notice, and specification of particular
evidence in the record. The inmate was afforded an opportunity to be
heard and when parole was denied he was informed in what respects he
fell short of qualifying. That afforded the process that was due.
\178\442 U.S. 1 (1979). Justice Powell thought that creation of
a parole system did create a legitimate expectancy of fair procedure
protected by due process, but, save in one respect, he agreed with the
Court that the procedure followed was adequate. Id. at 18. Justices
Marshall, Brennan, and Stevens argued in dissent that the Court's
analysis of the liberty interest was faulty and that due process
required more than the board provided. Id. at 22.
\179\Following Greenholtz, the Court held in Board of Pardons v.
Allen, 482 U.S. 369 (1987), that a liberty interest was created by a
Montana statute providing that a prisoner ``shall'' be released upon
certain findings by a parole board.
---------------------------------------------------------------------------
Where, however, government by its statutes and regulations
creates no obligation of the pardoning authority and thus creates
[[Page 1780]]
no legitimate expectancy of release, the prisoner may not by showing the
favorable exercise of the authority in the great number of cases
demonstrate such a legitimate expectancy. The mere existence of purely
discretionary authority and the frequent exercise of it creates no
entitlement.\180\
\180\Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458
(1981); Jago v. Van Curen, 454 U.S. 14 (1981). The former case involved
not parole but commutation of a life sentence, commutation being
mecessary to become eligible for parole. The statute gave the Board
total discretion to commute, but in at least 75% of the cases prisoner
received a favorable action and virtually all of the prisoners who had
their sentences commuted were promptly paroled. In Van Curen, the Court
made express what had been implicit in Dumschat; the ``mutually explicit
understandings'' concept under which some property interests are found
protected does not apply to liberty interests. Van Curen is also
interesting because there the parole board had granted the petition for
parole but within days revoked it before the prisoner was released, upon
being told that he had lied at the hearing before the board.
---------------------------------------------------------------------------
The Problem of the Juvenile Offender.--All of the States of the
Union and the District of Columbia make provision for dealing with
juvenile offenders outside of the criminal system for adult
offenders.\181\ These juvenile justice systems apply both to offenses
that would be criminal if committed by an adult and to delinquent
behavior not recognizable under laws dealing with adults, such as
habitual truancy, deportment endangering the morals or health of the
juvenile or others, or disobedience making the juvenile uncontrollable
by his parents. The reforms of the early part of this century provided
not only for segregating juveniles from adult offenders in the
adjudication, detention, and correctional facilities, but they also
dispensed with the substantive and procedural rules surrounding criminal
trials which were mandated by due process. Justification for this
abandonment of constitutional guarantees was offered by describing
juvenile courts as civil not criminal and as not dispensing criminal
punishment, and offering the theory that the state was acting as parens
patriae for the juvenile offender and was in no sense his
adversary.\182\ Disillusionment with the results of juvenile reforms
coupled with judicial emphasis on constitutional protection of the
accused led in the 1960s to a substantial restriction of these elements
of juvenile jurisprudence.
\181\For analysis of the state laws as well as application of
constitutional principles to juveniles, see Samuel M. Davis, Rights of
Juveniles: The Juvenile Justice System (2d ed. 1989).
\182\In re Gault, 387 U.S. 1, 12-29 (1967).
---------------------------------------------------------------------------
After tracing in much detail this history of juvenile courts,
the Court held in In re Gault\183\ that the application of due process
to juvenile proceedings would not endanger the good intentions vested in
the system nor diminish the features of the system which were deemed
desirable--emphasis upon rehabilitation rather than pun
[[Page 1781]]
ishment, a measure of informality, avoidance of the stigma of criminal
conviction, the low visibility of the process--but that the consequences
of the absence of due process standards made their application
necessary. ``Ultimately, however, we confront the reality of that
portion of the juvenile court process with which we deal in this case. A
boy is charged with misconduct. The boy is committed to an institution
where he may be restrained of liberty for years. It is of no
constitutional consequence--and of limited practical meaning--that the
institution to which he is committed is called an Industrial School. The
fact of the matter is that, however euphemistic the title, a `receiving
home' or an `industrial school' for juveniles is an institution of
confinement in which the child is incarcerated for a greater or lesser
time. His world becomes `a building with whitewashed walls, regimented
routine and institutional hours. . . .' Instead of mother and father and
sisters and brothers and friends and classmates, his world is peopled by
guards, custodians, state employees, and `delinquents' confined with him
for anything from waywardness to rape and homicide. ``In view of this,
it would be extraordinary if our Constitution did not require the
procedural regularity and the exercise of care implied in the phrase
`due process.' Under our Constitution, the condition of being a boy does
not justify a kangaroo court.''\184\
\183\387 U.S. 1 (1967).
\184\Id. at 27-28.
---------------------------------------------------------------------------
Thus, the Court in Gault required that notice of charges be
given in time for the juvenile to prepare a defense, required a hearing
in which the juvenile could be represented by retained or appointed
counsel, required observance of the rights of confrontation and cross-
examination, and required that the juvenile be protected against self-
incrimination.\185\ It did not pass upon the right of appeal or the
failure to make transcripts of hearings. Earlier, the Court had held
that before a juvenile could be ``waived'' to an adult court for trial,
there had to be a hearing and findings of reasons, a result based on
statutory interpretation but apparently constitutionalized in
Gault.\186\ Subsequently, it was held that the ``essentials of due
process and fair treatment'' required that a juvenile could be adjudged
delinquent only on evidence beyond a reasonable doubt when the offense
charged would be a crime if com
[[Page 1782]]
mitted by an adult,\187\ but still later the Court held that jury trials
were not constitutionally required in juvenile trials.\188\
\185\Id. at 31-35. Justice Harlan concurred in part and
dissented in part, id. at 65, agreeing on the applicability of due
process but disagreeing with the standards of the Court. Justice Stewart
dissented wholly, arguing that the application of procedures developed
for adversary criminal proceedings to juvenile proceedings would
endanger their objectives and contending that the decision was a
backward step toward undoing the reforms instituted in the past. Id. at
78.
\186\Kent v. United States, 383 U.S. 541 (1966), noted on this
point in In re Gault, 387 U.S. 1, 30-31 (1967).
\187\In re Winship, 397 U.S. 358 (1970). Chief Justice Burger
and Justice Stewart dissented, following essentially the Stewart
reasoning in Gault. ``The Court's opinion today rests entirely on the
assumption that all juvenile proceedings are `criminal prosecutions,'
hence subject to constitutional limitation. . . . What the juvenile
court systems need is not more but less of the trappings of legal
procedure and judicial formalism; the juvenile system requires breathing
room and flexibility in order to survive, if it can survive the repeated
assaults from this Court.'' Id. at 375, 376. Justice Black dissented
because he did not think the reasonable doubt standard a constitutional
requirement at all. Id. at 377.
\188\McKeiver v. Pennsylvania, 403 U.S. 528 (1971). No opinion
was concurred in by a majority of the Justices. Justice Blackmun's
opinion of the Court, which was joined by Chief Justice Burger and
Justices Stewart and White, reasoned that a juvenile proceeding was not
``a criminal prosecution'' within the terms of the Sixth Amendment, so
that jury trials were not automatically required; instead, the prior
cases had proceeded on a ``fundamental fairness'' approach and in that
regard a jury was not a necessary component of fair factfinding and its
use would have serious repercussions on the rehabilitative and
protection functions of the juvenile court. Justice White also submitted
a brief concurrence emphasizing the differences between adult criminal
trials and juvenile adjudications. Id. at 551. Justice Brennan concurred
in one case and dissented in another because in his view open
proceedings would operate to protect juveniles from oppression in much
the same way as a jury would. Id. at 553. Justice Harlan concurred
because he did not believe jury trials were constitutionally mandated in
state courts. Id. at 557. Justices Douglas, Black, and Marshall
dissented. Id. at 557.
---------------------------------------------------------------------------
On a few occasions the Court has considered whether rights
accorded to adults during investigation of crime are to be accorded
juveniles. In one such case the Court ruled that a juvenile undergoing
custodial interrogation by police had not invoked a Miranda right to
remain silent by requesting permission to consult with his probation
officer, since a probation officer could not be equated with an
attorney, but indicated as well that a juvenile's waiver of Miranda
rights was to be evaluated under the same totality-of-the-circumstances
approach applicable to adults. That approach ``permits--indeed it
mandates--inquiry into all the circumstances surrounding the
interrogation . . . includ[ing] evaluation of the juvenile's age,
experience, education, background, and intelligence, and into whether he
has the capacity to understand the warnings given him. . . .''\189\ In
another case the Court ruled that, while the Fourth Amendment applies to
searches of students by public school authorities, neither the warrant
requirement nor the probable cause standard is appropriate.\190\
Instead, a simple reasonableness
[[Page 1783]]
standard governs all searches of students' persons and effects by school
authorities.\191\
\189\Fare v. Michael C., 442 U.S. 707, 725 (1979).
\190\New Jersey v. T.L.O., 469 U.S. 325 (1985) (upholding the
search of a student's purse to determine whether the student possessed
cigarettes in violation of schoool rule; evidence of drug activity held
admissible in a prosecution under the juvenile laws).
\191\This single rule, the Court explained, will permit school
authorities ``to regulate their conduct according to the dictates of
reason and common sense.'' 469 U.S. at 343. Rejecting the suggestion of
dissenting Justice Stevens, the Court was ``unwilling to adopt a
standard under which the legality of a search is dependent upon a
judge's evaluation of the relative importance of various school rules.''
Id. at n.9.
---------------------------------------------------------------------------
The Court ruled in Schall v. Martin\192\ that preventive
detention of juveniles does not offend due process when it serves the
legitimate state purpose of protecting society and the juvenile from
potential consequences of pretrial crime, when the terms of confinement
serve those legitimate purposes and are nonpunitive, and when procedures
provide sufficient protection against erroneous and unnecessary
detentions. A statute authorizing pretrial detention of accused juvenile
delinquents on a finding of ``serious risk'' that the juvenile would
commit crimes prior to trial, providing for expedited hearings (the
maximum possible detention was 17 days), and guaranteeing a formal,
adversarial probable cause hearing within that period, was found to
satisfy these requirements.
\192\467 U.S. 253 (1984).
---------------------------------------------------------------------------
Each state has a procedure by which juveniles may be tried as
adults.\193\ With the Court having clarified the consitutional
requirements for imposition of capital punishment, it was only a matter
of time before the Court would have to determine whether states may
subject juveniles to capital punishment. In Stanford v. Kentucky,\194\
the Court held that the Eighth Amendment does not categorically prohibit
imposition of the death penalty for individuals who commit crimes at age
16 or 17; earlier the Court had invalidated a statutory scheme
permitting capital punishment for crimes committed before age 16.\195\
In weighing validity under the Eighth Amendment, the Court has looked to
state practice to determine whether a consensus against execution
exists.\196\
\193\See Samuel M. Davis, Rights of Juveniles: The Juvenile
Justice System, ch. 4, ``Waiver of Jurisdiction'' (2d ed. 1989).
\194\492 U.S. 361 (1989).
\195\Thompson v. Oklahoma, 487 U.S. 815 (1988).
\196\See analysis of Eighth Amendment principles, supra pp.
1491-92.
---------------------------------------------------------------------------
Still to be considered by the Court are such questions as the
substantive and procedural guarantees to be applied in proceedings when
the matter at issue is non-criminal delinquent behavior.
The Problem of Civil Commitment.--As is the case with juvenile
offenders, several other classes of persons are subject to confinement
by processes and in courts deemed civil rather than criminal. Within
this category of ``protective commitment'' are involuntary commitments
for treatment of insanity and other degrees of mental incompetence,
retardation, alcoholism, narcotics addiction,
[[Page 1784]]
sexual psychopathy, and the like. Inasmuch as the deprivation of liberty
is as severe as that experienced by juveniles adjudged delinquent, and
in addition is accompanied with harm to reputation, it is surprising
that the Court has only recently dealt with the issue.\197\
\197\Only in Minnesota ex rel. Pearson v. Probate Court, 309
U.S. 270 (1940), did the Court earlier approach consideration of the
problem. Other cases reflected the Court's concern with the rights of
convicted criminal defendants and generally required due process
procedures or that the commitment of convicted criminal defendants
follow the procedures required for civil commitments. Specht v.
Patterson, 386 U.S. 605 (1967); Baxstrom v. Herold, 383 U.S. 107 (1966);
Lynch v. Overholser, 369 U.S. 705 (1962); Humphrey v. Cady, 405 U.S. 504
(1972); Jackson v. Indiana, 406 U.S. 715 (1972); McNeil v. Director, 407
U.S. 245 (1972). Cf. Murel v. Baltimore City Criminal Court, 407 U.S.
355 (1972).
---------------------------------------------------------------------------
In O'Connor v. Donaldson,\198\ bypassing ``the difficult issues
of constitutional law'' raised by the lower courts' resolution of the
case,\199\ the Court held that ``a State cannot constitutionally confine
without more a nondangerous individual who is capable of surviving
safely in freedom by himself or with the help of willing and responsible
family members or friends.''\200\ The trial jury had found that
Donaldson was not dangerous to himself or to others, and the Court ruled
that he had been unconstitutionally confined.\201\ Left to resolution
another day were such questions as ``when, or by what procedures, a
mentally ill person may be confined by the State on any of the grounds
which, under contemporary statutes, are generally advanced to justify
involuntary confinement of such a person--to prevent injury to the
public, to ensure his own survival or safety, or to alleviate or cure
his illness''\202\ and the right, if any, to receive treatment for the
confined person's illness. To conform to due process requirements,
procedures for voluntary admission should recognize the possibility that
persons in need of treatment may not be competent to give informed
consent; this is not a situation where availability of a meaningful
postdeprivation remedy can cure the due process violation.\203\
\198\422 U.S. 563 (1975).
\199\That is, the right to treatment of the involuntarily
committed. Supra, pp. 1690-92.
\200\422 U.S. at 576.
\201\Id. at 576-77. The Court remanded to allow the trial court
to determine whether Donaldson should recover personally from his
doctors and others for his confinement, under standards formulated under
42 U.S.C. Sec. 1983. See Wood v. Strickland, 420 U.S. 308 (1975);
Scheuer v. Rhodes, 416 U.S. 232 (1974).
\202\O'Connor v. Donaldson, 422 U.S. 563, 573 (1975).
\203\Zinermon v. Burch, 494 U.S. 113 (1990).
---------------------------------------------------------------------------
Procedurally, it is clear that an individual's liberty interest
in being free from unjustifiable confinement and from the adverse social
consequences of being labeled mentally ill requires government to assume
a greater share of the risk of error in proving the exist
[[Page 1785]]
ence of such illness as a precondition to confinement. Thus, the
evidentiary standard of a preponderance, normally used in litigation
between private parties, is constitutionally inadequate in commitment
proceedings. On the other hand, the criminal standard of beyond a
reasonable doubt is not necessary because the state's aim is not
punitive and because some or even much of the consequence of an
erroneous decision not to commit may fall upon the individual. Moreover,
the criminal standard addresses an essentially factual question, whereas
interpretative and predictive determinations must also be made in
reaching a conclusion on commitment. The Court therefore imposed a
standard of ``clear and convincing'' evidence.\204\
\204\Addington v. Texas, 441 U.S. 418 (1979). See also Vitek v.
Jones, 445 U.S. 480 (1980) (transfer of prison inmate to mental
hospital).
---------------------------------------------------------------------------
Difficult questions of what due process may require in the
context of commitment of allegedly mentally ill and mentally retarded
children by their parents or by the State when such children are wards
of the State were confronted in Parham v. J.R.\205\ Under the challenged
laws there were no formal preadmission hearings, but psychiatric and
social workers did interview parents and children and reached some form
of independent determination that commitment was called for. The Court
acknowledged the potential for abuse but balanced this against such
factors as the responsibility of parents for the care and nurture of
their children and the legal presumption that parents usually act in
behalf of their children's welfare, the independent role of medical
professionals in deciding to accept the children for admission, and the
real possibility that the institution of an adversary proceeding would
both deter parents from acting in good faith to institutionalize
children needing such care and interfere with the ability of parents to
assist with the care of institutionalized children.\206\ Similarly, the
same concerns, reflected in the statutory obligation of the State to
care for children in its custody, caused the Court to apply the same
standards to involuntary commitment by the Government.\207\ Left to
future resolution was the question of the due process requirements for
postadmission review of the necessity for continued confinement.\208\
\205\442 U.S. 584 (1979). See also Secretary of Public Welfare
v. Institutionalized Juveniles, 442 U.S. 640 (1979).
\206\442 U.S. at 598-617. The dissenters agreed on this point.
Id. at 626-37.
\207\Id. at 617-20. The dissenters would have required a
preconfinement hearing. Id. at 637-38.
\208\Id. at 617. The dissent would have mandated a formal
postadmission hearing. Id. at 625-26.
[[Page 1786]]
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED:
EQUAL PROTECTION OF THE LAWS
Scope and Application
State Action.--``[T]he action inhibited by the first section of
the Fourteenth Amendment is only such action as may fairly be said to be
that of the States. That Amendment erects no shield against merely
private conduct, however discriminatory or wrongful.''\1\ The Amendment
by its express terms provides that ``[n]o State . . .'' and ``nor shall
any State . . .'' engage in the proscribed conduct. ``It is State action
of a particular character that is prohibited. Individual invasion of
individual rights is not the subject matter of the amendment. It has a
deeper and broader scope. It nullifies and makes void all State
legislation, and State action of every kind, which impairs the
privileges and immunities of citizens of the United States, or which
injures them in life, liberty, or property without due process of law,
or which denies to any of them the equal protection of the laws.''\2\
While the state action doctrine is equally applicable to denials of
privileges or immunities, due process, and equal protection, it is
actually only with the last great right of the Fourteenth Amendment that
the doctrine is invariably associated.\3\
\1\Shelley v. Kraemer, 334 U.S. 1, 13 (1948). Similarly, the due
process clause of the Fifth Amendment, with its equal protection
component, limits only federal governmental action and not that of
private parties, as is true of each of the provisions of the Bill of
Rights. The scope and reach of the ``state action'' doctrine is thus the
same whether a State or the National Government is concerned. See CBS v.
Democratic Nat'l Comm., 412 U.S. 94 (1973).
\2\Civil Rights Cases, 109 U.S. 3, 11 (1883). With regard to the
principal issue in this decision, the limitation of the state action
requirement on Congress' enforcement powers, see infra, pp. 1929-33.
\3\Recently, however, because of broadening due process
conceptions and the resulting litigation, issues of state action have
been raised with respect to the due process clause. See, e.g., Jackson
v. Metropolitan Edison Co., 419 U.S. 345 (1974); Flagg Bros. v. Brooks,
436 U.S. 149 (1978); Rendell-Baker v. Kohn, 457 U.S. 830 (1982); Lugar
v. Edmondson Oil Co., 457 U.S. 922 (1982); Blum v. Yaretsky, 457 U.S.
991 (1982).
---------------------------------------------------------------------------
``The vital requirement is State responsibility,'' Justice
Frankfurter once wrote, ``that somewhere, somehow, to some extent, there
be an infusion of conduct by officials, panoplied with State power, into
any scheme'' to deny protected rights.\4\ Certainly, state legislation
commanding a discriminatory result is state action condemned by the
first section of the Fourteenth Amendment, and is void.\5\ But the
difficulty for the Court has begun when the conduct
[[Page 1787]]
complained of is not so clearly the action of a State but is, perhaps,
the action of a minor state official not authorized or perhaps forbidden
by state law so to act, or is, perhaps on the other hand, the action of
a private party who nonetheless has some relationship with governmental
authority.
\4\Terry v. Adams, 345 U.S. 461, 473 (1953) (concurring). The
Justice was speaking of the state action requirement of the Fifteenth
Amendment. The Nineteenth and Twenty-sixth Amendments also hinge on
state action; the Thirteenth Amendment, banning slavery and involuntary
servitude, does not.
\5\United States v. Raines, 362 U.S. 17, 25 (1960). A prime
example is the statutory requirement of racially segregated schools
condemned in Brown v. Board of Education, 347 U.S. 483 (1954). And see
Peterson v. City of Greenville, 373 U.S. 244 (1963), holding that
trespass convictions of African Americans ``sitting-in'' at a lunch
counter over the objection of the manager cannot stand because of a
local ordinance commanding such separation, irrespective of the
manager's probable attitude if no such ordinance existed.
---------------------------------------------------------------------------
The continuum of state action ranges from obvious legislated
denial of equal protection to private action that is no longer so
significantly related to or brigaded with state action that the
Amendment applies. The prohibitions of the Amendment ``have reference to
actions of the political body denominated by a State, by whatever
instruments or in whatever modes that action may be taken. A State acts
by its legislative, its executive, or its judicial authorities. It can
act in no other way. The constitutional provision, therefore, must mean
that no agency of the State, or of the officers or agents by whom its
powers are exerted, shall deny to any person within its jurisdiction the
equal protection of the laws. Whoever, by virtue of public position
under a State government, deprives another of property, life, or
liberty, without due process of law, or denies or takes away the equal
protection of the laws, violates the constitutional inhibition; and as
he acts in the name and for the State, and is clothed with the State's
power, his act is that of the State.''\6\
\6\Ex parte Virginia, 100 U.S. 339, 346-47 (1880).
---------------------------------------------------------------------------
``Careful adherence to the `state action' requirement preserves
an area of individual freedom by limiting the reach of federal law and
federal judicial power. It also avoids imposing on the State, its
agencies or officials, responsibility for conduct for which they cannot
fairly be blamed. A major consequence is to require the courts to
respect the limits of their own power as directed against state
governments and private interests. Whether this is good or bad policy,
it is a fundamental fact of our political order.''\7\ That the doc
[[Page 1788]]
trine serves certain values and disserves others is not a criticism of
it but a recognition that in formulating and applying the several tests
by which the presence of ``state action'' is discerned,\8\ the Court has
considerable discretion and the weights of the opposing values and
interests will lead to substantially different applications of the
tests. Thus, following the Civil War, when the Court sought to reassert
federalism values, it imposed a rather rigid state action standard.
During the civil rights movement of the 1950s and 1960s, when almost all
state action contentions were raised in a racial context, the Court
generally found the presence of state action. As it grew more
sympathetic to federalism concerns in the late 1970s and 1980s, the
Court began to reassert a strengthened state action doctrine, primarily
but hardly exclusively in nonracial cases.
\7\Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-37 (1982).
``Freedom of the individual to choose his associates or his neighbors,
to use and dispose of his property as he sees fit, to be irrational,
arbitrary, capricious, even unjust in his personal relations are things
all entitled to a large measure of protection from governmental
interference. This liberty would be overridden in the name of equality,
if the structures of the amendment were applied to governmental and
private action without distinction. Also inherent in the concept of
state action are values of federalism, a recognition that there are
areas of private rights upon which federal power should not lay a heavy
hand and which should properly be left to the more precise instruments
of local authority.'' Peterson v. City of Greenville, 373 U.S. 244, 250
(1963) (Justice Harlan concurring).
\8\``Only by sifting facts and weighing circumstances can the
nonobvious involvement of the State in private conduct be attributed its
true significance.'' Burton v. Wilmington Parking Auth., 365 U.S. 715,
722 (1961).
---------------------------------------------------------------------------
Operation of the state action doctrine was critical in
determining whether school systems were segregated unconstitutionally by
race. The original Brown cases and subsequent ones arose in the context
of statutorily mandated separation of the races and occasioned therefore
no controversy in finding state action.\9\ The aftermath in the South
involved not so much state action as the determination of the remedies
necessary to achieve a unitary system.\10\ But if racial segregation is
not the result of state action in some aspect, then its existence is not
subject to constitutional remedy.\11\ Distinguishing between the two
situations has occasioned much controversy.
\9\Brown v. Board of Education, 347 U.S. 483 (1954).
\10\Infra, pp. 1843-47.
\11\Compare Washington v. Seattle School Dist., 458 U.S. 457
(1982), with Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527 (1982).
---------------------------------------------------------------------------
Confronting in a case arising from Denver, Colorado, the issue
of a school system in which no statutory dual system had ever been
imposed, the Court restated the obvious principle that racial
segregation caused by ``intentionally segregative school board actions''
is de jure and not de facto, just as if it had been mandated by statute.
``[T]he differentiating factor between de jure segregation and so-called
de facto segregation . . . is purpose or intent to segregate.''\12\
Where it is proved that a meaningful portion of a school system is
segregated as a result of official action, the official agency must bear
the burden of proving that other school segregation within the system is
adventitious and not the result of official action. It is not the
responsibility of complainants to show that each
[[Page 1789]]
school in a system is de jure segregated to be entitled to a system-wide
desegregation plan.\13\ Moreover, the Court has also apparently adopted
a rule to the effect that if it can be proved that at some time in the
past a school board has purposefully maintained a racially separated
system, a continuing obligation to dismantle that system can be said to
have devolved upon the agency at that earlier point so that its
subsequent actions can be held to a standard of having promoted
desegregation or of not having promoted it, so that facially neutral or
ambiguous school board policies can form the basis for a judicial
finding of intentional discrimination.\14\
\12\Keyes v. Denver School District, 413 U.S. 189, 208 (1973)
(emphasis by Court). See also Columbus Bd. of Educ. v. Penick, 443 U.S.
449, 457 n.5 (1979).
\13\Id. at 208-213. The continuing validity of the Keyes
shifting-of-the-burden principle, after Washington v. Davis, 426 U.S.
229 (1976), and Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406 (1977),
was asserted in Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 455-458 &
n.7, 467-68 (1979), and Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526,
540-42 (1979).
\14\Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 458-61
(1979); Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 534-40 (1979).
---------------------------------------------------------------------------
Different results, however, follow when inter-district
segregation is an issue. Disregard of district lines is permissible by a
federal court in formulating a desegregation plan only when it finds an
inter-district violation. ``Before the boundaries of separate and
autonomous school districts may be set aside by consolidating the
separate units for remedial purposes by imposing a cross-district
remedy, it must first be shown that there has been a constitutional
violation within one district that produces a significant segregative
effect in another district. Specifically it must be shown that racially
discriminatory acts of the state or local school districts, or of a
single school district, have been a substantive cause of inter-district
segregation.''\15\ The de jure/de facto distinction is thus well
established in school cases and is firmly grounded upon the ``state
action'' language of the Fourteenth Amendment.
\15\Milliken v. Bradley, 418 U.S. 717, 744-45 (1974).
---------------------------------------------------------------------------
It has long been established that the actions of state officers
and agents are attributable to the State. Thus, application of a federal
statute imposing a criminal penalty on a state judge who excluded
African Americans from jury duty was upheld as within congressional
power under the Fourteenth Amendment; the judge's action constituted
state action even though state law did not authorize him to select the
jury in a racially discriminatory manner.\16\
[[Page 1790]]
The fact that the ``state action'' category is not limited to situations
in which state law affirmatively authorizes discriminatory action was
made clearer in Yick Wo v. Hopkins,\17\ in which the Court found
unconstitutional state action in the discriminatory administration of an
ordinance fair and non-discriminatory on its face. Not even the fact
that the actions of the state agents are illegal under state law makes
the action nonattributable to the State for purposes of the Fourteenth
Amendment.\18\ ``Misuse of power, possessed by virtue of state law and
made possible only because the wrongdoer is clothed with the authority
of state law, is action taken `under color of' state law.''\19\ When the
denial of equal protection is not commanded by law or by administrative
regulation but is nonetheless accomplished through police enforcement of
``custom''\20\ or through hortatory admonitions by public officials to
private parties to act in a discriminatory manner,\21\ the action is
state action. When a State clothes a private party with official
authority, he may not engage in conduct forbidden the State.\22\
\16\Ex parte Virginia, 100 U.S. 339 (1880). Similarly, the acts
of a state governor are state actions, Cooper v. Aaron, 358 U.S. 1, 16-
17 (1958); Sterling v. Constantin, 287 U.S. 378, 393 (1932), as are the
acts of prosecuting attorneys, Mooney v. Holohan, 294 U.S. 103, 112, 113
(1935), state and local election officials, United States v. Classic,
313 U.S. 299 (1941), and law enforcement officials. Griffin v. Maryland,
378 U.S. 130 (1964); Monroe v. Pape, 365 U.S. 167 (1961); Screws v.
United States, 325 U.S. 91 (1945). One need not be an employee of the
State to act ``under color of'' state law; he may merely participate in
an act with state officers. United States v. Price, 383 U.S. 787 (1966).
\17\118 U.S. 356 (1886).
\18\Screws v. United States, 325 U.S. 91 (1945); Williams v.
United States, 341 U.S. 97 (1951); United States v. Price, 383 U.S. 787
(1966). See also United States v. Raines, 362 U.S. 17, 25 (1960). As
Justice Brandeis noted in Iowa-Des Moines National Bank v. Bennett, 284
U.S. 239, 246 (1931), ``acts done `by virtue of public position under a
State government . . . and . . . in the name and for the State' . . .
are not to be treated as if they were the acts of private individuals,
although in doing them the official acted contrary to an express command
of the state law.'' Note that for purposes of being amenable to suit in
federal court, however, the immunity of the States does not shield state
officers who are alleged to be engaging in illegal or unconstitutional
action. Ex parte Young, 209 U.S. 123 (1908), supra, pp. 1537-44. Cf.
Screws v. United States, supra, 147-48.
\19\United States v. Classic, 313 U.S. 299, 326 (1941).
\20\Cf. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).
\21\Lombard v. Louisiana, 373 U.S. 267 (1963). No statute or
ordinance mandated segregation at lunch counters but both the mayor and
the chief of police had recently issued statements announcing their
intention to maintain the existing policy of separation. Thus, the
conviction of African Americans for trespass because they refused to
leave a segregated lunch counter was voided.
\22\Griffin v. Maryland, 378 U.S. 130 (1964). Guard at private
entertainment ground was also deputy sheriff; he could not execute the
racially discriminatory policies of his private employer. See also
Williams v. United States, 341 U.S. 97 (1951).
---------------------------------------------------------------------------
Beyond this point we enter the area in which the discriminatory
intent is that of a private individual and the question is whether a
State has encouraged the effort or has impermissibly aided it.\23\ Of
notable importance and a subject of controversy since
[[Page 1791]]
it was decided is Shelley v. Kraemer.\24\ There, property owners brought
suit to enforce a racially restrictive covenant, seeking to enjoin the
sale of a home by white sellers to black buyers. The covenants standing
alone, Chief Justice Vinson said, violated no rights protected by the
Fourteenth Amendment. ``So long as the purposes of those agreements are
effectuated by voluntary adherence to their terms, it would appear clear
that there has been no action by the State and the provisions of the
Amendment have not been violated.'' However, that was not all. ``These
are cases in which the purposes of the agreements were secured only by
judicial enforcement by state courts of the restrictive terms of the
agreements.''\25\ Establishing that the precedents were to the effect
that judicial action of state courts was state action, the Court
continued to find that judicial enforcement of these covenants was
forbidden. ``The undisputed facts disclose that petitioners were willing
purchasers of properties upon which they desire to establish homes. The
owners of the properties were willing sellers; and contracts of sale
were accordingly consummated. . . .''
\23\Examples already alluded to include Lombard v. Louisiana,
373 U.S. 267 (1963), in which certain officials had advocated continued
segregation, Peterson v. City of Greenville, 373 U.S. 244 (1963), in
which there were segregation-requiring ordinances and customs of
separation, and Robinson v. Florida, 378 U.S. 153 (1964), in which
health regulations required separate restroom facilities in any
establishment serving both races.
\24\334 U.S. 1 (1948).
\25\Id. at 13-14.
---------------------------------------------------------------------------
``These are not cases . . . in which the States have merely
abstained from action, leaving private individuals free to impose such
discriminations as they see fit. Rather, these are cases in which the
States have made available to such individuals the full coercive power
of government to deny to petitioners, on the grounds of race or color,
the enjoyment of property rights in premises which petitioners are
willing and financially able to acquire and which the grantors are
willing to sell.''\26\
\26\Id. at 19. In Hurd v. Hodge, 334 U.S. 24 (1948), the Court
outlawed judicial enforcement of restrictive covenants in the District
of Columbia as violative of civil rights legislation and public policy.
Barrows v. Jackson, 346 U.S. 249 (1953), held that damage actions for
violations of racially restrictive covenants would not be judicially
entertained.
---------------------------------------------------------------------------
Arguments about the scope of Shelley began immediately. Did the
rationale mean that no private decision to discriminate could be
effectuated in any manner by action of the State, as by enforcement of
trespass laws or judicial enforcement of discrimination in wills? Or did
it rather forbid the action of the State in interfering with the
willingness of two private parties to deal with each other? Disposition
of several early cases possibly governed by Shelley left this issue
unanswered.\27\ But the Court has experienced no dif
[[Page 1792]]
ficulty in finding that state court enforcement of common-law rules in a
way that has an impact upon speech and press rights is state action and
triggers the application of constitutional rules.\28\ It may be that the
substantive rule that is being enforced is the dispositive issue, rather
than the mere existence of state action. Thus, in Evans v. Abney,\29\ a
state court, asked to enforce a discriminatory stipulation in a will
that property devised to a city for use as a public park should never be
used by African Americans, ruled that the city could not operate the
park in a segregated fashion; instead of striking the segregation
requirement from the will, the court ordered return of the property to
the decedent's heirs, inasmuch as the trust had failed. The Supreme
Court held the decision permissible, inasmuch as the state court had
merely carried out the testator's intent with no racial motivation
itself, and distinguished Shelley on the basis that African Americans
were not discriminated against by the reversion, because everyone was
deprived of use of the park.\30\
\27\Rice v. Sioux City Memorial Park Cemetery, 245 Iowa 147, 60
N.W. 2d 110 (1953), aff'd by an equally divided Court, 348 U.S. 880
(1954), rehearing granted, judgment vacated & certiorari dismissed, 349
U.S. 70 (1955); Black v. Cutter Laboratories, 351 U.S. 292 (1956). The
central issue in the ``sit-in'' cases, whether state enforcement of
trespass laws at the behest of private parties acting on the basis of
their own discriminatory motivations, was evaded by the Court, in
finding some other form of state action and reversing all convictions.
Individual Justices did elaborate, however. Compare Bell v. Maryland,
378 U.S. 226, 255-60 (1964) (opinion of Justice Douglas), with id. at
326 (Justices Black, Harlan, and White dissenting).
\28\In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and
progeny, defamation actions based on common-law rules were found to
implicate First Amendment rights and the Court imposed varying limiting
rules on such rules of law. See id. at 265 (finding state action).
Similarly, in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), a
civil lawsuit between private parties, the application of state common-
law rules to assess damages for actions in a boycott and picketing was
found to constitute state action. Id. at 916 n.51.
\29\396 U.S. 435 (1970). The matter had previously been before
the Court in Evans v. Newton, 382 U.S. 296 (1966).
\30\Id. at 445. Note the use of the same rationale in another
context in Palmer v. Thompson, 403 U.S. 217, 226 (1971). On a different
result in the ``Girard College'' will case, see infra, p. 1689 n.14.
---------------------------------------------------------------------------
Similar to Shelley in controversy and the indefiniteness of its
rationale, the latter element of which appears to have undergone a
modifying rationalization, is Reitman v. Mulkey,\31\ in which, following
enactment of an ``open housing'' law by the California legislature, an
initiative and referendum measure was passed that repealed the law and
amended the state constitution to prevent any agency of the State or of
local government from henceforth forbidding racial discrimination in
private housing. Upholding a state court invalidation of this amendment,
the Court appeared to ground its decision on two lines of reasoning,
either on the state court's premise that passage of the provision
encouraged private racial discrimination impermissibly or on the basis
that the provision made discriminatory racial practices immune from the
ordi
[[Page 1793]]
nary legislative process, while not so limiting other processes, and
thus impermissibly burdened minorities in the achievement of legitimate
aims in a way other classes of persons were not burdened.\32\ In a
subsequent case, the latter rationale was utilized in a unanimous
decision voiding an Akron ordinance, which suspended an ``open housing''
ordinance and provided that any future ordinance regulating transactions
in real property ``on the basis of race, color, religion, national
origin or ancestry'' must be submitted to a vote of the people before it
could become effective, while any other ordinance would become effective
when passed, except that it could be petitioned to referendum.\33\
\31\387 U.S. 369 (1967). The decision was 5-to-4, Justices
Harlan, Black, Clark, and Stewart dissenting. Id. at 387.
\32\See, e.g., id. at 377 (language suggesting both lines of
reasoning).
\33\Hunter v. Erickson, 393 U.S. 385 (1969). In Lee v. Nyquist,
318 F. Supp. 710 (W.D.N.Y. 1970), aff'd, 402 U.S. 935 (1971), New York
enacted a statute prohibiting the assignment of students or the
establishment of school districts for the purpose of achieving racial
balance in attendance, unless with the express approval of a locally
elected school board or with the consent of the parents, a measure
designed to restrict the state education commissioner's program to
ameliorate de facto segregation. The federal court held the law void,
holding in reliance on Mulkey that the statute encouraged racial
discrimination and that by treating educational matters involving racial
criteria differently than it treated other educational matters it made
more difficult a resolution of the de facto segregation problem.
---------------------------------------------------------------------------
That Mulkey and Hunter stand for the proposition that imposing a
barrier to racial amelioration legislation is the decisive and
condemning factor is evident from two recent decisions with respect to
state referendum decisions on busing for integration.\34\ Both cases
agree that ``the simple repeal or modification of desegregation or
antidiscrimination laws, without more, never has been viewed as
embodying a presumptively invalid racial classification.''\35\ It is
thus not impermissible to overturn a previous governmental decision, or
to defeat the effort initially to arrive at such a decision, simply
because the state action may conceivably encourage private
discrimination.
\34\Washington v. Seattle School Dist., 458 U.S. 457 (1982);
Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527 (1982). A five-to-
four majority in Seattle found the fault to be a racially-based
structuring of the political process making it more difficult to
undertake actions designed to improve racial conditions than to
undertake any other educational action. An 8-to-1 majority in Crawford
found that repeal of a measure to bus to undo de facto segregation,
without imposing any barrier to other remedial devices, was permissible.
\35\Crawford, 458 U.S. at 539, quoted in Seattle, 458 U.S. at
483. See also Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 414 (1977).
---------------------------------------------------------------------------
In other instances in which the discrimination is being
practiced by private parties, the question essentially is whether there
has been sufficient state involvement to bring the Fourteenth Amendment
into play; that is, the private discrimination is not constitutionally
forbidden ``unless to some significant extent the State in any of its
manifestations has been found to have become in
[[Page 1794]]
volved in it.''\36\ There is no clear formula. ``Only by sifting facts
and weighing circumstances can the nonobvious involvement of the State
in private conduct be attributed its true significance.''\37\ State
action was found in a number of circumstances. The ``White Primary'' was
outlawed by the Court not because the party's discrimination was
commanded by statute but because the party operated under the authority
of the State and it in fact controlled the outcome of elections.\38\
Although the City of Philadelphia was acting as trustee in administering
and carrying out the will of someone who had left money for a college,
admission to which was stipulated to be for white boys only, the city
was held to be engaged in forbidden state action in discriminating
against African Americans in admission.\39\ When state courts on
petition of interested parties removed the City of Macon as trustees of
a segregated park left in trust for such use in a will and appointed new
trustees in order to keep the park segregated, the Court reversed,
finding that the City was still inextricably involved in the maintenance
and operation of the park.\40\ In a significant case in which the Court
explored a lengthy list of contacts between the State and a private
corporation, it held that the lessee of property within an off-street
parking building owned and operated by a municipality could not exclude
African Americans from its restaurant. It was emphasized that the
building was publicly built and owned, that the restaurant was an
integral part of the complex, that the restaurant and the parking
facilities complemented each other, that the parking authority had
regulatory power over the lessee and had made stipulations but nothing
related to racial discrimination, and that the financial success of the
restaurant benefited the governmental agency; ``the degree of state
participation and involvement in discriminatory action'' was sufficient
to condemn it.\41\
\36\Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).
\37\Id. at 722.
\38\Smith v. Allwright, 321 U.S. 649 (1944).
\39\Pennsylvania v. Board of Trustees, 353 U.S. 230 (1957). On
remand, the state courts substituted private persons as trustees to
carry out the will. In re Girard College Trusteeship, 391 Pa. 434, 138
A. 2d 844, cert. denied, 357 U.S. 570 (1958). This expedient was,
however, ultimately held unconstitutional. Brown v. Pennsylvania, 392
F.2d 120 (3d Cir.), cert. denied, 391 U.S. 921 (1968).
\40\Evans v. Newton, 382 U.S. 296 (1966). Justices Black,
Harlan, and Stewart dissented. Id. at 312, 315. For the subsequent
ruling in this case, see Evans v. Abney, 396 U.S. 435 (1970), considered
supra, p. 1686.
\41\Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).
---------------------------------------------------------------------------
The question arose, then, what degree of state participation was
``significant''? Would licensing of a business clothe the actions of
that business with sufficient state involvement? Would regulation? Or
provision of police and fire protection? Would enforcement
[[Page 1795]]
of state trespass laws be invalid if it effectuated discrimination? The
``sit-in'' cases of the early 1960's presented all these questions and
more but did not resolve them.\42\ The basics of an answer came in Moose
Lodge No. 107 v. Irvis,\43\ in which the Court held that the fact that a
private club was required to have a liquor license to serve alcoholic
drinks and did have such a license did not bar it from discriminating
against African Americans. It denied that private discrimination became
constitutionally impermissible ``if the private entity receives any sort
of benefit or service at all from the State, or if it is subject to
state regulation in any degree whatever,'' since any such rule would
eviscerate the state action doctrine. Rather, ``where the impetus for
the discrimination is private, the State must have `significantly
involved itself with invidious discrimination.'''\44\ Moreover, while
the State had extensive powers to regulate in detail the liquor dealings
of its licensees, ``it cannot be said to in any way foster or encourage
racial discrimination. Nor can it be said to make the State in any
realistic sense a partner or even a joint venturer in the club's
enterprise.''\45\ And there was nothing in the licensing relationship
here that approached ``the symbiotic relationship between lessor and
lessee'' which the Court had found in Burton.\46\
\42\See, e.g., the various opinions in Bell v. Maryland, 378
U.S. 226 (1964).
\43\407 U.S. 163 (1972). One provision of the state law was,
however, held unconstitutional. That provision required a licensee to
observe all its by-laws and therefore mandated the Moose Lodge to follow
the discrimination provision of its by-laws. Id. at 177-79.
\44\Id. at 173.
\45\Id. at 176-77.
\46\Id. at 174-75.
---------------------------------------------------------------------------
The Court subsequently made clear that governmental involvement
with private persons or private corporations is not the critical factor
in determining the existence of ``state action.'' Rather, ``the inquiry
must be whether there is a sufficiently close nexus between the State
and the challenged action of the regulated entity so that the action of
the latter may be fairly treated as that of the State itself.''\47\ Or,
to quote Judge Friendly, who first enunciated the test this way, the
``essential point'' is ``that the state must be involved not simply with
some activity of the institution alleged to have inflicted injury upon a
plaintiff but with the activity that caused the injury. Putting the
point another way, the state action, not the private, must be the
subject of the complaint.''\48\ Therefore, the Court
[[Page 1796]]
found no such nexus between the State and a public utility's action in
terminating service to a customer. Neither the fact that the business
was subject to state regulation, nor that the State had conferred in
effect a monopoly status upon the utility, nor that in reviewing the
company's tariff schedules the regulatory commission had in effect
approved the termination provision included therein (but had not
required the practice, had ``not put its own weight on the side of the
proposed practice by ordering it'')\49\ operated to make the utility's
action the State's action.\50\ Significantly tightening the standard
further against a finding of ``state action,'' the Court asserted that
plaintiffs must establish not only that a private party ``acted under
color of the challenged statute, but also that its actions are properly
attributable to the State. . . .''\51\ And the actions are to be
attributable to the State apparently only if the State compelled the
actions and not if the State merely established the process through
statute or regulation under which the private party acted. Thus, when a
private party, having someone's goods in his possession and seeking to
recover the charges owned on storage of the goods, acts under a
permissive state statue to sell the goods and retain out of the proceeds
his charges, his actions are not governmental action and need not follow
the dictates of the due process clause.\52\ In the context of regulated
nursing home situations, in which the homes were closely regulated and
state officials reduced or withdrew Medicaid benefits paid to patients
when they were discharged or transferred to institutions providing a
lower level of care, the Court found that the actions of the homes in
discharging or transferring were not thereby rendered the actions of the
government.\53\
\47\Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)
(under the due process clause).
\48\Powe v. Miles, 407 F.2d. 73, 81 (2d Cir. 1968). See also
NCAA v. Tarkanian, 488 U.S. 179 (1988) (college athletic association's
application of rules leading to a state university's suspension of its
basketball coach did not constitute state action on the part of the
association).
\49\Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357
(1974). In dissent, Justice Marshall protested that the quoted language
marked ``a sharp departure'' from precedent, ``that state authorization
and approval of `private' conduct has been held to support a finding of
state action.'' Id. at 369. Note that in Cantor v. Detroit Edison Co.,
428 U.S. 579 (1976), the plurality opinion used much the same analysis
to deny antitrust immunity to a utility practice merely approved but not
required by the regulating commission, but most of the Justices were on
different sides of the same question in the two cases.
\50\Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351-58
(1974). On the due process limitations on the conduct of public
utilities, see Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1
(1978).
\51\Flagg Bros. v. Brooks, 436 U.S. 149, 156 (1978) (due
process).
\52\Id. at 164-66. If, however, a state officer acts with the
private party in securing the property in dispute, that is sufficient to
create the requisite state action and the private party may be subjected
to suit if the seizure does not comport with due process. Lugar v.
Edmondson Oil Co., 457 U.S. 922 (1982).
\53\Blum v. Yaretsky, 457 U.S. 991 (1982).
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In a few cases, the Court has indicated that discriminatory
action by private parties may be precluded by the Fourteenth Amendment
if the particular party involved is exercising a ``public func
[[Page 1797]]
tion.'' This rationale is one of those which emerges from the various
opinions in Terry v. Adams.\54\ In Marsh v. Alabama,\55\ a Jehovah's
Witness had been convicted of trespass after passing out literature on
the streets of a company-owned town and the Court reversed. It is not at
all clear from the opinion of the Court what it was that made the
privately-owned town one to which the Constitution applied. In essence,
it appears to have been that the town ``had all the characteristics of
any other American town,'' that it was ``like'' a State. ``The more an
owner, for his advantage, opens up his property for use by the public in
general, the more do his rights become circumscribed by the statutory
and constitutional rights of those who use it.''\56\ Subsequent efforts
to expand upon Marsh were at first successful and then turned back, and
the ``public function'' theory in the context of privately-owned
shopping centers was sharply curtailed.\57\
\54\345 U.S. 461 (1953).
\55\326 U.S. 501 (1946).
\56\Id. at 506.
\57\See Amalgamated Food Employees Union v. Logan Valley Plaza,
391 U.S. 308 (1968), limited in Lloyd Corp. v. Tanner, 407 U.S. 551
(1972), and overruled in Hudgens v. NLRB, 424 U.S. 507 (1976). The Marsh
principle is good only when private property has taken on all the
attributes of a municipality. Id. at 516-17.
---------------------------------------------------------------------------
Attempts to apply such a theory to other kinds of private
conduct, such as to private utilities,\58\ to private utilization of
permissive state laws to secure property claimed to belong to
creditors,\59\ to the operation of schools for ``problem'' children
referred by public institutions,\60\ and to the operations of nursing
homes the patients of which are practically all funded by public
resources,\61\ proved unavailing. The ``public function'' doctrine is to
be limited to a delegation of ``a power `traditionally exclusively
reserved to the State.'''\62\ Therefore, the question is not ``whether a
private group is serving a `public function.'. . . That a private entity
performs a function which serves the public does not make its acts state
action.''\63\ Public function did play an important part, however, in
the Court's finding state action in exercise of peremptory challenges in
jury selection by non-governmental parties.
\58\Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352
(1974).
\59\Flagg Bros. v. Brooks, 436 U.S. 149, 157-159 (1978).
\60\Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982).
\61\Blum v. Yaretsky, 457 U.S. 991, 1011-1012 (1982).
\62\Flagg Bros. v. Brooks, 436 U.S. 149, 157 (1978) (quoting
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974)).
\63\Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982).
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In finding state action in the racially discriminatory use of
peremptory challenges by a private party during voir dire in a civil
case,\64\ the Court applied tests developed in an earlier case involv
[[Page 1798]]
ing garnishment and attachment.\65\ The Court first asks ``whether the
claimed constitutional deprivation resulted from the exercise of a right
or privilege having its source in state authority,'' and then ``whether
the private party charged with the deprivation could be described in all
fairness as a state actor.'' In answering the second question, the Court
considers three factors: ``the extent to which the actor relies on
governmental assistance and benefits, whether the actor is performing a
traditional governmental function, and whether the injury caused is
aggravated in a unique way by the incidents of governmental
authority.''\66\ There was no question that exercise of peremptory
challenges derives from governmental authority (either state or federal,
as the case may be); exercise of peremptory challenges is authorized by
law, and the number is limited. Similarly, the Court easily concluded
that private parties exercise peremptory challenges with the ``overt''
and ``significant'' assistance of the court. So too, jury selection is
the performance of a traditional governmental function: the jury ``is a
quintessential governmental body, having no attributes of a private
actor,'' and it followed, so the Court majority believed, that selection
of individuals to serve on that body is also a governmental function
whether or not it is delegated to or shared with private
individuals.\67\ Finally, the Court concluded that ``the injury caused
by the discrimination is made more severe because the government permits
it to occur within the courthouse itself.''\68\ Dissenting Justice
O'Connor complained that the Court was wiping away centuries of
adversary practice in which ``unrestrained private choice'' has been
recognized in exercise of peremptory challenges; ``[i]t is antithetical
to the nature of our adversarial process,'' the Justice contended, ``to
say that a private attorney acting on behalf of a private client
represents the government for constitutional purposes.''\69\
\64\Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
\65\Lugar v. Edmondson Oil Corp., 457 U.S. 922 (1982).
\66\Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620-22
(1991) (citations omitted).
\67\Id. at 624, 625.
\68\Id. at 628.
\69\Id. at 639, 643.
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Even though in a criminal case it is the government and the
defendant who are adversaries, rather than two private parties, as is
ordinarily the case in civil actions, the Court soon applied these same
principles to hold that exercise of peremptory challenges by the defense
in a criminal case also constitutes state action.\70\ The same
generalities apply with at least equal force: there is overt and
significant governmental assistance in creating and structuring the
[[Page 1799]]
process, a criminal jury serves an important governmental function and
its selection is also important, and the courtroom setting intensifies
harmful effects of discriminatory actions. An earlier case\71\ holding
that a public defender was not a state actor when engaged in general
representation of a criminal defendant was distinguished, the Court
emphasizing that ``exercise of a peremptory challenge differs
significantly from other actions taken in support of a defendant's
defense,'' since it involves selection of persons to wield governmental
power.\72\
\70\Georgia v. McCollum, 112 S. Ct. 2348 (1992). It was, of
course, beyond dispute that a prosecutor's exercise of peremptory
challenges constitutes state action. See Swain v. Alabama, 380 U.S. 202
(1965); Batson v. Kentucky, 476 U.S. 79 (1986).
\71\Polk County v. Dodson, 454 U.S. 512 (1981).
\72\112 U.S. at 2356. Justice O'Connor, again dissenting,
pointed out that the Court's distinction was inconsistent with Dodson's
declaration that public defenders are not vested with state authority
``when performing a lawyer's traditional functions as counsel to a
defendant in a criminal proceeding.'' Id. at 2362. Justice Scalia, also
dissenting again, decried reduction of Edmonson ``to the terminally
absurd: A criminal defendant, in the process of defending himself
against the state, is held to be acting on behalf of the state.'' Id. at
2364. Chief Justice Rehnquist, who had dissented in Edmonson, concurred
in McCollum in the belief that it was controlled by Edmonson, and
Justice Thomas, who had not participated in Edmonson, expressed similar
views in a concurrence.
---------------------------------------------------------------------------
The rules developed by the Court for business regulation are
that (1) the ``mere fact that a business is subject to state regulation
does not by itself convert its action into that of the State for
purposes of the Fourteenth Amendment,''\73\ and (2) ``a State normally
can be held responsible for a private decision only when it has
exercised coercive power or has provided such significant encouragement,
either overt or covert, that the choice must be deemed to be that of the
State.''\74\
\73\Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350
(1974); Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Cf. Moose Lodge No.
107 v. Irvis, 407 U.S. 163 (1972).
\74\Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Flagg Bros. v.
Brooks, 436 U.S. 149, 166 (1978); Jackson v. Metropolitan Edison Co.,
419 U.S. 345, 357 (1974).
---------------------------------------------------------------------------
Previously, the Court's decisions with respect to state
``involvement'' in the private activities of individuals and entities
raised the question whether financial assistance and tax benefits
provided to private parties would so clothe them with state action that
discrimination by them and other conduct would be subjected to
constitutional constraints. Many lower courts had held state action to
exist in such circumstances.\75\ However the question might have
[[Page 1800]]
been answered under the older cases, it is evident that a negative
answer flows from the premises of the more recent cases. In Rendell-
Baker v. Kohn,\76\ the private school received ``problem'' students
referred to it by public institutions, it was heavily regulated, and it
received between 90 and 99% of its operating budget from public funds.
In Blum v. Yaretsky,\77\ the nursing home had practically all of its
operating and capital costs subsidized by public funds and more than 90%
of its residents had their medical expenses paid from public funds; in
setting reimbursement rates, the State included a formula to assure the
home a profit. Nevertheless, in both cases the Court found that the
entities remained private, and required plaintiffs to show that as to
the complained of actions the State was involved, either through
coercion or encouragement. ``That programs undertaken by the State
result in substantial funding of the activities of a private entity is
no more persuasive than the fact of regulation of such an entity in
demonstrating that the State is responsible for decisions made by the
entity in the course of its business.''\78\
\75\On funding, see Simkins v. Moses H. Cone Memorial Hosp., 323
F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938 (1964); Kerr v.
Enoch Pratt Free Library, 149 F.2d 212 (4th Cir.), cert. denied, 326
U.S. 721 (1945); Christhilf v. Annapolis Emergency Hosp. Ass'n, 496 F.2d
174 (4th Cir. 1974). But cf. Greco v. Orange Mem. Hosp. Corp., 513 F.2d
873 (5th Cir.), cert. denied, 423 U.S. 1000 (1975). On tax benfits, see
Green v. Connally, 330 F. Supp. 1150 (D.D.C.) (three-judge court),
aff'd. sub nom. Coit v. Green, 404 U.S. 997 (1971); McGlotten v.
Connally, 338 F. Supp. 448 (D.D.C. 1972); Jackson v. Statler Foundation,
496 F.2d 623 (2d Cir. 1974). But cf. New York City Jaycees v. United
States Jaycees, 512 F.2d 856 (2d Cir. 1976); Greenya v. George
Washington Univ., 512 F.2d 556 (D.C. Cir.), cert. denied, 423 U.S. 995
(1975).
\76\457 U.S. 830 (1982).
\77\457 U.S. 991 (1982).
\78\Id. at 1011.
---------------------------------------------------------------------------
In the social welfare area, the Court has drawn a sharp
distinction between governmental action subject to substantive due
process requirements, and governmental inaction, not so constrained.
There being ``no affirmative right to governmental aid,'' the Court
announced in DeShaney v. Winnebago County Social Services Department\79\
that ``as a general matter, . . . a State's failure to protect an
individual against private violence simply does not constitute a
violation of the Due Process Clause.'' Before there can be state
involvement creating an affirmative duty to protect an individual, the
Court explained, the state must have taken a person into its custody and
held him there against his will so as to restrict his freedom to act on
his own behalf. Thus, while the Court had recognized due process
violations for failure to provide adequate medical care to incarcerated
prisoners,\80\ and for failure to ensure reasonable safety for
involuntarily committed mental patients,\81\ no such affirmative duty
arose from the failure of social services agents to protect an abused
child from further abuse from his parent. Even though possible abuse had
been reported to the agency and confirmed and monitored by the agency,
and the agency
[[Page 1801]]
had done nothing to protect the child, the Court emphasized that the
actual injury was inflicted by the parent and ``did not occur while [the
child] was in the State's custody.''\82\ While the State may have
incurred liability in tort through the negligence of its social workers,
``[not] every tort committed by a state actor [is] a constitutional
violation.''\83\ ``[I]t is well to remember . . . that the harm was
inflicted not by the State of Wisconsin, but by [the child's]
father.''\84\
\79\489 U.S. 189, 197 (1989).
\80\Estelle v. Gamble, 429 U.S. 97 (1976).
\81\Youngberg v. Romeo, 457 U.S. 307 (1982).
\82\489 U.S. at 201.
\83\Id. at 202.
\84\Id. at 203.
---------------------------------------------------------------------------
Judicial inquiry into the existence of ``state action'' may be
directed toward the implementation of either of two remedies, and this
may well lead to some difference in the search. In the cases considered
here suits were against a private actor to compel him to halt his
discriminatory action, to enjoin him to admit blacks to a lunch counter,
for example. But one could just as readily bring suit against the
government to compel it to cease aiding the private actor in his
discriminatory conduct. Recurrence to the latter remedy might well avoid
constitutional issues that an order directed to the private party would
raise.\85\ In any event, it must be determined whether the governmental
involvement is sufficient to give rise to a constitutional remedy; in a
suit against the private party it must be determined whether he is so
involved with the government as to be subject to constitutional
restraints, while in a suit against the government agency it must be
determined whether the government's action ``impermissibly fostered''
the private conduct.
\85\For example, rights of association protected by the First
Amendment. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 179-80 (1972)
(Justice Douglas dissenting); Gilmore v. City of Montgomery, 417 U.S.
556, 575 (1974); Norwood v. Harrison, 413 U.S. 455, 470 (1973). The
right can be implicated as well by affirmative legislative action
barring discrimination in private organizations. See Runyon v. McCrary,
427 U.S. 160, 175-79 (1976).
---------------------------------------------------------------------------
Thus, in Norwood v. Harrison,\86\ the Court struck down the
provision of free textbooks by the State to private schools set up as
racially segregated institutions to avoid desegregated public schools,
even though the textbook program predated the establishment of these
schools. ``[A]ny tangible state assistance, outside the generalized
services government might provide to private segregated schools in
common with other schools, and with all citizens, is constitutionally
prohibited if it has `a significant tendency to facilitate, reinforce,
and support private discrimination.'. . . The constitutional obligation
of the State requires it to steer clear, not only of operating the old
dual system of racially segregated schools, but also of giving
significant aid to institutions that practice racial or
[[Page 1802]]
other invidious discriminations.''\87\ And in a subsequent case, the
Court approved a lower court order that barred the city from permitting
exclusive temporary use of public recreational facilities by segregated
private schools because that interfered with an outstanding order
mandating public school desegregation. But it remanded for further
factfinding with respect to permitting nonexclusive use of public
recreational facilities and general government services by segregated
private schools so that the district court could determine whether such
uses ``involve government so directly in the actions of those users as
to warrant court intervention on constitutional grounds.''\88\ Unlike
the situation in which private club discrimination is attacked directly,
``the question of the existence of state action centers in the extent of
the city's involvement in discriminatory actions by private agencies
using public facilities. . . .'' Receipt of just any sort of benefit or
service at all does not by the mere provision--electricity, water, and
police and fire protection, access generally to municipal recreational
facilities--constitute a showing of state involvement in discrimination
and the lower court's order was too broad because not predicated upon a
proper finding of state action. ``If, however, the city or other
governmental entity rations otherwise freely accessible recreational
facilities, the case for state action will naturally be stronger than if
the facilities are simply available to all comers without condition or
reservation.'' The lower court was directed to sift facts and weigh
circumstances on a case-by-case basis in making determinations.\89\
\86\413 U.S. 455 (1973).
\87\Gilmore v. City of Montgomery, 417 U.S. 556, 568-69 (1974)
(quoting Norwood v. Harrison, 413 U.S. 455, 466, 467 (1973)).
\88\Gilmore v. City of Montgomery, 417 U.S. 556, 570 (1974).
\89\Id. at 573-74. In Blum v. Yaretsky, 457 U.S. 991 (1982),
plaintiffs, objecting to decisions of the nursing home in discharging or
transferring patients, sued public officials, but they objected to the
discharges and transfers, not to the changes in Medicaid benefits made
by the officials.
---------------------------------------------------------------------------
It should be noted, however, that the Court has interposed,
without mentioning these cases, a potentially significant barrier to
utilization of the principle set out in them. In a 1976 decision, which
it has expanded since, it held that plaintiffs, seeking disallowal of
governmental tax benefits accorded to institutions that allegedly
discriminated against complainants and thus involved the government in
their actions, must in order to bring the suit show that revocation of
the benefit would cause the institutions to cease the complained-of
conduct.\90\
\90\Simon v. Eastern Kentucky Welfare Rights Organization, 426
U.S. 26 (1976). See id. at 46, 63-64 (Justice Brennan concurring and
dissenting).
---------------------------------------------------------------------------
``Persons''.--In the case in which it was first called upon to
interpret this clause, the Court doubted whether ``any action of a
[[Page 1803]]
State not directed by way of discrimination against the [N]egroes as a
class, or on account of their race, will ever be held to come within the
purview of this provision.''\91\ Nonetheless, in deciding the Granger
Cases shortly thereafter, the Justices seemingly entertained no doubt
that the railroad corporations were entitled to invoke the protection of
the clause.\92\ Nine years later, Chief Justice Waite announced from the
bench that the Court would not hear argument on the question whether the
equal protection clause applied to corporations. ``We are all of the
opinion that it does.''\93\ The word has been given the broadest
possible meaning. ``These provisions are universal in their application,
to all persons within the territorial jurisdiction, without regard to
any differences of race, of color, or of nationality. . .''\94\ The only
qualification is that a municipal corporation cannot invoke the clause
against its State.\95\
\91\Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873). Cf.
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 177 (1972) (Justice
Rehnquist dissenting).
\92\Chicago, B. & Q. R.R. v. Iowa, 94 U.S. 155 (1877); Peik v.
Chicago & Nw. Ry., 94 U.S. 164 (1877); Chicago, M. & St. P. R.R. v.
Ackley, 94 U.S. 179 (1877); Winona & St. Peter R.R. v. Blake, 94 U.S.
180 (1877).
\93\Santa Clara County v. Southern Pac. R.R., 118 U.S. 394, 396
(1886). The background and developments from this utterance are treated
in H. Graham, Everyman's Constitution--Historical Essays on the
Fourteenth Amendment, the ``Conspiracy Theory,'' and American
Constitutionalism (1968), chs. 9, 10, and pp. 566-84. Justice Black, in
Connecticut General Life Ins. Co. v. Johnson, 303 U.S. 77, 85 (1938),
and Justice Douglas, in Wheeling Steel Corp. v. Glander, 337 U.S. 562,
576 (1949), have disagreed that corporations are persons for equal
protection purposes.
\94\Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). For modern
examples, see Levy v. Louisiana, 391 U.S. 68, 70 (1968); Graham v.
Richardson, 403 U.S. 365, 371 (1971).
\95\City of Newark v. New Jersey, 262 U.S. 192 (1923); Williams
v. Mayor of Baltimore, 289 U.S. 36 (1933).
---------------------------------------------------------------------------
``Within Its Jurisdiction''.--Persons ``within its
jurisdiction'' are entitled to equal protection from a State. Largely
because Article IV, Sec. 2, has from the beginning guaranteed the
privileges and immunities of citizens in the several States, the Court
has rarely construed the phrase in relation to natural persons.\96\ It
was first held that a foreign corporation not doing business in a State
under conditions that subjected it to process issuing from the courts of
that State was not ``within the jurisdiction'' and could not complain of
the preferences granted resident creditors in the distribution of assets
of an insolvent corporation,\97\ but this holding was subsequently
qualified, the Court holding that a foreign corporation which sued in a
court of a State in which it was not licensed to
[[Page 1804]]
do business to recover possession of property wrongfully taken from it
in another State was ``within the jurisdiction'' and could not be
subjected to unequal burdens in the maintenance of the suit.\98\ The
test of amenability to service of process within the State was ignored
in a later case dealing with discriminatory assessment of property
belonging to a nonresident individual.\99\ When a State has admitted a
foreign corporation to do business within its borders, that corporation
is entitled to equal protection of the laws but not necessarily to
identical treatment with domestic corporations.\100\
\96\See Plyler v. Doe, 457 U.S. 202, 210-16 (1982) (explicating
meaning of the phrase in the context of holding that aliens illegally
present in a State are ``within its jurisdiction'' and may thus raise
equal protection claims).
\97\Blake v. McClung, 172 U.S. 239, 261 (1898); Sully v.
American Nat'l Bank, 178 U.S. 289 (1900).
\98\Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262
U.S. 544 (1923).
\99\Hillsborough v. Cromwell, 326 U.S. 620 (1946).
\100\Wheeling Steel Corp. v. Glander, 337 U.S. 562 (1949);
Hanover Ins. Co. v. Harding, 272 U.S. 494 (1926). See also Philadelphia
Fire Ass'n v. New York, 119 U.S. 110 (1886).
---------------------------------------------------------------------------
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
EQUAL PROTECTION OF THE LAWS
Equal Protection: Judging Classifications by Law
A guarantee of equal protection of the laws was contained in
every draft leading up to the final version of Sec. 1 of the Fourteenth
Amendment.\101\ Immediately pressing to its sponsors was the desire to
provide a firm constitutional basis for already-enacted civil rights
legislation,\102\ and, by amending the Constitution, to place repeal
beyond the accomplishment of a simple majority in a future
Congress.\103\ No doubt there were conflicting interpretations of the
phrase ``equal protection'' among sponsors and supporters and the
legislative history does little to clarify whether any sort of consensus
was accomplished and if so what it was.\104\ While the Court early
recognized that African Americans were the primary intended
beneficiaries of the protections thus adopted,\105\ the spare language
was majestically unconfined to so limited a class or to so limited a
purpose. Thus, as will be seen, the equal protection standard
[[Page 1805]]
came to be applicable to all classifications by legislative and other
official bodies, though not with much initial success,\106\ until now
the equal protection clause in the fields of civil rights and
fundamental liberties looms large as a constitutional text affording the
federal and state courts extensive powers of review with regard to
differential treatment of persons and classes.
\101\The story is recounted in J. James, The Framing of the
Fourteenth Amendment (1956). See also Journal of the Joint Committee of
Fifteen on Reconstruction (B. Kendrick, ed. 1914). The floor debates are
collected in 1 Statutory History of the United States--Civil Rights 181
(B. Schwartz, ed. 1970).
\102\Civil Rights Act of 1866, ch. 31, 14 Stat. 27, now in part
42 U.S.C. Sec. Sec. 1981, 1982. See Jones v. Alfred H. Mayer Co., 392
U.S. 409, 422-37 (1968).
\103\As in fact much of the legislation which survived challenge
in the courts was repealed in 1894 and 1909. 28 Stat. 36; 35 Stat. 1088.
See R. Carr, Federal Protection of Civil Rights: Quest for a Sword 45-46
(1947).
\104\TenBroek, Equal Under Law (rev. ed. 1965); Frank & Munro,
The Original Understanding of ``Equal Protection of the Laws,'' 50
Colum. L. Rev. 131 (1950); Bickel, The Original Understanding and the
Segregation Decision, 69 Harv. L. Rev. 1 (1955); and see the essays
collected in H. Graham, Everyman's Constitution--Historical Essays on
the Fourteenth Amendment, the ``Conspiracy Theory,'' and American
Constitutionalism (1968). In calling for reargument in Brown v. Board of
Education, 345 U.S. 972 (1952), the Court asked for and received
extensive analysis of the legislative history of the Amendment with no
conclusive results. Brown v. Board of Education, 347 U.S. 483, 489-90
(1954).
\105\Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873).
\106\In Buck v. Bell, 274 U.S. 200, 208 (1927), Justice Holmes
characterized the equal protection clause as ``the last resort of
constitutional arguments.''
---------------------------------------------------------------------------
The Traditional Standard: Restrained Review.--The traditional
standard of review of equal protection challenges of classifications
developed largely though not entirely in the context of economic
regulation.\107\ It is still most validly applied there, although it
appears in many other contexts as well. A more active review has been
developed for classifications based on a ``suspect'' indicium or
affecting a ``fundamental'' interest.
\107\See Yick Wo v. Hopkins, 118 U.S. 356 (1886) (discrimination
against Chinese on the West Coast).
---------------------------------------------------------------------------
``The Fourteenth Amendment enjoins `the equal protection of the
laws,' and laws are not abstract propositions.'' Justice Frankfurter
once wrote. ``They do not relate to abstract units, A, B, and C, but are
expressions of policy arising out of specific difficulties, addressed to
the attainment of specific ends by the use of specific remedies. The
Constitution does not require things which are different in fact or
opinion to be treated in law as though they were the same.''\108\ The
mere fact of classification will not void legislation,\109\ then,
because in the exercise of its powers a legislature has considerable
discretion in recognizing the differences between and among persons and
situations.\110\ ``Class legislation, discriminating against some and
favoring others, is prohibited; but legislation which, in carrying out a
public purpose, is limited in its application, if within the sphere of
its operation it affects alike all persons similarly situated, is not
within the amendment.''\111\ Or, more succinctly, ``statutes create many
classifications which do not deny equal protection; it is only
`invidious discrimination' which offends the Constitution.''\112\
\108\Tigner v. Texas, 310 U.S. 141, 147 (1980).
\109\Atchison, T. & S.F.R.R. v. Matthews, 174 U.S. 96, 106
(1899). See also from the same period, Orient Ins. Co. v. Daggs, 172
U.S. 557 (1869); Bachtel v. Wilson, 204 U.S. 36 (1907); Watson v.
Maryland, 218 U.S. 173 (1910), and later cases. Kotch v. Board of River
Port Pilot Comm'rs, 330 U.S. 552 (1947); Goesaert v. Cleary, 335 U.S.
464 (1948); McGowan v. Maryland, 366 U.S. 420 (1961); Schilb v. Kuebel,
404 U.S. 357 (1971); Railroad Retirement Bd. v. Fritz, 449 U.S. 166
(1980); Schweiker v. Wilson, 450 U.S. 221 (1981).
\110\Barrett v. Indiana, 229 U.S. 26 (1913).
\111\Barbier v. Connolly, 113 U.S. 27, 32 (1885).
\112\Ferguson v. Skrupa, 372 U.S. 726, 732 (1963); Williamson v.
Lee Optical Co., 348 U.S. 483, 489 (1955).
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[[Page 1806]]
How then is the line between permissible and invidious
classification to be determined? In Lindsley v. Natural Carbonic Gas
Co.,\113\ the Court summarized one version of the rules still
prevailing. ``1. The equal protection clause of the Fourteenth Amendment
does not take from the State the power to classify in the adoption of
police laws, but admits of the exercise of a wide scope of discretion in
that regard, and avoids what is done only when it is without any
reasonable basis and therefore is purely arbitrary. 2. A classification
having some reasonable basis does not offend against that clause merely
because it is not made with mathematical nicety or because in practice
it results in some inequality. 3. When the classification in such a law
is called in question, if any state of facts reasonably can be conceived
that would sustain it, the existence of that state of facts at the time
the law was enacted must be assumed. 4. One who assails the
classification in such a law must carry the burden of showing that it
does not rest upon any reasonable basis, but is essentially arbitrary.''
Especially because of the emphasis upon the necessity for total
arbitrariness, utter irrationality, and the fact that the Court will
strain to conceive of a set of facts that will justify the
classification, the test is extremely lenient and, assuming the
existence of a constitutionally permissible goal, no classification will
ever be upset. But, contemporaneously with this test, the Court also
pronounced another lenient standard which did leave to the courts a
judgmental role. In this test, ``the classification must be reasonable,
not arbitrary, and must rest upon some ground of difference having a
fair and substantial relation to the object of the legislation, so that
all persons similarly circumstanced shall be treated alike.''\114\ Use
of the latter standard did in fact result in some invalidations.\115\
\113\220 U.S. 61, 78-79 (1911), quoted in full in Morey v. Doud,
354 U.S. 457, 463-64 (1957). Classifications which are purposefully
discriminatory fall before the equal protection clause without more.
E.g., Barbier v. Connolly, 113 U.S. 27, 30 (1885); Yick Wo v. Hopkins,
118 U.S. 356, 373-74 (1886). Cf. New York City Transit Auth. v. Beazer,
440 U.S. 568, 593 n.40 (1979). Explicit in all the formulations is that
a legislature must have had a permissible purpose, a requirement which
is seldom failed, given the leniency of judicial review. But see Zobel
v. Williams, 457 U.S. 55, 63-64 (1982), and id. at 65 (Justice Brennan
concurring).
\114\F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415
(1920). See also Brown-Forman Co. v. Kentucky, 217 U.S. 563, 573 (1910).
\115\E.g., F.S. Royster Guano Co. v. Virginia, 253 U.S. 412
(1920); Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935); Mayflower
Farms v. Ten Eyck, 297 U.S. 266 (1936).
---------------------------------------------------------------------------
But then, coincident with the demise of substantive due process
in the area of economic regulation,\116\ the Court reverted to the
[[Page 1807]]
former standard, deferring to the legislative judgment on questions of
economics and related matters; even when an impermissible purpose could
have been attributed to the classifiers it was usually possible to
conceive of a reason that would justify the classification.\117\
Strengthening the deference was the recognition of discretion in the
legislature not to try to deal with an evil or a class of evils all
within the scope of one enactment but to approach the problem piecemeal,
to learn from experience, and to ameliorate the harmful results of two
evils differently, resulting in permissible over- and under-inclusive
classifications.\118\
\116\In Nebbia v. New York, 291 U.S. 502, 537 (1934), speaking
of the limits of the due process clause, the Court observed that ``in
the absence of other constitutional restrictions, a state is free to
adopt whatever economic policy may reasonably be deemed to promote
public welfare.''
\117\E.g., Tigner v. Texas, 310 U.S. 141 (1940); Kotch v. Board
of River Port Pilot Comm'rs, 330 U.S. 552 (1947); Goesaert v. Cleary,
335 U.S. 464 (1948); Railway Express Agency v. City of New York, 336
U.S. 106 (1949); McGowan v. Maryland, 366 U.S. 420 (1961).
\118\Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955);
McDonald v. Board of Election Comm'rs, 394 U.S. 802, 809 (1969); Schilb
v. Kuebel, 404 U.S. 357, 364-65 (1971); City of New Orleans v. Dukes,
427 U.S. 297, 303 (1976); Minnesota v. Clover Leaf Creamery Co., 449
U.S. 456, 466 (1981).
---------------------------------------------------------------------------
In recent years, the Court has been remarkably inconsistent in
setting forth the standard which it is using, and the results have
reflected this. It has upheld economic classifications that suggested
impermissible intention to discriminate, reciting at length the Lindsley
standard, complete with the conceiving-of-a-basis and the one-step-at-a-
time rationale,\119\ and it has applied this relaxed standard to social
welfare regulations.\120\ In other cases, it has utilized the Royster
Guano standard and has looked to the actual goal articulated by the
legislature in determining whether the classification had a reasonable
relationship to that goal,\121\ although it has usually ended up
upholding the classification. Finally, purportedly applying the rational
basis test, the Court has invalidated some
[[Page 1808]]
classifications in the areas traditionally most subject to total
deference.\122\
\119\City of New Orleans v. Dukes, 427 U.S. 297, 303-04 (1976);
City of Pittsburg v. Alco Parking Corp., 417 U.S. 369 (1974).
\120\Dandridge v. Williams, 397 U.S. 471, 485-86 (1970);
Jefferson v. Hackney, 406 U.S. 535, 549 (1972). See also New York City
Transit Auth. v. Beazer, 440 U.S. 568, 587-94 (1979).
\121\E.g., McGinnis v. Royster, 410 U.S. 263, 270-77 (1973);
Johnson v. Robison, 415 U.S. 361, 374-83 (1974); City of Charlotte v.
International Ass'n of Firefighters, 426 U.S. 283, 286-89 (1976). It is
significant that these opinions were written by Justices who
subsequently dissented from more relaxed standard of review cases and
urged adherence to at least a standard requiring articulation of the
goals sought to be achieved and an evaluation of the ``fit'' of the
relationship between goal and classification. Railroad Retirement Bd. v.
Fritz, 449 U.S. 166, 182 (1980) (Justices Brennan and Marshall
dissenting); Schweiker v. Wilson, 450 U.S. 221, 239 (1981) (Justices
Powell, Brennan, Marshall, and Stevens dissenting). See also New York
City Transit Auth. v. Beazer, 440 U.S. 568, 594 (1979) (Justice Powell
concurring in part and dissenting in part), and id. at 597, 602
(Justices White and Marshall dissenting).
\122\E.g., Lindsey v. Normet, 405 U.S. 56, 74-79 (1972);
Eisenstadt v. Baird, 405 U.S. 438 (1972); James v. Strange, 407 U.S. 128
(1972); Department of Agriculture v. Moreno, 413 U.S. 528 (1973); City
of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (rejecting
various justifications offered for exclusion of a home for the mentally
retarded in an area where boarding homes, nursing and convalescent
homes, and fraternity or sorority houses were permitted). The Court in
Reed v. Reed, 404 U.S. 71, 76 (1971), utilized the Royster Guano
formulation and purported to strike down a sex classification on the
rational basis standard, but, whether the standard was actually used or
not, the case was the beginning of the decisions applying a higher
standard to sex classifications.
---------------------------------------------------------------------------
Attempts to develop a consistent principle have so far been
unsuccessful. In Railroad Retirement Board v. Fritz,\123\ the Court
acknowledged that ``[t]he most arrogant legal scholar would not claim
that all of these cases cited applied a uniform or consistent test under
equal protection principles,'' but then went on to note the differences
between Lindsley and Royster Guano and chose the former. But, shortly,
in Schweiker v. Wilson,\124\ in an opinion written by a different
Justice,\125\ the Court sustained another classification, using the
Royster Guano standard to evaluate whether the classification bore a
substantial relationship to the goal actually chosen and articulated by
Congress. In between these decisions, the Court approved a state
classification after satisfying itself that the legislature had pursued
a permissible goal, but setting aside the decision of the state court
that the classification would not promote that goal; the Court announced
that it was irrelevant whether in fact the goal would be promoted, the
question instead being whether the legislature ``could rationally have
decided'' that it would.\126\
\123\449 U.S. 166, 174-79 (1980). The quotation is id. at 176-77
n.10. The extent of deference is notable, inasmuch as the legislative
history seemed clearly to establish that the purpose the Court purported
to discern as the basis for the classification was not the congressional
purpose at all. Id. at 186-97 (Justice Brennan dissenting). The Court
observed, however, that it was ``constitutionally irrelevant'' whether
the plausible basis was in fact within Congress' reasoning, inasmuch as
the Court has never required a legislature to articulate its reasons for
enactng a statute. Id. at 179. For a continuation of the debate over
actual purpose and conceivable justification, see Kassel v. Consolidated
Freightways Corp., 450 U.S. 662, 680-85 (1981) (Justice Brennan
concurring), and id. at 702-06 (Justice Rehnquist dissenting). Cf.
Schweiker v. Wilson, 450 U.S. 221, 243-45 (1981) (Justice Powell
dissenting).
\124\450 U.S. 221, 230-39 (1981). Nonetheless, the four
dissenters thought that the purpose discerned by the Court was not the
actual purpose, that it had in fact no purpose in mind, and that the
classification was not rational. Id. at 239.
\125\Justice Blackmun wrote the Court's opinion in Wilson,
Justice Rehnquist in Fritz.
\126\Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461-70
(1981). The quoted phrase is at 466.
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[[Page 1809]]
In short, it is uncertain which formulation of the rational
basis standard the Court will adhere to.\127\ In the main, the issues in
recent years have not involved the validity of classifications, but
rather the care with which the Court has reviewed the facts and the
legislation with its legislative history to uphold the challenged
classifications. The recent decisions voiding classifications have not
clearly set out which standard they have been using.\128\ Determination
in this area, then, must await presentation to the Court of a
classification which it would sustain under the Lindsley standard and
invalidate under Royster Guano.
\127\In City of Mesquite v. Aladdin's Castle, 455 U.S. 283, 294
(1982), the Court observed that it was not clear whether it would apply
Royster Guano to the classification at issue, citing Fritz as well as
Craig v. Boren, 429 U.S. 190 (1976), an intermediate standard case
involving gender. Justice Powell denied that Royster Guano or Reed v.
Reed had ever been rejected. Id. at 301 n.6 (dissenting). See also id.
at 296-97 (Justice White).
\128\The exception is Reed v. Reed, 404 U.S. 71 (1971), which,
though it purported to apply Royster Guano, may have applied heightened
scrutiny. See Zobel v. Williams, 457 U.S. 55, 61-63 (1982), in which it
found the classifications not rationally related to the goals, without
discussing which standard it was using.
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The New Standards: Active Review.--When government legislates or
acts either on the basis of a ``suspect'' classification or with regard
to a ``fundamental'' interest, the traditional standard of equal
protection review is abandoned, and the Court exercises a ``strict
scrutiny.'' Under this standard government must demonstrate a high
degree of need, and usually little or no presumption favoring the
classification is to be expected. After much initial controversy within
the Court, it has now created a third category, finding several
classifications to be worthy of a degree of ``intermediate'' scrutiny
requiring a showing of important governmental purposes and a close fit
between the classification and the purposes.
Paradigmatic of ``suspect'' categories is classification by
race. First in the line of cases dealing with this issue is Korematsu v.
United States,\129\ concerning the wartime evacuation of Japanese-
Americans from the West Coast, in which the Court said that because only
a single ethnic-racial group was involved the measure was ``immediately
suspect'' and subject to ``rigid scrutiny.'' The school segregation
cases\130\ purported to enunciate no per se rule, however, although
subsequent summary treatment of a host of segregation measures may have
implicitly done so, until in striking down state laws prohibiting
interracial marriage or cohabitation the Court declared that racial
classifications ``bear a far heavier burden of justification'' than
other classifications and were invalid
[[Page 1810]]
because no ``overriding statutory purpose''\131\ was shown and they were
not necessary to some ``legitimate overriding purpose.''\132\ ``A racial
classification, regardless of purported motivation, is presumptively
invalid and can be upheld only upon an extraordinary
justification.''\133\ Remedial racial classifications, that is, the
development of ``affirmative action'' or similar programs that classify
on the basis of race for the purpose of ameliorating conditions
resulting from past discrimination, are subject to more than traditional
review scrutiny, but whether the highest or some intermediate standard
is the applicable test is uncertain.\134\ A measure which does not draw
a distinction explicitly on race but which does draw a line between
those who seek to use the law to do away with or modify racial
discrimination and those who oppose such efforts does in fact create an
explicit racial classification and is constitutionally suspect.\135\
\129\323 U.S. 214, 216 (1944). In applying ``rigid scrutiny,''
however, the Court was deferential to the judgment of military
authorities, and to congressional judgment in exercising its war powers.
\130\Brown v. Board of Education, 347 U.S. 483 (1954).
\131\McLaughlin v. Florida, 379 U.S. 184, 192, 194 (1964).
\132\Loving v. Virginia, 388 U.S. 1, 11 (1967). In Lee v.
Washington, 390 U.S. 333 (1968), it was indicated that preservation of
discipline and order in a jail might justify racial segregation there if
shown to be necessary.
\133\Personnel Administrator v. Feeney, 442 U.S. 256, 272
(1979), quoted in Washington v. Seattle School Dist., 458 U.S. 457, 485
(1982).
\134\Regents of the Univ. of California v. Bakke, 438 U.S. 265,
287-20 (1978) (Justice Powell announcing judgment of Court) (suspect),
and id. at 355-79 (Justices Brennan, White, Marshall, and Blackmun
concurring in part and dissenting in part) (intermediate scrutiny);
Fullilove v. Klutznick, 448 U.S. 448, 491-92 (1980) (Chief Justice
Burger announcing judgment of Court) (``a most searching examination''
but not choosing a particular analysis), and id. at 495 (Justice Powell
concurring), 523 (Justice Stewart dissenting) (suspect), 548 (Justice
Stevens dissenting) (searching scrutiny).
\135\Hunter v. Erickson, 393 U.S. 385 (1969); Washington v.
Seattle School Dist., 458 U.S. 457 (1982).
---------------------------------------------------------------------------
Toward the end of the Warren Court, there emerged a trend to
treat classifications on the basis of nationality or alienage as
suspect,\136\ to accord sex classifications a somewhat heightened
traditional review while hinting that a higher standard might be
appropriate if such classifications passed lenient review,\137\ and to
pass on statutory and administrative treatments of illegitimates
inconsistently.\138\ Language in a number of opinions appeared to
suggest that poverty was a suspect condition, so that treating the poor
adversely might call for heightened equal protection review.\139\
\136\Graham v. Richardson, 403 U.S. 365, 371-72 (1971).
\137\Reed v. Reed, 404 U.S. 71 (1971); for the hint, see
Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972).
\138\See Levy v. Louisiana, 391 U.S. 68 (1968) (strict review);
Labine v. Vincent, 401 U.S. 532 (1971) (lenient review); Weber v. Aetna
Casualty & Surety Co., 406 U.S. 164 (1972) (modified strict review).
\139\Cf. McDonald v. Board of Election Comm'rs, 394 U.S. 802,
807 (1969); Bullock v. Carter, 405 U.S. 134 (1972). See Shapiro v.
Thompson, 394 U.S. 618, 658-59 (1969) (Justice Harlan dissenting). But
cf. Lindsey v. Normet, 405 U.S. 56 (1972); Dandridge v. Williams, 397
U.S. 471 (1970).
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[[Page 1811]]
However, in a major evaluation of equal protection analysis
early in this period, Justice Powell for the Court utilized solely the
two-tier approach, determining that because the interests involved did
not occasion strict scrutiny the Court would thus decide the case on
minimum rationality standards.\140\ Decisively rejected was the
contention that a de facto wealth classification, with an adverse impact
on the poor, was either a suspect classification or merited some
scrutiny other than the traditional basis,\141\ a holding that has
several times been strongly reaffirmed by the Court.\142\ But the
Court's rejection of some form of intermediate scrutiny did not long
survive.
\140\San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1
(1973).
\141\Id. at 44-45. The Court asserted that only when there is an
absolute deprivation of some right or interest because of inability to
pay will there be strict scrutiny. Id. at 20.
\142\E.g., United States v. Kras, 409 U.S. 434 (1973); Maher v.
Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980).
---------------------------------------------------------------------------
Without extended consideration of the issue of standards, the
Court more recently adopted an intermediate level of scrutiny, perhaps
one encompassing several degrees of intermediate scrutiny. Thus, gender
classifications must, in order to withstand constitutional challenge,
``serve important governmental objectives and must be substantially
related to achievement of those objectives.''\143\ And classifications
that disadvantage illegitimates are
[[Page 1812]]
subject to a similar though less exacting scrutiny of purpose and
fit.\144\ This period also saw a withdrawal of the Court from the
principle that alienage is always a suspect classification, so that some
discriminations against aliens based on the nature of the political
order, rather than economics or social interests, need pass only the
lenient review standard.\145\
\143\Craig v. Boren, 429 U.S. 190, 197 (1976). Justice Powell
noted that he agreed the precedents made clear that gender
classifications are subjected to more critical examination than when
``fundamental'' rights and ``suspect classes'' are absent, id. at 210
(concurring), and added: ``As is evident from our opinions, the Court
has had difficulty in agreeing upon a standard of equal protection
analysis that can be applied consistently to the wide variety of
legislative classifications. There are valid reasons for dissatisfaction
with the `two-tier' approach that has been prominent in the Court's
decisions in the past decade. Although viewed by many as a result-
oriented substitute for more critical analysis, that approach--with its
narrowly limited `upper tier'--now has substantial precedential support.
As has been true of Reed and its progeny, our decision today will be
viewed by some as a `middle-tier' approach. While I would not endorse
that characterization and would not welcome a further subdividing of
equal protection analysis, candor compels the recognition that the
relatively deferential `rational basis' standard of review normally
applied takes on a sharper focus when we address a gender-based
classification. So much is clear from our recent cases.'' Id. at 210,
n.*. Justice Stevens wrote that in his view the two-tiered analysis does
not describe a method of deciding cases ``but rather is a method the
Court has employed to explain decisions that actually apply a single
standard in a reasonably consistent fashion.'' Id. at 211, 212. Chief
Justice Burger and Justice Rehnquist would employ the rational basis
test for gender classification. Id. at 215, 217 (dissenting).
Occasionally, because of the particular subject matter, the Court has
appeared to apply a rational basis standard in fact if not in doctrine,
E.g., Rostker v. Goldberg, 453 U.S. 57 (1981) (military); Michael M. v.
Superior Court, 450 U.S. 464 (1981) (application of statutory rape
prohibition to boys but not to girls). Four Justices in Frontiero v.
Richardson, 411 U.S. 677, 684-87 (1973), were prepared to find sex a
suspect classification, and in Mississippi Univ. for Women v. Hogan, 458
U.S. 718, 724 n. 9 (1982), the Court appeared to leave open the
possibility that at least some sex classifications may be deemed
suspect.
\144\Mills v. Habluetzel, 456 U.S. 91, 99 (1982); Parham v.
Hughes, 441 U.S. 347 (1979); Lalli v. Lalli, 439 U.S. 259 (1978);
Trimble v. Gordon, 430 U.S. 762 (1977). In Mathews v. Lucas, 427 U.S.
495, 506 (1976), it was said that ``discrimination against illegitimates
has never approached the severity or pervasiveness of the historic legal
and political discrimination against women and Negroes.'' Lucas
sustained a statutory scheme virtually identical to the one struck down
in Califano v. Goldfarb, 430 U.S. 199 (1977), except that the latter
involved sex while the former involved illegitimacy.
\145\Applying strict scrutiny, see, e.g., Sugarman v. Dougall,
413 U.S. 634 (1973); Nyquist v. Mauclet, 432 U.S. 1 (1977). Applying
lenient scrutiny in cases involving restrictions on alien entry into the
political community, see Foley v. Connelie, 435 U.S. 291 (1978); Ambach
v. Norwick, 441 U.S. 68 (1979); Cabell v. Chavez-Salido, 454 U.S. 432
(1982). See also Plyler v. Doe, 457 U.S. 202 (1982).
---------------------------------------------------------------------------
Expansion of the characteristics which when used as a basis for
classification must be justified by a higher showing than ordinary
economic classifications has so far been resisted, the Court holding,
for example, that age classifications are neither suspect nor entitled
to intermediate scrutiny.\146\ While resisting creation of new suspect
or ``quasi-suspect'' classifications, however, the Court may nonetheless
apply the Royster Guano rather than the Lindsley standard of
rationality.\147\
\146\Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307
(1976) (upholding mandatory retirement at age 50 for state police);
Vance v. Bradley, 440 U.S. 93 (1979) (mandatory retirement at age 60 for
foreign service officers); Gregory v. Ashcroft, 111 S. Ct. 2395 (1991)
(mandatory retirement at age 70 for state judges). See also City of
Cleburne v. Cleburne Living Center, 473 U.S. 432, 442 (1985) (holding
that a lower court ``erred in holding mental retardation a quasi-suspect
classification calling for a more exacting standard of judicial review
than is normally accorded economic and social legislation'').
\147\City of Cleburne v. Cleburne Living Center, 473 U.S. 432
(1985); See discussion supra pp. 1805-09.
---------------------------------------------------------------------------
The other phase of active review of classifications holds that
when certain fundamental liberties and interests are involved,
government classifications which adversely affect them must be justified
by a showing of a compelling interest necessitating the classification
and by a showing that the distinctions are required to further the
governmental purpose. The effect of applying the test, as in the other
branch of active review, is to deny to legislative judgments the
deference usually accorded them and to dispense with the general
presumption of constitutionality usually given state
classifications.\148\
\148\Kramer v. Union Free School Dist., 395 U.S. 621, 627
(1969); Shapiro v. Thompson, 394 U.S. 618, 638 (1969).
---------------------------------------------------------------------------
[[Page 1813]]
It is thought\149\ that the ``fundamental right'' theory had its
origins in Skinner v. Oklahoma ex rel. Williamson,\150\ in which the
Court subjected to ``strict scrutiny'' a state statute providing for
compulsory sterilization of habitual criminals, such scrutiny being
thought necessary because the law affected ``one of the basic civil
rights.'' In the apportionment decisions, Chief Justice Warren observed
that ``since the right to exercise the franchise in a free and
unimpaired manner is preservative of other basic civil and political
rights, any alleged infringement of the right of citizens to vote must
be carefully and meticulously scrutinized.''\151\ A stiffening of the
traditional test could be noted in the opinion of the Court striking
down certain restrictions on voting eligibility\152\ and the phrase
``compelling state interest'' was used several times in Justice
Brennan's opinion in Shapiro v. Thompson.\153\ Thereafter, the phrase
was used in several voting cases in which restrictions were voided, and
the doctrine was asserted in other cases.\154\
\149\Id. at 660 (Justice Harlan dissenting).
\150\316 U.S. 535, 541 (1942).
\151\Reynolds v. Sims, 377 U.S. 533, 562 (1964).
\152\Carrington v. Rash, 380 U.S. 89 (1965); Harper v. Virginia
Bd. of Elections, 383 U.S. 663 (1966); Williams v. Rhodes, 393 U.S. 23
(1968).
\153\394 U.S. 618, 627, 634, 638 (1969).
\154\Kramer v. Union Free School Dist., 395 U.S. 621 (1969);
Cipriano v. City of Houma, 395 U.S. 701 (1969); City of Phoenix v.
Kolodziejski, 399 U.S. 204 (1970); Dunn v. Blumstein, 405 U.S. 330
(1972).
---------------------------------------------------------------------------
While no opinion of the Court attempted to delineate the process
by which certain ``fundamental'' rights were differentiated from
others,\155\ it was evident from the cases that the right to vote,\156\
the right of interstate travel,\157\ the right to be free of wealth
distinctions in the criminal process,\158\ and the right of
procreation\159\ were at least some of those interests that triggered
active review when de jure or de facto official distinctions were made
with respect to them. This branch of active review the Court also sought
to rationalize and restrict in Rodriguez,\160\ which involved both a
claim of de facto wealth classifications being suspect and a claim that
education was a fundamental interest so that affording less of it to
people because they were poor activated the compelling state interest
standard. The Court readily agreed that education was an important value
in our society. ``But the importance of a service performed by the State
does not determine whether it must be re
[[Page 1814]]
garded as fundamental for purposes of examination under the Equal
Protection Clause. . . . [T]he answer lies in assessing whether there is
a right to education explicitly or implicitly guaranteed by the
Constitution.''\161\ A right to education is not expressly protected by
the Constitution, continued the Court, and it was unwilling to find an
implied right because of its undoubted importance.
\155\This indefiniteness has been a recurring theme in dissents.
E.g., Shapiro v. Thompson, 394 U.S. 618, 655 (1969) (Justice Harlan);
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 177 (1972) (Justice
Rehnquist).
\156\E.g., Dunn v. Blumstein, 405 U.S. 330 (1972).
\157\E.g., Shapiro v. Thompson, 394 U.S. 618 (1969).
\158\E.g., Tate v. Short, 401 U.S. 395 (1971).
\159\Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535
(1942).
\160\San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1
(1973).
\161\Id. at 30, 33-34. But see id. at 62 (Justice Brennan
dissenting), 70, 110-17 (Justices Marshall and Douglas dissenting).
---------------------------------------------------------------------------
But just as Rodriguez was unable to prevent the Court's adoption
of a ``three-tier'' or ``sliding-tier'' standard of review in the first
phase of the active-review doctrine, so it did not by stressing the
requirement that an interest be expressly or impliedly protected by the
Constitution prevent the addition of other interests to the list of
``fundamental'' interests. The difficulty was that the Court decisions
on the right to vote, the right to travel, the right to procreate, as
well as others, premise the constitutional violation to be of the equal
protection clause, which does not itself guarantee the right but
prevents the differential governmental treatment of those attempting to
exercise the right.\162\ Thus, state limitation on the entry into
marriage was soon denominated an incursion on a fundamental right which
required a compelling justification.\163\ While denials of public
funding of abortions were held to implicate no fundamental interest--
abortion being a fundamental interest--and no suspect classification--
because only poor women needed public funding\164\--other denials of
public assistance because of illegitimacy, alienage, or sex have been
deemed governed by the same standard of review as affirmative harms
imposed on those grounds.\165\ And in Plyler v. Doe,\166\ the complete
denial of education to the children of illegal aliens was found subject
to intermediate scrutiny and invalidated.
\162\Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at
66-68 (Justice Brennan concurring), 78-80 (Justice O'Connor concurring)
(travel).
\163\Zablocki v. Redhail, 434 U.S. 374 (1978).
\164\Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448
U.S. 297 (1980).
\165\E.g., Jiminez v. Weinberger, 417 U.S. 628 (1974)
(illegitimacy); Nyquist v. Mauclet, 432 U.S. 1 (1977) (alienage);
Califano v. Goldfarb, 430 U.S. 199 (1977) (sex).
\166\457 U.S. 202 (1982).
---------------------------------------------------------------------------
Thus, the nature of active review in equal protection
jurisprudence remains in flux, subject to shifting majorities and
varying degrees of concern about judicial activism and judicial
restraint. But the cases, more fully reviewed hereafter, clearly
indicate that a sliding scale of review is a fact of the Court's cases,
however much its doctrinal explanation lags behind.
[[Page 1815]]
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
EQUAL PROTECTION OF THE LAWS
Testing Facially Neutral Classifications Which Impact on
Minorities
A classification expressly upon the basis of race triggers
strict scrutiny and ordinarily results in its invalidation; similarly, a
classification that facially makes a distinction on the basis of sex, or
alienage, or illegitimacy triggers the level of scrutiny appropriate to
it. A classification that is ostensibly neutral but is an obvious
pretext for racial discrimination or for discrimination on some other
forbidden basis is subject to heightened scrutiny and ordinarily
invalidation.\167\ But when it is contended that a law, which is in
effect neutral, has a disproportionately adverse effect upon a racial
minority or upon another group particularly entitled to the protection
of the equal protection clause, a much more difficult case is presented.
\167\See e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886); Guinn v.
United States, 238 U.S. 347 (1915); Lane v. Wilson, 307 U.S. 268 (1939);
Gomillion v. Lightfoot, 364 U.S. 339 (1960). Government may make a
racial classification that, for example, does not separate whites from
blacks but that by focussing on an issue of racial import creates a
classification that is suspect. Washington v. Seattle School Dist., 458
U.S. 457, 467-74 (1982).
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It is necessary that one claiming harm through the disparate or
disproportionate impact of a facially neutral law prove intent or motive
to discriminate. ``[A] law, neutral on its face and serving ends
otherwise within the power of government to pursue, is not invalid under
the Equal Protection Clause simply because it may affect a greater
proportion of one race than of another.''\168\ In reliance upon a prior
Supreme Court decision that had seemed to eschew motive or intent and to
pinpoint effect as the key to a constitutional violation\169\ and upon
the Court's decisions reading congressional civil rights enactments as
providing that when employment practices disqualifying disproportionate
numbers of blacks are challenged, discriminatory purpose need not be
proved, and
[[Page 1816]]
that it is an insufficient response to demonstrate some rational basis
for the challenged practices,\170\ a number of lower federal courts had
developed in constitutional litigation a ``disproportionate impact''
analysis under which a violation could be established upon a showing
that a statute or practice adversely affected a class without regard to
discriminatory purpose, absent some justification going substantially
beyond what would be necessary to validate most other
classifications.\171\ These cases were disapproved in Davis; but the
Court did note that ``an invidious discriminatory purpose may often be
inferred from the totality of the relevant facts, including the fact, if
it be true, that the law bears more heavily on one race than another. It
is also not infrequently true that the discriminatory impact . . . may
for all practical purposes demonstrate unconstitutionality because in
various circumstances the discrimination is very difficult to explain on
nonracial grounds.''\172\
\168\Washington v. Davis, 426 U.S. 229, 242 (1976). A
classification having a differential impact, absent a showing of
discriminatory purpose, is subject to review under the lenient,
rationality standard. Id. at 247-48; Rogers v. Lodge, 458 U.S. 613, 617
n.5 (1982). The Court has applied the same standard to a claim of
selective prosecution allegedly penalizing exercise of First Amendment
rights. Wayte v. United States, 470 U.S. 598 (1985) (no discriminatory
purpose shown). And see Bazemore v. Friday, 478 U.S. 385 (1986)
(existence of single-race, state-sponsored 4-H Clubs is permissible,
given wholly voluntary nature of membership).
\169\The principal case was Palmer v. Thompson, 403 U.S. 217
(1971), in which a 5-to-4 majority refused to order a city to reopen its
swimming pools closed allegedly to avoid complying with a court order to
desegregate them. The majority opinion strongly warned against voiding
governmental action upon an assessment of official motive, id. at 224-
26, but it also, and the Davis Court so read it as actually deciding,
drew the conclusion that since the pools were closed for both whites and
blacks there was no discrimination. The city's avowed reason for closing
the pools--to avoid violence and economic loss--could not be impeached
by allegations of a racial motive. See also Wright v. Council of City of
Emporia, 407 U.S. 451 (1972).
\170\Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albemarle
Paper Co. v. Moody, 422 U.S. 405 (1975). The Davis Court adhered to this
reading of Title VII, merely refusing to import the statutory standard
into the constitutional standard. Washington v. Davis, 426 U.S. 229,
238-39, 246-48 (1976). Subsequent cases involving gender discrimination
raised the question of the vitality of Griggs, General Electric Co. v.
Gilbert, 429 U.S. 125 (1976); Nashville Gas Co. v. Satty, 434 U.S. 136
(1977), but the disagreement among the Justices appears to be whether
Griggs applies to each section of the antidiscrimination provision of
Title VII. See Dothard v. Rawlinson, 433 U.S. 321 (1977); Furnco Const.
Co. v. Waters, 438 U.S. 567 (1978). But see General Building Contractors
Ass'n v. Pennsylvania, 458 U.S. 375 (1982) (unlike Title VII, under 42
U.S.C. Sec. 1981, derived from the Civil Rights Act of 1866, proof of
discriminatory intent is required).
\171\See Washington v. Davis, 426 U.S. 229, 244 n.12 (1976)
(listing and disapproving cases). Cases not cited by the Court included
the Fifth Circuit's wrestling with the de facto/de jure segregation
distinction. In Cisneros v. Corpus Christi Indep. School Dist., 467 F.2d
142, 148-50 (5th Cir. 1972) (en banc), cert. denied, 413 U.S. 920
(1973), the court held that motive and purpose were irrelevant and the
``de facto and de jure nomenclature'' to be ``meaningless.'' After the
distinction was reiterated in Keyes v. Denver School District, 413 U.S.
189 (1973), the Fifth Circuit adopted the position that a decisionmaker
must be presumed to have intended the probable, natural, or foreseeable
consequences of his decision and thus that a school board decision,
whatever its facial motivation, that results in segregation is
intentional in the constitutional sense. United States v. Texas Educ.
Agency, 532 F.2d 380 (5th Cir.), vacated and remanded for
reconsideration in light of Washington v. Davis, 429 U.S. 990 (1976),
modified and adhered to, 564 F.2d 162, reh. denied, 579 F.2d 910 (5th
Cir. 1977-78), cert denied, 443 U.S. 915 (1979). See also United States
v. Texas Educ. Agency, 600 F.2d 518 (5th Cir. 1979). This form of
analysis was, however, substantially cabined in Massachusetts Personnel
Adm'r v. Feeney, 442 U.S. 256, 278-80 (1979), although foreseeability as
one kind of proof was acknowledged by Columbus Bd. of Educ. v. Penick,
443 U.S. 449, 464-65 (1979).
\172\Washington v. Davis, 426 U.S. 229, 242 (1976).
---------------------------------------------------------------------------
Both elucidation and not a little confusion followed upon
application of Davis in the following Terms. Looking to a challenged
zoning decision of a local board which had a harsher impact upon blacks
and low-income persons than on others, the Court explained
[[Page 1817]]
in some detail how inquiry into motivation would work.\173\ First, a
plaintiff is not required to prove that an action rested solely on
discriminatory purpose; establishing ``a discriminatory purpose'' among
permissible purposes shifts the burden to the defendant to show that the
same decision would have resulted absent the impermissible motive.\174\
Second, determining whether a discriminatory purpose was a motivating
factor ``demands a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available.'' Impact provides a starting
point and ``[s]ometimes a clear pattern, unexplainable on grounds other
than race, emerges from the effect of the state action even when the
governing legislation appears neutral on its face,'' but this is a rare
case.\175\ In the absence of such a stark pattern, a court will look to
such factors as the ``historical background of the decision,''
especially if there is a series of official discriminatory actions. The
specific sequence of events may shed light on purpose, as would
departures from normal procedural sequences or from substantive
considerations usually relied on in the past to guide official actions.
Contemporary statements of decisionmakers may be examined, and ``[i]n
some extraordinary instances the members might be called to the stand at
trial to testify concerning the purpose of the official action, although
even then such testimony frequently will be barred by privilege.''\176\
In most circumstances, a court is to look to the totality of the
circumstances to ascertain intent.
\173\Village of Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U.S. 252 (1977).
\174\Id. at 265-66, 270 n.21. See also Mt. Healthy City Bd. of
Educ. v. Doyle, 429 U.S. 274, 284-87 (1977) (once plaintiff shows
defendant acted from impermissible motive in not rehiring him, burden
shifts to defendant to show result would have been same in the absence
of that motive; constitutional violation not established merely by
showing of wrongful motive); Hunter v. Underwood, 471 U.S. 222 (1985)
(circumstances of enactment made it clear that state constitutional
amendment requiring disenfranchisement for crimes involving moral
turpitude had been adopted for purpose of racial discrimination, even
though it was realized that some poor whites would also be
disenfranchised thereby).
\175\Arlington Heights, supra, at 266.
\176\Id. at 267-68.
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Strengthening of the intent standard was evidenced in a decision
sustaining against sex discrimination challenge a state law giving an
absolute preference in civil service hiring to veterans. Veterans who
obtain at least a passing grade on the relevant examination may exercise
the preference at any time and as many times as they wish and are ranked
ahead of all nonveterans, no matter what their score. The lower court
observed that the statutory and administrative exclusion of women from
the armed forces until the recent past meant that virtually all women
were excluded from state civil service positions and held that results
so clearly foreseen
[[Page 1818]]
could not be said to be unintended. Reversing, the Supreme Court found
that the veterans preference law was not overtly or covertly gender
based; too many men are nonveterans to permit such a conclusion and
there are women veterans. That the preference implicitly incorporated
past official discrimination against women was held not to detract from
the fact that rewarding veterans for their service to their country was
a legitimate public purpose. Acknowledging that the consequences of the
preference were foreseeable, the Court pronounced this fact insufficient
to make the requisite showing of intent. ```Discriminatory purpose'
. . . implies more than intent as volition or intent as awareness of
consequences. . . . It implies that the decisionmaker . . . selected or
reaffirmed a particular course of action at least in part `because of,'
not merely `in spite of,' its adverse effects upon an identifiable
group.''\177\
\177\Massachusetts Personnel Adm'r v. Feeney, 442 U.S. 256, 279
(1979). This case clearly established the application of Davis and
Arlington Heights to all nonracial classifications attacked under the
equal protection clause. But compare Columbus Bd. of Educ. v. Penick,
443 U.S. 449 (1979), and Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526
(1979), in the context of the quotation in the text. These cases found
the Davis standard satisfied on a showing of past discrimination coupled
with foreseeable impact in the school segregation area.
---------------------------------------------------------------------------
Moreover, in City of Mobile v. Bolden\178\ a plurality of the
Court apparently attempted to do away with the totality of circumstances
test and to evaluate standing on its own each of the factors offered to
show a discriminatory intent. At issue was the constitutionality of the
use of multi-member electoral districts to select the city commission. A
prior decision had invalidated a multi-member districting system as
discriminatory against blacks and Hispanics, without considering whether
its ruling was premised on discriminatory purpose or adverse impact but
listing and weighing a series of factors the totality of which caused
the Court to find invidious discrimination.\179\ But in the plurality
opinion in Mobile, each of the factors, viewed ``alone,'' was deemed
insufficient to show purposeful discrimination.\180\ Moreover, the
plurality suggested that some of the factors thought to be derived from
its precedents and forming part of the totality test in opinions of the
[[Page 1819]]
lower federal courts--such as minority access to the candidate selection
process, governmental responsiveness to minority interests, and the
history of past discrimination--were of quite limited significance in
determining discriminatory intent.\181\ But, contemporaneously with
Congress' statutory rejection of the Mobile plurality standards,\182\
the Court, in Rogers v. Lodge,\183\ appeared to disavow much of Mobile
and to permit the federal courts to find discriminatory purpose on the
basis of ``circumstantial evidence''\184\ that is more reminiscent of
pre- Washington v. Davis cases than of the more recent decisions.
\178\446 U.S. 55 (1980). Also decided by the plurality was that
discriminatory purpose is a requisite showing to establish a violation
of the Fifteenth Amendment and of the equal protection clause in the
``fundamental interest'' context, vote dilution, rather than just in the
suspect classification context.
\179\White v. Regester, 412 U.S. 755 (1972), was the prior case.
See also Whitcomb v. Chavis, 403 U.S. 124 (1971). Justice White, the
author of Register, dissented in Mobile, supra, 446 U.S. 94, on the
basis that ``the totality of the facts relied upon by the District Court
to support its inference of purposeful discrimination is even more
compelling than that present in White v. Register.'' Justice Blackmun,
id. at 80, and Justices Brennan and Marshall, agreed with him as
alternate holdings, id. at 94, 103.
\180\Id. at 65-74.
\181\Id. at 73-74. The principal formulation of the test was in
Zimmer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973), aff'd on other
grounds sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S.
636 (1976), and its components are thus frequently referred to as the
Zimmer factors.
\182\By the Voting Rights Act Amendments of 1982, P.L. 97-205,
96 Stat. 131, 42 U.S.C. Sec. 1973 (as amended), see S. Rep. No. 417,
97th Congress, 2d sess. 27-28 (1982), Congress proscribed a variety of
electoral practices ``which results'' in a denial or abridgment of the
right to vote, and spelled out in essence the Zimmer factors as elements
of a ``totality of the circumstances'' test.
\183\458 U.S. 613 (1982). The decision, handed down within days
of final congressional passage of the Voting Rights Act Amendments, was
written by Justice White and joined by Chief Justice Burger and Justices
Brennan, Marshall, Blackmun, and O'Connor. Justices Powell and Rehnquist
dissented, id. at 628, as did Justice Stevens. Id. at 631.
\184\Id. at 618-22 (describing and disagreeing with the Mobile
plurality, which had used the phrase at 446 U.S. 74). The Lodge Court
approved the prior reference that motive analysis required an analysis
of ``such circumstantial and direct evidence'' as was available. Id.,
618 (quoting Arlington Heights, 429 U.S. at 266).
---------------------------------------------------------------------------
Rogers v. Lodge was also a multimember electoral district case
brought under the equal protection clause\185\ and the Fifteenth
Amendment. The fact that the system operated to cancel out or dilute
black voting strength, standing alone, was insufficient to condemn it;
discriminatory intent in creating or maintaining the system was
necessary. But direct proof of such intent is not required. ``[A]n
invidious purpose may often be inferred from the totality of the
relevant facts, including the fact, if it is true, that the law bears
more heavily on one race than another.''\186\ Turning to the lower
court's enunciation of standards, the Court approved the Zimmer
formulation. The fact that no black had ever been elected in the county,
in which blacks were a majority of the population but a minority of
registered voters, was ``important evidence of purposeful
exclusion.''\187\ Standing alone this fact was not sufficient, but a
historical showing of past discrimination, of systemic exclusion of
blacks from the political process as well as educational seg
[[Page 1820]]
regation and discrimination, combined with continued unresponsiveness of
elected officials to the needs of the black community, indicated the
presence of discriminatory motivation. The Court also looked to the
``depressed socio-economic status'' of the black population as being
both a result of past discrimination and a barrier to black access to
voting power.\188\ As for the district court's application of the test,
the Court reviewed it under the deferential ``clearly erroneous''
standard and affirmed it.
\185\The Court confirmed the Mobile analysis that the
``fundamental interest'' side of heightened equal protection analysis
requires a showing of intent when the criteria of classification are
neutral and did not reach the Fifteenth Amendment issue in this case.
Id. at 619 n. 6.
\186\Id. at 618 (quoting Washington v. Davis, 426 U.S. 229, 242
(1976)).
\187\Id. at 623-24.
\188\Id. at 624-627. The Court also noted the existence of other
factors showing the tendency of the system to minimize the voting
strength of blacks, including the large size of the jurisdiction and the
maintenance of majority vote and single-seat requirements and the
absence of residency requirements.
---------------------------------------------------------------------------
The Court in a jury discrimination case has also seemed to allow
what it had said in Davis and Arlington Heights it would not
permit.\189\ Noting that disproportion alone is insufficient to
establish a violation, the Court nonetheless held that plaintiff's
showing that 79 percent of the county's population was Spanish-surnamed
while jurors selected in recent years ranged from 39 to 50 percent
Spanish-surnamed was sufficient to establish a prima facie case of
discrimination. Several factors probably account for the difference.
First, the Court has long recognized that discrimination in jury
selection can be inferred from less of a disproportion than is needed to
show other discriminations, in major part because if jury selection is
truly random any substantial disproportion reveals the presence of an
impermissible factor, whereas most official decisions are not
random.\190\ Second, the jury selection process was ``highly
subjective'' and thus easily manipulated for discriminatory purposes,
unlike the process in Davis and Arlington Heights which was regularized
and open to inspection.\191\ Thus, jury cases are likely to continue to
be special cases and in the usual fact situation, at least where the
process is open, plaintiffs will bear a heavy and substantial burden in
showing discriminatory racial and other animus.
\189\Castaneda v. Partida, 430 U.S. 482 (1977). The decision was
5-to-4, Justice Blackmun writing the opinion of the Court and Chief
Justice Burger and Justices Stewart, Powell, and Rehnquist dissenting.
Id. at 504-507.
\190\Id. at 493-94. This had been recognized in Washington v.
Davis, 426 U.S. 229, 241 (1976), and Village of Arlington Heights v.
Metropolitan Housing Dev. Corp., 429 U.S. 252, 266 n.13 (1977).
\191\Castaneda v. Partida, 430 U.S. 482, 494, 497-99 (1977).
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[[Page 1821]]
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED:
TRADITIONAL EQUAL PROTECTION:
ECONOMIC REGULATION AND RELATED
EXERCISES OF THE POLICE POWER
Taxation
At the outset, the Court did not regard the equal protection
clause as having any bearing on taxation.\192\ It soon, however, took
jurisdiction of cases assailing specific tax laws under this
provision,\193\ and in 1890 it cautiously conceded that ``clear and
hostile discriminations against particular persons and classes,
especially such as are of an unusual character, unknown to the practice
of our government, might be obnoxious to the constitutional
prohibition.''\194\ But it observed that the equal protection clause
``was not intended to compel the States to adopt an iron rule of equal
taxation'' and propounded some conclusions valid today.\195\ In
succeeding years the clause has been invoked but sparingly to invalidate
state levies. In the field of property taxation, inequality has been
condemned only in two classes of cases: (1) discrimination in
assessments, and (2) discrimination against foreign corporations. In
addition, there are a handful of cases invalidating, because of
inequality, state laws imposing income, gross receipts, sales and
license taxes.
\192\Davidson v. City of New Orleans, 96 U.S. 97, 106 (1878).
\193\Philadelphia Fire Ass'n v. New York, 119 U.S. 110 (1886);
Santa Clara County v. Southern Pacific R.R., 118 U.S. 394 (1886).
\194\Bell's Gap R.R. v. Pennsylvania, 134 U.S. 232, 237 (1890)
(emphasis supplied).
\195\Id. The State ``may, if it chooses, exempt certain classes
of property from any taxation at all, such as churches, libraries, and
the property of charitable institutions. It may impose different
specific taxes upon various trades and professions, and may vary the
rates of excise upon various products; it may tax real estate and
personal property in a different manner; it may tax visible property
only, and not tax securities for payment of money; it may allow
deductions for indebtedness, or not allow them. All such regulations,
and those of like character, so long as they proceed within reasonable
limits and general usage, are within the discretion of the state
legislature, or the people of the State in framing their Constitution.''
See Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356 (1973); Kahn
v. Shevin, 416 U.S. 351 (1974); and City of Pittsburgh v. Alco Parking
Corp., 417 U.S. 369 (1974).
---------------------------------------------------------------------------
Classification for Purpose of Taxation.--The power of the State
to classify for purposes of taxation is ``of wide range and
flexibility.''\196\ A State may adjust its taxing system in such a way
as
[[Page 1823]]
to favor certain industries or forms of industry\197\ and may tax
different types of taxpayers differently, despite the fact that they
compete.\198\ It does not follow, however, that because ``some degree of
inequality from the nature of things must be permitted, gross inequality
must also be allowed.''\199\ Classification may not be arbitrary. It
must be based on a real and substantial difference\200\ and the
difference need not be great or conspicuous,\201\ but there must be no
discrimination in favor of one as against another of the same
class.\202\ Also, discriminations of an unusual character are
scrutinized with special care.\203\ A gross sales tax graduated at
increasing rates with the volume of sales,\204\ a heavier license tax on
each unit in a chain of stores where the owner has stores located in
more than one county,\205\ and a gross receipts tax levied on
corporations operating taxicabs, but not on individuals,\206\ have been
held to be a repugnant to the equal protection clause. But it is not the
function of the Court to consider the propriety or justness of the tax,
to seek for the motives and criticize the public policy which prompted
the adoption of the statute.\207\ If the evident intent and general
operation of the tax legislation is to adjust the burden with a fair and
reasonable degree of equality, the constitutional requirement is
satisfied.\208\
\196\Louisville Gas Co. v. Coleman, 227 U.S. 32, 37 (1928).
Classifications for purpose of taxation have been held valid in the
following situations:
Banks: a heavier tax on banks which make loans mainly from money
of depositors than on other financial institutions which make loans
mainly from money supplied otherwise than by deposits. First Nat'l Bank
v. Tax Comm'n, 289 U.S. 60 (1933).
Bank deposits: a tax of 50 cents per $100 on deposits in banks
outside a State in contrast with a rate of 10 cents per $100 on deposits
in the State. Madden v. Kentucky, 309 U.S. 83 (1940).
Coal: a tax of 2 1/2 percent on anthracite but not on bituminous
coal. Heisler v. Thomas Colliery Co., 260 U.S. 245 (1922). Gasoline: a
graduated severance tax on oils sold primarily for their gasoline
content, measured by resort to Baume gravity. Ohio Oil Co. v. Conway,
281 U.S. 146 (1930); Exxon Corp. v. Eagerton, 462 U.S. 176 (1983)
(prohibition on pass-through to consumers of oil and gas severance tax).
Chain stores: a privilege tax graduated according to the number
of stores maintained, Tax Comm'rs v. Jackson, 283 U.S. 527 (1931); Fox
v. Standard Oil Co., 294 U.S. 87 (1935); a license tax based on the
number of stores both within and without the State, Great Atlantic &
Pacific Tea Co. v. Grosjean, 301 U.S. 412 (1937) (distinguishing Louis
K. Liggett Co. v. Lee, 288 U.S. 517 (1933)).
Electricity: municipal systems may be exempted, Puget Sound Co.
v. Seattle, 291 U.S. 619 (1934); that portion of electricity produced
which is used for pumping water for irrigating lands may be exempted,
Utah Power & Light Co. v. Pfost, 286 U.S. 165 (1932).
Insurance companies: license tax measured by gross receipts upon
domestic life insurance companies from which fraternal societies having
lodge organizations and insuring lives of members only are exempt, and
similar foreign corporations are subject to a fixed and comparatively
slight fee for the privilege of doing local business of the same kind.
Northwestern Life Ins. Co. v. Wisconsin, 247 U.S. 132 (1918).
Oleomargarine: classified separately from butter. Magnano Co. v.
Hamilton, 292 U.S. 40 (1934).
Peddlers: classified separately from other vendors. Caskey
Baking Co. v. Virginia, 313 U.S. 117 (1941).
Public utilities: a gross receipts tax at a higher rate for
railroads than for other public utilities, Ohio Tax Cases, 232 U.S. 576
(1914); a gasoline storage tax which places a heavier burden upon
railroads than upon common carriers by bus, Nashville C. & St. L. Ry. v.
Wallace, 288 U.S. 249 (1933); a tax on railroads measured by gross
earnings from local operations, as applied to a railroad which received
a larger net income than others from the local activity of renting, and
borrowing cars, Illinois Cent. R.R. v. Minnesota, 309 U.S. 157 (1940); a
gross receipts tax applicable only to public utilities, including
carriers, the proceeds of which are used for relieving the unemployed,
New York Rapid Transit Corp. v. New York, 303 U.S. 573 (1938).
Wine: exemption of wine from grapes grown in the State while in
the hands of the producer, Cox v. Texas, 202 U.S. 446 (1906).
Laws imposing miscellaneous license fees have been upheld as
follows:
Cigarette dealers: taxing retailers and not wholesalers. Cook v.
Marshall County, 196 U.S. 261 (1905).
Commission merchants: requirements that dealers in farm products
on commission procure a license, Payne v. Kansas, 248 U.S. 112 (1918).
Elevators and warehouses: license limited to certain elevators
and warehouses on right-of-way of railroad, Cargill Co. v. Minnesota,
180 U.S. 452 (1901); a license tax applicable only to commercial
warehouses where no other commercial warehousing facilities in township
subject to tax, Independent Warehouses v. Scheele, 331 U.S. 70 (1947).
Laundries: exemption from license tax of steam laundries and
women engaged in the laundry business where not more than two women are
employed. Quong Wing v. Kirkendall, 223 U.S. 59 (1912).
Merchants: exemption from license tax measured by amount of
purchases, of manufacturers within the State selling their own product.
Armour & Co. v. Virginia, 246 U.S. 1 (1918).
Sugar refineries: exemption from license applicable to refiners
of sugar and molasses of planters and farmers grinding and refining
their own sugar and molasses. American Sugar Refining Co. v. Louisiana,
179 U.S. 89 (1900).
Theaters: license graded according to price of admission.
Metropolis Theatre Co. v. Chicago, 228 U.S. 61 (1913).
Wholesalers of oil: occupation tax on wholesalers in oil not
applicable to wholesalers in other products. Southwestern Oil Co. v.
Texas, 217 U.S. 114 (1910).
\197\Quong Wing v. Kirkendall, 223 U.S. 59, 62 (1912). See also
Hammond Packing Co. v. Montana, 233 U.S. 331 (1914); Allied Stores of
Ohio v. Bowers, 358 U.S. 522 (1959).
\198\Puget Sound Co. v. Seattle, 291 U.S. 619, 625 (1934). See
City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369 (1974).
\199\Colgate v. Harvey, 296 U.S. 404, 422 (1935).
\200\Southern Ry. v. Greene Co., 216 U.S. 400, 417 (1910);
Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389, 400 (1928).
\201\Keeney v. New York, 222 U.S. 525, 536 (1912); Tax Comm'rs
v. Jackson, 283 U.S. 527, 538 (1931).
\202\Giozza v. Tierman, 148 U.S. 657, 662 (1893).
\203\Louisville Gas Co. v. Coleman, 227 U.S. 32, 37 (1928). See
also Bell's Gap R.R. v. Pennsylvania, 134 U.S. 232, 237 (1890).
\204\Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935). See
also Valentine v. Great Atlantic & Pacific Tea Co., 299 U.S. 32 (1936).
\205\Louis K. Liggett Co. v. Lee, 288 U.S. 517 (1933).
\206\Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389 (1928).
This case was formally overruled in Lehnhausen v. Lake Shore Auto Parts
Co., 410 U.S. 356 (1973).
\207\Tax Comm'rs v. Jackson, 283 U.S. 527, 537 (1931).
\208\Colgate v. Harvey, 296 U.S. 404, 422 (1935).
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One not within the class claimed to be discriminated against
cannot raise the question of constitutionality of a statute on the
ground that it denies equal protection of the law.\209\ If a tax applies
to a class which may be separately taxed, those within the class may not
complain because the class might have been more
[[Page 1824]]
aptly defined nor because others, not of the class, are taxed
improperly.\210\
\209\Darnell v. Indiana, 226 U.S. 390, 398 (1912); Farmers Bank
v. Minnesota, 232 U.S. 516, 531 (1914).
\210\Morf v. Bingaman, 298 U.S. 407, 413 (1936).
---------------------------------------------------------------------------
Foreign Corporations and Nonresidents.--The equal protection
clause does not require identical taxes upon all foreign and domestic
corporations in every case.\211\ In 1886, a Pennsylvania corporation
previously licensed to do business in New York challenged an increased
annual license tax imposed by that State in retaliation for a like tax
levied by Pennsylvania against New York corporations. This tax was held
valid on the ground that the State, having power to exclude entirely,
could change the conditions of admission for the future and could demand
the payment of a new or further tax as a license fee.\212\ Later cases
whittled down this rule considerably. The Court decided that ``after its
admission, the foreign corporation stands equal and is to be classified
with domestic corporations of the same kind,''\213\ and that where it
has acquired property of a fixed and permanent nature in a State, it
cannot be subjected to a more onerous tax for the privilege of doing
business than is imposed on domestic corporations.\214\ A state statute
taxing foreign corporations writing fire, marine, inland navigation and
casualty insurance on net receipts, including receipts from casualty
business, was held invalid under the equal protection clause where
foreign companies writing only casualty insurance were not subject to a
similar tax.\215\ Later, the doctrine of Philadelphia Fire Association
v. New York was revived to sustain an increased tax on gross premiums
which was exacted as an annual license fee from foreign but not from
domestic corporations.\216\ Even though the right of a foreign
corporation to do business in a State rests on a license, yet the equal
protection clause is held to insure it equality of treatment, at least
so far as ad valorem taxation is concerned.\217\ The Court, in WHYY v.
Glassboro\218\ held that a foreign nonprofit corporation licensed to do
business in the taxing State is denied equal treatment in violation of
the equal protection clause where an exemption from state property taxes
granted to domestic cor
[[Page 1825]]
porations is denied to a foreign corporation solely because it was
organized under the laws of a sister State and where there is no greater
administrative burden in evaluating a foreign corporation than a
domestic corporation in the taxing State.
\211\Baltic Mining Co. v. Massachusetts, 231 U.S. 68, 88 (1913).
See also Cheney Brothers Co. v. Massachusetts, 246 U.S. 147, 157 (1918).
\212\Philadelphia Fire Ass'n v. New York, 119 U.S. 110, 119
(1886).
\213\Hanover Fire Ins. Co. v. Harding, 272 U.S. 494, 511 (1926).
\214\Southern Ry. v. Green, 216 U.S. 400, 418 (1910).
\215\Concordia Ins. Co. v. Illinois, 292 U.S. 535 (1934).
\216\Lincoln Nat'l Life Ins. Co. v. Read, 325 U.S. 673 (1945).
This decision was described as ``an anachronism'' in Western & Southern
Life Ins. Co. v. State Bd. Of Equalization, 451 U.S. 648, 667 (1981),
the Court reaffirming the rule that taxes discriminating against foreign
corporations must bear a rational relation to a legitimate state
purpose.
\217\Wheeling Steel Corp. v. Glander, 337 U.S. 562, 571, 572
(1949).
\218\393 U.S. 117 (1968).
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State taxation of insurance companies, insulated from Commerce
Clause attack by the McCarran-Ferguson Act, must pass similar hurdles
under the Equal Protection Clause. In Metropolitan Life Ins. Co. v.
Ward,\219\ the Court concluded that taxation favoring domestic over
foreign corporations ``constitutes the very sort of parochial
discrimination that the Equal Protection Clause was intended to
prevent.'' Rejecting the assertion that it was merely imposing
``Commerce Clause rhetoric in equal protection clothing,'' the Court
explained that the emphasis is different even though the result in some
cases will be the same: the Commerce Clause measures the effects which
otherwise valid state enactments have on interstate commerce, while the
Equal Protection Clause merely requires a rational relation to a valid
state purpose.\220\ However, the Court's holding that the discriminatory
purpose was invalid under equal protection analysis would also be a
basis for invalidation under a different strand of Commerce Clause
analysis.\221\
\219\470 U.S. 869, 878 (1985). The vote was 5-4, with Justice
Powell's opinion for the Court being joined by Chief Justice Burger and
by Justices White, Blackmun, and Stevens. Justice O'Connor's dissent was
joined by Justices Brennan, Marshall, and Rehnquist.
\220\470 U.S. at 880.
\221\The first level of the Court's ``two-tiered'' analysis of
state statutes affecting commerce tests for virtual per se invalidity.
``When a state statute directly regulates or discriminates against
interstate commerce, or when its effect is to favor in-state economic
interests over out-of-state interests, we have generally struck down the
statute without further inquiry.'' Brown-Forman Distillers Corp. v. New
York State Liquor Auth., 476 U.S. 573, 579 (1986).
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Income Taxes.--A state law which taxes the entire income of
domestic corporations which do business in the State, including that
derived within the State, while exempting entirely the income received
outside the State by domestic corporations which do no local business,
is arbitrary and invalid.\222\ In taxing the income of a nonresident,
there is no denial of equal protection in limiting the deduction of
losses to those sustained within the State, although residents are
permitted to deduct all losses, wherever incurred.\223\ A retroactive
statute imposing a graduated tax at rates different from those in the
general income tax law, on dividends received in
[[Page 1826]]
a prior year which were deductible from gross income under the law in
effect when they were received, does not violate the equal protection
clause.\224\
\222\F.S. Royster Guano Co. v. Virginia, 253 U.S. 412 (1920).
See also Walters v. City of St. Louis, 347 U.S. 231 (1954), sustaining
municipal income tax imposed on gross wages of employed persons but only
on net profits of business men and self-employed.
\223\Shaffer v. Carter, 252 U.S. 37, 56, 57 (1920); Travis v.
Yale & Towne Mfg. Co., 252 U.S. 60, 75, 76 (1920).
\224\Welch v. Henry, 305 U.S. 134 (1938).
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Inheritance Taxes.--There is no denial of equal protection in
prescribing different treatment for lineal relations, collateral kindred
and unrelated persons, or in increasing the proportionate burden of the
tax progressively as the amount of the benefit increases.\225\ A tax on
life estates where the remainder passes to lineal heirs is valid despite
the exemption of life estates where the remainder passes to collateral
heirs.\226\ There is no arbitrary classification in taxing the
transmission of property to a brother or sister, while exempting that to
a son-in-law or daughter-in-law.\227\ Vested and contingent remainders
may be treated differently.\228\ The exemption of property bequeathed to
charitable or educational institutions may be limited to those within
the State.\229\ In computing the tax collectible from a nonresident
decedent's property within the State, a State may apply the pertinent
rates to the whole estate wherever located and take that proportion
thereof which the property within the State bears to the total; the fact
that a greater tax may result than would be assessed on an equal amount
of property if owned by a resident, does not invalidate the result.\230\
\225\Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 288,
300 (1898).
\226\Billings v. Illinois, 188 U.S. 97 (1903).
\227\Campbell v. California, 200 U.S. 87 (1906).
\228\Salomon v. State Tax Comm'n, 278 U.S. 484 (1929).
\229\Board of Educ. v. Illinois, 203 U.S. 553 (1906).
\230\Maxwell v. Bugbee, 250 U.S. 525 (1919).
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Motor Vehicle Taxes.--In demanding compensation for the use of
highways, a State may exempt certain types of vehicles, according to the
purpose for which they are used, from a mileage tax on carriers.\231\ A
state maintenance tax act, which taxes vehicle property carriers for
hire at greater rates than similar vehicles carrying property not for
hire is reasonable, since the use of roads by one hauling not for hire
generally is limited to transportation of his own property as an
incident to his occupation and is substantially less than that of one
engaged in business as a common carrier.\232\ A property tax on motor
vehicles used in operating a stage line that makes constant and unusual
use of the highways may be measured by gross receipts and be assessed at
a higher rate than taxes on property not so employed.\233\ Common motor
carriers of freight operating over regular routes between fixed termini
may be
[[Page 1827]]
taxed at higher rates than other carriers, common and private.\234\ A
fee for the privilege of transporting motor vehicles on their own wheels
over the highways of the State for purpose of sale does not violate the
equal protection clause as applied to cars moving in caravans.\235\ The
exemption from a tax for a permit to bring cars into the State in
caravans of cars moved for sale between zones in the State is not an
unconstitutional discrimination where it appears that the traffic
subject to the tax places a much more serious burden on the highways
than that which is exempt.\236\ Also sustained as valid have been
exemptions of vehicles weighing less than 3000 pounds from graduated
registration fees imposed on carriers for hire, notwithstanding that the
exempt vehicles, when loaded, may outweigh those taxed;\237\ and
exemptions from vehicle license taxes levied on private motor carriers
of persons whose vehicles haul passengers and farm products between
points not having railroad facilities or farm and dairy products for
producers thereof.\238\
\231\Continental Baking Co. v. Woodring, 286 U.S. 352 (1932).
\232\Dixie Ohio Express Co. v. State Revenue Comm'n, 306 U.S.
72, 78 (1939).
\233\Alward v. Johnson, 282 U.S. 509 (1931).
\234\Bekins Van Lines v. Riley, 280 U.S. 80 (1929).
\235\Morf v. Bingaman, 298 U.S. 407 (1936).
\236\Clark v. Paul Gray, Inc., 306 U.S. 583 (1939).
\237\Carley & Hamilton v. Snook, 281 U.S. 66 (1930).
\238\Aero Mayflower Transit Co. v. Georgia Public Serv. Comm'n,
295 U.S. 285 (1935).
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Property Taxes.--The State's latitude of discretion is notably
wide in the classification of property for purposes of taxation and the
granting of partial or total exemption on the grounds of policy,\239\
whether the exemption results from the terms of the statute itself or
the conduct of a state official implementing state policy.\240\ A
provision for the forfeiture of land for nonpayment of taxes is not
invalid because the conditions to which it applies exist only in a part
of the State.\241\ Also, differences in the basis of assessment are not
invalid where the person or property affected might properly be placed
in a separate class for purposes of taxation.\242\ Early cases drew the
distinction between intentional and systematic discriminatory action by
state officials in undervaluing some property while taxing at full value
other property in the same class--an action that could be invalidated
under the equal protection clause--and mere errors in judgment resulting
in unequal valuation or undervaluation--actions that did not support a
claim of discrimina
[[Page 1828]]
tion.\243\ More recently, however, the Court in Allegheny Pittsburgh
Coal Co. v. Webster County Commission,\244\ found a denial of equal
protection to property owners whose assessments, based on recent
purchase prices, ranged from 8 to 35 times higher than comparable
neighboring property for which the assessor failed over a 10-year period
to readjust appraisals. Then, only a few years later, the Court upheld a
California ballot initiative that imposed a quite similar result:
property that is sold is appraised at purchase price, while assessments
on property that has stayed in the same hands since 1976 may rise no
more that 2% per year.\245\ Allegheny Pittsburgh was distinguished, the
disparity in assessments being said to result from administrative
failure to implement state policy rather than from implementation of a
coherent state policy.\246\ California's acquisition-value system
favoring those who hold on to property over those who purchase and sell
property was viewed as furthering rational state interests in promoting
``local neighborhood preservation, continuity, and stability,'' and in
protecting reasonable reliance interests of existing homeowners.\247\
\239\F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415
(1920).
\240\Missouri v. Dockery, 191 U.S. 165 (1903).
\241\Kentucky Union Co. v. Kentucky, 219 U.S. 140, 161 (1911).
\242\Charleston Fed. S. & L. Ass'n v. Alderson, 324 U.S. 182
(1945); Nashville C. & St. L. Ry. v. Browning, 310 U.S. 362 (1940).
\243\Sunday Lake Iron Co. v. Wakefield, 247 U.S. 350 (1918);
Raymond v. Chicago Traction Co., 207 U.S. 20, 35, 37 (1907); Coutler v.
Louisville & Nashville R.R., 196 U.S. 599 (1905). See also Chicago, B. &
Q. Ry. v. Babcock, 204 U.S. 585 (1907).
\244\488 U.S. 336 (1989).
\245\Nordlinger v. Hahn, 112 S. Ct. 2326 (1992).
\246\Id. at 2334-35.
\247\Id. at 2333.
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An owner aggrieved by discrimination is entitled to have his
assessment reduced to the common level.\248\ Equal protection is denied
if a State does not itself remove the discrimination; it cannot impose
upon the person against whom the discrimination is directed the burden
of seeking an upward revision of the assessment of other members of the
class.\249\ A corporation whose valuations were accepted by the
assessing commission cannot complain that it was taxed
disproportionately, as compared with others, if the commission did not
act fraudulently.\250\
\248\Sioux City Bridge v. Dakota County, 260 U.S. 441, 446
(1923).
\249\Hillsborough v. Cromwell, 326 U.S. 620, 623 (1946);
Allegheny Pittsburgh Coal Co. v. Webster County Comm'n, 488 U.S. 336
(1989).
\250\St. Louis-San Francisco Ry v. Middlekamp, 256 U.S. 226, 230
(1921).
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Special Assessment.--A special assessment is not discriminatory
because apportioned on an ad valorem basis, nor does its validity depend
upon the receipt of some special benefit as distinguished from the
general benefit to the community.\251\ Railroad property may not be
burdened for local improvements upon a basis so wholly different from
that used for ascertaining the contribution demanded of individual
owners as necessarily to produce manifest
[[Page 1829]]
inequality.\252\ A special highway assessment against railroads based on
real property, rolling stock, and other personal property is unjustly
discriminatory when other assessments for the same improvement are based
on real property alone.\253\ A law requiring the franchise of a railroad
to be considered in valuing its property for apportionment of a special
assessment is not invalid where the franchises were not added as a
separate personal property value to the assessment of the real
property.\254\ In taxing railroads within a levee district on a mileage
basis, it is not necessarily arbitrary to fix a lower rate per mile for
those having less than 25 miles of main line within the district than
for those having more.\255\
\251\Memphis & Charleston Ry. v. Pace, 282 U.S. 241 (1931).
\252\Kansas City So. Ry. v. Road Imp. Dist. No. 6, 256 U.S. 658
(1921); Thomas v. Kansas City So. Ry., 261 U.S. 481 (1923).
\253\Road Imp. Dist. v. Missouri Pacific R.R., 274 U.S. 188
(1927).
\254\Branson v. Bush, 251 U.S. 182 (1919).
\255\Columbus & Greenville Ry. v. Miller, 283 U.S. 96 (1931).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
TRADITIONAL EQUAL PROTECTION:
ECONOMIC REGULATION AND RELATED
EXERCISES OF THE POLICE POWER
Police Power Regulation
Classification.--Justice Holmes' characterization of the equal
protection clause as the ``usual last refuge of constitutional
arguments''\256\ was no doubt made with the practice in mind of
contestants tacking on an equal protection argument to a due process
challenge of state economic regulation. Few police regulations have been
held unconstitutional on this ground.
\256\Buck v. Bell, 274 U.S. 200, 208 (1927).
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``[T]he Fourteenth Amendment permits the States a wide scope of
discretion in enacting laws which affect some groups of citizens
differently than others. The constitutional safeguard is offended only
if the classification rests on grounds wholly irrelevant to the
achievement of the State's objective. State legislatures are presumed to
have acted within their constitutional power despite the fact that, in
practice, their laws result in some inequality. A statutory
discrimination will not be set aside if any state of facts reasonably
may be conceived to justify it.''\257\ The Court has made it clear that
only the totally irrational classification in the economic field will be
struck down,\258\ and it has held that legislative classifica
[[Page 1830]]
tions that impact severely upon some businesses and quite favorably upon
others may be saved through stringent deference to legislative
judgment.\259\ So deferential is the classification that it denies the
challenging party any right to offer evidence to seek to prove that the
legislature is wrong in its conclusion that its classification will
serve the purpose it has in mind, so long as the question is at least
debatable and the legislature ``could rationally have decided'' that its
classification would foster its goal.\260\
\257\McGowan v. Maryland, 366 U.S. 420, 425-26 (1961).
\258\City of New Orleans v. Dukes, 427 U.S. 297 (1976).
Upholding an ordinance that banned all pushcart vendors from the French
Quarter, except those in continuous operation for more than eight years,
the Court summarized its method of decision here. ``When local economic
regulation is challenged solely as violating the Equal Protection
Clause, this Court consistently defers to legislative determinations as
to the desirability of particular statutory discriminations. . . .
Unless a classification trammels fundamental personal rights or is drawn
upon inherently suspect distinctions such as race, religion, or
alienage, our decisions presume the constitutionality of the statutory
discriminations and require only that the classification challenged be
rationally related to a legitimate state interest. States are accorded
wide latitude in the regulation of their local economies under their
police powers, and rational distinctions may be made with substantially
less than mathematical exactitude. Legislatures may implement their
program step-by-step . . . in such economic areas, adopting regulations
that only partially ameliorate a perceived evil and deferring complete
elimination of the evil to future regulations. . . . In short, the
judiciary may not sit as a super-legislature to judge the wisdom or
undesirability of legislative policy determinations made in areas that
neither affect fundamental rights nor proceed along suspect lines . . .
; in the local economic sphere, it is only the invidious discrimination,
the wholly arbitrary act, which cannot stand consistently with the
Fourteenth Amendment.'' Id. at 303-04.
\259\The ``grandfather'' clause upheld in Dukes preserved the
operations of two concerns that had operated in the Quarter for 20
years. The classification was sustained on the basis of (1) the City
Council proceeding step-by-step and eliminating vendors of more recent
vintage, (2) the Council deciding that newer businesses were less likely
to have built up substantial reliance interests in continued operation
in the Quarter, and (3) the Council believing that both
``grandfathered'' vending interests had themselves become part of the
distinctive character and charm of the Quarter. Id. 305-06. See also
Friedman v. Rogers, 440 U.S. 1, 17-18 (1979); United States v. Maryland
Savings-Share Ins. Corp., 400 U.S. 4, 6 (1970).
\260\Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461-70
(1981). The quoted phrase is at 466 (emphasis by Court). Purporting to
promote the purposes of resource conservation, easing solid waste
disposal problems, and conserving energy, the legislature had banned
plastic nonreturnable milk cartons but permitted all other nonplastic
nonreturnable containers, such as paperboard cartons. The state court
had thought the distinction irrational, but the Supreme Court thought
the legislature could have believed a basis for the distinction existed.
Courts will receive evidence that a distinction is wholly irrational.
United States v. Carolene Products Co., 304 U.S. 144, 153-54 (1938).
Classifications under police regulations have been held valid as
follows:
Advertising: discrimination between billboard and newpaper
advertising of cigarettes, Packer Corp. v. Utah, 285 U.S. 105 (1932);
prohibition of advertising signs on motor vehicles, except when used in
the usual business of the owner and not used mainly for advertising,
Fifth Ave. Coach Co. v. New York, 221 U.S. 467 (1911); prohibition of
advertising on motor vehicles except notices or advertising of products
of the owner, Railway Express Agency v. New York, 336 U.S. 106 (1949);
prohibition against sale of articles on which there is a representation
of the flag for advertising purposes, except newspapers, periodicals and
books, Halter v. Nebraska, 205 U.S. 34 (1907).
Amusement: prohibition against keeping billiard halls for hire,
except in case of hotels having twenty-five or more rooms for use of
regular guests. Murphy v. California, 225 U.S. 623 (1912).
Attorneys: Kansas law and court regulations requiring resident
of Kansas, licensed to practice in Kansas and Missouri and maintaining
law offices in both States, but who practices regularly in Missouri, to
obtain local associate counsel as a condition of appearing in a Kansas
court. Martin v. Walton, 368 U.S. 25 (1961). Two dissenters, Justices
Douglas and Black, would sustain the requirement, if limited in
application to an attorney who practiced only in Missouri.
Cattle: a classification of sheep, as distinguished from cattle,
in a regulation restricting the use of public lands for grazing. Bacon
v. Walker, 204 U.S. 311 (1907). See also Omaechevarria v. Idaho, 246
U.S. 343 (1918).
Cotton gins: in a State where cotton gins are held to be public
utilities and their rates regulated, the granting of a license to a
cooperative association distributing profits ratably to members and
nonmembers does not deny other persons operating gins equal protection
when there is nothing in the laws to forbid them to distribute their net
earnings among their patrons. Corporation Comm'n v. Lowe, 281 U.S. 431
(1930).
Debt adjustment business: operation only as incident to
legitimate practice of law. Ferguson v. Skrupa, 372 U.S. 726 (1963).
Eye glasses: law exempting sellers of ready-to-wear glasses from
regulations forbidding opticians to fit or replace lenses without
prescriptions from ophthalmologist or optometrist and from restrictions
on solicitation of sale of eye glasses by use of advertising matter.
Williamson v. Lee Optical Co., 348 U.S. 483 (1955).
Fish processing: stricter regulation of reduction of fish to
flour or meal than of canning. Bayside Fish Co. v. Gentry, 297 U.S. 422
(1936).
Food: bread sold in loaves must be of prescribed standard sizes,
Schmidinger v. Chicago, 226 U.S. 578 (1913); food preservatives
containing boric acid may not be sold, Price v. Illinois, 238 U.S. 446
(1915); lard not sold in bulk must be put up in containers holding one,
three or five pounds or some whole multiple thereof, Armour & Co. v.
North Dakota, 240 U.S. 510 (1916); milk industry may be placed in a
special class for regulation, Lieberman v. Van De Carr, 199 U.S. 552
(1906); vendors producing milk outside city may be classified
separately, Adams v. Milwaukee, 228 U.S. 572 (1913); producing and
nonproducing vendors may be distinguished in milk regulations, St. John
v. New York, 201 U.S. 633 (1906); different minimum and maximum milk
prices may be fixed for distributors and storekeepers, Nebbia v. New
York, 291 U.S. 502 (1934); price differential may be granted for sellers
of milk not having a well advertised trade name, Borden's Farm Products
Co. v. Ten Eyck, 297 U.S. 251 (1936); oleomargarine colored to resemble
butter may be prohibited, Capital City Dairy Co. v. Ohio, 183 U.S. 238
(1902); table syrups may be required to be so labeled and disclose
identity and proportion of ingredients, Corn Products Rfg. Co. v. Eddy,
249 U.S. 427 (1919).
Geographical discriminations: legislation limited in application
to a particular geographical or political subdivision of a State, Ft.
Smith Co. v. Paving Dist., 274 U.S. 387, 391 (1927); ordinance
prohibiting a particular business in certain sections of a municipality,
Hadacheck v. Sebastian, 239 U.S. 394 (1915); statute authorizing a
municipal commission to limit the height of buildings in commercial
districts to 125 feet and in other districts to 80 to 100 feet, Welch v.
Swasey, 214 U.S. 91 (1909); ordinance prescribing limits in city outside
of which no woman of lewd character shall dwell, L'Hote v. New Orleans,
177 U.S. 587, 595 (1900). And see North v. Russell, 427 U.S. 328, 338
(1976).
Hotels: requirement that keepers of hotels having over fifty
guests employ night watchmen. Miller v. Strahl, 239 U.S. 426 (1915).
Insurance companies: regulation of fire insurance rates with
exemption for farmers mutuals, German Alliance Ins. Co. v. Kansas, 233
U.S. 389 (1914); different requirements imposed upon reciprocal
insurance associations than upon mutual companies, Hoopeston Canning Co.
v. Cullen, 318 U.S. 313 (1943); prohibition against life insurance
companies or agents engaging in undertaking business, Daniel v. Family
Ins. Co., 336 U.S. 220 (1949).
Intoxicating liquors: exception of druggist or manufacturers
from regulation. Lloyd v. Dollison, 194 U.S. 445 (1904); Eberle v.
Michigan, 232 U.S. 700 (1914).
Landlord-tenant: requiring trial no later than six days after
service of complaint and limiting triable issues to the tenant's
default, provisions applicable in no other legal action, under procedure
allowing landlord to sue to evict tenants for nonpayment of rent,
inasmuch as prompt and peaceful resolution of the dispute is proper
objective and tenants have other means to pursue other relief. Lindsey
v. Normet, 405 U.S. 56 (1972).
Lodging houses: requirement that sprinkler systems be installed
in buildings of nonfireproof construction is valid as applied to such a
building which is safeguarded by a fire alarm system, constant watchman
service and other safety arrangements. Queenside Hills Co. v. Saxl, 328
U.S. 80 (1946).
Markets: prohibition against operation of private market within
six squares of public market. Natal v. Louisiana, 139 U.S. 621 (1891).
Medicine: a uniform standard of professional attainment and
conduct for all physicians, Hurwitz v. North, 271 U.S. 40 (1926);
reasonable exemptions from medical registration law. Watson v. Maryland,
218 U.S. 173 (1910); exemption of persons who heal by prayer from
regulations applicable to drugless physicians, Crane v. Johnson, 242 U.S
339 (1917); exclusion of osteopathic physicians from public hospitals,
Hayman v. Galveston, 273 U.S. 414 (1927); requirement that persons who
treat eyes without use of drugs be licensed as optometrists with
exception for persons treating eyes by use of drugs, who are regulated
under a different statute, McNaughton v. Johnson, 242 U.S. 344 (1917); a
prohibition against advertising by dentists, not applicable to other
professions, Semler v. Dental Examiners, 294 U.S. 608 (1935).
Motor vehicles: guest passenger regulation applicable to
automobiles but not to other classes of vehicles, Silver v. Silver, 280
U.S. 117 (1929); exemption of vehicles from other States from
registration requirement, Storaasli v. Minnesota, 283 U.S. 57 (1931);
classification of driverless automobiles for hire as public vehicles,
which are required to procure a license and to carry liability
insurance, Hodge Co. v. Cincinnati, 284 U.S. 335 (1932); exemption from
limitations on hours of labor for drivers of motor vehicles of carriers
of property for hire, of those not principally engaged in transport of
property for hire, and carriers operating wholly in metropolitan areas,
Welch Co. v. New Hampshire, 306 U.S. 79 (1939); exemption of busses and
temporary movements of farm implements and machinery and trucks making
short hauls from common carriers from limitations in net load and length
of trucks, Sproles v. Binford, 286 U.S. 374 (1932); prohibition against
operation of uncertified carriers, Bradley v. Public Utility Comm'n, 289
U.S. 92 (1933); exemption from regulations affecting carriers for hire,
of persons whose chief business is farming and dairying, but who
occasionally haul farm and dairy products for compensation, Hicklin v.
Coney, 290 U.S. 169 (1933); exemption of private vehicles, street cars
and omnibuses from insurance requirements applicable to taxicabs,
Packard v. Banton, 264 U.S. 140 (1924).
Peddlers and solicitors: a State may classify and regulate
itinerant vendors and peddlers, Emert v. Missouri, 156 U.S. 296 (1895);
may forbid the sale by them of drugs and medicines, Baccus v. Louisiana,
232 U.S. 334 (1914); prohibit drumming or soliciting on trains for
business for hotels, medical practitioners, and the like, Williams v.
Arkansas, 217 U.S. 79 (1910); or solicitation of employment to prosecute
or collect claims, McCloskey v. Tobin, 252 U.S. 107 (1920). And a
municipality may prohibit canvassers or peddlers from calling at private
residences unless requested or invited by the occupant to do so. Breard
v. City of Alexandria, 341 U.S. 622 (1951).
Property destruction: destruction of cedar trees to protect
apple orchards from cedar rust, Miller v. Schoene, 276 U.S. 272 (1928).
Railroads: prohibition on operation on a certain street,
Railroad Co. v. Richmond, 96 U.S. 521 (1878); requirement that fences
and cattle guards and allow recovery of multiple damages for failure to
comply, Missouri Pacific Ry. v. Humes, 115 U.S. 512 (1885); Minneapolis
Ry. v. Beckwith, 129 U.S. 26 (1889); Minneapolis & St. Louis Ry. v.
Emmons, 149 U.S. 364 (1893); assessing railroads with entire expense of
altering a grade crossing, New York & N.E. R.R. v. Bristol, 151 U.S. 556
(1894); liability for fire communicated by locomotive engines, St. Louis
& S. F. Ry. v. Mathews, 165 U.S. 1 (1897); required weed cutting;
Missouri, Kan., & Tex. Ry. v. May, 194 U.S. 267 (1904); presumption
against a railroad failing to give prescribed warning signals, Atlantic
Coast Line R.R. v. Ford, 287 U.S. 502 (1933); required use of locomotive
headlights of a specified form and power, Atlantic Coast Line Ry. v.
Georgia, 234 U.S. 280 (1914); presumption that railroads are liable for
damage caused by operation of their locomotives, Seaboard Air Line Ry.
v. Watson, 287 U.S. 86 (1932); required sprinkling of streets between
tracks to lay the dust, Pacific Gas Co. v. Police Court, 251 U.S. 22
(1919). State ``full-crew'' laws do not violate the equal protection
clause by singling out the railroads for regulation and by making no
provision for minimum crews on any other segment of the transportation
industry, Firemen v. Chicago, R.I. & P. Ry., 393 U.S. 129 (1968).
Sales in bulk: requirement of notice of bulk sales applicable
only to retail dealers. Lemieux v. Young, 211 U.S. 489 (1909).
Secret societies: regulations applied only to one class of oath-
bound associations, having a membership of 20 or more persons, where the
class regulated has a tendency to make the secrecy of its purpose and
membership a cloak for conduct inimical to the personal rights of others
and to the public welfare. New York ex rel. Bryant v. Zimmerman, 278
U.S. 63 (1928).
Securities: a prohibition on the sale of capital stock on margin
or for future delivery which is not applicable to other objects of
speculation, e.g., cotton, grain. Otis v. Parker, 187 U.S. 606 (1903).
Sunday closing law: notwithstanding that they prohibit the sale
of certain commodities and services while permitting the vending of
others not markedly different, and, even as to the latter, frequently
restrict their distribution to small retailers as distinguished from
large establishments handling salable as well as nonsalable items, such
laws have been upheld. Despite the desirability of having a required day
of rest, a certain measure of mercantile activity must necessarily
continue on that day and in terms of requiring the smallest number of
employees to forego their day of rest and minimizing traffic congestion,
it is preferable to limit this activity to retailers employing the
smallest number of workers; also, it curbs evasion to refuse to permit
stores dealing in both salable and nonsalable items to be open at all.
McGowan v. Maryland, 366 U.S. 420 (1961); Two Guys from Harrison-
Allentown v. McGinley, 366 U.S. 582 (1961); Braunfeld v. Brown, 366 U.S.
599 (1961); Gallagher v. Crown Kosher Market, 366 U.S. 617 (1961). See
also Soon Hing v. Crowley, 113 U.S. 703 (1885); Petit v. Minnesota, 177
U.S. 164 (1900).
Telegraph companies: a statute prohibiting stipulation against
liability for negligence in the delivery of interstate messages, which
did not forbid express companies and other common carriers to limit
their liability by contract. Western Union Telegraph Co. v. Milling Co.,
218 U.S. 406 (1910).
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[[Page 1833]]
The Court has condemned a variety of statutory classifications
as failing to survive the rational basis test, although some of the
cases are of doubtful vitality today and some have been questioned.
Thus, the Court invalidated a statute which forbade stock insurance
companies to act through agents who were their salaried employees but
permitted mutual companies to operate in this manner.\261\ A law which
required private motor vehicle carriers to obtain certificates of
convenience and necessity and to furnish security for the protection of
the public was held invalid because of the exemption of carriers of
fish, farm, and dairy products.\262\ The same result befell a statute
which permitted mill dealers without well advertised trade names the
benefit of a price differential but which restricted this benefit to
such dealers entering the business before a certain date.\263\ In a
decision since overruled, the Court
[[Page 1834]]
struck down a law which exempted by name the American Express Company
from the terms pertaining to the licensing, bonding, regulation, and
inspection of ``currency exchanges'' engaged in the sale of money
orders.\264\
\261\Hartford Ins. Co. v. Harrison, 301 U.S. 459 (1937).
\262\Smith v. Cahoon, 283 U.S. 553 (1931).
\263\Mayflower Farms v. Ten Eyck, 297 U.S. 266 (1936). See
United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 7 n.2
(1970) (reserving question of case's validity, but interpreting it as
standing for the proposition that no showing of a valid legislative
purpose had been made).
\264\Morey v. Doud, 354 U.S. 457 (1957), overruled by City of
New Orleans v. Dukes, 427 U.S. 297 (1976), where the exemption of one
concern had been by precise description rather than by name.
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
TRADITIONAL EQUAL PROTECTION:
ECONOMIC REGULATION AND RELATED
EXERCISES OF THE POLICE POWER
Other Business and Employment Relations
Labor Relations.--Objections to labor legislation on the ground
that the limitation of particular regulations to specified industries
was obnoxious to the equal protection clause have been consistently
overruled. Statutes limiting hours of labor for employees in mines,
smelters,\265\ mills, factories,\266\ or on public works\267\ have been
sustained. And a statute forbidding persons engaged in mining and
manufacturing to issue orders for payment of labor unless redeemable at
face value in cash was similarly held unobjectionable.\268\ The
exemption of mines employing less than ten persons from a law pertaining
to measurement of coal to determine a miner's wages is not
unreasonable.\269\ All corporations\270\ or public service
corporations\271\ may be required to issue to employees who leave their
service letters stating the nature of the service and the cause of
leaving even though other employers are not so required.
\265\Holden v. Hardy, 169 U.S. 366 (1988).
\266\Bunting v. Oregon, 243 U.S. 426 (1917).
\267\Atkin v. Kansas, 191 U.S. 207 (1903).
\268\Keokee Coke Co. v. Taylor, 234 U.S. 224 (1914). See also
Knoxville Iron Co. v. Harbison, 183 U.S. 13 (1901).
\269\McLean v. Arkansas, 211 U.S. 539 (1909).
\270\Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922).
\271\Chicago, R.I. & P. Ry. v. Perry, 259 U.S. 548 (1922).
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Industries may be classified in a workmen's compensation act
according to the respective hazards of each,\272\ and the exemption of
farm laborers and domestic servants does not render such an act
invalid.\273\ A statute providing that no person shall be denied
opportunity for employment because he is not a member of a labor union
does not offend the equal protection clause.\274\ At a time
[[Page 1835]]
when protective labor legislation generally was falling under ``liberty
of contract'' applications of the due process clause, the Court
generally approved protective legislation directed solely to women
workers\275\ and this solicitude continued into present times in the
approval of laws which were more questionable,\276\ but passage of the
sex discrimination provision of the 1964 Civil Rights Act has generally
called into question all such protective legislation addressed solely to
women.\277\
\272\Mountain Timber Co. v. Washington, 243 U.S. 219 (1917).
\273\New York Central R.R. v. White, 243 U.S. 188 (1917);
Middletown v. Texas Power & Light Co., 249 U.S. 152 (1919); Ward & Gow
v. Krinsky, 259 U.S. 503 (1922).
\274\Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co.,
335 U.S. 525 (1949). Neither is it a denial of equal protection for a
city to refuse to withhold from its employees' paychecks dues owing
their union, although it withholds for taxes, retirement-insurance
programs, saving programs, and certain charities, because its offered
justification that its practice of allowing withholding only when it
benefits all city or department employees is a legitimate method to
avoid the burden of withholding money for all persons or organizations
that request a checkoff. City of Charlotte v. Firefighters, 426 U.S. 283
(1976).
\275\E.g., Muller v. Oregon, 208 U.S. 412 (1908).
\276\Goesaert v. Cleary, 335 U.S. 464 (1948).
\277\Title VII, 78 Stat. 253, 42 U.S.C. Sec. 2000e. On sex
discrimination generally, see infra, pp. 1875-86.
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Monopolies and Unfair Trade Practices.--On the principle that
the law may hit the evil where it is most felt, state antitrust laws
applicable to corporations but not to individuals,\278\ or to vendors of
commodities but not to vendors of labor,\279\ have been upheld. Contrary
to its earlier view, the Court now holds that an antitrust act which
exempts agricultural products in the hands of the producer is
valid.\280\ Diversity with respect to penalties also has been sustained.
Corporations violating the law may be proceeded against by bill in
equity, while individuals are indicted and tried.\281\ A provision,
superimposed upon the general antitrust law, for revocation of the
licenses of fire insurance companies that enter into illegal
combinations, does not violate the equal protection clause.\282\ A grant
of monopoly privileges, if otherwise an appropriate exercise of the
police power, is immune to attack under that clause.\283\ Likewise,
enforcement of an unfair sales act, whereby merchants are privileged to
give trading stamps, worth two and one-half percent of the price, with
goods sold at or near statutory cost, while a competing merchant, not
issuing stamps, is precluded from making an equivalent price reduction,
effects no discrimination. There is a reasonable basis for concluding
that destructive, deceptive competition results from selective loss-
leader selling whereas such abuses do not attend issuance of trading
stamps ``across the board,'' as a discount for payment in cash.\284\
\278\Mallinckrodt Works v. St. Louis, 238 U.S. 41 (1915).
\279\International Harvester Co. v. Missouri, 234 U.S. 199
(1914).
\280\Tigner v. Texas, 310 U.S. 141 (1940) (overruling Connolly
v. Union Sewer Pipe Co., 184 U.S. 540 (1902)).
\281\Standard Oil Co. v. Tennessee, 217 U.S. 413 (1910).
\282\Carroll v. Greenwich Ins. Co., 199 U.S. 401 (1905).
\283\Pacific States Co. v. White, 296 U.S. 176 (1935); see also
Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873): Nebbia v. New York,
291 U.S. 502, 529 (1934).
\284\Safeway Stores v. Oklahoma Grocers, 360 U.S. 334, 339-41
(1959).
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Administrative Discretion.--A municipal ordinance which vests in
supervisory authorities a naked and arbitrary power to grant or withhold
consent to the operation of laundries in wooden
[[Page 1836]]
buildings, without consideration of the circumstances of individual
cases, constitutes a denial of equal protection of the law when consent
is withheld from certain persons solely on the basis of
nationality.\285\ But a city council may reserve to itself the power to
make exceptions from a ban on the operation of a dairy within the
city,\286\ or from building line restrictions.\287\ Written permission
of the mayor or president of the city council may be required before any
person shall move a building on a street.\288\ The mayor may be
empowered to determine whether an applicant has a good character and
reputation and is a suitable person to receive a license for the sale of
cigarettes.\289\ In a later case,\290\ the Court held that the
unfettered discretion of river pilots to select their apprentices, which
was almost invariably exercised in favor of their relatives and friends,
was not a denial of equal protection to persons not selected despite the
fact that such apprenticeship was requisite for appointment as a pilot.
\285\Yick Wo v. Hopkins, 118 U.S. 356 (1886).
\286\Fischer v. St. Louis, 194 U.S. 361 (1904).
\287\Gorieb v. Fox, 274 U.S. 603 (1927).
\288\Wilson v. Eureka City, 173 U.S. 32 (1899).
\289\Gundling v. Chicago, 177 U.S. 183 (1900).
\290\Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552
(1947).
---------------------------------------------------------------------------
Social Welfare.--The traditional ``reasonable basis'' standard
of equal protection adjudication developed in the main in cases
involving state regulation of business and industry. ``The
administration of public welfare assistance, by contrast, involves the
most basic economic needs of impoverished human beings. We recognize the
dramatically real factual difference between the cited cases and this
one, but we can find no basis for applying a different constitutional
standard.''\291\ Thus, a formula for dispensing aid to dependent
children which imposed an upper limit on the amount one family could
receive, regardless of the number of children in the family, so that the
more children in a family the less money per child was received, was
found to be rationally related to the legitimate state interest in
encouraging employment and in maintaining an equitable balance between
welfare families and the families of the working poor.\292\ Similarly, a
state welfare assistance formula which, after calculation of individual
need, provided less of the determined amount to families with dependent
children than to those
[[Page 1837]]
persons in the aged and infirm categories did not violate equal
protection because a State could reasonably believe that the aged and
infirm are the least able to bear the hardships of an inadequate
standard of living, and that the apportionment of limited funds was
therefore rational.\293\ While reiterating that this standard of review
is ``not a toothless one,'' the Court has nonetheless sustained a
variety of distinctions on the basis that Congress could rationally have
believed them justified,\294\ acting to invalidate a provision only once
and then on the premise that Congress was actuated by an improper
purpose.\295\
\291\Dandridge v. Williams, 397 U.S. 471, 485 (1970). Decisions
respecting the rights of the indigent in the criminal process and dicta
in Shapiro v. Thompson, 394 U.S. 618, 627 (1969), had raised the
prospect that because of the importance of ``food, shelter, and other
necessities of life,'' classifications with an adverse or perhaps severe
impact on the poor and needy would be subjected to a higher scrutiny.
Dandridge was a rejection of this approach, which was more fully
elaborated in another context in San Antonio School Dist. v. Rodriguez,
411 U.S. 1, 18-29 (1973).
\292\Dandridge v. Williams, 397 U.S. 471, 483-87 (1970).
\293\Jefferson v. Hackney, 406 U.S. 535 (1972). See also
Richardson v. Belcher, 404 U.S. 78 (1971) (sustaining Social Security
provision reducing disability benefits by amount received from worker's
compensation but not that received from private insurance).
\294\E.g., Mathews v. De Castro, 429 U.S. 181 (1976) (provision
giving benefits to married woman under 62 with dependent children in her
care whose husband retires or becomes disabled but denying benefits to
divorced woman under 62 with dependents represents rational judgment
with respect to likely dependency of married but not divorced women);
Califano v. Boles, 443 U.S. 282 (1979) (limitation of benefits to widows
and divorced wives of wage earners does not deny equal protection to
mother of illegitimate child of wage earner who was never married to
wage earner).
\295\Department of Agriculture v. Moreno, 413 U.S. 528 (1973)
(also questioning rationality).
---------------------------------------------------------------------------
Similarly, the Court has rejected the contention that access to
housing, despite its great importance, is of any fundamental interest
which would place a bar upon the legislature's giving landlords a much
more favorable and summary process of judicially-controlled eviction
actions than was available in other kinds of litigation.\296\
\296\Lindsey v. Normet, 405 U.S. 56 (1972). The Court did
invalidate one provision of the law requiring tenants against whom an
eviction judgment had been entered after a trial to post a bond in
double the amout of rent to become due by the determination of the
appeal, because it bore no reasonable relationship to any valid state
objective and arbitrarily distinguished between defendants in eviction
actions and defendants in other actions. Id. at 74-79.
---------------------------------------------------------------------------
However, a statute which prohibited the dispensing of
contraceptive devices to single persons for birth control but not for
disease prevention purposes and which contained no limitation on
dispensation to married persons was held to violate the equal protection
clause on several grounds. On the basis of the right infringed by the
limitation, the Court saw no rational basis for the State to distinguish
between married and unmarried persons. Similarly, the exemption from the
prohibition for purposes of disease prevention nullified the argument
that the rational basis for the law was the deterrence of fornication,
the rationality of which the Court doubted in any case.\297\ Also
denying equal protection was a law afford
[[Page 1838]]
ing married parents, divorced parents, and unmarried mothers an
opportunity to be heard with regard to the issue of their fitness to
continue or to take custody of their children, an opportunity the Court
decided was mandated by due process, but presuming the unfitness of the
unmarried father and giving him no hearing.\298\
\297\Eisenstadt v. Baird, 405 U.S. 438 (1972).
\298\Stanley v. Illinois, 405 U.S. 645, 658 (1972).
---------------------------------------------------------------------------
Punishment of Crime.--Equality of protection under the law
implies that in the administration of criminal justice no person shall
be subject to any greater or different punishment than another in
similar circumstances.\299\ Comparative gravity of criminal offenses is,
however, largely a matter of state discretion, and the fact that some
offenses are punished with less severity than others does not deny equal
protection.\300\ Heavier penalties may be imposed upon habitual
criminals for like offenses,\301\ even after a pardon for an earlier
offense,\302\ and such persons may be made ineligible for parole.\303\ A
state law doubling the sentence on prisoners attempting to escape does
not deny equal protection by subjecting prisoners who attempt to escape
together to different sentences depending on their original
sentences.\304\
\299\Pace v. Alabama, 106 U.S. 583 (1883). See Salzburg v.
Maryland, 346 U.S. 545 (1954), sustaining law rendering illegally seized
evidence inadmissible in prosecutions in state courts for misdemeanors
but permitting use of such evidence in one county in prosecutions for
certain gambling misdemeanors. Distinctions based on county areas were
deemed reasonable. In North v. Russell, 427 U.S. 328 (1976), the Court
sustained the provision of law-trained judges for some police courts and
lay judges for others, depending upon the state constitutional
classification of cities according to population, since as long as all
people within each classified area are treated equally, the different
classifications within the court system are justifiable.
\300\Collins v. Johnston, 237 U.S. 502, 510 (1915); Pennsylvania
v. Ashe, 302 U.S. 51 (1937).
\301\McDonald v. Massachusetts, 180 U.S. 311 (1901); Moore v.
Missouri, 159 U.S. 673 (1895); Graham v. West Virginia, 224 U.S. 616
(1912).
\302\Carlesi v. New York, 233 U.S. 51 (1914).
\303\Ughbanks v. Armstrong, 208 U.S. 481 (1908).
\304\Pennsylvania v. Ashe, 302 U.S. 51 (1937).
---------------------------------------------------------------------------
A statute denying state prisoners good time credit for
presentence incarceration but permitting those prisoners who obtain bail
or other release immediately to receive good time credit for the entire
period which they ultimately spend in custody, good time counting toward
the date of eligibility for parole, does not deny the prisoners
incarcerated in local jails equal protection inasmuch as the distinction
is rationally justified by the fact that good time credit is designed to
encourage prisoners to engage in rehabilitation courses and activities
which exist only in state prisons and not in local jails.\305\
\305\McGinnis v. Royster, 410 U.S. 263 (1973). Cf. Hurtado v.
United States, 410 U.S. 578 (1973).
---------------------------------------------------------------------------
[[Page 1839]]
The equal protection clause does, however, render invalid a
statute requiring the sterilization of persons convicted of various
offenses when the statute draws a line between like offenses, such as
between larceny by fraud and embezzlement.\306\ A statute which provided
that convicted defendants sentenced to imprisonment must reimburse the
State for the furnishing of free transcripts of their trial by having
amounts deducted from prison pay denied such persons equal protection
when it did not require reimbursement of those fined, given suspended
sentences, or placed on probation.\307\ Similarly, a statute enabling
the State to recover the costs of such transcripts and other legal
defense fees by a civil action was defective under the equal protection
clause because indigent defendants against whom judgment was entered
under the statute did not have the benefit of exemptions and benefits
afforded other civil judgment debtors.\308\ But a bail reform statute
which provided for liberalized forms of release and which imposed the
costs of operating the system upon one category of released defendants,
generally those most indigent, was not invalid because the
classification was rational and because the measure was in any event a
substantial improvement upon the old bail system.\309\ The Court in the
last several years has applied the clause strictly to prohibit numerous
de jure and de facto distinctions based on wealth or indigency.\310\
\306\Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535
(1942).
\307\Rinaldi v. Yeager, 384 U.S. 305 (1966). But see Fuller v.
Oregon, 417 U.S. 40 (1974) (imposition of reimbursement obligation for
state-provided defense assistance upon convicted defendants but not upon
those acquitted or whose convictions are reversed is objectively
rational).
\308\James v. Strange, 407 U.S. 128 (1972).
\309\Schilb v. Kuebel, 404 U.S. 357 (1971).
\310\Infra, pp. 1916-25.
---------------------------------------------------------------------------
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED:
EQUAL PROTECTION AND RACE
Overview
The Fourteenth Amendment ``is one of a series of constitutional
provisions having a common purpose; namely, securing to a race recently
emancipated, a race that through many generations had been held in
slavery, all the civil rights that the superior race enjoy. The true
spirit and meaning of the amendments . . . cannot be understood without
keeping in view the history of the times when they were adopted, and the
general objects they plainly sought to accomplish. At the time when they
were incorporated into the Constitution, it required little knowledge of
human nature to anticipate that those who had long been regarded as an
inferior and subject race would, when suddenly raised to the rank of
citi
[[Page 1840]]
zenship, be looked upon with jealousy and positive dislike, and that
State laws might be enacted or enforced to perpetuate the distinctions
that had before existed. . . . [The Fourteenth Amendment] was designed
to assure to the colored race the enjoyment of all the civil rights that
under the law are enjoyed by white persons, and to give to that race the
protection of the general government in that enjoyment, whenever it
should be denied by the States. It not only gave citizenship and the
privileges of citizenship to persons of color, but it denied to any
State the power to withhold from them the equal protection of the laws,
and authorized Congress to enforce its provision by appropriate
legislation.''\1\ Thus, a state law which on its face worked a
discrimination against African Americans was void.\2\ In addition,
``[t]hough the law itself be fair on its face and impartial in
appearance, yet, if it is applied and administered by public authority
with an evil eye and an unequal hand, so as practically to make unjust
and illegal discriminations between persons in similar circumstances,
material to their rights, the denial of equal justice is still within
the prohibition of the Constitution.''\3\
\1\Strauder v. West Virginia, 100 U.S. 303, 306-07 (1880).
\2\Id. (law providing for jury service specified white males).
Moreover it will not do to argue that a law that segregates the races or
prohibits contacts between them discriminates equally against both
races. Buchanan v. Warley, 245 U.S. 60 (1917) (ordinance prohibiting
blacks from occupying houses in blocks where whites were predominant and
whites from occupying houses in blocks where blacks were predominant).
Compare Pace v. Alabama, 106 U.S. 583 (1883) (sustaining conviction
under statute that imposed a greater penalty for adultery or fornication
between a white person and an African American than was imposed for
similar conduct by members of the same race, using ``equal application''
theory), with McLaughlin v. Florida, 379 U.S. 184, 188 (1964), and
Loving v. Virginia, 388 U.S. 1, 10 (1967) (rejecting theory).
\3\Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886)
(discrimination against Chinese).
---------------------------------------------------------------------------
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
EQUAL PROTECTION AND RACE
Education
Development and Application of ``Separate But Equal''.--Cases
decided soon after ratification of the Fourteenth Amendment may be read
as precluding any state-imposed distinction based on race,\4\ but the
Court in Plessy v. Ferguson\5\ adopted a principle first propounded in
litigation attacking racial segregation in the schools of Boston,
Massachusetts.\6\ Plessy concerned not schools but a state law requiring
the furnishing of ``equal but separate'' facilities for rail
transportation and requiring the separation of ``white
[[Page 1841]]
and colored'' passengers. ``The object of the [Fourteenth] [A]mendment
was undoubtedly to enforce the absolute equality of the two races before
the law, but in the nature of things it could not have been intended to
abolish distinctions based upon color, or to enforce social, as
distinguished from political, equality, or a commingling of the two
races upon terms unsatisfactory to either. Laws permitting, and even
requiring their separation in places where they are liable to be brought
into contact do not necessarily imply the inferiority of either race to
the other, and have been generally, if not universally, recognized as
within the competency of the state legislatures in exercise of their
police power.''\7\ The Court observed that a common instance of this
type of law was the separation by race of children in school, which had
been upheld, it was noted, ``even by courts of states where the
political rights of the colored race have been longest and most
earnestly enforced.''\8\
\4\Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 67-72 (1873);
Strauder v. West Virginia, 100 U.S. 303, 307-08 (1880); Virginia v.
Rives, 100 U.S. 313, 318 (1880); Ex parte Virginia, 100 U.S. 339, 344-45
(1880).
\5\163 U.S. 537 (1896).
\6\Roberts v. City of Boston, 59 Mass. 198, 206 (1849).
\7\Plessy v. Ferguson, 163 U.S. 537, 543-44 (1896). ``We
consider the underlying fallacy of the plaintiff's argument to consist
in the assumption that the enforced separation of the two races stamps
the colored race with a badge of inferiority. If this be so, it is not
by reason of anything found in the act, but solely because the colored
race chooses to put that construction upon it.'' Id. at 552, 559.
\8\Id. at 544-45. The act of Congress in providing for separate
schools in the District of Columbia was specifically noted. Justice
Harlan's well-known dissent contended that the purpose and effect of the
law in question was discriminatory and stamped African Americans with a
badge of inferiority. ``[I]n view of the Constitution, in the eye of the
law, there is in this country no superior, dominant, ruling class of
citizens. There is no caste here. Our Constitution is color-blind, and
neither knows nor tolerates classes among citizens.'' Id. at 552, 559.
---------------------------------------------------------------------------
Subsequent cases following Plessy that actually concerned school
segregation did not expressly question the doctrine and the Court's
decisions assumed its validity. It held, for example, that a Chinese
student was not denied equal protection by being classified with African
Americans and sent to school with them rather than with whites,\9\ and
it upheld the refusal of an injunction to require a school board to
close a white high school until it opened a high school for African
Americans.\10\ And no violation of the equal protection clause was found
when a state law prohibited a private college from teaching whites and
African Americans together.\11\
\9\Gong Lum v. Rice, 275 U.S. 78 (1927).
\10\Cummings v. Board of Education, 175 U.S. 528 (1899).
\11\Berea College v. Kentucky, 211 U.S. 45 (1908).
---------------------------------------------------------------------------
In 1938, the Court began to move away from ``separate but
equal.'' It then held that a State which operated a law school open to
whites only and which did not operate any law school open to African
Americans violated an applicant's right to equal protection, even though
the State offered to pay his tuition at an out-of-state law school. The
requirement of the clause was for equal facilities
[[Page 1842]]
within the State.\12\ When Texas established a law school for African
Americans after the plaintiff had applied and been denied admission to
the school maintained for whites, the Court held the action to be
inadequate, finding that the nature of law schools and the associations
possible in the white school necessarily meant that the separate school
was unequal.\13\ Equally objectionable was the fact that when Oklahoma
admitted an African American law student to its only law school it
required him to remain physically separate from the other students.\14\
\12\Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). See
also Sipuel v. Board of Regents, 332 U.S. 631 (1948).
\13\Sweatt v. Painter, 339 U.S. 629 (1950).
\14\McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950).
---------------------------------------------------------------------------
Brown v. Board of Education.--``Separate but equal'' was
formally abandoned in Brown v. Board of Education,\15\ involving
challenges to segregation per se in the schools of four States in which
the lower courts had found that the schools provided were equalized or
were in the process of being equalized. Though the Court had asked for
argument on the intent of the framers, extensive research had proved
inconclusive, and the Court asserted that it could not ``turn the clock
back to 1867. . . or even to 1896,'' but must rather consider the issue
in the context of the vital importance of education in 1954. The Court
reasoned that denial of opportunity for an adequate education would
often be a denial of the opportunity to succeed in life, that separation
of the races in the schools solely on the basis of race must necessarily
generate feelings of inferiority in the disfavored race adversely
affecting education as well as other matters, and therefore that the
equal protection clause was violated by such separation. ``We conclude
that in the field of public education the doctrine of `separate but
equal' has no place. Separate educational facilities are inherently
unequal.''\16\
\15\347 U.S. 483 (1954). Segregation in the schools of the
District of Columbia was held to violate the due process clause of the
Fifth Amendment in Bolling v. Sharpe, 347 U.S. 497 (1954).
\16\Brown v. Board of Education, 347 U.S. 483, 489-90, 492-95
(1954).
---------------------------------------------------------------------------
After hearing argument on what remedial order should issue, the
Court remanded the cases to the lower courts to adjust the effectuation
of its mandate to the particularities of each school district. ``At
stake is the personal interest of the plaintiffs in admission to public
schools as soon as practicable on a nondiscriminatory basis.'' The lower
courts were directed to ``require that the defendants make a prompt and
reasonable start toward full compliance,'' although ``[o]nce such a
start has been made,'' some additional time would be needed because of
problems arising in the course of com
[[Page 1843]]
pliance and the lower courts were to allow it if on inquiry delay were
found to be ``in the public interest and [to be] consistent with good
faith compliance . . . to effectuate a transition to a racially
nondiscriminatory school system.'' But in any event the lower courts
were to require compliance ``with all deliberate speed.''\17\
\17\Brown v. Board of Education, 349 U.S. 294, 300-01 (1955).
---------------------------------------------------------------------------
Brown's Aftermath.--For the next several years, the Court
declined to interfere with the administration of its mandate, ruling
only in those years on the efforts of Arkansas to block desegregation of
schools in Little Rock.\18\ In the main, these years were taken up with
enactment and administration of ``pupil placement laws'' by which
officials assigned each student individually to a school on the basis of
formally nondiscriminatory criteria, and which required the exhaustion
of state administrative remedies before each pupil seeking reassignment
could bring individual litigation.\19\ The lower courts eventually began
voiding these laws for discriminatory application, permitting class
actions,\20\ and the Supreme Court voided the exhaustion of state
remedies requirement.\21\ In the early 1960's, various state practices--
school closings,\22\ minority transfer plans,\23\ zoning,\24\ and the
like--were ruled impermissible, and the Court indicated that the time
was running out for full implementation of the Brown mandate.\25\
\18\Cooper v. Aaron, 358 U.S. 1 (1958).
\19\E.g., Covington v. Edwards, 264 F.2d 780 (4th Cir.), cert.
denied, 361 U.S. 840 (1959); Holt v. Raleigh City Bd. of Educ., 265 F.2d
95 (4th Cir.), cert. denied, 361 U.S. 818 (1959); Dove v. Parham, 271
F.2d 132 (8th Cir. 1959).
\20\E.g., McCoy v. Greensboro City Bd. of Educ., 283 F.2d 667
(4th Cir. 1960); Green v. School Board of Roanoke, 304 F.2d 118 (4th
Cir. 1962); Gibson v. Board of Pub. Instruction of Dade County, 272 F.2d
763 (5th Cir. 1959); Northcross v. Board of Educ. of Memphis, 302 F.2d
818 (6th Cir. 1962), cert. denied, 370 U.S. 944 (1962).
\21\McNeese v. Board of Education, 373 U.S. 668 (1963).
\22\Griffin v. Board of Supervisors of Prince Edward County, 377
U.S. 218 (1964) (holding that ``under the circumstances'' the closing by
a county of its schools while all the other schools in the State were
open denied equal protection, the circumstances apparently being the
state permission and authority for the closing and the existence of
state and county tuition grant/tax credit programs making an official
connection with the ``private'' schools operating in the county and
holding that a federal court is empowered to direct the appropriate
officials to raise and expend money to operate schools). On school
closing legislation in another State, see Bush v. Orleans Parish School
Bd., 187 F. Supp. 42, 188 F. Supp. 916 (E.D. La. 1960), aff'd, 365 U.S.
569 (1961); Hall v. St. Helena Parish School Bd., 197 F. Supp. 649 (E.D.
La. 1961), aff'd, 368 U.S. 515 (1962).
\23\Goss v. Board of Educ. of City of Knoxville, 373 U.S. 683
(1963). Such plans permitted as of right a student assigned to a school
in which students of his race were a minority to transfer to a school
where the student majority was of his race.
\24\Northcross v. Board of Educ. of Memphis, 333 F.2d 661 (6th
Cir. 1964).
\25\The first comment appeared in dictum in a nonschool case,
Watson v. City of Memphis, 373 U.S. 526, 530 (1963), and was implied in
Goss v. Board of Educ. of City of Knoxville, 373 U.S. 683, 689 (1963).
In Bradley v. School Bd. of City of Richmond, 382 U.S. 103, 105 (1965),
the Court announced that ``[d]elays in desegregating school systems are
no longer tolerable.'' A grade-a-year plan was implicitly disapproved in
Calhoun v. Latimer, 377 U.S. 263 (1964), vacating and remanding 321 F.2d
302 (5th Cir. 1963). See Singleton v. Jackson Municipal Separate School
Dist., 355 F.2d 865 (5th Cir. 1966).
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[[Page 1844]]
About this time, ``freedom of choice'' plans were promulgated
under which each child in the school district could choose each year
which school he wished to attend, and, subject to space limitations, he
could attend that school. These were first approved by the lower courts
as acceptable means to implement desegregation, subject to the
reservation that they be fairly administered.\26\ Enactment of Title VI
of the Civil Rights Act of 1964 and HEW enforcement in a manner as to
require effective implementation of affirmative actions to
desegregate\27\ led to a change of attitude in the lower courts and the
Supreme Court. In Green v. School Board of New Kent County,\28\ the
Court posited the principle that the only desegregation plan permissible
is one which actually results in the abolition of the dual school, and
charged school officials with an affirmative obligation to achieve it.
School boards must present to the district courts ``a plan that promises
realistically to work and promises realistically to work now,'' in such
a manner as ``to convert promptly to a system without a `white' school
and a `Negro' school, but just schools.''\29\ Furthermore, as the Court
and lower courts had by then made clear, school desegregation
encompassed not only the abolition of dual attendance systems for
students, but also the
[[Page 1845]]
merging into one system of faculty,\30\ staff, and services, so that no
school could be marked as either a ``black'' or a ``white'' school.\31\
\26\E.g., Bradley v. School Bd. of City of Richmond, 345 F.2d
310 (4th Cir.), rev'd on other grounds, 382 U.S. 103 (1965); Bowman v.
School Bd. of Charles City County, 382 F.2d 326 (4th Cir. 1967).
\27\Pub. L. 88-352, 78 Stat. 252, 42 U.S.C. Sec. 2000d et seq.
(prohibiting discrimination in federally assisted programs). HEW
guidelines were designed to afford guidance to state-local officials in
interpretations of the law and were accepted as authoritative by the
courts and utilized. Davis v. Board of School Comm'rs of Mobile County,
364 F.2d 896 (5th Cir. 1966); Kemp v. Beasley, 352 F.2d 14 (8th Cir.
1965).
\28\391 U.S. 430 (1968); Raney v. Board of Educ. of Gould School
Dist., 391 U.S. 443 (1968). These cases had been preceded by a circuit-
wide promulgation of similar standards in United States v. Jefferson
County Bd. of Educ., 372 F.2d 836 (5th Cir. 1966), modified & aff'd. en
banc, 380 F.2d 385 (5th Cir.), cert. denied, 389 U.S. 840 (1967).
\29\Green, 391 U.S. at 439, 442 (1968). ``Brown II was a call
for the dismantling of well-entrenched dual systems tempered by an
awareness that complex and multifaceted problems would arise which would
require time and flexibility for a successful resolution. School boards
such as the respondent then operating state-compelled dual systems were
nevertheless clearly charged with the affirmative duty to take whatever
steps might be necessary to convert to a unitary system in which racial
discrimination would be eliminated root and branch.'' Id. at 437-38. The
case laid to rest the dictum of Briggs v. Elliott, 132 F. Supp. 776, 777
(E.D.S.C. 1955), that the Constitution ``does not require integration''
but ``merely forbids discrimination.'' Green and Raney v. Board of Educ.
of Gould School Dist., 391 U.S. 443 (1968), found ``freedom of choice''
plans inadequate, and Monroe v. Board of Comm'rs of City of Jackson, 391
U.S. 450 (1968), found a ``free transfer'' plan inadequate.
\30\Bradley v. School Bd. of City of Richmond, 382 U.S. 103
(1965) (faculty desegregation is integral part of any pupil
desegregation plan); United States v. Montgomery County Bd. of Educ.,
395 U.S. 225 (1969) (upholding district court order requiring assignment
of faculty and staff on a ratio based on racial population of district).
\31\United States v. Jefferson County Bd. of Educ., 372 F.2d 836
(5th Cir. 1966), mod. & aff'd en banc, 380 F.2d 385 (5th Cir.), cert.
denied, 389 U.S. 840 (1967).
---------------------------------------------------------------------------
Implementation of School Desegregation.--In the aftermath of
Green, the various Courts of Appeals held inadequate an increasing
number of school board plans based on ``freedom of choice,'' on zoning
which followed traditional residential patterns, or on some combination
of the two.\32\ The Supreme Court's next opportunity to speak on the
subject came when HEW sought to withdraw desegregation plans it had
submitted at court request and asked for a postponement of a court-
imposed deadline, which was reluctantly granted by the Fifth Circuit.
The Court unanimously reversed and announced that ``continued operation
of segregated schools under a standard of allowing `all deliberate
speed' for desegregation is no longer constitutionally permissible.
Under explicit holdings of this Court the obligation of every school
district is to terminate dual school systems at once and to operate now
and hereafter only unitary schools.''\33\
\32\Hall v. St. Helena Parish School Bd., 417 F.2d 801 (5th
Cir.), cert. denied, 396 U.S. 904 (1969); Henry v. Clarksdale Mun.
Separate School Dist., 409 F.2d 682 (5th Cir.), cert. denied, 396 U.S.
940 (1969); Brewer v. School Bd. of City of Norfolk, 397 F.2d 37 (4th
Cir. 1968); Clark v. Board of Educ. of City of Little Rock, 426 F.2d
1035 (8th Cir. 1970).
\33\Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20
(1969). The Court summarily reiterated its point several times in the
Term. Carter v. West Fana Parish School Board, 396 U.S. 290 (1970);
Northcross v. Board of Educ. of Memphis, 397 U.S. 232 (1970); Dowell v.
Bd. of Educ. of Oklahoma City, 396 U.S. 269 (1969).
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In the October 1970 Term the Court in Swann v. Charlotte-
Mecklenburg Board of Education\34\ undertook to elaborate the
requirements for achieving a unitary school system and delineating the
methods which could or must be used to achieve it, and at the same time
struck down state inhibitions on the process.\35\ The opinion in Swann
emphasized that the goal since Brown was the dismantling of an
officially-imposed dual school system. ``Independent of student
assignment, where it is possible to identify a `white school' or a
`Negro school' simply by reference to the racial composition of teachers
and staff, the quality of school buildings and equipment, or the
organization of sports activities, a prima facie case of
[[Page 1846]]
violation of substantive constitutional rights under the Equal
Protection Clause is shown.''\36\ While ``the existence of some small
number of one-race, or virtually one-race, schools within a district is
not in and of itself the mark of a system that still practices
segregation by law,'' any such situation must be closely scrutinized by
the lower courts, and school officials have a heavy burden to prove that
the situation is not the result of state-fostered segregation. Any
desegregation plan which contemplates such a situation must before a
court accepts it be shown not to be affected by present or past
discriminatory action on the part of state and local officials.\37\ When
a federal court has to develop a remedial desegregation plan, it must
start with an appreciation of the mathematics of the racial composition
of the school district population; its plan may rely to some extent on
mathematical ratios but it should exercise care that this use is only a
starting point.\38\
\34\402 U.S. 1 (1971); see also Davis v. Board of School Comm'rs
of Mobile County, 402 U.S. 33 (1971).
\35\McDaniel v. Barresi, 402 U.S. 39 (1971); North Carolina
State Bd. of Educ. v. Swann, 402 U.S. 43 (1971).
\36\402 U.S. at 18.
\37\Id. at 25-27.
\38\Id. at 22-25.
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Because current attendance patterns may be attributable to past
discriminatory actions in site selection and location of school
buildings, the Court in Swann determined that it is permissible, and may
be required, to resort to altering of attendance boundaries and grouping
or pairing schools in noncontiguous fashion in order to promote
desegregation and undo past official action; in this remedial process,
conscious assignment of students and drawing of boundaries on the basis
of race is permissible.\39\ Transportation of students--busing--is a
permissible tool of educational and desegregation policy, inasmuch as a
neighborhood attendance policy may be inadequate due to past
discrimination. The soundness of any busing plan must be weighed on the
basis of many factors, including the age of the students; when the time
or distance of travel is so great as to risk the health of children or
significantly impinge on the educational process, the weight shifts.\40\
Finally, the Court indicated, once a unitary system has been
established, no affirmative obligation rests on school boards to adjust
attendance year by year to reflect changes in composition of
neighborhoods so long as the change is solely attributable to private
action.\41\
\39\Id. at 27-29.
\40\Id. at 29-31.
\41\Id. at 31-32. In Pasadena City Bd. of Educ. v. Spangler, 427
U.S. 424 (1976), the Court held that after a school board has complied
with a judicially-imposed desegregation plan in student assignments and
thus undone the existing segregation, it is beyond the district court's
power to order it subsequently to implement a new plan to undo the
segregative effects of shifting residential patterns. The Court agreed
with the dissenters, Justices Marshall and Brennan, id., 436, 441, that
the school board had not complied in other respects, such as in staff
hiring and promotion, but it thought that was irrelevant to the issue of
neutral student assignments.
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[[Page 1847]]
Northern Schools: Inter- and Intradistrict Desegregation.--The
appearance in the Court of school cases from large metropolitan areas in
which the separation of the races was not mandated by law but allegedly
by official connivance through zoning of school boundaries, pupil and
teacher assignment policies, and site selections, required the
development of standards for determining when segregation was de jure
and what remedies should be imposed when such official separation was
found.\42\
\42\The presence or absence of a statute mandating separation
provides no talisman indicating the distinction between de jure and de
facto segregation. Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 457
n.5 (1979). As early as Ex parte Virginia, 100 U.S. 339, 347 (1880), it
was said that ``no agency of the State, or of the officers or agents by
whom its powers are exerted, shall deny to any person within its
jurisdiction the equal protection of the laws. Whoever, by virtue of
public position under a State government, . . . denies or takes away the
equal protection of the laws . . . violates the constitutional
inhibition: and as he acts in the name and for the State, and is clothed
with the State's power, his act is that of the State.'' The significance
of a statute is that it simplifies in the extreme a complainant's proof.
---------------------------------------------------------------------------
Accepting the findings of lower courts that the actions of local
school officials and the state school board were responsible in part for
the racial segregation existing within the school system of the City of
Detroit, the Court in Milliken v. Bradley\43\ set aside a desegregation
order which required the formulation of a plan for a metropolitan area
including the City and 53 adjacent suburban school districts. The basic
holding of the Court was that such a remedy could be implemented only to
cure an inter-district constitutional violation, a finding that the
actions of state officials and of the suburban school districts were
responsible, at least in part, for the interdistrict segregation,
through either discriminatory actions within those jurisdictions or
constitutional violations within one district that had produced a
significant segregative effect in another district.\44\ The permissible
scope of an inter-district order, however, would have to be considered
in light of the Court's language regarding the value placed upon local
educational units. ``No single tradition in public education is more
deeply rooted than local control over the operation of schools; local
autonomy has long been thought essential both to the maintenance of
community concern and support for public schools and to quality of the
educational process.''\45\ Too, the complexity of formulating and
overseeing the implementation of a plan that would effect a de facto
consolidation of multiple school districts, the Court indicated, would
impose a task which few, if any, judges are qualified to perform and one
[[Page 1848]]
which would deprive the people of control of their schools through
elected representatives.\46\ ``The constitutional right of the Negro
respondents residing in Detroit is to attend a unitary school system in
that district.''\47\
\43\418 U.S. 717 (1974).
\44\Id. at 745.
\45\Id. at 741-42.
\46\Id. at 742-43. This theme has been sounded in a number of
cases in suits seeking remedial actions in particularly intractable
areas. Mayor of Philadelphia v. Educational Equality League, 415 U.S.
605, 615 (1974); O'Shea v. Littleton, 414 U.S. 488, 500-02 (1974). In
Hills v. Gautreaux, 425 U.S. 284, 293 (1976), the Court wrote that it
had rejected the metropolitan order because of ``fundamental limitations
on the remedial powers of the federal courts to restructure the
operation of local and state governmental entities. . . .'' In other
places, the Court stressed the absence of interdistrict violations, id.,
294, and in still others paired the two reasons. Id. at 296.
\47\Milliken v. Bradley, 418 U.S. 717, 746 (1974). The four
dissenters argued both that state involvement was so pervasive that an
inter-district order was permissible and that such an order was mandated
because it was the State's obligation to establish a unitary system, an
obligation which could not be met without an inter-district order. Id.
at 757, 762, 781.
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``The controlling principle consistently expounded in our
holdings,'' said the Court in the Detroit case, ``is that the scope of
the remedy is determined by the nature and extent of the constitutional
violation.''\48\ While this axiom caused little problem when the
violation consisted of statutorily mandated separation,\49\ it has
required a considerable expenditure of judicial effort and parsing of
opinions to work out in the context of systems in which the official
practice was nondiscriminatory but official action operated to the
contrary. At first, the difficulty was obscured through the creation of
presumptions that eased the burden of proof on plaintiffs, but later the
Court had appeared to stiffen the requirements on plaintiffs.
\48\Id. at 744. See Hills v. Gautreaux, 425 U.S. 284, 294 n.11
(1976) (``[T]he Court's decision in Milliken was premised on a
controlling principle governing the permissible scope of federal
judicial power.''); Austin Indep. School Dist. v. United States, 429
U.S. 990, 991 (1976) (Justice Powell concurring) (``a core principle of
desegregation cases'' is that set out in Milliken).
\49\When an entire school system has been separated into white
and black schools by law, disestablishment of the system and integration
of the entire system is required. ``Having once found a violation, the
district judge or school authorities should make every effort to achieve
the greatest possible degree of actual desegregation, taking into
account the practicalities of the situation. . . . The measure of any
desegregation plan is its effectiveness.'' Davis v. Board of School
Comm'rs, 402 U.S. 33, 37 (1971). See Swann v. Charlotte-Mecklenburg Bd.
of Educ., 402 U.S. 1, 25 (1971).
---------------------------------------------------------------------------
Determination of the existence of a constitutional violation and
the formulation of remedies, within one district, first was presented to
the Court in a northern setting in Keyes v. Denver School District.\50\
The lower courts had found the school segregation existing within one
part of the City to be attributable to official action, but as to the
central city they found the separation not to be the result
[[Page 1849]]
of official action and refused to impose a remedy for those schools. The
Supreme Court found this latter holding to be error, holding that when
it is proved that a significant portion of a system is officially
segregated, the presumption arises that segregation in the remainder or
other portions of the system is also similarly contrived. The burden the
shifts to the school board or other officials to rebut the presumption
by proving, for example, that geographical structure or natural
boundaries have caused the dividing of a district into separate
identifiable and unrelated units. Thus, a finding that one significant
portion of a school system is officially segregated may well be the
predicate for finding that the entire system is a dual one,
necessitating the imposition upon the school authorities of the
affirmative obligation to create a unitary system throughout.\51\
\50\413 U.S. 189 (1973).
\51\Id. at 207-211. Justice Rehnquist argued that imposition of
a district-wide segregation order should not proceed from a finding of
segregative intent and effect in only one portion, that in effect the
Court was imposing an affirmative obligation to integrate without first
finding a constitutional violation. Id. at 254 (dissenting). Justice
Powell cautioned district courts against imposing disruptive
desegregation plans, especially substantial busing in large metropolitan
areas, and stressed the responsibility to proceed with reason,
flexibility, and balance. Id. at 217, 236 (concurring and dissenting).
See his opinion in Austin Indep. School Dist. v. United States, 429 U.S.
990, 991 (1976) (concurring).
---------------------------------------------------------------------------
Keyes then was consistent with earlier cases requiring a showing
of official complicity in segregation and limiting the remedy to the
violation found; by creating presumptions Keyes simply afforded
plaintiffs a way to surmount the barriers imposed by strict application
of the requirements. Following the enunciation in the Detroit inter-
district case, however, of the ``controlling principle'' of school
desegregation cases, the Court appeared to move away from the Keyes
approach.\52\ First, the Court held that federal equity power was
lacking to impose orders to correct demographic shifts ``not attributed
to any segregative actions on the part of the defendants.''\53\ A
district court that had ordered implementation of a student assignment
plan that resulted in a racially neutral system exceeded its authority,
the Court held, by ordering annual readjustments to offset the
demographic changes.\54\
\52\Of significance was the disallowance of the disproportionate
impact analysis in constitutional interpretation and the adoption of an
apparently strengthened intent requirement. Washington v. Davis, 426
U.S. 229 (1976); Village of Arlington Heights v. Metropolitan Housing
Dev. Corp ., 429 U.S. 252 (1977); Massachusetts Personnel Adm'r v.
Feeney, 442 U.S. 256 (1979). This principle applies in the school area.
Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 419 (1977).
\53\Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976).
\54\Id. at 436.
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Second, in the first Dayton case the lower courts had found
three constitutional violations that had resulted in some pupil seg
[[Page 1850]]
regation, and, based on these three, viewed as ``cumulative
violations,'' a district-wide transportation plan had been imposed.
Reversing, the Supreme Court reiterated that the remedial powers of the
federal courts are called forth by violations and are limited by the
scope of those violations. ``Once a constitutional violation is found, a
federal court is required to tailor `the scope of the remedy' to fit
`the nature and extent of the constitutional violation.'''\55\ The goal
is to restore the plaintiffs to the position they would have occupied
had they not been subject to unconstitutional action. Lower courts
``must determine how much incremental segregative effect these
violations had on the racial distribution of the Dayton school
population as presently constituted, when that distribution is compared
to what it would have been in the absence of such constitutional
violations. The remedy must be designed to redress that difference, and
only if there has been a systemwide impact may there be a systemwide
remedy.''\56\ The Court then sent the case back to the district court
for the taking of evidence, the finding of the nature of the violations,
and the development of an appropriate remedy.
\55\Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977)
(quoting Hills v. Gautreaux, 425 U.S. 284, 294 (1976)).
\56\Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977).
The Court did not discuss the presumptions that had been permitted by
Keyes. Justice Brennan, the author of Keyes, concurred on the basis that
the violations found did not justify the remedy imposed, asserting that
the methods of proof utilized in Keyes were still valid. Id. at 421.
---------------------------------------------------------------------------
Surprisingly, however, Keyes was reaffirmed and broadly applied
in subsequent appeals of the Dayton case after remand and in an appeal
from Columbus, Ohio.\57\ Following the Supreme Court standards, the
Dayton district court held that the plaintiffs had failed to prove
official segregative intent, but was reversed by the appeals court. The
Columbus district court had found and had been affirmed in finding
racially discriminatory conduct and had ordered extensive busing. The
Supreme Court held that the evidence adduced in both district courts
showed that the school boards had carried out segregating actions
affecting a substantial portion of each school system prior to and
contemporaneously with the 1954 decision in Brown v. Board of Education.
The Keyes presumption therefore required the school boards to show that
systemwide discrimination had not existed, and they failed to do so.
Because each system was a dual one in 1954, it was subject to an
``affirmative duty to take whatever steps might be necessary to convert
to a unitary system in which racial discrimination would be eliminated
[[Page 1851]]
root and branch.''\58\ Following 1954, segregated schools continued to
exist and the school boards had in fact taken actions which had the
effect of increasing segregation. In the context of the on-going
affirmative duty to desegregate, the foreseeable impact of the actions
of the boards could be utilized to infer segregative intent, thus
satisfying the Davis-Arlington Heights standards.\59\ The Court further
affirmed the district-wide remedies, holding that its earlier Dayton
ruling had been premised upon the evidence of only a few isolated
discriminatory practices; here, because systemwide impact had been
found, systemwide remedies were appropriate.\60\
\57\Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979); Dayton
Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979).
\58\Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 459 (1979)
(quoting Green v. School Bd. of New Kent County, 391 U.S. 430, 437-38
(1968)). Contrast the Court's more recent decision in Bazemore v.
Friday, 478 U.S. 385 (1986) (per curiam), holding that adoption of ``a
wholly neutral admissions policy'' for voluntary membership in state-
sponsored 4-H Clubs was sufficient even though single race clubs
continued to exist under that policy. There is no constitutional
requirement that states in all circumstances pursue affirmative remedies
to overcome past discrimination, the Court concluded; the voluntary
nature of the clubs, unrestricted by state definition of attendance
zones or other decisions affecting membership, presented a ``wholly
different milieu'' from public schools. Id. at 408 (concurring opinion
of Justice White, endorsed by the Court's per curiam opinion).
\59\Id. at 461-65.
\60\Id. at 465-67.
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Reaffirmation of the breadth of federal judicial remedial powers
came when, in a second appeal of the Detroit case, the Court unanimously
upheld the order of a district court mandating compensatory or remedial
educational programs for school children who had been subjected to past
acts of de jure segregation. So long as the remedy is related to the
condition found to violate the Constitution, so long as it is remedial,
and so long as it takes into account the interests of state and local
authorities in managing their own affairs, federal courts have broad and
flexible powers to remedy past wrongs.\61\
\61\Milliken v. Bradley, 433 U.S. 267 (1977). The Court also
affirmed that part of the order directing the State of Michigan to pay
one-half the costs of the mandated programs. Id. at 288-91.
---------------------------------------------------------------------------
The broad scope of federal courts' remedial powers was more
recently reaffirmed in Missouri v. Jenkins.\62\ There the Court ruled
that a federal district court has the power to order local authorities
to impose a tax increase in order to pay to remedy a constitutional
violation, and if necessary may enjoin operation of state laws
prohibiting such tax increases. However, the Court also held, the
district court had abused its discretion by itself imposing an increase
in property taxes without first affording local officials ``the
opportunity to devise their own solutions.''\63\
\62\495 U.S. 33 (1990).
\63\Id. at 52. Similarly, the Court held in Spallone v. United
States, 493 U.S. 265 (1990), that a district court had abused its
discretion in imposing contempt sanctions directly on members of a city
council for refusing to vote to implement a consent decree designed to
remedy housing discrimination. Instead, the court should have proceeded
first against the city alone, and should have proceeded against
individual council members only if the sanctions against the city failed
to produce compliance.
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[[Page 1852]]
Efforts to Curb Busing and Other Desegregation Remedies.--
Especially during the 1970s, courts and Congress grappled with the
appropriateness of various remedies for de jure racial separation in the
public schools, both North and South. Busing of school children created
the greatest amount of controversy. Swann, of course, sanctioned an
order requiring fairly extensive busing, as did the more recent Dayton
and Columbus cases, but the earlier case cautioned as well that courts
must observe limits occasioned by the nature of the educational process
and the well-being of children,\64\ and subsequent cases declared the
principle that the remedy must be no more extensive than the violation
found.\65\ Congress has enacted several provisions of law, either
permanent statutes or annual appropriations limits, that purport to
restrict the power of federal courts and administrative agencies to
order or to require busing, but these, either because of drafting
infelicities or because of modifications required to obtain passage,
have been largely ineffectual.\66\ Stronger proposals, for statutes or
for constitutional amendments, were introduced in Congress, but none
passed both Houses.\67\
\64\Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S.
1, 30-31 (1971).
\65\Milliken v. Bradley, 418 U.S. 717, 744 (1974).
\66\E.g., Sec. 407(a) of the Civil Rights Act of 1964, 78 Stat.
248, 42 U.S.C. Sec. 2000c-6, construed to cover only de facto
segregation in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1,
17-18 (1971); Sec. 803 of the Education Amendments of 1972, 86 Stat.
372, 20 U.S.C. Sec. 1653 (expired), interpreted in Drummond v. Acree,
409 U.S. 1228 (1972) (Justice Powell in Chambers), and the Equal
Educational Opportunities and Transportation of Students Act of 1974, 88
Stat. 514 (1974), 20 U.S.C. Sec. Sec. 1701-1757, see especially
Sec. 1714, interpreted in Morgan v. Kerrigan, 530 F.2d 401, 411-15 (1st
Cir.), cert. denied, 426 U.S. 995 (1976), and United States v. Texas
Education Agency, 532 F.2d 380, 394 n.18 (5th Cir.), vacated on other
grounds sub nom. Austin Indep. School Dist. v. United States, 429 U.S.
990 (1976); and a series of annual appropriations riders, first passed
as riders to the 1976 and 1977 Labor-HEW bills, Sec. 108, 90 Stat. 1434
(1976), and Sec. 101, 91 Stat. 1460, 42 U.S.C. Sec. 2000d, upheld
against facial attack in Brown v. Califano, 627 F.2d 1221 (D.C. Cir.
1980).
\67\See, e.g., The 14th Amendment and School Busing, Hearings
before the Senate Judiciary Subcommittee on the Constitution, 97th
Congress, 1st Sess. (1981); and School Desegregation, Hearings before
the House Judiciary Subcommittee on Civil and Constitutional Rights,
97th Congress, 1st Sess. (1981).
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Of considerable importance to the possible validity of any
substantial congressional restriction on judicial provision of remedies
for de jure segregation violations are two decisions contrastingly
dealing with referenda-approved restrictions on busing and other
[[Page 1853]]
remedies in Washington State and California.\68\ Voters in Washington,
following a decision by the school board in Seattle to undertake a
mandatory busing program, approved an initiative that prohibited school
boards from assigning students to any but the nearest or next nearest
school that offered the students' course of study; there were so many
exceptions, however, that the prohibition in effect applied only to
busing for racial purposes. In California the state courts had
interpreted the state constitution to require school systems to
eliminate both de jure and de facto segregation. The voters approved an
initiative that prohibited state courts from ordering busing unless the
segregation was in violation of the Fourteenth Amendment, and a federal
judge would be empowered to order it under United States Supreme Court
precedents.
\68\Washington v. Seattle School Dist., 458 U.S. 457 (1982);
Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527 (1982). The decisions
were in essence an application of Hunter v. Erickson, 393 U.S. 385
(1969).
---------------------------------------------------------------------------
By a narrow division, the Court held unconstitutional the
Washington measure, and with near unanimity of result if not of
reasoning it sustained the California measure. The constitutional flaw
in the Washington measure, the Court held, was that it had chosen a
racial classification--busing for desegregation--and imposed more severe
burdens upon those seeking to obtain such a policy than it imposed with
respect to any other policy. Local school boards could make education
policy on anything but busing. By singling out busing and making it more
difficult than anything else, the voters had expressly and knowingly
enacted a law that had an intentional impact on a minority.\69\ The
Court discerned no such impediment in the California measure, a simple
repeal of a remedy that had been within the government's discretion to
provide. Moreover, the State continued under an obligation to alleviate
de facto segregation by every other feasible means. The initiative had
merely foreclosed one particular remedy--court-ordered mandatory
busing--as inappropriate.\70\
\69\Washington v. Seattle School Dist., 458 U.S. 457, 470-82
(1982). Justice Blackmun wrote the opinion of the Court and was joined
by Justices Brennan, White, Marshall, and Stevens. Dissenting were
Justices Powell, Rehnquist, O'Connor, and Chief Justice Burger. Id. at
488. The dissent essentially argued that because the State was
ultimately entirely responsible for all educational decisions, its
choice to take back part of the power it had delegated did not raise the
issues the majority thought it did.
\70\Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527, 535-40
(1982).
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Termination of Court Supervision.--With most school
desegregation decrees having been entered decades ago, the issue has
arisen as to what showing of compliance is necessary for a school
district to free itself of continuing court supervision. The Court
grappled with the issue, first in a case involving Oklahoma City
[[Page 1854]]
public schools, then in a case involving the University of Mississippi
college system. A desegregation decree may be lifted, the Court said in
Oklahoma City Board of Education v. Dowell,\71\ upon a showing that the
purposes of the litigation have been ``fully achieved,''--i.e., that the
school district is being operated ``in compliance with the commands of
the Equal Protection Clause,'' that it has been so operated ``for a
reasonable period of time,'' and that it is ``unlikely'' that the school
board would return to its former violations. On remand, the trial court
was directed to determine ``whether the Board had complied in good faith
with the desegregation decree since it was entered, and whether the
vestiges of past [de jure] discrimination had been eliminated to the
extent practicable.''\72\ In United States v. Fordice,\73\ the Court
determined that the State of Mississippi had not, by adopting and
implementing race-neutral policies, eliminated all vestiges of its prior
de jure, racially segregated, ``dual'' system of higher education. The
State must also, to the extent practicable and consistent with sound
educational practices, eradicate policies and practices that are
traceable to the dual system and that continue to have segregative
effects. The Court identified several surviving aspects of Mississippi's
prior dual system which are constitutionally suspect, and which must be
justified or eliminated. The State's admissions policy, requiring higher
test scores for admission to the five historically white institutions
than for admission to the three historically black institutions, is
suspect because it originated as a means of preserving segregation. Also
suspect are the widespread duplication of programs, a possible remnant
of the dual ``separate-but-equal'' system; institutional mission
classifications making three historically white schools the flagship
``comprehensive'' universities; and the retention and operation of all
eight schools rather than the possible merger of some.
\71\498 U.S. 237 (1991).
\72\Id. at 249-50.
\73\112 S. Ct. 2727 (1992).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
EQUAL PROTECTION AND RACE
Juries
It has been established since Strauder v. West Virginia\74\ that
exclusion of an identifiable racial or ethnic group from a grand
[[Page 1855]]
jury\75\ which indicts a defendant or a petit jury\76\ which tries him,
or from both,\77\ denies a defendant of the excluded race equal
protection and necessitates reversal of his conviction or dismissal of
his indictment.\78\ Even if the defendant's race differs from that of
the excluded jurors, the Court has recently held, the defendant has
third party standing to assert the rights of jurors excluded on the
basis of race.\79\ ``Defendants in criminal proceedings do not have the
only cognizable legal interest in nondiscriminatory jury selection.
People excluded from juries because of their race are as much aggrieved
as those indicted and tried by juries chosen under a system of racial
exclusion.''\80\ Thus, persons may bring actions seeking affirmative
relief to outlaw discrimination in jury selection, instead of depending
on defendants to raise the issue.\81\
\74\100 U.S. 303 (1880). Cf. Virginia v. Rives, 100 U.S. 313
(1880). Discrimination on the basis of race, color, or previous
condition of servitude in jury selection has also been statutorily
illegal since enactment of Sec. 4 of the Civil Rights Act of 1875, 18
Stat. 335, 18 U.S.C. Sec. 243. See Ex parte Virginia, 100 U.S. 339
(1880). In Hernandez v. Texas, 347 U.S. 475 (1954), the Court found jury
discrimination against Mexican-Americans to be a denial of equal
protection, a ruling it reiterated in Castaneda v. Partida, 430 U.S. 482
(1977), finding proof of discrimination by statistical disparities, even
though Mexican-surnamed individuals constituted a governing majority of
the county and a majority of the selecting officials were Mexican-
American.
\75\Bush v. Kentucky, 107 U.S. 110 (1883); Carter v. Texas, 177
U.S. 442 (1900); Rogers v. Alabama, 192 U.S. 226 (1904); Pierre v.
Louisiana, 306 U.S. 354 (1939); Smith v. Texas, 311 U.S. 128 (1940);
Hill v. Texas, 316 U.S. 400 (1942); Cassell v. Texas, 339 U.S. 282
(1950); Reece v. Georgia, 350 U.S. 85 (1955); Eubanks v. Louisiana, 356
U.S. 584 (1958); Arnold v. North Carolina, 376 U.S. 773 (1964);
Alexander v. Louisiana, 405 U.S. 625 (1972).
\76\Hollins v. Oklahoma, 295 U.S. 394 (1935); Avery v. Georgia,
345 U.S. 559 (1953).
\77\Neal v. Delaware, 103 U.S. 370 (1881); Martin v. Texas, 200
U.S. 316 (1906); Norris v. Alabama, 294 U.S. 587 (1935); Hale v.
Kentucky, 303 U.S. 613 (1938); Patton v. Mississippi, 332 U.S. 463
(1947); Coleman v. Alabama, 377 U.S. 129 (1964); Whitus v. Georgia, 385
U.S. 545 (1967); Jones v. Georgia, 389 U.S. 24 (1967); Sims v. Georgia,
385 U.S. 538 (1967).
\78\Even if there is no discrimination in the selection of the
petit jury which convicted him, a defendant who shows discrimination in
the selection of the grand jury which indicted him is entitled to a
reversal of his conviction. Cassell v. Texas, 339 U.S. 282 (1950);
Alexander v. Louisiana, 405 U.S. 625 (1972); Vasquez v. Hillery, 474
U.S. 254 (1986) (habeas corpus remedy).
\79\Powers v. Ohio, 111 S. Ct. 1364, 1373 (1991). See also
Peters v. Kiff, 407 U.S. 493 (1972) (defendant entitled to have his
conviction or indictment set aside if he proves such exclusion). The
Court in 1972 was substantially divided with respect to the reason for
rejecting the ``same class'' rule--that the defendant be of the excluded
class--but in Taylor v. Louisiana, 419 U.S. 522 (1975), involving a male
defendant and exclusion of women, the Court ascribed the result to the
fair-cross-section requirement of the Sixth Amendment, which would have
application across-the--board.
\80\Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 329
(1970).
\81\Id.; Turner v. Fouche, 396 U.S. 346 (1970).
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A prima facie case of deliberate and systematic exclusion is
made when it is shown that no African Americans have served on juries
for a period of years\82\ or when it is shown that the number of African
Americans who served was grossly disproportionate to the percentage of
African Americans in the population and eligible
[[Page 1856]]
for jury service.\83\ Once this prima facie showing has been made, the
burden is upon the jurisdiction to prove that discrimination was not
practiced; it is not adequate that jury selection officials testify
under oath that they did not discriminate.\84\ Although the Court in
connection with a showing of great disparities in the racial makeup of
jurors called has voided certain practices which made discrimination
easy to accomplish,\85\ it has not outlawed discretionary selection
pursuant to general standards of educational attainment and character
which can be administered fairly.\86\ Similarly, it declined to rule
that African Americans must be included on all-white jury commissions
which administer the jury selection laws in some States.\87\
\82\Norris v. Alabama, 294 U.S. 587 (1935); Patton v.
Mississippi, 332 U.S. 463 (1947); Hill v. Texas, 316 U.S. 400 (1942).
\83\Pierre v. Louisiana, 306 U.S. 354 (1939); Cassell v. Texas,
339 U.S. 282 (1950); Eubanks v. Louisiana, 356 U.S. 584 (1958); Whitus
v. Georgia, 385 U.S. 545 (1967); Alexander v. Louisiana, 405 U.S. 625
(1972). For an elaborate discussion of statistical proof, see Castaneda
v. Partida, 430 U.S. 482 (1977).
\84\Norris v. Alabama, 294 U.S. 587 (1935); Eubanks v. Georgia,
385 U.S. 545 (1967); Sims v. Georgia, 389 U.S. 404 (1967); Turner v.
Fouche, 396 U.S. 346, 360-361 (1970).
\85\Avery v. Georgia, 345 U.S. 559 (1953) (names of whites and
African Americans listed on differently colored paper for drawing for
jury duty); Whitus v. Georgia, 385 U.S. 545 (1967) (jurors selected from
county tax books, in which names of African Americans were marked with a
``c'').
\86\Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 331-37
(1970), and cases cited.
\87\Id. at 340-41.
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In Swain v. Alabama,\88\ African Americans regularly appeared on
jury venires but no African American had actually served on a jury. It
appeared that the absence was attributable to the action of the
prosecutor in peremptorily challenging all potential African American
jurors, but the Court refused to set aside the conviction. The use of
peremptory challenges to exclude the African Americans in the particular
case was permissible, the Court held, regardless of the prosecutor's
motive, although it was indicated the consistent use of such challenges
to remove African Americans would be unconstitutional. Because the
record did not disclose that the prosecution was responsible solely for
the fact that no African American had ever served on a jury and that
some exclusions were not the result of defense peremptory challenges,
defendant's claims were rejected.
\88\380 U.S. 202 (1965).
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The Swain holding as to the evidentiary standard was overruled
in Batson v. Kentucky, the Court ruling that ``a defendant may establish
a prima facie case of purposeful [racial] discrimination in selection of
the petit jury solely on evidence concerning the prosecutor's exercise
of peremptory challenges at the defendant's [own] trial.'' To rebut this
showing, the prosecutor ``must articulate
[[Page 1857]]
a neutral explanation related to the particular case,'' but the
explanation ``need not rise to the level justifying exercise of a
challenge for cause.''\89\ The Court has also extended Batson to apply
to racially discriminatory use of peremptory challenges by private
litigants in civil litigation,\90\ and by a defendant in a criminal
case,\91\ the principal issue in these cases being the presence of state
action, not the invalidity of purposeful racial discrimination.
\89\476 U.S. 79, 96, 98 (1986). The principles were applied in
Trevino v. Texas, 112 S. Ct. 1547 (1991), holding that a criminal
defendant's allegation of a state's pattern of historical and habitual
use of peremptory challenges to exclude members of racial minorities was
sufficient to raise an equal protection claim under Swain as well as
Batson. In Hernandez v. New York, 500 U.S. 352 (1991), a prosecutor was
held to have sustained his burden of providing a race-neutral
explanation for using peremptory challenges to strike bilingual Latino
jurors; the prosecutor had explained that, based on the answers and
demeanor of the prospective jurors, he had doubted whether they would
accept the interpreter's official translation of trial testimony by
Spanish-speaking witnesses. The Batson ruling applies to cases pending
on direct review or not yet final when Batson was decided, Griffith v.
Kentucky, 479 U.S. 314 (1987), but does not apply to a case on federal
habeas corpus review, Allen v. Hardy, 478 U.S. 255 (1986).
\90\Edmonson v. Leesville Concrete Co., 111 S. Ct. 2077 (1991).
\91\Georgia v. McCollum, 112 S. Ct. 2348 (1992).
---------------------------------------------------------------------------
Discrimination in the selection of grand jury foremen presents a
closer question, answer to which depends in part on the responsibilities
of a foreman in the particular system challenged. Thus the Court had
``assumed without deciding'' that discrimination in selection of foremen
for state grand juries would violate equal protection in a system in
which the judge selected a foreman to serve as a thirteenth voting
juror, and that foreman exercised significant powers.\92\ That situation
was distinguished, however, in a due process challenge to the federal
system, where the foreman's responsibilities are ``essentially
clerical'' and where the selection is from among the members of an
already-chosen jury.\93\
\92\Rose v. Mitchell, 443 U.S. 545, 551 n.4 (1979).
\93\Hobby v. United States, 468 U.S. 339 (1984). Note also that
in this limited context where injury to the defendant was largely
conjectural, the Court seemingly revived the same class rule, holding
that a white defendant challenging on due process grounds exclusion of
blacks as grand jury foremen could not rely on equal protection
principles protecting blacks defendants from ``the injuries of
stigmatization and prejudice'' associated with discrimination. Id. at
347.
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
EQUAL PROTECTION AND RACE
Capital Punishment
In McCleskey v. Kemp\94\ the Court rejected an equal protection
claim of a black defendant who received a death sentence following
conviction for murder of a white victim, even though a statistical study
showed that blacks charged with murdering whites were
[[Page 1858]]
more than four times as likely to receive a death sentence in the state
than were defendants charged with killing blacks. The Court
distinguished Batson v. Kentucky by characterizing capital sentencing as
``fundamentally different'' from jury venire selection; consequently,
reliance on statistical proof of discrimination is less rather than more
appropriate.\95\ ``Because discretion is essential to the criminal
justice process, we would demand exceptionally clear proof before we
would infer that the discretion has been abused.''\96\ Also, the Court
noted, there is not the same opportunity to rebut a statistical
inference of discrimination; jurors may not be required to testify as to
their motives, and for the most part prosecutors are similarly immune
from inquiry.\97\
\94\481 U.S. 279 (1987). The decision was 5-4, with Justice
Powell's opinion of the Court being joined by Chief Justice Rehnquist
and by Justices White, O'Connor, and Scalia, and with Justices Brennan,
Blackmun, Stevens, and Marshall dissenting.
\95\481 U.S. at 294. Dissenting Justices Brennan, Blackmun and
Stevens challenged this position as inconsistent with the Court's usual
approach to capital punishment, in which greater scrutiny is required.
Id. at 340, 347-48, 366.
\96\Id. at 297. Discretion is especially important to the role
of a capital sentencing jury, which must be allowed to consider any
mitigating factor relating to the defendant's background or character,
or to the nature of the offense; the Court also cited the
``traditionally `wide discretion''' accorded decisions of prosecutors.
Id. at 296.
\97\The Court distinguished Batson by suggesting that the death
penalty challenge would require a prosecutor ``to rebut a study that
analyzes the past conduct of scores of prosecutors'' whereas the
peremptory challenge inquiry would focus only on the prosecutor's own
acts. 481 U.S. at 296 n.17.
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
EQUAL PROTECTION AND RACE
Housing
Buchanan v. Warley\98\ invalidated an ordinance which prohibited
blacks from occupying houses in blocks where the greater number of
houses were occupied by whites and which prohibited whites from doing so
where the greater number of houses were occupied by blacks. Although
racially restrictive covenants do not themselves violate the equal
protection clause, the judicial enforcement of them, either by
injunctive relief or through entertaining damage actions, does violate
the Fourteenth Amendment.\99\ Referendum passage of a constitutional
amendment repealing a ``fair housing'' law and prohibiting further state
or local action in that direction was held unconstitutional in Reitman
v. Mulkey,\100\ though on somewhat ambiguous grounds, while a state
constitutional requirement that decisions of local authorities to build
low-rent housing projects in an area must first be submitted to
referendum, although other similar decisions were not so limited, was
[[Page 1859]]
found to accord with the equal protection clause.\101\ Private racial
discrimination in the sale or rental of housing is subject to two
federal laws prohibiting most such discrimination.\102\ Provision of
publicly assisted housing, of course, must be on a nondiscriminatory
basis.\103\
\98\245 U.S. 60 (1917). See also Harmon v. Tyler, 273 U.S. 668
(1927); Richmond v. Deans, 281 U.S. 704 (1930).
\99\Shelley v. Kraemer, 334 U.S. 1 (1948); Hurd v. Hodge, 334
U.S. 24 (1948); Barrows v. Jackson, 346 U.S. 249 (1953). Cf. Corrigan v.
Buckley, 271 U.S. 323 (1926).
\100\387 U.S. 369 (1967).
\101\James v. Valtierra, 402 U.S. 137 (1971). The Court did not
perceive that either on its face or as applied the provision was other
than racially neutral. Justices Marshall, Brennan, and Blackmun
dissented. Id. at 143.
\102\Civil Rights Act of 1866, 14 Stat. 27, 42 U.S.C. Sec. 1982,
see Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), and Title VIII of
the Civil Rights Act of 1968, 82 Stat. 73, 42 U.S.C. Sec. 3601 et seq.
\103\See Hills v. Gautreaux, 425 U.S. 284 (1976).
---------------------------------------------------------------------------
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
EQUAL PROTECTION AND RACE
Other Areas of Discrimination
Transportation.--The ``separate but equal'' doctrine won Supreme
Court endorsement in the transportation context,\104\ and its passing in
the education field did not long predate its demise in transportation as
well.\105\ During the interval, the Court held invalid a state statute
which permitted carriers to provide sleeping and dining cars for white
persons only,\106\ held that a carrier's provision of unequal, or
nonexistent, first class accommodations to African Americans violated
the Interstate Commerce Act,\107\ and voided both state-required and
privately imposed segregation of the races on interstate carriers as
burdens on commerce.\108\ Boynton v. Virginia\109\ voided a trespass
conviction of an interstate African American bus passenger who had
refused to leave a restaurant which the Court viewed as an integral part
of the facilities devoted to interstate commerce and therefore subject
to the Interstate Commerce Act.
\104\Plessy v. Ferguson, 163 U.S. 537 (1896).
\105\Gayle v. Browder, 352 U.S. 903 (1956), aff'g 142 F. Supp.
707 (M.D. Ala.) (statute requiring segregation on buses is
unconstitutional). ``We have settled beyond question that no State may
require racial segregation of interstate transportation facilities.
. . . This question is no longer open; it is foreclosed as a litigable
issue.'' Bailey v. Patterson, 369 U.S. 31, 33 (1962).
\106\McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 151 (1914).
\107\Mitchell v. United States, 313 U.S. 80 (1941).
\108\Morgan v. Virginia, 328 U.S. 373 (1946); Henderson v.
United States, 339 U.S. 816 (1950).
\109\364 U.S. 454 (1960).
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Public Facilities.--In the aftermath of Brown v. Board of
Education, the Court in a lengthy series of per curiam opinions
established the invalidity of segregation in publicly provided or
supported facilities and of required segregation in any facility or
function.\110\ A municipality could not operate a racially-segregated
park
[[Page 1860]]
pursuant to a will which left the property for that purpose and which
specified that only whites could use the park,\111\ but it was
permissible for the state courts to hold that the trust had failed and
to imply a reverter to the decedent's heirs.\112\ A municipality under
court order to desegregate its publicly-owned swimming pools was held to
be entitled to close the pools instead, so long as it entirely ceased
operation of them.\113\
\110\E.g., Mayor & City Council of Baltimore v. Dawson, 350 U.S.
877 (1955) (public beaches and bathhouses); Holmes v. City of Atlanta,
350 U.S. 879 (1955) (municipal golf courses); Muir v. Louisville Park
Theatrical Ass'n, 347 U.S. 971 (1954) (city lease of park facilities);
New Orleans City Park Improvement Ass'n v. Detiege, 358 U.S. 54 (1958)
(public parks and golf courses); State Athletic Comm'n v. Dorsey, 359
U.S. 533 (1959) (statute requiring segregated athletic contests); Turner
v. City of Memphis, 369 U.S. 350 (1962) (administrative regulation
requiring segregation in airport restaurant); Schiro v. Bynum, 375 U.S.
395 (1964) (ordinance requiring segregation in municipal auditorium).
\111\Evans v. Newton, 382 U.S. 296 (1966). State courts had
removed the city as trustee but the Court thought the city was still
inextricably bound up in the operation and maintenance of the park.
Justices Black, Harlan, and Stewart dissented because they thought the
removal of the city as trustee removed the element of state action. Id.
at 312, 315.
\112\Evans v. Abney, 396 U.S. 435 (1970). The Court thought that
in effectuating the testator's intent in the fashion best permitted by
the Fourteenth Amendment, the state courts engaged in no action
violating the equal protection clause. Justices Douglas and Brennan
dissented. Id. at 448, 450.
\113\Palmer v. Thompson, 403 U.S. 217 (1971). The Court found
that there was no official encouragement of discrimination through the
act of closing the pools and that inasmuch as both white and black
citizens were deprived of the use of the pools there was no unlawful
discrimination. Justices White, Brennan, and Marshall dissented, arguing
that state action taken solely in opposition to desegregation was
impermissible, both in defiance of the lower court order and because it
penalized African Americans for asserting their rights. Id. at 240.
Justice Douglas also dissented. Id. 231.
---------------------------------------------------------------------------
Marriage.--Statutes which forbid the contracting of marriage
between persons of different races are unconstitutional\114\ as are
statutes which penalize interracial cohabitation.\115\ Similarly, a
court may not deny custody of a child based on a parent's remarriage to
a person of another race and the presumed ``best interests of the
child'' to be free from the prejudice and stigmatization that might
result.\116\
\114\Loving v. Virginia, 388 U.S. 1 (1967).
\115\McLaughlin v. Florida, 379 U.S. 184 (1964).
\116\Palmore v. Sidoti, 466 U.S. 429 (1984).
---------------------------------------------------------------------------
Judicial System.--Segregation in courtrooms is unlawful and may
not be enforced through contempt citations for disobedience\117\ or
through other means. Treatment of parties to or witnesses in judicial
actions based on their race is impermissible.\118\ Jail inmates have a
right not to be segregated by race unless there is some overriding
necessity arising out of the process of keeping order.\119\
\117\Johnson v. Virginia, 373 U.S. 61 (1963).
\118\Hamilton v. Alabama, 376 U.S. 650 (1964) (reversing
contempt conviction of witness who refused to answer questions so long
as prosecutor addressed her by her first name).
\119\Lee v. Washington, 390 U.S. 333 (1968); Wilson v. Kelley,
294 F. Supp. 1005 (N.D.Ga.), aff'd, 393 U.S. 266 (1968).
---------------------------------------------------------------------------
[[Page 1861]]
Public Designation.--It is unconstitutional to designate
candidates on the ballot by race\120\ and apparently any sort of
designation by race on public records is suspect although not
necessarily unlawful.\121\
\120\Anderson v. Martin, 375 U.S. 399 (1964).
\121\Tancil v. Woolls, 379 U.S. 19 (1964) (summarily affirming
lower court rulings sustaining law requiring that every divorce decree
indicate race of husband and wife, but voiding laws requiring separate
lists of whites and African Americans in voting, tax and property
records).
---------------------------------------------------------------------------
Public Accommodations.--Whether or not discrimination practiced
by operators of retail selling and service establishments gave rise to a
denial of constitutional rights occupied the Court's attention
considerably in the early 1960's, but it avoided finally deciding one
way or the other, generally finding forbidden state action in some
aspect of the situation.\122\ Passage of the 1964 Civil Rights Act
obviated any necessity to resolve the issue.\123\
\122\E.g., Burton v. Wilmington Parking Authority, 365 U.S. 715
(1961); Turner v. City of Memphis, 369 U.S. 350 (1962); Peterson v. City
of Greenville, 373 U.S. 244 (1963); Lombard v. Louisiana, 373 U.S. 267
(1963); Robinson v. Florida, 378 U.S. 153 (1964).
\123\Title II, 78 Stat. 243, 42 U.S.C. Sec. 2000a to 2000a-6.
See Hamm v. City of Rock Hill, 379 U.S. 306 (1964). On the various
positions of the Justices on the constitutional issue, see the opinions
in Bell v. Maryland, 378 U.S. 226 (1964).
---------------------------------------------------------------------------
Elections.--While, of course, the denial of the franchise on the
basis of race or color violates the Fifteenth Amendment and a series of
implementing statutes enacted by Congress,\124\ the administration of
election statutes so as to treat white and black voters or candidates
differently can constitute a denial of equal protection as well.\125\
Additionally, cases of gerrymandering of electoral districts and the
creation or maintenance of electoral practices that dilute and weaken
black and other minority voting strength is subject to Fourteenth and
Fifteenth Amendment and statutory attack.\126\
\124\See infra, pp. 1946-50.
\125\E.g., Hadnott v. Amos, 394 U.S. 358 (1971); Hunter v.
Underwood, 471 U.S. 222 (1985) (disenfranchisement for crimes involving
moral turpitude adopted for purpose of racial discrimination).
\126\E.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960); United
Jewish Orgs. v. Carey, 430 U.S. 144 (1977); Rogers v. Lodge, 458 U.S.
613 (1982).
---------------------------------------------------------------------------
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
EQUAL PROTECTION AND RACE
Permissible Remedial Utilizations of Racial Classifications
Of critical importance in equal protection litigation is the
degree to which government is permitted to take race or another suspect
classification into account in order to formulate and implement a remedy
to overcome the effects of past discrimination against the class. Often
the issue is framed in terms of ``reverse discrimination,'' inasmuch as
the governmental action deliberately favors members of the class and may
simultaneously impact adversely
[[Page 1862]]
upon nonmembers of the class.\127\ While the Court in prior cases had
accepted both the use of race and other suspect criteria as valid
factors in formulating remedies to overcome discrmination\128\ and the
according of preferences to class members when the class had previously
been the object of discrimination,\129\ it had never until recently
given plenary review to programs that expressly used race as the prime
consideration in the awarding of some public benefit.\130\
\127\While the emphasis is upon governmental action, private
affirmative actions may implicate statutory bars to uses of race. E.g.,
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), held, not
in the context of an affirmative action program, that whites were as
entitled as any group to protection of federal laws banning racial
discrimination in employment. The Court emphasized that it was not
passing at all on the permissibility of affirmative action programs. Id.
at 280 n.8. In United Steelworkers v. Weber, 443 U.S. 193 (1979), the
Court held that title VII did not prevent employers from instituting
voluntary, race-conscious affirmative action plans. Accord, Johnson v.
Transportation Agency, 480 U.S. 616 (1987). Nor does title VII prohibit
a court from approving a consent decree providing broader relief than
the court would be permitted to award. Local 93, Int'l Ass'n of
Firefighters v. City of Cleveland, 478 U.S. 501 (1986). And, court-
ordered relief pursuant to title VII may benefit persons not themselves
the victims of discrimination. Local 28 of the Sheet Metal Workers'
Int'l Ass'n v. EEOC, 478 U.S. 421 (1986).
\128\E.g., Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1, 22-25 (1971).
\129\Programs to overcome past societal discriminations against
women have been approved, Kahn v. Shevin, 416 U.S. 351 (1974);
Schlesinger v. Ballard, 419 U.S. 498 (1975); Califano v. Webster, 430
U.S. 313 (1977), but gender classifications are not as suspect as racial
ones. Preferential treatment for American Indians was approved, Morton
v. Mancari, 417 U.S. 535 (1974), but on the basis that the
classification was political rather than racial.
\130\The constitutionality of a law school admissions program in
which minority applicants were preferred for a number of positions was
before the Court in DeFunis v. Odegaard, 416 U.S. 312 (1974), but the
merits were not reached.
---------------------------------------------------------------------------
In United Jewish Organizations v. Carey\131\ the State, in order
to comply with the Voting Rights Act and to obtain the United States
Attorney General's approval for a redistricting law, had drawn a plan
which consciously used racial criteria to create a certain number of
districts with nonwhite populations large enough to permit the election
of nonwhite candidates in spite of the lower voting turnout of
nonwhites. In the process a Hasidic Jewish community previously located
entirely within one senate and one assembly district was divided between
two senate and two assembly districts, and members of that community
sued, alleging that the value of their votes had been diluted solely for
the purpose of achieving a racial quota. The Supreme Court approved the
districting, although the fragmented majority of seven concurred in no
majority opinion.
\131\430 U.S. 144 (1977). Chief Justice Burger dissented, id.,
180, and Justice Marshall did not participate.
---------------------------------------------------------------------------
Justice White, delivering the judgment of the Court, based the
result on alternative grounds. First, because the redistricting took
[[Page 1863]]
place pursuant to the administration of the Voting Rights Act, the
Justice argued that compliance with the Act necessarily required States
to be race conscious in the drawing of lines so as not to dilute
minority voting strength, that this requirement was not dependent upon a
showing of past discrimination, and that the States retained discretion
to determine just what strength minority voters needed in electoral
districts in order to assure their proportional representation.
Moreover, the creation of the certain number of districts in which
minorities were in the majority was reasonable under the
circumstances.\132\
\132\Id. at 155-65. Joining this part of the opinion were
Justices Brennan, Blackmun, and Stevens.
---------------------------------------------------------------------------
Second, Justice White wrote that, irrespective of what the
Voting Rights Act may have required, what the State had done did not
violate either the Fourteenth or the Fifteenth Amendment. This was so
because the plan, even though it used race in a purposeful manner,
represented no racial slur or stigma with respect to whites or any other
race; the plan did not operate to minimize or unfairly cancel out white
voting strength because as a class whites would be represented in the
legislature in accordance with their proportion of the population in the
jurisdiction.\133\
\133\Id. at 165-68. Joining this part of the opinion were
Justices Stevens and Rehnquist. In a separate opinion, Justice Brennan
noted that preferential race policies were subject to several
substantial arguments: (1) they may disguise a policy that perpetuates
disadvantageous treatment; (2) they may serve to stimulate society's
latent race consciousness; (3) they may stigmatize recipient groups as
much as overtly discriminatory practices against them do; (4) they may
be perceived by many as unjust. The presence of the Voting Rights Act
and the Attorney General's supervision made the difference to him in
this case. Id. at 168. Justices Stewart and Powell concurred, agreeing
with Justice White that there was no showing of a purpose on the
legislature's part to discriminate against white voters and that the
effect of the plan was insufficient to invalidate it. Id. at 179.
---------------------------------------------------------------------------
With the Court so divided, light on the constitutionality of
affirmative action was anticipated in Regents of the University of
California v. Bakke,\134\ but again the Court fragmented. The Davis
campus medical school each year admitted 100 students; the school set
aside 16 of those seats for disadvantaged minority students, who were
qualified but not necessarily as qualified as those winning admission to
the other 84 places. Twice denied admission, Bakke sued, arguing that
had not the 16 positions been set aside he could have been admitted. The
state court ordered him admitted and ordered the school not to consider
race in admissions. By two 5-to-4 votes, the Supreme Court affirmed the
order admitting Bakke but set aside the order forbidding the
consideration of race in admissions.
\134\438 U.S. 265 (1978).
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[[Page 1864]]
Four Justices did not reach the constitutional question. In
their view, Title VI of the Civil Rights Act of 1964\135\ outlawed the
college's program and made unnecessary any consideration of the
Constitution. They thus would admit Bakke and bar use of race in
admissions.\136\ The remaining five Justices agreed among themselves
that Title VI, on its face and in light of its legislative history,
proscribed only what the equal protection clause proscribed.\137\ They
thus reached the constitutional issue but resolved it differently. Four
Justices, in an opinion by Justice Brennan, argued that racial
classifications designed to further remedial purposes were not
foreclosed by the Constitution under appropriate circumstances. Even
ostensibly benign racial classifications could be misused and produce
stigmatizing effects; therefore, they must be searchingly scrutinized by
courts to ferret out these instances. But benign racial preferences,
unlike invidious discriminations, need not be subjected to strict
scrutiny; instead, an intermediate scrutiny would do. As applied, then,
this review would enable the Court to strike down any remedial racial
classification that stigmatized any group, that singled out those least
well represented in the political process to bear the brunt of the
program, or that was not justified by an important and articulated
purpose.\138\
\135\78 Stat. 252, 42 U.S.C. Sec. 2000d to 2000d-7. The Act bars
discrimination on the ground of race, color, or national origin by any
recipient of federal financial assistance.
\136\438 U.S. at 408-21 (Justices Stevens, Stewart, and
Rehnquist and Chief Justice Burger).
\137\Id. at 284-87 (Justice Powell), 328-55 (Justices Brennan,
White, Marshall, and Blackmun).
\138\Id. at 355-79 (Justices Brennan, White, Marshall, and
Blackmun). The intermediate standard of review adopted by the four
Justices is that formulated for gender cases. ``Racial classifications
designed to further remedial purposes `must serve important governmental
objectives and must be substantially related to achievement of those
objectives.''' Id. at 359.
---------------------------------------------------------------------------
Justice Powell argued that all racial classifications are
suspect and require strict scrutiny. Since none of the justifications
asserted by the college met this high standard of review, he would have
invalidated the program. But he did perceive justifications for a less
rigid consideration of race as one factor among many in an admissions
program; diversity of student body was an important and protected
interest of an academy and would justify an admissions set of standards
that made affirmative use of race. Ameliorating the effects of past
discrimination would justify the remedial use of race, the Justice
thought, when the entity itself had been found by appropriate authority
to have discriminated, but the college could not inflict harm upon other
groups in order to remedy past societal discrimination.\139\ Justice
Powell thus joined the first group in agree
[[Page 1865]]
ing that Bakke should be admitted, but he joined the second group in
permitting the college to consider race to some degree in its
admissions.\140\
\139\Id. at 287-320.
\140\See id., 319-320 (Justice Powell).
---------------------------------------------------------------------------
Finally, in Fullilove v. Klutznick,\141\ the Court resolved most
of the outstanding constitutional question regarding the validity of
race-conscious affirmative action programs. Although again there was no
majority opinion of the Court, the series of opinions by the six
Justices voting to uphold a congressional provision requiring that at
least ten percent of public works funds be set aside for minority
business enterprises all recognized that alleviation and remediation of
past societal discrimination was a legitimate goal and that race was a
permissible classification to use in remedying the present effects of
past discrimination. Judgment of the Court was issued by Chief Justice
Burger, who emphasized Congress' preeminent role under the Commerce
clause and under the Fourteenth Amendment to find as a fact the
existence of past discrimination and its continuing effects and to
implement remedies which were race conscious in order to cure those
effects.\142\ The principal concurring opinion by Justice Marshall
applied the Brennan analysis in Bakke, utilizing middle-tier scrutiny to
hold that the race conscious set-aside was ``substantially related to
the achievement of the important and congressionally articulated goal of
remedying the present effects of past discrimination.''\143\
\141\448 U.S. 448 (1980). Justice Stewart, joined by Justice
Rehnquist, dissented in one opinion, id. at 522, while Justice Stevens
dissented in another. Id. at 532.
\142\Id. at 456-92. Justices White and Powell joined this
opinion. Justice Powell also concurred in a separate opinion, id. at
495, which qualified to some extent his agreement with the Chief
Justice.
\143\Id. at 517.
---------------------------------------------------------------------------
Taken together, the opinions recognize that at least in Congress
there resides the clear power to make the findings that will form the
basis for a judgment of the necessity to use racial classifications in
an affirmative way; these findings need not be extensive or express and
may be collected in many ways. Whether federal agencies or state
legislatures and state agencies have the same breadth and leeway to make
findings and formulate remedies was left unsettled but that they have
some such power seems evident.\144\ Further, while the opinions
emphasized the limited duration and magnitude of the set-aside program,
they appeared to at
[[Page 1866]]
tach no constitutional significance to these limitations, thus leaving
the way open for programs of a scope sufficient to remedy all the
identified effects of past discrimination.\145\ But the most important
part of these opinions rests in the clear sustaining of race
classifications as permissible in remedies and in the approving of some
forms of racial quotas. Rejected were the arguments that a stigma
attaches to those minority beneficiaries of such programs, that burdens
are placed on innocent third parties, and that the program is
overinclusive, benefitting some minority members who had suffered no
discrimination.\146\
\144\Id. at 473-480. The program was an exercise of Congress'
spending power, but the constitutional objections raised had not been
previously resolved in that context. The plurality therefore turned to
Congress' regulatory powers, which in this case undergirded the spending
power, and found the power to repose in the commerce clause with respect
to private contractors and in Sec. 5 of the Fourteenth Amendment with
respect to state agencies. The Marshall plurality appeared to attach no
significance in this regard to the fact that Congress was the acting
party.
\145\Id. at 484-85, 489 (Chief Justice Burger), 513-15 (Justice
Powell).
\146\Id. at 484-489 (Chief Justice Burger), 514-515 (Justice
Powell), 520-521 (Justice Marshall).
---------------------------------------------------------------------------
The Court remains divided in ruling on constitutional
challenges\147\ to affirmative action plans. As a general matter,
authority to apply racial classifications is at its greatest when
Congress is acting pursuant to section 5 of the Fourteenth Amendment or
other of its powers, or when a court is acting to remedy proven
discrimination. But impact on disadvantaged non-minorities can also be
important. Two recent cases illustrate the latter point. In Wygant v.
Jackson Board of Education,\148\ the Court invalidated a provision of a
collective bargaining agreement giving minority teachers a preferential
protection from layoffs; in United States v. Paradise,\149\ the Court
upheld as a remedy for past discrimination a court-ordered racial quota
in promotions. Justice White, concurring in Wygant, emphasized the
harsh, direct effect of layoffs on affected non-minority employees.\150\
By contrast, a plurality of Justices in Paradise viewed the remedy in
that case as affecting non-minorities less harshly than did the layoffs
in Wygant, since the
[[Page 1867]]
promotion quota would merely delay promotions of those affected, rather
than cause the loss of their jobs.\151\
\147\Guidance on constitutional issues is not necessarily
afforded by cases arising under Title VII of the Civil Rights Act, the
Court having asserted that ``the statutory prohibition with which the
employer must contend was not intended to extend as far as that of the
Constitution,'' and that ``voluntary employer action can play a crucial
role in furthering Title VII's purpose of eliminating the effects of
discrimination in the workplace.'' Johnson v. Transportation Agency, 480
U.S. 616, 628 n.6, 630 (1987) (upholding a local governmental agency's
voluntary affirmative action plan predicated upon underrepresentation of
women rather than upon past discriminatory practices by that agency)
(emphasis original). The constitutionality of the agency's plan was not
challenged. See id. at 620 n.2.
\148\476 U.S. 267 (1986).
\149\480 U.S. 149 (1987).
\150\476 U.S. at 294. A plurality of Justices in Wygant thought
that past societal discrimination alone is insufficient to justify
racial classifications; they would require some convincing evidence of
past discrimination by the governmental unit involved. 476 U.S. at 274-
76 (opinion of Justice Powell, joined by Chief Justice Burger and by
Justices Rehnquist and O'Connor).
\151\480 U.S. at 182-83 (opinion of Justice Brennan, joined by
Justices Marshall, Blackmun, and Powell). A majority of Justices
emphasized that the egregious nature of the past discrimination by the
governmental unit justified the ordered relief. 480 U.S. at 153 (opinion
of Justice Brennan), id. at 189 (Justice Stevens).
---------------------------------------------------------------------------
A clear distinction has been drawn between federal and state
power to apply racial classifications. In City of Richmond v. J.A.
Croson Co.,\152\ the Court invalidated a minority set-aside requirement
that holders of construction contracts with the city subcontract at
least 30% of the dollar amount to minority business enterprises.
Applying strict scrutiny, the Court found Richmond's program to be
deficient because it was not tied to evidence of past discrimination in
the city's construction industry. By contrast, the Court in Metro
Broadcasting, Inc. v. FCC\153\ applied a more lenient standard of review
in upholding two racial preference policies used by the FCC in the award
of radio and television broadcast licenses. The FCC policies, the Court
explained, are ``benign, race-conscious measures'' that are
``substantially related'' to the achievement of an ``important''
governmental objective of broadcast diversity.\154\
\152\488 U.S. 469 (1989). Croson was decided by a 6-3 vote. The
portions of Justice O'Connor's opinion adopted as the opinion of the
Court were joined by Chief Justice Rehnquist and by Justices White,
Stevens, and Kennedy. The latter two Justices joined only part of
Justice O'Connor's opinion; each added a separate concurring opinion.
Justice Scalia concurred separately; Justices Marshall, Brennan, and
Blackmun dissented.
\153\497 U.S. 547 (1990). This was a 5-4 decision, Justice
Brennan's opinion of the Court being joined by Justices White, Marshall,
Blackmun, and Stevens. Justice O'Connor wrote a dissenting opinion
joined by the Chief Justice and by Justices Scalia and Kennedy, and
Justice Kennedy added a separate dissenting opinion joined by Justice
Scalia.
\154\497 U.S. at 564-65.
---------------------------------------------------------------------------
In Croson, the Court ruled that the city had failed to establish
a ``compelling'' interest in the racial quota system because it failed
to identify past discrimination in its construction industry. Mere
recitation of a ``benign'' or remedial purpose will not suffice, the
Court concluded, nor will reliance on the disparity between the number
of contracts awarded to minority firms and the minority population of
the city. ``[W]here special qualifications are necessary, the relevant
statistical pool for purposes of demonstrating exclusion must be the
number of minorities qualified to undertake the particular task.''\155\
The overinclusive definition of minorities, including U.S. citizens who
are ``Blacks, Spanish-speaking, Orientals, Indians, Eskimos, or
Aleuts,'' also ``impugn[ed] the city's claim of remedial motivation,''
there having been ``no evidence'' of any past
[[Page 1868]]
discrimination against non-Blacks in the Richmond construction
industry.\156\
\155\488 U.S. at 501-02.
\156\Id. at 506.
---------------------------------------------------------------------------
It followed that Richmond's set-aside program also was not
``narrowly tailored'' to remedy the effects of past discrimination in
the city: an individualized waiver procedure made the quota approach
unnecessary, and a minority entrepreneur ``from anywhere in the
country'' could obtain an absolute racial preference.\157\
\157\Id. at 508.
---------------------------------------------------------------------------
At issue in Metro Broadcasting were two minority preference
policies of the FCC, one recognizing an ``enhancement'' for minority
ownership and participation in management when the FCC considers
competing license applications, and the other authorizing a ``distress
sale'' transfer of a broadcast license to a minority enterprise. These
racial preferences--unlike the set-asides at issue in Fullilove--
originated as administrative policies rather than statutory mandates.
Because Congress later endorsed these policies, however, the Court was
able to conclude that they bore ``the imprimatur of longstanding
congressional support and direction.''\158\
\158\497 U.S. at 600. Justice O'Connor's dissenting opinion
contended that the case ``does not present `a considered decision of the
Congress and the President.''' Id. at 607 (quoting Fullilove, 448 U.S.
at 473).
---------------------------------------------------------------------------
Metro Broadcasting is noteworthy for several other reasons as
well. The Court rejected the dissent's argument--seemingly accepted by a
Croson majority--that Congress's more extensive authority to adopt
racial classifications must trace to section 5 of the Fourteenth
Amendment, and instead ruled that Congress also may rely on race-
conscious measures in exercise of its commerce and spending powers.\159\
This meant that the governmental interest furthered by a race-conscious
policy need not be remedial, but could be a less focused interest such
as broadcast diversity. Secondly, as noted above, the Court eschewed
strict scrutiny analysis: the governmental interest need only be
``important'' rather than ``compelling,'' and the means adopted need
only be ``substantially related'' rather than ``narrowly tailored'' to
furthering the interest. This means that, for the time being, at least,
federal legislation imposing racial preferences need pass a lower hurdle
than state and local legislation regardless of whether the federal
legislation is an exercise of section 5 power.\160\
\159\497 U.S. at 563 & n.11. For the dissenting views of Justice
O'Connor see id. at 606-07. See also Croson, 488 U.S. at 504 (opinion of
Court).
\160\Because Justice Brennan, who authored the Court's opinion
in Metro Broadcasting, retired at the end of the 1989-90 Term, the
continuing vitality of the opinion bears watching.
[[Page 1869]]
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED:
THE NEW EQUAL PROTECTION
Classifications Meriting Close Scrutiny
Alienage and Nationality.--``It has long been settled . . . that
the term `person' [in the equal protection clause] encompasses lawfully
admitted resident aliens as well as citizens of the United States and
entitles both citizens and aliens to the equal protection of the laws of
the State in which they reside.''\1\ Thus, one of the earliest equal
protection decisions struck down the administration of a facially-lawful
licensing ordinance which was being applied to discriminate against
Chinese.\2\ But the Court in many cases thereafter recognized a
permissible state interest in distinguishing between its citizens and
aliens by restricting enjoyment of resources and public employment to
its own citizens.\3\ But in Hirabayashi v. United States,\4\ it was
announced that ``[d]istinctions between citizens solely because of their
ancestry'' was ``odius to a free people whose institutions are founded
upon the doctrine of equality.'' And in Korematsu v. United States,\5\
classifications based upon race and nationality were said to be suspect
and subject to the ``most rigid scrutiny.'' These dicta resulted in a
1948 decision which appeared
[[Page 1870]]
to call into question the rationale of the ``particular interest''
doctrine under which earlier discriminations had been justified. There
the Court held void a statute barring issuance of commerical fishing
licenses to persons ``ineligible to citizenship,'' which in effect meant
resident alien Japanese.\6\ ``The Fourteenth Amendment and the laws
adopted under its authority thus embody a general policy that all
persons lawfully in this country shall abide `in any state' on an
equality of legal privileges with all citizens under nondiscriminatory
laws.'' Justice Black said for the Court that ``the power of a state to
apply its laws exclusively to its alien inhabitants as a class is
confined within narrow limits.''\7\
\1\Graham v. Richardson, 403 U.S. 365, 371 (1971). See also Yick
Wo v. Hopkins, 118 U.S. 356, 369 (1886); Truax v. Raich, 239 U.S. 33, 39
(1915); Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 420 (1948).
Aliens, even unlawful aliens, are ``persons'' to whom the Fifth and
Fourteenth Amendments apply. Plyler v. Doe, 457 U.S. 202, 210-16 (1982).
The Federal Government may not discriminate invidiously against aliens,
Mathews v. Diaz, 426 U.S. 67, 77 (1976). However, because of the plenary
power delegated by the Constitution to the national government to deal
with aliens and naturalization, federal classifications are judged by
less demanding standards than are those of the States, and many
classifications which would fail if attempted by the States have been
sustained because Congress has made them. Id. at 78-84; Fiallo v. Bell,
430 U.S. 787 (1977). Additionally, state discrimination against aliens
may fail because it imposes burdens not permitted or contemplated by
Congress in its regulations of admission and conditions of admission.
Hines v. Davidowitz, 312 U.S. 52 (1941); Toll v. Moreno, 458 U.S. 1
(1982). Such state discrimination may also violate treaty obligations
and be void under the supremacy clause, Askura v. City of Seattle, 265
U.S. 332 (1924), and some federal civil rights statutes, such as 42
U.S.C. Sec. 1981, protect resident aliens as well as citizens. Graham v.
Richardson, supra, at 376-80.
\2\Yick Wo v. Hopkins, 118 U.S. 356 (1886).
\3\McGready v. Virginia, 94 U.S. 391 (1877); Patsone v.
Pennsylvania, 232 U.S. 138 (1914) (limiting aliens' rights to develop
natural resources); Hauenstein v. Lynham, 100 U.S. 483 (1880); Blythe v.
Hinckley, 180 U.S. 333 (1901) (restriction of devolution of property to
aliens); Terrace v. Thompson, 263 U.S. 197 (1923); Porterfield v. Webb,
263 U.S. 225 (1923); Webb v. O'Brien, 263 U.S. 313 (1923); Frick v.
Webb, 263 U.S. 326 (1923) (denial of right to own and acquire land);
Heim v. McCall, 239 U.S. 175 (1915); People v. Crane, 214 N.Y. 154, 108
N.E. 427, aff'd, 239 U.S. 195 (1915) (barring public employment to
aliens); Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392 (1927)
(prohibiting aliens from operating poolrooms). The Court struck down a
statute restricting the employment of aliens by private employers,
however. Truax v. Raich, 239 U.S. 33 (1915).
\4\320 U.S. 81, 100 (1943).
\5\323 U.S. 214, 216 (1944).
\6\Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948).
\7\Id. at 420. The decision was preceded by Oyama v. California,
332 U.S. 633 (1948), which was also susceptible to being read as
questioning the premise of the earlier cases.
---------------------------------------------------------------------------
Announcing ``that classifications based on alienage . . . are
inherently suspect and subject to close scrutiny,'' the Court struck
down state statutes which either wholly disqualified resident aliens for
welfare assistance or imposed a lengthy durational residency requirement
on eligibility.\8\ Thereafter, in a series of decisions, the Court
adhered to its conclusion that alienage was a suspect classification and
voided a variety of restrictions. More recently, however, it has created
a major ``political function'' exception to strict scrutiny review,
which shows some potential of displacing the previous analysis almost
entirely.
\8\Graham v. Richardson, 403 U.S. 365, 372 (1971).
---------------------------------------------------------------------------
In Sugarman v. Dougall,\9\ the Court voided the total exclusion
of aliens from a State's competitive civil service. A State's power ``to
preserve the basic conception of a political community'' enables it to
prescribe the qualifications of its officers and voters,\10\ the Court
held, and this power would extend ``also to persons holding state
elective or important nonelective executive, legislative, and judicial
positions, for officers who participate directly in the formulation,
execution, or review of broad public policy perform functions that go to
the heart of representative government.''\11\ But a flat ban upon much
of the State's career public service, both of policy-making and non-
policy-making jobs, ran afoul of the requirement that in achieving a
valid interest through the use of a suspect classifica
[[Page 1871]]
tion the State must employ means that are precisely drawn in light of
the valid purpose.\12\
\9\413 U.S. 634 (1973).
\10\Id. at 647-49. See also Foley v. Connelie, 435 U.S. 291, 296
(1978). Aliens can be excluded from voting, Skatfe v. Rorex, 553 P.2d
830 (Colo. 1976), appeal dismissed for lack of substantial federal
question, 430 U.S. 961 (1977), and can be excluded from service on
juries. Perkins v. Smith, 370 F. Supp. 134 (D.Md. 1974) (3-judge court),
aff'd, 426 U.S. 913 (1976).
\11\Sugarman v. Dougall, 413 U.S. 634, 647 (1973). Such state
restrictions are ``not wholly immune from scrutiny under the Equal
Protection Clause.'' Id. at 648.
\12\Justice Rehnquist dissented. Id. at 649. In the course of
the opinion, the Court held inapplicable the doctrine of ``special
public interest,'' the idea that a State's concern with the restriction
of the resources of the State to the advancement and profit of its
citizens is a valid basis for discrimination against out-of-state
citizens and aliens generally, but it did not declare the doctrine
invalid. Id. at 643-45. The ``political function'' exception is
inapplicable to notaries public, who do not perform functions going to
the heart of representative government. Bernal v. Fainter, 467 U.S. 216
(1984).
---------------------------------------------------------------------------
State bars against the admission of aliens to the practice of
law were also struck down, the Court holding that the State had not met
the ``heavy burden'' of showing that its denial of admission to aliens
was necessary to accomplish a constitutionally permissible and
substantial interest. The State's admitted interest in assuring the
requisite qualifications of persons licensed to practice law could be
adequately served by judging applicants on a case-by-case basis and in
no sense could the fact that a lawyer is considered to be an officer of
the court serve as a valid justification for a flat prohibition.\13\ Nor
could Puerto Rico offer a justification for excluding aliens from one of
the ``common occupations of the community,'' hence its bar on licensing
aliens as civil engineers was voided.\14\
\13\In re Griffiths, 413 U.S. 717 (1973). Chief Justice Burger
and Justice Rehnquist dissented. Id. at 730, and 649 (Sugarman dissent
also applicable to Griffiths).
\14\Examining Board v. Flores de Otero, 426 U.S. 572 (1976).
Since the jurisdiction was Puerto Rico, the Court was not sure whether
the requirement should be governed by the Fifth or Fourteenth Amendment
but deemed the question immaterial since the same result would be
achieved. The quoted expression is from Truax v. Raich, 239 U.S. 33, 41
(1915).
---------------------------------------------------------------------------
In Nyquist v. Mauclet,\15\ the Court seemed to expand the
doctrine. Challenged was a statute that restricted the receipt of
scholarships and similar financial support to citizens or to aliens who
were applying for citizenship or who filed a statement affirming their
intent to apply as soon as they became eligible. Therefore, since any
alien could escape the limitation by a voluntary act, the
disqualification was not aimed at aliens as a class, nor was it based on
an immutable characteristic possessed by a ``discrete and insular
minority''--the classification that had been the basis for declaring
alienage a suspect category in the first place. But the Court voided the
statute. ``The important points are that Sec. 661(3) is directed at
aliens and that only aliens are harmed by it. The fact that the statute
is not an absolute bar does not mean that it does not discriminate
against the class.''\16\ Two proffered justifications
[[Page 1872]]
were held insufficient to meet the high burden imposed by the strict
scrutiny doctrine.
\15\432 U.S. 1 (1977).
\16\Id. at 9. Chief Justice Burger and Justices Powell,
Rehnquist, and Stewart dissented. Id. at 12, 15, 17. Justice Rehnquist's
dissent argued that the nature of the disqualification precluded it from
being considered suspect.
---------------------------------------------------------------------------
However, in the following Term, the Court denied that every
exclusion of aliens was subject to strict scrutiny, ``because to do so
would `obliterate all the distinctions between citizens and aliens, and
thus deprecate the historic values of citizenship.'''\17\ Upholding a
state restriction against aliens qualifying as state policemen, the
Court reasoned that the permissible distinction between citizen and
alien is that the former ``is entitled to participate in the processes
of democratic decisionmaking. Accordingly, we have recognized `a State's
historic power to exclude aliens from participation in its democratic
political institutions,' . . . as part of the sovereign's obligation
```to preserve the basic conception of a political community.'''\18\
When a State acts thusly by classifying against aliens, its action is
not subject to strict scrutiny but rather need only meet the rational
basis test. It is therefore permissible to reserve to citizens offices
having the ``most important policy responsibilities,'' a reservation
drawn from Sugarman, but the critical factor in this case is the
analysis finding that the police function is ``one of the basic
functions of government.'' ``The execution of the broad powers vested''
in police officers ``affects members of the public significantly and
often in the most sensitive areas of daily life. . . . Clearly the
exercise of police authority calls for a very high degree of judgment
and discretion, the abuse or misuse of which can have serious impact on
individuals. The office of a policeman is in no sense one of `the common
occupations of the community'. . . .''\19\
\17\Foley v. Connelie, 435 U.S. 291, 295 (1978). The opinion was
by Chief Justice Burger and the quoted phrase was from his dissent in
Nyquist v. Mauclet, 432 U.S. 1, 14 (1977). Justices Marshall, Stevens,
and Brennan dissented. Id. at 302, 307.
\18\Id.at 295-96. Formally following Sugarman v. Dougall, supra,
the opinion considerably enlarged the exception noted in that case; see
also Nyquist v. Mauclet, 432 U.S. 1, 11 (1977) (emphasizing the
``narrowness of the exception''). Concurring in Foley, supra, 300,
Justice Stewart observed that ``it is difficult if not impossible to
reconcile the Court's judgment in this case with the full sweep of the
reasoning and authority of some of our past decisions. It is only
because I have become increasingly doubtful about the validity of those
decisions (in at least some of which I concurred) that I join the
opinion of the Court in this case.'' On the other hand, Justice
Blackmun, who had written several of the past decisions, including
Mauclet, concurred also, finding the case consistent. Id.
\19\Id. at 297-98. In Elrod v. Burns, 427 U.S. 347 (1976),
barring patronage dismissals of police officers, the Court had
nonetheless recognized an exception for policymaking officers which it
did not extend to the police.
---------------------------------------------------------------------------
Continuing to enlarge the exception, the Court in Ambach v.
Norwick\20\ upheld a bar to qualifying as a public school teacher for
[[Page 1873]]
resident aliens who have not manifested an intention to apply for
citizenship. The ``governmental function'' test took on added
significance, the Court saying that the ``distinction between citizens
and aliens, though ordinarily irrelevant to private activity, is
fundamental to the definition and government of a State.''\21\ Thus,
``governmental entities, when exercising the functions of government,
have wider latitude in limiting the participation of noncitizens.''\22\
Teachers, the Court thought, because of the role of public education in
inculcating civic values and in preparing children for participation in
society as citizens and because of the responsibility and discretion
they have in fulfilling that role, perform a task that ``go[es] to the
heart of representative government.''\23\ The citizenship requirement
need only bear a rational relationship to the state interest, and the
Court concluded it clearly did so.
\20\441 U.S. 68 (1979). The opinion, by Justice Powell, was
joined by Chief Justice Burger and Justices Stewart, White, and
Rehnquist. Dissenting were Justices Blackmun, Brennan, Marshall, and
Stevens. The disqualification standard was of course, that held invalid
as a disqualification for receipt of educational assistance in Nyquist
v. Mauclet, 432 U.S. 1 (1977).
\21\Ambach v. Norwick, 441 U.S. 68, 75 (1979).
\22\Id.
\23\Id. at 75-80. The quotation, id. at 76, is from Sugarman v.
Dougall, 413 U.S. 634, 647 (1973).
---------------------------------------------------------------------------
Then, in Cabell v. Chavez-Salido,\24\ the Court sustained a
state law imposing a citizenship requirement upon all positions
designated as ``peace officers,'' upholding in context that eligibility
prerequisite for probation officers. First, the Court held that the
extension of the requirement to an enormous range of people who were
variously classified as ``peace officers'' did not reach so far nor was
it so broad and haphazard as to belie the claim that the State was
attempting to ensure that an important function of government be in the
hands of those having a bond of citizenship. ``[T]he classifications
used need not be precise; there need only be a substantial fit.''\25\ As
to the particular positions, the Court held that ``they, like the state
troopers involved in Foley, sufficiently partake of the sovereign's
power to exercise coercive force over the individual that they may be
limited to citizens.''\26\
\24\454 U.S. 432 (1982). Joining the opinion of the Court were
Justices White, Powell, Rehnquist, O'Connor, and Chief Justice Burger.
Dissenting were Justices Blackmun, Brennan, Marshall, and Stevens. Id.
at 447.
\25\Id. at 442.
\26\Id. at 445.
---------------------------------------------------------------------------
Thus, the Court so far has drawn a tripartite differentiation
with respect to governmental restrictions on aliens. First, it has
disapproved the earlier line of cases and now would foreclose attempts
by the States to retain certain economic benefits, primarily employment
and opportunities for livelihood, exclusively for citizens. Second, when
government exercises principally its spending functions, such as those
with respect to public employment gen
[[Page 1874]]
erally and to eligibility for public benefits, its classifications with
an adverse impact on aliens will be strictly scrutinized and usually
fail. Third, when government acts in its sovereign capacity, when it
acts within its constitutional prerogatives and responsibilities to
establish and operate its own government, its decisions with respect to
the citizenship qualifications of an appropriately designated class of
public office holders will be subject only to traditional rational basis
scrutiny.\27\ However, the ``political function'' standard is elastic,
and so long as disqualifications are attached to specific
occupations\28\ rather than to the civil service in general, as in
Sugarman, the concept seems capable of encompassing the exclusion.
\27\Id. at 438-39
\28\Thus, the statute in Chavez-Salido applied to such positions
as toll-service employees, cemetery sextons, fish and game wardens, and
furniture and bedding inspectors, and yet the overall classification was
deemed not so ill-fitting as to require its voiding.
---------------------------------------------------------------------------
When confronted with a state statute that authorized local
school boards to exclude from public schools alien children who were not
legally admitted to the United States, the Court determined that an
intermediate level of scrutiny was appropriate and found that the
proffered justifications did not sustain the classification.\29\
Inasmuch as it was clear that the undocumented status of the children
was not irrelevant to valid government goals and inasmuch as the Court
had previously held that access to education was not a ``fundamental
interest'' which triggered strict scrutiny of governmental distinctions
relating to education,\30\ the Court's decision to accord intermediate
review was based upon an amalgam of at least three factors. First,
alienage was a characteristic that provokes special judicial protection
when used as a basis for discrimination. Second, the children were
innocent parties who were having a particular onus imposed on them
because of the misconduct of their parents. Third, the total denial of
an education to these chil
[[Page 1875]]
dren would stamp them with an ``enduring disability'' that would harm
both them and the State all their lives.\31\ The Court evaluated each of
the State's attempted justifications and found none of them satisfying
the level of review demanded.\32\ It seems evident that Plyler v. Doe is
a unique case and that whatever it may doctrinally stand for, a
sufficiently similar factual situation calling for application of its
standards is unlikely to be replicated.
\29\Plyler v. Doe, 457 U.S. 432 (1982). Joining the opinion of
the Court were Justices Brennan, Marshall, Blackmun, Powell, and
Stevens. Dissenting were Chief Justice Burger and Justices White,
Rehnquist, and O'Connor. Id. at 242.
\30\In San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973),
while holding that education is not a fundamental interest, the Court
expressly reserved the question whether a total denial of education to a
class of children would infringe upon a fundamental interest. Id.at 18,
25 n.60, 37. The Plyler Court's emphasis upon the total denial of
education and the generally suspect nature of alienage classifications
left ambiguous whether the state discrimination would have been
subjected to strict scrutiny if it had survived intermediate scrutiny.
Justice Powell thought the Court had rejected strict scrutiny, 457 U.S.
at 238 n.2 (concurring), while Justice Blackmun thought it had not
reached the question, id. at 235 n.3 (concurring). Indeed, their
concurring opinions seem directed more toward the disability visited
upon innocent children than the broader complex of factors set out in
the opinion of the Court. Id.at 231, 236.
\31\Id. at 223-24.
\32\Rejected state interests included preserving limited
resources for its lawful residents, deterring an influx of illegal
aliens, avoiding the special burden caused by these children, and
serving children who were more likely to remain in the State and
contribute to its welfare. Id. at 227-30.
---------------------------------------------------------------------------
Sex.--Shortly after ratification of the Fourteenth Amendment,
the refusal of Illinois to license a woman to practice law was
challenged before the Supreme Court, and the Court rejected the
challenge in tones which prevailed well into the twentieth century.
``The civil law, as well as nature itself, has always recognized a wide
difference in the respective spheres and destinies of man and woman. Man
is, or should be, woman's protector and defender. The natural and proper
timidity and delicacy which belongs to the female sex evidently unfits
it for many of the occupations of civil life. The constitution of the
family organization, which is founded in the divine ordinance, as well
as in the nature of things, indicates the domestic sphere as that which
properly belongs to the domain and functions of womanhood.''\33\ On the
same premise, a statute restricting the franchise to men was
sustained.\34\
\33\Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873).
The cases involving alleged discrimination against women contain large
numbers of quaint quotations from unlikely sources. Upholding a law
which imposed a fee upon all persons engaged in the laundry business,
but excepting businesses employing not more than two women, Justice
Holmes said: ``If Montana deems it advisable to put a lighter burden
upon women than upon men with regard to an employment that our people
commonly regard as more appropriate for the former, the Fourteenth
Amendment does not interfere by creating a fictitious equality where
there is a real difference.'' Quong Wing v. Kirkendall, 223 U.S. 59, 63
(1912). And upholding a law prohibiting most women from tending bar,
Justice Frankfurter said: ``The fact that women may now have achieved
the virtues that men have long claimed as their prerogatives and now
indulge in vices that men have long practiced, does not preclude the
States from drawing a sharp line between the sexes, certainly in such
matters as the regulation of the liquor traffic. . . . The Constitution
does not require legislatures to reflect sociological insight, or
shifting social standards, any more than it requires them to keep
abreast of the latest scientific standards.'' Goesaert v. Cleary, 335
U.S. 464, 466 (1948).
\34\Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875)
(privileges and immunities).
---------------------------------------------------------------------------
The greater number of cases have involved legislation aimed to
protect women from oppressive working conditions, as by prescrib
[[Page 1876]]
ing maximum hours\35\ or minimum wages\36\ or by restricting some of the
things women could be required to do.\37\ A 1961 decision upheld a state
law which required jury service of men but which gave women the option
of serving or not. ``We cannot say that it is constitutionally
impermissible for a State acting in pursuit of the general welfare, to
conclude that a woman should be relieved from the civic duty of jury
service unless she herself determines that such service is consistent
with her own special responsibilities.''\38\ Another type of protective
legislation for women that was sustained by the Court is that premised
on protection of morals, as by forbidding the sale of liquor to
women.\39\ In a highly controversial ruling, the Court sustained a state
law which forbade the licensing of any female bartender, except for the
wives or daughters of male owners. The Court purported to view the law
as one for the protection of the health and morals of women generally,
with the exception being justified by the consideration that such women
would be under the eyes of a protective male.\40\
\35\Muller v. Oregon, 208 U.S. 412 (1908); Dominion Hotel v.
Arizona, 249 U.S. 265 (1919).
\36\West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
\37\E.g., Radice v. New York, 264 U.S. 292 (1924) (prohibiting
night work by women in restaurants). A similar restriction set a maximum
weight that women could be required to lift.
\38\Hoyt v. Florida, 368 U.S. 57, 62 (1961).
\39\Cronin v. Adams, 192 U.S. 108 (1904).
\40\Goesaert v. Cleary, 335 U.S. 464 (1948).
---------------------------------------------------------------------------
A wide variety of sex discriminations by governmental and
private parties, including the protective labor legislation previously
sustained, is now subjected to federal statutory proscription, banning,
for instance, sex discrimination in employment and requiring equal pay
for equal work.\41\ Some states have followed suit.\42\
[[Page 1877]]
While the proposed Equal Rights Amendment pended before the States and
ultimately failed of ratification,\43\ the Supreme Court undertook a
major evaluation of sex classification doctrine, first applying a
``heightened'' traditional standard of review (with bite) to void a
discrimination and then, after coming within a vote of making sex a
suspect classification, settling upon an intermediate standard. These
standards continue, with some uncertainties of application and some
tendencies among the Justices both to lessen and to increase the burden
of governmental justification, to provide the analysis for evaluation of
sex classifications.
\41\Thus, title VII of the Civil Rights Act of 1964, 80 Stat.
662, 42 U.S.C. Sec. 2000e et seq., bans discrimination against either
sex in employment. See, e.g., Phillips v. Martin-Marietta Corp., 400
U.S. 542 (1971); Dothard v. Rawlinson, 433 U.S. 321 (1977); Los Angeles
Dep't of Water & Power v. Manhart, 435 U.S. 702 (1978); Arizona
Governing Comm. for Tax Deferred Plans v. Norris, 463 U.S. 1073 (1983)
(actuarially based lower monthly retirement benefits for women employees
violates Title VII); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
(``hostile environment'' sex harassment claim is actionable). Reversing
rulings that pregnancy discrimination is not reached by the statutory
bar on sex discrimination, General Electric Co. v. Gilbert, 429 U.S. 125
(1976); Nashville Gas Co. v. Satty, 434 U.S. 136 (1977), Congress
enacted the Pregnancy Discrimination Act, Pub. L. 95-555 (1978), 92
Stat. 2076, amending 42 U.S.C. Sec. 2000e. The Equal Pay Act, 77 Stat.
56 (1963), amending the Fair Labor Standards Act, 29 U.S.C. Sec. 206(d),
generally applies to wages paid for work requiring ``equal skill,
effort, and responsibility.'' See Corning Glass Works v. Brennan, 417
U.S. 188 (1974). On the controversial issue of ``comparable worth'' and
the interrelationship of title VII and the Equal Pay Act, see County of
Washington v. Gunther, 452 U.S. 161 (1981).
\42\See, e.g., Roberts v. United States Jaycees, 468 U.S. 609
(1984) (state prohibition on gender discrimination in aspects of public
accommodation, as applied to membership in a civic organization, is
justified by compelling state interest).
\43\On the Equal Rights Amendment, see supra, pp. 904-06, 913.
---------------------------------------------------------------------------
In Reed v. Reed,\44\ the Court held invalid a state probate law
which gave males preference over females when both were equally entitled
to administer an estate. Because the statute ``provides that different
treatment be accorded to the applicants on the basis of their sex,''
Chief Justice Burger wrote, ``it thus establishes a classification
subject to scrutiny under the Equal Protection Clause.'' The Court
proceeded to hold that under traditional equal protection standards--
requiring a classification to be reasonable and not arbitrarily related
to a lawful objective--the classification made was an arbitrary way to
achieve the objective the State advanced in defense of the law, that is,
to reduce the area of controversy between otherwise equally qualified
applicants for administration. Thus, the Court used traditional analysis
but the holding seems to go somewhat further to say that not all lawful
interests of a State may be advanced by a classification based solely on
sex.\45\
\44\404 U.S. 71 (1971).
\45\Id.at 75-77. Cf. Eisenstadt v. Baird, 405 U.S. 438, 447 n.7
(1972). A statute similar to that in Reed was before the Court in
Kirchberg v. Feenstra, 450 U.S. 455 (1981) (invalidating statute giving
husband unilateral right to dispose of jointly owned community property
without wife's consent).
---------------------------------------------------------------------------
It is now established that sex classifications, in order to
withstand equal protection scrutiny, ``must serve important governmental
objectives and must be substantially related to achievement of those
objectives.''\46\ Thus, after several years in which sex dis
[[Page 1878]]
tinctions were more often voided than sustained without a clear
statement of the standard of review,\47\ a majority of the Court has
arrived at the intermediate standard which many had thought it was
applying in any event.\48\ The Court first examines the statutory or
administrative scheme to determine if the purpose or objective is
permissible and, if it is, whether it is important. Then, having
ascertained the actual motivation of the classification, the Court
engages in a balancing test to determine how well the classification
serves the end and whether a less discriminatory one would serve that
end without substantial loss to the government.\49\
\46\Craig v. Boren, 429 U.S. 190, 197 (1976); Califano v.
Goldfarb, 430 U.S. 199, 210-11 (1977) (plurality opinion); Califano v.
Webster, 430 U.S. 313, 316-317 (1977); Orr v. Orr, 440 U.S. 268, 279
(1979); Caban v. Mohammed, 441 U.S. 380, 388 (1979); Massachusetts
Personnel Adm'r v. Feeney, 442 U.S. 256, 273 (1979); Califano v.
Westcott, 443 U.S. 76, 85 (1979); Wengler v. Druggists Mutual Ins. Co.,
446 U.S. 142, 150 (1980); Kirchberg v. Feenstra, 450 U.S. 455, 461
(1981); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723-24
(1982). But see Michael M. v. Superior Court, 450 U.S. 464, 468-69
(1981) (plurality opinion); id. at 483 (Justice Blackmun concurring);
Rostker v. Goldberg, 453 U.S. 57, 69-72 (1981). The test is the same
whether women or men are disadvantaged by the classification, Orr v.
Orr, supra, at 279; Caban v. Mohammed, supra, at 394; Mississippi Univ.
for Women v. Hogan, supra at 724, although Justice Rehnquist and Chief
Justice Burger strongly argued that when males are disadvantaged only
the rational basis test is appropriate. Craig v. Boren, supra, 217, 218-
21; Califano v. Goldfarb, supra, at 224. That adoption of a standard has
not eliminated difficulty in deciding such cases should be evident by
perusal of the cases following.
\47\In Frontiero v. Richardson, 411 U.S. 677 (1973), four
Justices were prepared to hold that sex classifications are inherently
suspect and must therefore be subjected to strict scrutiny. Id.at 684-87
(Justices Brennan, Douglas, White, and Marshall). Three Justices,
reaching the same result, thought the statute failed the traditional
test and declined for the moment to consider whether sex was a suspect
classification, finding that inappropriate while the Equal Rights
Amendment was pending. Id. at 691 (Justices Powell and Blackmun and
Chief Justice Burger). Justice Stewart found the statute void under
traditional scrutiny and Justice Rehnquist dissented. Id. at 691. In
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 n.9 (1982),
Justice O'Connor for the Court expressly reserved decision whether a
classification that survived intermediate scrutiny would be subject to
strict scrutiny.
\48\While their concurrences in Craig v. Boren, 429 U.S. 190,
210, 211 (1976), indicate some reticence about express reliance on
intermediate scrutiny, Justices Powell and Stevens have since joined or
written opinions stating the test and applying it. E.g., Caban v.
Mohammed, 441 U.S. 380, 388 (1979) (Justice Powell writing the opinion
of the Court); Parham v. Hughes, 441 U.S. 347, 359 (1979) (Justice
Powell concurring); Califano v. Goldfarb, 430 U.S. 199, 217 (1977)
(Justice Stevens concurring); Caban v. Mohammed, supra, at 401 (Justice
Stevens dissenting). Chief Justice Burger and Justice Rehnquist have not
clearly stated a test, although their deference to legislative judgment
approaches the traditional scrutiny test. But see Califano v. Westcott,
supra, at 93 (joining Court on substantive decision). And cf.
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 734-35 (1982)
(Justice Blackmun dissenting).
\49\The test is thus the same as is applied to illegitimacy
classifications, although with apparently more rigor when sex is
involved.
---------------------------------------------------------------------------
Some sex distinctions were seen to be based solely upon ``old
notions,'' no longer valid if ever they were, about the respective roles
of the sexes in society, and those distinctions failed to survive even
traditional scrutiny. Thus, a state law defining the age of majority as
18 for females and 21 for males, entitling the male child to support by
his divorced father for three years longer than the female child, was
deemed merely irrational, grounded as it was in the assumption of the
male as the breadwinner, needing longer to prepare, and the female as
suited for wife and mother.\50\ Similarly,
[[Page 1879]]
a state jury system that in effect excluded almost all women was deemed
to be based upon an overbroad generalization about the role of women as
a class in society, and the administrative convenience served could not
justify it.\51\
\50\Stanton v. Stanton, 421 U.S. 7 (1975). See also Stanton v.
Stanton, 429 U.S. 501 (1977). Assumptions about the traditional roles of
the sexes afford no basis for support of classifications under the
intermediate scrutiny standard. E.g., Orr v. Orr, 440 U.S. 268, 279-80
(1979); Parham v. Hughes, 441 U.S. 347, 355 (1979); Kirchberg v.
Feenstra, 450 U.S. 455 (1981). Justice Stevens in particular has been
concerned whether legislative classifications by sex simply reflect
traditional ways of thinking or are the result of a reasoned attempt to
reach some neutral goal, e.g., Califano v. Goldfarb, 430 U.S. 199, 222-
23 (1978) (concurring), and he will sustain some otherwise impermissible
distinctions if he finds the legislative reasoning to approximate the
latter approach. Caban v. Mohammed, 441 U.S. 380, 401 (1979)
(dissenting).
\51\Taylor v. Louisiana, 419 U.S. 522 (1975). The precise basis
of the decision was the Sixth Amendment right to a representative cross
section of the community, but the Court dealt with and disapproved the
reasoning in Hoyt v. Florida, 368 U.S. 57 (1961), in which a similar
jury selection process was upheld against due process and equal
protection challenge.
---------------------------------------------------------------------------
Assumptions about the relative positions of the sexes, however,
are not without some basis in fact, and sex may sometimes be a reliable
proxy for the characteristic, such as need, with which it is the
legislature's actual intention to deal. But heightened scrutiny requires
evidence of the existence of the distinguishing fact and its close
correspondence with the condition for which sex stands as proxy. Thus,
in the case which first expressly announced the intermediate scrutiny
standard, the Court struck down a state statute that prohibited the sale
of ``non-intoxicating'' 3.2 beer to males under 21 and to females under
18.\52\ Accepting the argument that traffic safety was an important
governmental objective, the Court emphasized that sex is an often
inaccurate proxy for other, more germane classifications. Taking the
statistics offered by the State as of value, while cautioning that
statistical analysis is a ``dubious'' business that is in tension with
the ``normative philosophy that underlies the Equal Protection Clause,''
the Court thought the correlation between males and females arrested for
drunk driving showed an unduly tenuous fit to allow the use of sex as a
distinction.\53\
\52\Craig v. Boren, 429 U.S. 190 (1976).
\53\Id.at 198, 199-200, 201-04.
---------------------------------------------------------------------------
Invalidating an Alabama law imposing alimony obligations upon
males but not upon females, the Court acknowledged that assisting needy
spouses was a legitimate and important governmental objective and would
then have turned to ascertaining whether sex was a sufficiently accurate
proxy for dependency, so it could be said that the classification was
substantially related to achievement of the objective.\54\ However, the
Court observed that the State already conducted individualized hearings
with respect to the need of the wife, so that with little additional
burden needy males could be identified and helped. The use of the sex
standard
[[Page 1880]]
as a proxy, therefore, was not justified because it needlessly burdened
needy men and advantaged financially secure women whose husbands were in
need.\55\
\54\Orr v. Orr, 440 U.S. 268 (1979).
\55\Id. at 280-83. An administrative convenience justification
was not available, therefore. Id. at 281 & n.12. While such an argument
has been accepted as a sufficient justification in at least some
illegitimacy cases, Mathews v. Lucas, 427 U.S. 495, 509 (1976), it has
neither wholly been ruled out nor accepted in sex cases. In Lucas,
supra, 509-10, the Court interpreted Frontiero v. Richardson, 411 U.S.
677 (1973), as having required a showing at least that for every dollar
lost to a recipient not meeting the general purpose qualification a
dollar is saved in administrative expense. In Wengler v. Druggists
Mutual Ins. Co., 446 U.S. 142, 152 (1980), the Court said that ``[i]t
may be that there are levels of administrative convenience that will
justify discriminations that are subject to heightened scrutiny . . . ,
but the requisite showing has not been made here by the mere claim that
it would be inconvenient to individualize determinations about widows as
well as widowers.'' Justice Stevens apparently would demand a factual
showing of substantial savings. Califano v. Goldfarb, 430 U.S. 199, 219
(1977) (concurring).
---------------------------------------------------------------------------
Discrimination between unwed mothers and unwed fathers received
different treatments through the Court's perception of the
justifications and presumptions underlying each. A New York law
permitted the unwed mother but not the unwed father of an illegitimate
child to block his adoption by withholding consent. Acting in the
instance of one who acknowledged his parenthood and who had maintained a
close relationship with his child over the years, the Court could
discern no substantial relationship between the classification and some
important state interest. Promotion of adoption of illegitimates and
their consequent legitimation was important, but the assumption that all
unwed fathers either stood in a different relationship to their children
than did the unwed mother or that the difficulty of finding the fathers
would unreasonably burden the adoption process was overbroad, as the
facts of the case revealed. No barrier existed to the State dispensing
with consent when the father or his location is unknown, but
disqualification of all unwed fathers may not be used as a shorthand for
that step.\56\ On the other hand, the Court sustained a Georgia statute
which permitted the mother of an illegitimate child to sue for the
wrongful death of the child but which allowed the father to sue only if
he had legitimated the child and there is no mother.\57\ There was no
opinion of the Court, but both opinions making up the result emphasized
that the objective of the State, the avoidance of dif
[[Page 1881]]
ficulties in proving paternity, was an important one which was advanced
by the classification.\58\
\56\Caban v. Mohammed, 441 U.S. 380 (1979). Four Justices
dissented. Id. at 394 (Justice Stewart), 401 (Justices Stevens and
Rehnquist and Chief Justice Burger). For the conceptually different
problem of classification between different groups of women on the basis
of marriage or absence of marriage to a wage earner, see Califano v.
Boles, 443 U.S. 282 (1979).
\57\Parham v. Hughes, 441 U.S. 347 (1979). Justices White,
Brennan, Marshall, and Blackmun, who had been in the majority in Caban,
dissented. Id. at 361.
\58\The plurality opinion determined that the statute did not
invidiously discriminate against men as a class; it was no overbroad
generalization but proceeded from the fact that only men could
legitimate children by unilateral action. The sexes were not similarly
situated, therefore, and the classification recognized that. As a
result, all that was required was that the means be a rational way of
dealing with the problem of proving paternity. Id. at 353-58. Justice
Powell found the statute valid because the sex-based classification was
substantially related to the objective of avoiding problems of proof in
proving paternity. He also emphasized that the father had it within his
power to remove the bar by legitimating the child. Id. at 359.
---------------------------------------------------------------------------
As in the instance of illegitimacy classifications, the issue of
sex qualifications for the receipt of governmental financial benefits
has divided the Court and occasioned close distinctions. A statutory
scheme under which a serviceman could claim his spouse as a
``dependent'' for allowances while a servicewoman's spouse was not
considered a ``dependent'' unless he was shown in fact to be dependent
upon her for more than one half of his support was held an invalid
dissimilar treatment of similarly situated men and women, not justified
by the administrative convenience rationale.\59\ In Weinberger v.
Wiesenfeld,\60\ the Court struck down a Social Security provision that
gave survivor's benefits based on the insured's earnings to the widow
and minor children but gave such benefits only to the children and not
to the widower of a deceased woman worker. Focusing not only upon the
discrimination against the widower but primarily upon the discrimination
visited upon the woman worker whose earnings did not provide the same
support for her family that a male worker's did, the Court saw the basis
for the distinction resting upon the generalization that a woman would
stay home and take care of the children while a man would not. Since the
Court perceived the purpose of the provision to be to enable the
surviving parent to choose to remain at home to care for minor children,
the sex classification ill fitted the end and was invidiously
discriminatory.
\59\Frontiero v. Richardson, 411 U.S. 677 (1973).
\60\420 U.S. 636 (1975).
---------------------------------------------------------------------------
But when in Califano v. Goldfarb\61\ the Court was confronted
with a Social Security provision structured much as the benefit sections
struck down in Frontiero and Wiesenfeld, even in the light of an express
heightened scrutiny, no majority of the Court could be
[[Page 1882]]
obtained for the reason for striking down the statute. The section
provided that a widow was entitled to receive survivors' benefits based
on the earnings of her deceased husband, regardless of dependency, but
payments were to go to the widower of a deceased wife only upon proof
that he had been receiving at least half of his support from her. The
plurality opinion treated the discrimination as consisting of disparate
treatment of women wage-earners whose tax payments did not earn the same
family protection as male wage earners' taxes. Looking to the purpose of
the benefits provision, the plurality perceived it to be protection of
the familial unit rather than of the individual widow or widower and to
be keyed to dependency rather than need. The sex classification was thus
found to be based on an assumption of female dependency which ill-served
the purpose of the statute and was an ill-chosen proxy for the
underlying qualification. Administrative convenience could not justify
use of such a questionable proxy.\62\ Justice Stevens, concurring,
accepted most of the analysis of the dissent but nonetheless came to the
conclusion of invalidity. His argument was essentially that while either
administrative convenience or a desire to remedy discrimination against
female spouses could justify use of a sex classification, neither
purpose was served by the sex classification actually used in this
statute.\63\
\61\430 U.S. 199 (1977). The dissent argued that whatever the
classification utilized, social insurance programs should not
automatically be subjected to heightened scrutiny but rather only to
traditional rationality review. Id. at 224 (Justice Rehnquist with Chief
Justice Burger and Justices Stewart and Blackmun). In Wengler v.
Druggists Mutual Ins. Co., 446 U.S. 142 (1980), voiding a state workers'
compensation provision identical to that voided in Goldfarb, only
Justice Rehnquist continued to adhere to this view, although the others
may have yielded only to precedent.
\62\Id. at 430 U.S. 204-09, 212-17 (Justices Brennan, White,
Marshall, and Powell). Congress responded by eliminating the dependency
requirement but by adding a pension offset provision reducing spousal
benefits by the amount of various other pensions received. Continuation
in this context of the Goldfarb gender-based dependency classification
for a five-year ``grace period'' was upheld in Heckler v. Mathews, 465
U.S. 728 (1984), as directly and substantially related to the important
governmental interest in protecting against the effects of the pension
offset the retirement plans of individuals who had based their plans on
unreduced pre-Goldfarb payment levels.
\63\Id. at 217. Justice Stevens adhered to this view in Wengler
v. Druggists Mutual Ins. Co., 446 U.S. 142, 154 (1980). Note the
unanimity of the Court on the substantive issue, although it was divided
on remedy, in voiding in Califano v. Westcott, 443 U.S. 76 (1979), a
Social Security provision giving benefits to families with dependent
children who have been deprived of parental support because of the
unemployment of the father but giving no benefits when the mother is
unemployed.
---------------------------------------------------------------------------
Again, the Court divided closely when it sustained two instances
of classifications claimed to constitute sex discrimination. In Rostker
v. Goldberg,\64\ rejecting presidential recommendations, Congress
provided for registration only of males for a possible future military
draft, excluding women altogether. The Court discussed but did not
explicitly choose among proffered equal protection standards, but it
apparently applied the intermediate test of Craig v. Boren. However, it
did so in the context of its often-stated
[[Page 1883]]
preference for extreme deference to military decisions and to
congressional resolution of military decisions. Evaluating the
congressional determination, the Court found that it has not been
``unthinking'' or ``reflexively'' based upon traditional notions of the
differences between men and women; rather, Congress had extensively
deliberated over its decision. It had found, the Court asserted, that
the purpose of registration was the creation of a pool from which to
draw combat troops when needed, an important and indeed compelling
governmental interest, and the exclusion of women was not only
``sufficiently but closely'' related to that purpose because they were
ill-suited for combat, could be excluded from combat, and registering
them would be too burdensome to the military system.\65\
\64\453 U.S. 57 (1981). Joining the opinion of the Court were
Justices Rehnquist, Stewart, Blackmun, Powell, and Stevens, and Chief
Justice Burger. Dissenting were Justices White, Marshall, and Brennan.
Id. at 83, 86.
\65\Id. at 69-72, 78-83. The dissent argued that registered
persons would fill noncombat positions as well as combat ones and that
drafting women would add to women volunteers providing support for
combat personnel and would free up men in other positions for combat
duty. Both dissents assumed without deciding that exclusion of women
from combat served important governmental interests. Id. at 83, 93. The
majority's reliance on an administrative convenience argument, it should
be noted, id., 81, was contrary to recent precedent. Supra, p. 1880
n.55.
---------------------------------------------------------------------------
In Michael M. v. Superior Court,\66\ the Court did expressly
adopt the Craig v. Boren intermediate standard, but its application of
the test appeared to represent a departure in several respects from
prior cases in which it had struck down sex classifications. Michael M.
involved the constitutionality of a statute that punished males, but not
females, for having sexual intercourse with a nonspousal person under 18
years of age. The plurality and the concurrence generally agreed, but
with some difference of emphasis, that while the law was founded on a
clear sex distinction it was justified because it did serve an important
governmental interest, the prevention of teenage pregnancies. Inasmuch
as women may become pregnant and men may not, women would be better
deterred by that biological fact, and men needed the additional legal
deterrence of a criminal penalty. Thus, the law recognized that for
purposes of this classification men and women were not similarly
situated, and the statute did not deny equal protection.\67\
\66\450 U.S. 464 (1981). Joining the opinion of the Court were
Justices Rehnquist, Stewart, and Powell, and Chief Justice Burger,
constituting only a plurality. Justice Blackmun concurred in a somewhat
more limited opinion. Id. at 481. Dissenting were Justices Brennan,
White, Marshall, and Stevens. Id. at 488, 496.
\67\Id. at 470-74, 481. The dissents questioned both whether the
pregnancy deterrence rationale was the purpose underlying the
distinction and whether, if it was, the classification was substantially
related to achievement of the goal. Id. at 488, 496.
---------------------------------------------------------------------------
Cases of ``benign'' discrimination, that is, statutory
classifications that benefit women and disadvantage men in order to
overcome the effects of past societal discrimination against women,
[[Page 1884]]
have presented the Court with some difficulty. Although the first two
cases were reviewed under apparently traditional rational basis
scrutiny, the more recent cases appear to subject these classifications
to the same intermediate standard as any other sex classification. Kahn
v. Shevin\68\ upheld a state property tax exemption allowing widows but
not widowers a $500 exemption. In justification, the State had presented
extensive statistical data showing the substantial economic and
employment disabilities of women in relation to men. The provision, the
Court found, was ``reasonably designed to further the state policy of
cushioning the financial impact of spousal loss upon the sex for whom
that loss imposes a disproportionately heavy burden.''\69\ And in
Schlesinger v. Ballard,\70\ the Court sustained a provision requiring
the mandatory discharge from the Navy of a male officer who has twice
failed of promotion to certain levels, which in Ballard's case meant
discharge after nine years of service, whereas women officers were
entitled to 13 years of service before mandatory discharge for want of
promotion. The difference was held to be a rational recognition of the
fact that male and female officers were dissimilarly situated and that
women had far fewer promotional opportunities than men had.
\68\416 U.S. 351 (1974).
\69\Id. at 355.
\70\419 U.S. 498 (1975).
---------------------------------------------------------------------------
Although in each of these cases the Court accepted the proffered
justification of remedial purpose without searching inquiry, later cases
caution that ``the mere recitation of a benign, compensatory purpose is
not an automatic shield which protects against any inquiry into the
actual purposes underlying a statutory scheme.''\71\ Rather, after
specifically citing the heightened scrutiny that all sex classifications
are subjected to, the Court looks to the statute and to its legislative
history to ascertain that the scheme does not actually penalize women,
that it was actually enacted to compensate for past discrimination, and
that it does not reflect merely ``archaic and overbroad
generalizations'' about women in its moving force. But where a statute
is ``deliberately enacted to compensate for particular economic
disabilities suffered by women,'' it
[[Page 1885]]
serves an important governmental objective and will be sustained if it
is substantially related to achievement of that objective.\72\
\71\Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1975); Califano
v. Goldfarb, 430 U.S. 199, 209 n.8 (1977); Orr v. Orr, 440 U.S. 268,
280-82 (1979); Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150-
52 (1980). In light of the stiffened standard, Justice Stevens has
called for overruling Kahn, Califano v. Goldfarb, supra, 223-24, but
Justice Blackmun would preserve that case. Orr v. Orr, supra, at 284.
Cf. Regents of the Univ. of California v. Bakke, 438 U.S. 265, 302-03
(1978) (Justice Powell; less stringent standard of review for benign sex
classifications).
\72\Califano v. Webster, 430 U.S. 313, 316-18, 320 (1977). There
was no doubt that the provision sustained in Webster had been adopted
expressly to relieve past societal discrimination. The four Goldfarb
dissenters concurred specially, finding no difference between the two
provisions. Id. at 321.
---------------------------------------------------------------------------
Many of these lines of cases converged in Mississippi University
for Women v. Hogan,\73\ in which the Court stiffened and applied its
standards for evaluating claimed benign distinctions benefiting women
and additionally appeared to apply the intermediate standard itself more
strictly. The case involved a male nurse who wished to attend a female-
only nursing school located in the city in which he lived and worked; if
he could not attend this particular school he would have had to commute
147 miles to another nursing school which did accept men, and he would
have had difficulty doing so and retaining his job. The State defended
on the basis that the female-only policy was justified as providing
``educational affirmative action for females.'' Recitation of a benign
purpose, the Court said, was not alone sufficient. ``[A] State can evoke
a compensatory purpose to justify an otherwise discriminatory
classification only if members of the gender benefited by the
classification actually suffer a disadvantage related to the
classification.''\74\ But women did not lack opportunities to obtain
training in nursing; instead they dominated the field. In the Court's
view, the state policy did not compensate for discriminatory barriers
facing women, but it perpetuated the stereotype of nursing as a woman's
job. ``[A]lthough the State recited a `benign, compensatory purpose,' it
failed to establish that the alleged objective is the actual purpose
underlying the discriminatory classification.''\75\ Even if the
classification was premised on the proffered basis, the Court concluded,
it did not substantially and directly relate to the objective, because
the school permitted men to audit the nursing classes and women could
still be adversely affected by the presence of men.\76\
\73\458 U.S. 718 (1982). Joining the opinion of the Court were
Justices O'Connor, Brennan, White, Marshall, and Stevens. Dissenting
were Chief Justice Burger and Justices Blackmun, Powell, and Rehnquist.
Id. at 733, 735.
\74\Id. at 728.
\75\Id. at 730. In addition to obligating the State to show that
in fact there was existing discrimination or effects from past
discrimination, the Court also appeared to take the substantial step of
requiring the State ``to establish that the legislature intended the
single-sex policy to compensate for any perceived discrimination.'' Id.
at 730 n.16. A requirement that the proffered purpose be the actual one
and that it must be shown that the legislature actually had that purpose
in mind would be a notable stiffening of equal protection standards.
\76\In the major dissent, Justice Powell argued that only a
rational basis standard ought to be applied to sex classifications that
would ``expand women's choices,'' but that the exclusion here satisfied
intermediate review because it promoted diversity of educational
opportunity and was premised on the belief that single-sex colleges
offer ``distinctive benefits'' to society. Id. at 735, 740 (emphasis by
Justice), 743. The Court noted that because the State maintained no
other single-sex public university or college, the case did not present
``the question of whether States can provide `separate but equal'
undergraduate institutions for males and females,'' id. at 720 n.1,
although Justice Powell thought the decision did preclude such
institutions. Id. at 742-44. See Vorchheimer v. School Dist. of
Philadelphia, 532 F. 2d 880 (3d Cir. 1976) (finding no equal protection
violation in maintenance of two single-sex high schools of equal
educational offerings, one for males, one for females), aff'd by an
equally divided Court, 430 U.S. 703 (1977) (Justice Rehnquist not
participating).
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[[Page 1886]]
Another area presenting some difficulty is that of the
relationship of pregnancy classifications to gender discrimination. In
Cleveland Board of Education v. LaFluer,\77\ a case decided upon due
process grounds, two school systems requiring pregnant school teachers
to leave work four and five months respectively before the expected
childbirths were found to have acted arbitrarily and irrationally in
establishing rules not supported by anything more weighty than
administrative convenience buttressed with some possible embarrassment
of the school boards in the face of pregnancy. On the other hand, the
exclusion of pregnancy from a state financed program of payments to
persons disabled from employment was upheld against equal protection
attack as supportable by legitimate state interests in the maintenance
of a self-sustaining program with rates low enough to permit the
participation of low-income workers at affordable levels.\78\ The
absence of supportable reasons in one case and their presence in the
other may well have made the significant difference.
\77\414 U.S. 632 (1974). Justice Powell concurred on equal
protection grounds. Id. at 651. See also Turner v. Department of
Employment Security, 423 U.S. 44 (1975).
\78\Geduldig v. Aiello, 417 U.S. 484 (1974). The Court denied
that the classification was based upon ``gender as such.''
Classification was on the basis of pregnancy, and while only women can
become pregnant, that fact alone was not determinative. ``The program
divides potential recipients into two groups--pregnant woman and
nonpregnant persons. While the first group is exclusively female, the
second includes members of both sexes.'' Id. at 496 n.20. For a
rejection of a similar attempted distinction, see Nyquist v. Mauclet,
432 U.S. 1, 9 (1977); and Trimble v. Gordon, 430 U.S. 762, 774 (1977).
See also Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971). For the
transmutation of Geduldig into statutory interpretation and Congress'
response, see supra, p. 1876 n.41.
---------------------------------------------------------------------------
Illegitimacy.--After wrestling in a number of cases with the
question of the permissibility of governmental classifications
disadvantaging illegitimates and the standard for determining which
classifications are sustainable, the Court arrived at a standard
difficult to state and even more difficult to apply.\79\ Although
[[Page 1887]]
``illegitimacy is analogous in many respects to the personal
characteristics that have been held to be suspect when used as the basis
of statutory differentiations,'' the analogy is ``not sufficient to
require `our most exacting scrutiny.''' The scrutiny to which it is
entitled is intermediate, ``not a toothless [scrutiny],'' but somewhere
between that accorded race and that accorded ordinary economic
classifications. Basically, the standard requires a determination of a
legitimate legislative aim and a careful review of how well the
classification serves, or ``fits,'' the aim.\80\ The common rationale of
all the illegitimacy cases is not clear, is in many respects not wholly
consistent,\81\ but the theme that seems to be imposed on them by the
more recent cases is that so long as the challenged statute does not so
structure its conferral of rights, benefits, or detriments that some
illegitimates who would otherwise qualify in terms of the statute's
legitimate purposes are disabled from participation, the imposition of
greater burdens upon illegitimates or some classes of illegitimates than
upon legitimates is permissible.\82\
\79\The first cases set the stage for the lack of consistency.
Compare Levy v. Louisiana, 391 U.S. 68 (1968), and Glona v. American
Guar. & Liab. Ins. Co., 391 U.S. 73 (1968), invalidating laws which
precluded wrongful death actions in cases involving the child or the
mother when the child was illegitimate, in which scrutiny was strict,
with Labine v. Vincent, 401 U.S. 532 (1971), involving intestate
succession, in which scrutiny was rational basis, and Weber v. Aetna
Casualty & Surety Co., 406 U.S. 164 (1972), involving a workmen's
compensation statute distinguishing between legitimates and
illegitimates, in which scrutiny was intermediate.
\80\Mathews v. Lucas, 427 U.S. 495, 503-06 (1976); Trimble v.
Gordon, 430 U.S. 762, 766-67 (1977); Lalli v. Lalli, 439 U.S. 259, 265
(1978). Scrutiny in previous cases had ranged from negligible, Labine v.
Vincent, 401 U.S. 532 (1971), to something approaching strictness,
Jiminez v. Weinberger, 417 U.S. 628, 631-632 (1974). Mathews itself
illustrates the uncertainty of statement, suggesting at one point that
the Labine standard may be appropriate, supra, at 506, and at another
that the standard appropriate to sex classifications is to be used, id.
at 510, while observing a few pages earlier that illegitimacy is
entitled to less exacting scrutiny than either race or sex. Id. at 506.
Trimble settles on intermediate scrutiny but does not assess the
relationship between its standard and the sex classification standard.
See Parham v. Hughes, 441 U.S. 347 (1979), and Caban v. Mohammed, 441
U.S. 380 (1979) (both cases involving classifications reflecting both
sex and illegitimacy interests).
\81\The major inconsistency arises from three 5-to-4 decisions.
Labine v. Vincent, 401 U.S. 532 (1971), was largely overruled by Trimble
v. Gordon, 430 U.S. 762 (1977), which itself was substantially limited
by Lalli v. Lalli, 439 U.S. 259 (1978). Justice Powell was the swing
vote for different disposition of the latter two cases. Thus, while four
Justices argued for stricter scrutiny and usually invalidation of such
classifications, Lalli v. Lalli, supra, at 277 (Justices Brennan, White,
Marshall, and Stevens dissenting), and four favor relaxed scrutiny and
usually sustaining the classifications, Trimble v. Gordon, supra, 776,
777 (Chief Justice Burger and Justices Stewart, Blackmun, and Rehnquist
dissenting), Justice Powell applied his own intermediate scrutiny and
selectively voided and sustained. See Lalli v. Lalli, supra, (plurality
opinion by Justice Powell).
\82\A classification that absolutely distinguishes between
legitimates and illegitimates is not alone subject to such review; one
that distinguishes among classes of illegitimates is also subject to it,
Trimble v. Gordon, 430 U.S. 762, 774 (1977), as indeed are
classifications based on other factors. E.g., Nyquist v. Mauclet, 432
U.S. 1, 9 (1977) (alienage).
---------------------------------------------------------------------------
Intestate succession rights for illegitimates has divided the
Court over the entire period. At first adverting to the broad power of
the States over descent of real property, the Court employed re
[[Page 1888]]
laxed scrutiny to sustain a law denying illegitimates the right to share
equally with legitimates in the estate of their common father, who had
acknowledged the illegitimates but who had died intestate.\83\ Labine
was strongly disapproved, however, and virtually overruled in Trimble v.
Gordon,\84\ which found an equal protection violation in a statute
allowing illegitimate children to inherit by intestate succession from
their mothers but from their fathers only if the father had
``acknowledged'' the child and the child had been legitimated by the
marriage of the parents. The father in Trimble had not acknowledged his
child, and had not married the mother, but a court had determined that
he was in fact the father and had ordered that he pay child support.
Carefully assessing the purposes asserted to be the basis of the
statutory scheme, the Court found all but one to be impermissible or
inapplicable and that one not served closely enough by the restriction.
First, it was impermissible to attempt to influence the conduct of
adults not to engage in illicit sexual activities by visiting the
consequences upon the offspring.\85\ Second, the assertion that the
statute mirrored the assumed intent of decedents, in that, knowing of
the statute's operation, they would have acted to counteract it through
a will or otherwise, was rejected as unproved and unlikely.\86\ Third,
the argument that the law presented no insurmountable barrier to
illegitimates inheriting since a decedent could have left a will,
married the mother, or taken steps to legitimate the child, was rejected
as inapposite.\87\ Fourth, the statute did address a substantial
problem, a permissible state interest, presented by the difficulties of
proving pater
[[Page 1889]]
nity and avoiding spurious claims. However, the court thought the means
adopted, total exclusion, did not approach the ``fit'' necessary between
means and ends to survive the scrutiny appropriate to this
classification. The state court was criticized for failing ``to consider
the possibility of a middle ground between the extremes of complete
exclusion and case-by-case determination of paternity. For at least some
significant categories of illegitimate children of intestate men,
inheritance rights can be recognized without jeopardizing the orderly
settlement of estates or the dependability of titles to property passing
under intestacy laws.''\88\ Because the state law did not follow a
reasonable middle ground, it was invalidated.
\83\Labine v. Vincent, 401 U.S. 532 (1971). Weber v. Aetna
Casualty & Surety Co., 406 U.S. 164, 170 (1972), had confined the
analysis of Labine to the area of state inheritance laws in expanding
review of illegitimacy classifications.
\84\430 U.S. 762 (1977). Chief Justice Burger and Justices
Stewart, Blackmun, and Rehnquist dissented, finding the statute
``constitutionally indistinguishable'' from the one sustained in Labine.
Id. at 776. Justice Rehnquist also dissented separately. Id. at 777.
\85\Id. at 768-70. While this purpose had been alluded to in
Labine v. Vincent, 401 U.S. 532, 538 (1971), it was rejected as a
justification in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164,
173, 175 (1972). Visiting consequences upon the parent appears to be
permissible. Parham v. Hughes, 441 U.S. 347, 352-53 (1979).
\86\Trimble v. Gordon, 430 U.S. 762, 774-76 (1977). The Court
cited the failure of the state court to rely on this purpose and its own
examination of the statute.
\87\Id. at 773-74. This justification had been prominent in
Labine v. Vincent, 401 U.S. 532, 539 (1971), and its absence had been
deemed critical in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164,
170-71 (1972). The Trimble Court thought this approach ``somewhat of an
analytical anomaly'' and disapproved it. However, the degree to which
one could conform to the statute's requirements and the reasonableness
of those requirements in relation to a legitimate purpose are prominent
in Justice Powell's reasoning in subsequent cases. Lalli v. Lalli, 439
U.S. 259, 266-74 (1978); Parham v. Hughes, 441 U.S. 347, 359 (1979)
(concurring). See also Nyquist v. Mauclet, 432 U.S. 1 (1977) (alienage);
Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723 n.8 (1982)
(sex); and compare id. at 736 (Justice Powell dissenting).
\88\Trimble v. Gordon, 430 U.S. 762, 770-73 (1977). The result
is in effect a balancing one, the means-ends relationship must be a
substantial one in terms of the advantages of the classification as
compared to the harms of the classification means. Justice Rehnquist's
dissent is especially critical of this approach. Id. at 777, 781-86.
Also not interfering with orderly administration of estates is
application of Trimble in a probate proceeding ongoing at the time
Trimble was decided; the fact that the death had occurred prior to
Trimble was irrelevant. Reed v. Campbell, 476 U.S. 852 (1986).
---------------------------------------------------------------------------
A reasonable middle ground was discerned, at least by Justice
Powell, in Lalli v. Lalli,\89\ concerning a statute which permitted
legitimate children to inherit automatically from both their parents,
while illegitmates could inherit automatically only from their mothers,
and could inherit from their intestate fathers only if a court of
competent jurisdiction had, during the father's lifetime, entered an
order declaring paternity. The child tendered evidence of paternity,
including a notarized document in which the putative father, in
consenting to his marriage, referred to him as ``my son'' and several
affidavits by persons who stated that the elder Lalli had openly and
frequently acknowledged that the younger Lalli was his child. In the
prevailing view, the single requirement of entry of a court order during
the father's lifetime declaring the child as his met the ``middle
ground'' requirement of Trimble; it was addressed closely and precisely
to the substantial state interest of seeing to the orderly disposition
of property at death by establishing proof of paternity of illegitimate
children and avoiding spurious claims against intestate estates. To be
sure, some illegitimates who were unquestionably established as children
of the decreased would be disqualified because of failure of compliance,
but individual fairness is not the test. The test rather is whether the
requirement is closely enough related to the interests served to meet
the standard
[[Page 1890]]
of rationality imposed. Also, no doubt the State's interest could have
been served by permitting other kinds of proof, but that too is not the
test of the statute's validity. Hence, the balancing necessitated by the
Court's promulgation of standards in such cases caused it to come to
different results on closely related fact patterns, making
predictability quite difficult but perhaps manageable.\90\
\89\439 U.S. 259 (1978). The four Trimble dissenters joined
Justice Powell in the result, although only two joined his opinion.
Justices Blackmun and Rehnquist concurred because they thought Trimble
wrongly decided and ripe for overruling. Id. at 276. The four
dissenters, who had joined the Trimble majority with Justice Powell,
thought the two cases were indistinguishable. Id. at 277.
\90\Illustrating the difficulty are two cases in which the
fathers of illegitimate children challenged statutes treating them
differently than mothers of such children were treated. In Parham v.
Hughes, 441 U.S. 347 (1979), the majority viewed the distinction as a
gender-based one rather than as an illegitimacy classification and
sustained a bar to a wrongful death action by the father of an
illegitimate child who had not legitimated him; in Caban v. Mohammed,
441 U.S. 380 (1980), again viewing the distinction as a gender-based
one, the majority voided a state law permitting the mother but not the
father of an illegitimate child to block his adoption by refusing to
consent. Both decisions were 5-to-4.
---------------------------------------------------------------------------
The Court's difficulty in arriving at predictable results has
extended outside the area of descent of property. Thus, a Texas child
support law affording legitimate children a right to judicial action to
obtain support from their fathers while not affording the right to
illegitimate children denied the latter equal protection. ``A State may
not invidiously discriminate against illegitimate children by denying
them substantial benefits accorded children generally. We therefore hold
that once a State posits a judicially enforceable right on behalf of
children to needed support from their natural fathers there is no
constitutionally sufficient justification for denying such an essential
right to a child simply because its natural father has not married its
mother.''\91\
\91\Gomez v. Perez, 409 U.S. 535, 538 (1978) (emphasis
supplied). Following the decision, Texas authorized illegitimate
children to obtain support from their fathers. But the legislature
required as a first step that paternity must be judicially determined,
and imposed a limitations period within which suit must be brought of
one year from birth of the child. If suit is not brought within that
period the child could never obtain support at any age from his father.
No limitation was imposed on the opportunity of a natural child to seek
support, up to age 18. In Mills v. Habluetzel, 456 U.S. 91 (1982), the
Court invalidated the one-year limitation. While a State has an interest
in avoiding stale or fraudulent claims, the limit must not be so brief
as to deny such children a reasonable opportunity to show paternity.
Similarly, a 2-year statute of limitations on paternity and support
actions was held to deny equal protection to illegitimates in Pickett v.
Brown, 462 U.S. 1 (1983), and a 6-year limit was struck down in Clark v.
Jeter, 486 U.S. 456 (1988). In both cases the Court pointed to the fact
that increasingly sophisticated genetic tests are minimizing the
``lurking problems with respect to proof of paternity'' referred to in
Gomez, 409 U.S. at 538. Also, the state's interest in imposing the 2-
year limit was undercut by exceptions (e.g., for illegitimates receiving
public assistance), and by different treatment for minors generally;
similarly, the importance of imposing a 6-year limit was belied by that
state's more recent enactment of a non-retroactive 18-year limit for
paternity and support actions.
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Similarly, a federal Social Security provision was held invalid
which made eligible for benefits, because of an insured parent's dis
[[Page 1891]]
ability, all legitimate children as well as those illegitimate children
capable of inheriting personal property under state intestacy law and
those children who were illegitimate only because of a nonobvious defect
in their parents' marriage, regardless of whether they were born after
the onset of the disability, but which made all other illegitimate
children eligible only if they were born prior to the onset of
disability and if they were dependent upon the parent prior to the onset
of disability. The Court deemed the purpose of the benefits to be to aid
all children and rejected the argument that the burden on illigitimates
was necessary to avoid fraud.\92\
\92\Jiminez v. Weinberger, 417 U.S. 628 (1974). But cf. Califano
v. Boles, 443 U.S. 282 (1979). See also New Jersey Welfare Rights Org.
v. Cahill, 411 U.S. 619 (1973) (limiting welfare assistance to
households in which parents are ceremonially married and the children
are legitimate or adopted denied illegitimate children equal
protection); Richardson v. Davis, 409 U.S. 1069 (1972), aff'g 342 F.
Supp. 588 (D. Conn.) (3-judge court), and Richardson v. Griffin, 409
U.S. 1069 (1972), aff'g 346 F. Supp. 1226 (D. Md.) (3-judge court)
(Social Security provision entitling illegitimate children to monthly
benefit payments only to extent that payments to widow and legitimate
children do not exhaust benefits allowed by law denies illegitimates
equal protection).
---------------------------------------------------------------------------
However, in a second case, an almost identical program,
providing benefits to children of a deceased insured, was sustained
because its purpose was found to be to give benefits to children who
were dependent upon the deceased parent and the classifications served
that purpose. Presumed dependent were all legitimate children as well as
those illegitimate children who were able to inherit under state
intestacy laws, who were illegitimate only because of the technical
invalidity of the parent's marriage, who had been acknowledged in
writing by the father, who had been declared to be the father's by a
court decision, or who had been held entitled to the father's support by
a court. Illegitimate children not covered by these presumptions had to
establish that they were living with the insured parent or were being
supported by him when the parent died. According to the Court, all the
presumptions constituted an administrative convenience which was a
permissible device because those illegitimate children who were entitled
to benefits because they were in fact dependent would receive benefits
upon proof of the fact and it was irrelevant that other children not
dependent in fact also received benefits.\93\
\93\Mathews v. Lucas, 427 U.S. 495 (1976). It can be seen that
the only difference between Jiminez and Lucas is that in the former the
Court viewed the benefits as owing to all children and not just to
dependents, while in the latter the benefits were viewed as owing only
to dependents and not to all children. But it is not clear that in
either case the purpose determined to underlie the provision of benefits
was compelled by either statutory language or legislative history. For a
particularly good illustration of the difference such a determination of
purpose can make and the way the majority and dissent in a 5-to-4
decision read the purpose differently, see Califano v. Boles, 443 U.S.
282 (1979).
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[[Page 1892]]
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
THE NEW EQUAL PROTECTION
Fundamental Interests: The Political Process
``The States have long been held to have broad powers to
determine the conditions under which the right of suffrage may be
exercised. . . , absent of course the discrimination which the
Constitution condemns.''\94\ The Constitution provides that the
qualifications of electors in congressional elections are to be
determined by reference to the qualifications prescribed in the States
for the electors of the most numerous branch of the legislature, and the
States are authorized to determine the manner in which presidential
electors are selected.\95\ The second section of the Fourteenth
Amendment provides for a proportionate reduction in a State's
representation in the House when it denies the franchise to its
qualified male citizens\96\ and specific discriminations on the basis of
race, sex, and age are addressed in other Amendments. ``We do not
suggest that any standards which a State desires to adopt may be
required of voters. But there is wide scope for exercise of its
jurisdiction. Residence requirements, age, previous criminal record
. . . are obvious examples indicating factors which a State may take
into consideration in determining the qualification of voters. The
ability to read and write likewise has some relation to standards
designed to promote intelligent use of the ballot.''\97\
\94\Lassiter v. Northampton County Bd. of Elections, 360 U.S.
45, 50-51 (1959).
\95\Article I, Sec. 2, cl. 1 (House of Representatives);
Seventeenth Amendment (Senators); Article II, Sec. 1, cl. 2
(presidential electors). See Article I, Sec. 4, cl. 1 and discussion
supra, pp. 118-21.
\96\Fourteenth Amendment, Sec. 2. Justice Harlan argued that the
inclusion of this provision impliedly permitted the States to
discriminate with only the prescribed penalty in consequence and that
therefore the equal protection clause was wholly inapplicable to state
election laws. Reynolds v. Sims, 377 U.S. 533, 589 (1964) (dissenting);
Carrington v. Rash, 380 U.S. 89, 97 (1965) (dissenting); Oregon v.
Mitchell, 400 U.S. 112, 152 (1970) (concurring and dissenting). Justice
Brennan undertook a rebuttal of this position in Oregon v. Mitchell,
supra at 229, 250 (concurring and dissenting). But see Richardson v.
Ramirez, 418 U.S. 24 (1974), where Sec. 2 was relevant in precluding an
equal protection challenge.
\97\Lassiter v. Northampton County Bd. of Elections, 360 U.S.
45, 51 (1959).
---------------------------------------------------------------------------
The perspective of this 1959 opinion by Justice Douglas has now
been revolutionized. ``Undoubtedly, the right of suffrage is a
fundamental matter in a free and democratic society. Especially since
the right to exercise the franchise in a free and unimpaired manner is
preservative of other basic civil and political rights, any alleged
infringement of the rights of citizens to vote must be carefully and
meticulously scrutinized.''\98\ ``Any unjustified discrimination in
determining who may participate in political affairs or in the selection
of public officials undermines the legitimacy of representative
government. . . . Statutes granting the franchise to residents on a
selective basis always pose the danger of denying
[[Page 1893]]
some citizens any effective voice in the governmental affairs which
substantially affect their lives. Therefore, if a challenged state
statute grants the right to vote to some bona fide residents of
requisite age and citizenship and denies the franchise to others, the
Court must determine whether the exclusions are necessary to promote a
compelling state interest.
\98\Reynolds v. Sims, 377 U.S. 533, 561-62 (1964).
---------------------------------------------------------------------------
``And, for these reasons, the deference usually given to the
judgment of legislators does not extend to decisions concerning which
resident citizens may participate in the election of legislators and
other public officials. . . . [W]hen we are reviewing statutes which
deny some residents the right to vote, the general presumption of
constitutionality afforded state statutes and the traditional approval
given state classifications if the Court can conceive of a `rational
basis' for the distinctions made are not applicable.''\99\ Using this
analytical approach, the Court has established a regime of close review
of a vast range of state restrictions on the eligibility to vote, on
access to the ballot by candidates and parties, and on the weighing of
votes cast through the devices of apportionment and districting. Changes
in Court membership over the years has led to some relaxation in the
application of principles, but even as the Court has drawn back in other
areas it has tended to preserve, both doctrinally and in fact, the
election cases.\100\
\99\Kramer v. Union Free School Dist., 395 U.S. 621, 626-28
(1969). See also Hill v. Stone, 421 U.S. 289, 297 (1975). But cf. Holt
Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978).
\100\Thus, in San Antonio School Dist. v. Rodriguez, 411 U.S. 1,
34-35 nn.74 & 78 (1973), a major doctrinal effort to curb the
``fundamental interest'' side of the ``new'' equal protection, the Court
acknowledged that the right to vote did not come within its prescription
that rights to be deemed fundamental must be explicitly or implicitly
guaranteed in the Constitution. Nontheless, citizens have a
``constitutionally protected right to participate in elections'' which
is protected by the equal protection clause. Dunn v. Blumstein, 405 U.S.
330, 336 (1972). The franchise is the guardian of all other rights.
Reynolds v. Sims, 377 U.S. 533, 562 (1964).
---------------------------------------------------------------------------
Voter Qualifications.--A State may require residency as a
qualification to vote but since durational residency requirements
impermissibly restrict the right to vote and penalize the assertion of
the constitutional right to travel they are invalid.\101\ The Court
indicated that the States have a justified interest in preventing fraud
and in facilitating determination of the eligibility of potential
[[Page 1894]]
registrants and granted that durational residency requirements furthered
these interests, but, it said, the State had not shown that the
requirements were ``necessary,'' that is that the interests could not be
furthered by means which imposed a lesser burden on the right to vote.
Other asserted interests--knowledgeability of voters, common interests,
intelligent voting--were said either not to be served by the
requirements or to be impermissible interests.
\101\Dunn v. Blumstein, 405 U.S. 330 (1972). Justice Blackmun
concurred specially, id. at 360, Chief Justice Burger dissented, id. at
363, and Justices Powell and Rehnquist did not participate. The voided
statute imposed a requirement of one year in the State and three months
in the county. The Court did not indicate what duration less than ninety
days would be permissible, although it should be noted that in the
Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U.S.C.
Sec. 1973aa-1, Congress prescribed a thirty-day period for purposes of
voting in presidential elections. Note also that it does not matter
whether one travels interstate or intrastate. Hadnott v. Amos, 320 F.
Supp. 107 (M.D. Ala. 1970), aff'd, 405 U.S. 1035 (1972).
---------------------------------------------------------------------------
A 50-day durational residency requirement was sustained in the
context of the closing of the registration process at 50 days prior to
elections and of the mechanics of the State's registration process. The
period, the Court found, was necessary to achieve the State's legitimate
goals.\102\
\102\Marston v. Lewis, 410 U.S. 679 (1973). Registration was by
volunteer workers who made statistically significant errors requiring
corrections by county recorders before certification. Primary elections
were held in the fall, thus occupying the time of the recorders, so that
a backlog of registrations had to be processed before the election. A
period of 50 days rather than 30, the Court thought, was justifiable.
However, the same period was upheld for another State on the authority
of Marston in the absence of such justification, but it appeared that
plaintiffs had not controverted the State's justifying evidence. Burns
v. Fortson, 410 U.S. 686 (1973). Justices Brennan, Douglas, and Marshall
dissented in both cases. Id. at 682, 688.
---------------------------------------------------------------------------
A State that exercised general criminal, taxing, and other
jurisdiction over persons on certain federal enclaves within the State,
the Court held, could not treat these persons as nonresidents for voting
purposes.\103\ A statute which provided that anyone who entered military
service outside the State could not establish voting residence in the
State so long as he remained in the military was held to deny to such a
person the opportunity such as all non-military persons enjoyed of
showing that he had established residence.\104\ Restricting the suffrage
to those persons who had paid a poll tax was an invidious discrimination
because it introduced a ``capricious or irrelevant factor'' of wealth or
ability to pay into an area in which it had no place.\105\ Extending
this ruling, the Court held that the eligibility to vote in local school
elections may not be limited to persons owning property in the district
or who have children in school,\106\ and denied States the right to
restrict the vote
[[Page 1895]]
to property owners in elections on the issuance of revenue bonds\107\ or
general obligation bonds.\108\
\103\Evans v. Cornman, 398 U.S. 419 (1970).
\104\Carrington v. Rash, 380 U.S. 89 (1965).
\105\Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966).
Justices Black, Harlan, and Stewart dissented. Id. at 670, 680. Poll tax
qualifications had previously been upheld in Breedlove v. Suttles, 302
U.S. 277 (1937); and Butler v. Thompson, 341 U.S. 937 (1951).
\106\Kramer v. Union Free School Dist., 395 U.S. 621 (1969). The
Court assumed without deciding that the franchise in some circumstances
could be limited to those ``primarily interested'' or ``primarily
affected'' by the outcome, but found that the restriction permitted some
persons with no interest to vote and disqualified others with an
interest. Justices Stewart, Black, and Harlan dissented. Id. at 594.
\107\Cipriano v. City of Houma, 395 U.S. 701 (1969). Justices
Black, Harlan, and Stewart concurred specially. Id. at 707.
\108\City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970).
Justice Stewart and Chief Justice Burger dissented. Id. at 215. In Hill
v. Stone, 421 U.S. 289 (1975), the Court struck down a limitation on the
right to vote on a general obligation bond issue to persons who have
``rendered'' or listed real, mixed, or personal property for taxation in
the election district. It was not a ``special interest'' election since
a general obligation bond issue is a matter of general interest.
---------------------------------------------------------------------------
However, the Court held that because the activities of a water
storage district fell so disproportionately on landowners as a group, a
limitation of the franchise in elections for the district's board of
directors to landowners, whether resident or not and whether natural
persons or not, excluding non-landowning residents and lessees of land,
and weighing the votes granted according to assessed valuation of land,
comported with equal protection standards.\109\ Adverting to the
reservation in prior local governmental unit election cases\110\ that
some functions of such units might be so specialized as to permit
deviation from the usual rules, the Court then proceeded to assess the
franchise restrictions according to the traditional standards of equal
protection rather than by those of strict scrutiny.\111\ Also narrowly
approached was the issue of the effect of the District's activities, the
Court focusing upon the assessments against landowners as the sole means
of paying expenses rather than additionally noting the impact upon
lessees and non-landowning residents of such functions as flood control.
The approach taken in this case seems different in great degree from
that in prior cases and could in the future alter the results in other
local government cases. These cases were extended somewhat in Ball v.
James,\112\ in which the Court sustained a system in which voting
eligibility was limited to landowners and votes were allocated to these
voters on the basis of the number of acres they owned. The entity was a
water reclamation district which stores and delivers water to 236,000
acres of land in the State and subsidizes its water operations by
selling electricity to hundreds of thousands of consumers in a nearby
metropolitan area. The entity's
[[Page 1896]]
board of directors was elected through a system in which the eligibility
to vote was as described above. The Court thought the entity was a
specialized and limited form to which its general franchise rulings did
not apply.\113\
\109\Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 719
(1973). See also Associated Enterprises v. Toltec Watershed Improv.
Dist., 410 U.S. 743 (1973) (limitation of franchise to property owners
in the creation and maintenance of district upheld). Justices Douglas,
Brennan, and Marshall dissented in both cases. Id. at 735, 745.
\110\410 U.S. at 727-28.
\111\Id. at 730, 732. Thus, the Court posited reasons that might
have moved the legislature to adopt the exclusions.
\112\451 U.S. 355 (1981). Joining the opinion of the Court were
Justices Stewart, Powell, Rehnquist, Stevens, and Chief Justice Burger.
Dissenting were Justices White, Brennan, Marshall, and Blackmun. Id. at
374.
\113\The water district cases were distinguished in Quinn v.
Millsap, 491 U.S. 95, 109 (1989), the Court holding that a ``board of
freeholders'' appointed to recommend a reorganization of local
government had a mandate ``far more encompassing'' than land use issues,
since its recommendations ``affect[] all citizens . . . regardless of
land ownership.''
---------------------------------------------------------------------------
Finding that prevention of ``raiding''--the practice whereby
voters in sympathy with one party vote in another's primary election in
order to distort that election's results--is a legitimate and valid
state goal, as one element in the preservation of the integrity of the
electoral process, the Court sustained a state law requiring those
voters eligible at that time to register to enroll in the party of their
choice at least 30 days before the general election in order to be
eligible to vote in the party's next primary election, 8 to 11 months
hence. The law did not impose a prohibition upon voting but merely
imposed a time deadline for enrollment, the Court held, and it was
because of the plaintiffs' voluntary failure to register that they did
not meet the deadline.\114\ But a law which prohibited a person from
voting in the primary election of a political party if he has voted in
the primary election of any other party within the preceding 23 months
was subjected to strict scrutiny and was voided, inasmuch as it
constituted a severe restriction upon a voter's right to associate with
the party of his choice by requiring him to forgo participation in at
least one primary election in order to change parties.\115\ A less
restrictive ``closed primary'' system was also invalidated, the Court
finding insufficient justification for a state's preventing a political
party from allowing independents to vote in its primary.\116\
\114\Rosario v. Rockefeller, 410 U.S. 752 (1973). Justices
Powell, Douglas, Brennan, and Marshall dissented. Id. at 763.
\115\Kusper v. Pontikes, 414 U.S. 51 (1973). Justices Blackmun
and Rehnquist dissented. Id. at 61, 65.
\116\Tashjian v. Republican Party of Connecticut, 479 U.S. 208
(1986). Although independents were allowed to register in a party on the
day before a primary, the state's justifications for ``protect[ing] the
integrity of the Party against the Party itself'' were deemed
insubstantial. Id. at 224.
---------------------------------------------------------------------------
It must not be forgotten, however, that it is only when a State
extends the franchise to some and denies it to others that a ``right to
vote'' arises and is protected by the equal protection clause. If a
State chooses to fill an office by means other than through an election,
neither the equal protection clause nor any other constitutional
provision prevents it from doing so. Thus, in Rodriguez v.
[[Page 1897]]
Popular Democratic Party,\117\ the Court unanimously sustained a Puerto
Rico statute which authorized the political party to which an incumbent
legislator belonged to designate his successor in office until the next
general election upon his death or resignation. Neither the fact that
the seat was filled by appointment nor the fact that the appointment was
by the party, rather than by the Governor or some other official, raised
a constitutional question.
\117\457 U.S. 1 (1982). See also Fortson v. Morris, 385 U.S. 231
(1966) (legislature could select Governor from two candidates having
highest number of votes cast when no candidate received majority);
Sailors v. Board of Elections, 387 U.S. 105 (1967) (appointment rather
than election of county school board); Valenti v. Rockefeller, 292 F.
Supp. 851 (S.D.N.Y. 1968) (three-judge court), aff'd, 393 U.S. 405
(1969) (gubernatorial appointment to fill United States Senate vacancy).
---------------------------------------------------------------------------
The right of unconvicted jail inmates and convicted
misdemeanants (who typically are under no disability) to vote by
absentee ballot remains unsettled. In an early case applying rational
basis scrutiny, the Court held that the failure of a State to provide
for absentee balloting by unconvicted jail inmates, when absentee
ballots were available to other classes of voters, did not deny equal
protection when it was not shown that the inmates could not vote in any
other way.\118\ Subsequently, the Court held unconstitutional a statute
denying absentee registration and voting rights to persons confined
awaiting trial or serving misdemeanor sentences, but it is unclear
whether the basis was the fact that persons confined in jails outside
the county of their residences could register and vote absentee while
those confined in the counties of their residences could not, or whether
the statute's jumbled distinctions among categories of qualified voters
on no rational standard made it wholly arbitrary.\119\
\118\McDonald v. Board of Election Comm'rs, 394 U.S. 802 (1969).
But see Goosby v. Osser, 409 U.S. 512 (1973) (McDonald does not preclude
challenge to absolute prohibition on voting).
\119\O'Brien v. Skinner, 414 U.S. 524 (1974). See American Party
of Texas v. White, 415 U.S. 767, 794-95 (1974).
---------------------------------------------------------------------------
Access to the Ballot.--The equal protection clause applies to
state specification of qualifications for elective and appointive
office. While one may ``have no right'' to be elected or appointed to an
office, all persons ``do have a federal constitutional right to be
considered for public service without the burden of invidiously
discriminatory disqualification. The State may not deny to some the
privilege of holding public office that it extends to others on the
basis of distinctions that violate federal constitutional guaran
[[Page 1898]]
tees.''\120\ In Bullock v. Carter,\121\ the Court utilized a somewhat
modified form of the strict test in passing upon a filing fee system for
primary election candidates which imposed the cost of the election
wholly on the candidates and which made no alternative provision for
candidates unable to pay the fees; the reason for application of the
standard, however, was that the fee system deprived some classes of
voters of the opportunity to vote for certain candidates and it worked
its classifications along lines of wealth. The system itself was voided
because it was not reasonably connected with the State's interest in
regulating the ballot and did not serve that interest and because the
cost of the election could be met out of the state treasury, thus
avoiding the discrimination.\122\
\120\Turner v. Fouche, 396 U.S. 346, 362-63 (1970) (voiding a
property qualification for appointment to local school board). See also
Chappelle v. Greater Baton Rouge Airport Dist., 431 U.S. 159 (1977)
(voiding a qualification for appointment as airport commissioner of
ownership of real or personal property that is assessed for taxes in the
jurisdiction in which airport is located); Quinn v. Millsap, 491 U.S. 95
(1989) (voiding property ownership requirement for appointment to board
authorized to propose reorganization of local government). Cf. Snowden
v. Hughes, 321 U.S. 1 (1944).
\121\405 U.S. 134, 142-44 (1972).
\122\Id. at 144-49.
---------------------------------------------------------------------------
Recognizing the state interest in maintaining a ballot of
reasonable length in order to promote rational voter choice, the Court
observed nonetheless that filing fees alone do not test the genuineness
of a candidacy or the extent of voter support for an aspirant.
Therefore, effectuation of the legitimate state interest must be
achieved by means that do not unfairly or unnecessarily burden the
party's or the candidate's ``important interest in the continued
availability of political opportunity. The interests involved are not
merely those of parties or individual candidates; the voters can assert
their preferences only through candidates or parties or both and it is
this broad interest that must be weighed in the balance.'' ``[T]he
process of qualifying candidates for a place on the ballot may not
constitutionally be measured solely in dollars.''\123\ In the absence of
reasonable alternative means of ballot access, the Court held, a State
may not disqualify an indigent candidate unable to pay filing fees.\124\
\123\Lubin v. Panish, 415 U.S. 709, 716 (1974).
\124\Concurring, Justices Blackmun and Rehnquist suggested that
a reasonable alternative would be to permit indigents to seek write-in
votes without paying a filing fee, id. at 722, but the Court indicated
this would be inadequate. Id. at 719 n.5.
---------------------------------------------------------------------------
In Clements v. Fashing,\125\ the Court sustained two provisions
of state law, one that barred certain officeholders from seeking
[[Page 1899]]
election to the legislature during the term of office for which they had
been elected or appointed, but that did not reach other officeholders
whose terms of office expired with the legislators' terms and did not
bar legislators from seeking other offices during their terms, and the
other that automatically terminated the terms of certain officeholders
who announced for election to other offices, but that did not apply to
other officeholders who could run for another office while continuing to
serve. The Court was splintered in such a way, however, that it is not
possible to derive a principle from the decision applicable to other
fact situations.
\125\457 U.S. 957 (1982). A plurality of four contended that
save in two circumstances--ballot access classifications based on wealth
and ballot access classifications imposing burdens on new or small
political parties or independent candidates--limitations on candidate
access to the ballot merit only traditional rational basis scrutiny,
because candidacy is not a fundamental right. The plurality found both
classifications met the standard. Id. at 962-73 (Justices Rehnquist,
Powell, O'Connor, and Chief Justice Burger). Justice Stevens concurred,
rejecting the plurality's standard, but finding that inasmuch as the
disparate treatment was based solely on the State's classification of
the different offices involved, and not on the characteristics of the
persons who occupy them or seek them, the action did not violate the
equal protection clause. Id. at 973. The dissent primarily focused on
the First Amendment but asserted that the classifications failed even a
rational basis test. Id. at 976 (Justices Brennan, White, Marshall, and
Blackmun).
---------------------------------------------------------------------------
In Williams v. Rhodes,\126\ a complex statutory structure which
had the effect of keeping off the ballot all but the candidates of the
two major parties was struck down under the strict test because it
deprived the voters of the opportunity of voting for independent and
third-party candidates and because it seriously impeded the exercise of
the right to associate for political purposes. Similarly, a requirement
that an independent candidate for office in order to obtain a ballot
position must obtain 25,000 signatures, including 200 signatures from
each of at least 50 of the State's 102 counties, was held to
discriminate against the political rights of the inhabitants of the most
populous counties, when it was shown that 93.4% of the registered voters
lived in the 49 most populous counties.\127\ But to provide that the
candidates of any political organization obtaining 20% or more of the
vote in the last gubernatorial or presidential election may obtain a
ballot position simply by winning the party's primary election while
requiring candidates of other parties or independent candidates to
obtain the signatures of less than five percent of those eligible to
vote at the last election for the office sought is not to discriminate
unlawfully, inasmuch as
[[Page 1900]]
the State placed no barriers of any sort in the way of obtaining
signatures and since write-in votes were also freely permitted.\128\
\126\393 U.S. 23 (1968). ``[T]he totality of the Ohio
restrictive laws taken as a whole imposes a burden on voting and
associational rights which we hold is an invidious discrimination, in
violation of the Equal Protection Clause.'' Id. at 34. Justices Douglas
and Harlan would have relied solely on the First Amendment, id. at 35,
41, while Justices Stewart and White and Chief Justice Warren dissented.
Id. at 48, 61, 63.
\127\Moore v. Ogilvie, 394 U.S. 814 (1969) (overruling
MacDougall v. Green, 335 U.S. 281 (1948)).
\128\Jenness v. Fortson, 403 U.S. 431 (1971).
---------------------------------------------------------------------------
Reviewing under the strict test the requirements for
qualification of new parties and independent candidates for ballot
positions, the Court recognized as valid objectives and compelling
interests the protection of the integrity of the nominating and electing
process, the promotion of party stability, and the assurance of a
modicum of order in regulating the size of the ballot by requiring a
showing of some degree of support for independents and new parties
before they can get on the ballot.\129\ ``[T]o comply with the First and
Fourteenth Amendments the State must provide a feasible opportunity for
new political organizations and their candidates to appear on the
ballot.''\130\ Decision whether or not a state statutory structure
affords a feasible opportunity is a matter of degree, ``very much a
matter of `consider[ing] the facts and circumstances behind the law, the
interest which the State claims to be protecting, and the interest of
those who are disadvantaged by the classification.'''\131\
\129\Storer v. Brown, 415 U.S. 724 (1974); American Party of
Texas v. White, 415 U.S. 767 (1974); Illinois State Bd. of Elections v.
Socialist Workers Party, 440 U.S. 173 (1979). And see Indiana Communist
Party v. Whitcomb, 414 U.S. 441 (1974) (impermissible to condition
ballot access upon a political party's willingness to subscribe to oath
that party ``does not advocate the overthrow of local, state or national
government by force or violence,'' opinion of Court based on First
Amendment, four Justices concurring on equal protection grounds).
\130\Storer v. Brown, 415 U.S. 724, 746 (1974).
\131\Id. at 730 (quoting Williams v. Rhodes, 393 U.S. 23, 30
(1968)).
---------------------------------------------------------------------------
Thus, in order to assure that parties seeking ballot space
command a significant, measurable quantum of community support, Texas
was upheld in treating different parties in ways rationally constructed
to achieve this objective. Candidates of parties whose gubernatorial
choice polled more than 200,000 votes in the last general election had
to be nominated by primary elections and went on the ballot
automatically, because the prior vote adequately demonstrated support.
Candidates whose parties polled less than 200,000 but more than 2
percent could be nominated in primary elections or in conventions.
Candidates of parties not coming within either of the first two
categories had to be nominated in conventions and could obtain ballot
space only if the notarized list of participants at the conventions
totalled at least one percent of the total votes cast for governor in
the last preceding general election or, failing this, if in the 55
succeeding days a requisite number of qualified voters signed petitions
to bring the total up to one percent of the gubernatorial vote. [W]hat
is demanded may not be so exessive or impractical as to be in reality a
mere device to always,
[[Page 1901]]
or almost always, exclude parties with significant support from the
ballot,'' but the Court thought that one percent, or 22,000 signatures
in 1972, ``falls within the outer boundaries of support the State may
require.''\132\ Similarly, independent candidates can be required to
obtain a certain number of signatures as a condition to obtain ballot
space.\133\ A State may validly require that each voter participate only
once in each year's nominating process and it may therefore disqualify
any person who votes in a primary election from signing nominating or
supporting petitions for independent parties or candidates.\134\ Equally
valid is a state requirement that a candidate for elective office, as an
independent or in a regular party, must not have been affiliated with a
political party, or with one other than the one of which he seeks its
nomination, within one year prior to the primary election at which
nominations for the general election are made.\135\ So too, a state may
limit access to the general election ballot to candidates who received
at least 1% of the primary votes cast for the particular office.\136\
But it is impermissible to print the names of the candidates of the two
major parties only on the absentee ballots, leaving off independents and
other parties.\137\ Also invalidated was a requirement that independent
candidates for President and Vice-President file nominating petitions by
March 20 in order to qualify for the November ballot.\138\
\132\American Party of Texas v. White, 415 U.S. 767, 783 (1974).
In Storer v. Brown, 415 U.S. 724, 738-40 (1974), the Court remanded so
that the district court could determine whether the burden imposed on an
independent party was too severe, it being required in 24 days in 1972
to gather 325,000 signatures from a pool of qualified voters who had not
voted in that year's partisan primary elections. See also Illinois State
Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979)
(voiding provision that required a larger number of signatures to get on
ballot in subdivisions than statewide).
\133\American Party of Texas v. White, 415 U.S. 767, 788-91
(1974). The percentages varied with the office but no more than 500
signatures were needed in any event.
\134\Id. at 785-87.
\135\Storer v. Brown, 415 U.S. 724, 728-37 (1974). Dissenting,
Justices Brennan, Douglas and Marshall thought the state interest could
be adequately served by a shorter time period than a year before the
primary election, which meant in effect 17 months before the general
election. Id. at 755.
\136\Munro v. Socialist Workers Party, 479 U.S. 189 (1986).
\137\American Party of Texas v. White, 415 U.S. 767, 794-95
(1974). Upheld, however, was state financing of the primary election
expenses that excluded convention expenses of the small parties. Id. at
791-94. But the major parties had to hold conventions simultaneously
with the primary elections the cost of which they had to bear. For
consideration of similar contentions in the context of federal financing
of presidential elections, see Buckley v. Valeo, 424 U.S. 1, 93-97
(1976).
\138\Anderson v. Celebrezze, 460 U.S. 780 (1983). State
interests in assuring voter education, treating all candidates equally
(candidates participating in a party primary also had to declare
candidacy in March), and preserving political stability, were deemed
insufficient to justify the substantial impediment to independent
candidates and their supporters.
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[[Page 1902]]
Apportionment and Districting.--Prior to 1962, attacks in
federal courts on the drawing of boundaries for congressional and
legislative election districts or the apportionment of seats to
previously existing units ran afoul of the ``political question''
doctrine.\139\ But Baker v. Carr\140\ reinterpreted the doctrine in
considerable degree and opened the federal courts to voter complaints
founded on unequally populated voting districts. Wesberry v.
Sanders\141\ found in Article I, Sec. 2, of the Constitution a command
that in the election of Members of the House of Representatives
districts were to be made up of substantially equal numbers of persons.
In six decisions handed down on June 15, 1964, the Court required the
alteration of the election districts for practically all the legislative
bodies in the United States.\142\
\139\Supra, pp. 687-98. Applicability of the doctrine to cases
of this nature was left unresolved in Smiley v. Holm, 285 U.S. 355
(1932), and Wood v. Broom, 287 U.S. 1 (1932), was supported by only a
plurality in Colegrove v. Green, 328 U.S. 549 (1946), but became the
position of the Court in subsequent cases. Cook v. Fortson, 329 U.S. 675
(1946); Colegrove v. Barrett, 330 U.S. 804 (1947); MacDougall v. Green,
335 U.S. 281 (1948); South v. Peters, 339 U.S. 276 (1950); Hartsfield v.
Sloan, 357 U.S. 916 (1958).
\140\369 U.S. 186 (1962).
\141\376 U.S. 1 (1964). Supra, pp. 106-08. Striking down a
county unit system of electing a governor, the Court, in an opinion by
Justice Douglas, had already coined a variant phrase of the more popular
``one man, one vote.'' ``The conception of political equality from the
Declaration of Independence to Lincoln's Gettysburg Address, to the
Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one
thing--one person, one vote.'' Gray v. Sanders, 372 U.S. 368, 381
(1963).
\142\Reynolds v. Sims, 377 U.S. 533 (1964); WMCA, Inc. v.
Lomenzo, 377 U.S. 633 (1964); Maryland Comm. for Fair Representation v.
Tawes, 377 U.S. 656 (1964); Donis v. Mann, 377 U.S. 678 (1964); Roman v.
Sincock, 377 U.S. 695 (1964); Lucas v. Forty-Fourth General Assembly of
Colorado, 377 U.S. 713 (1964). In the last case, the Court held that
approval of the apportionment plan in a vote of the people was
insufficient to preserve it from constitutional attack. ``An
individual's constitutionally protected right to cast an equally weighed
vote cannot be denied even by a vote of a majority of a State's
electorate, if the apportionment scheme adopted by the voters fails to
measure up to the requirements of the Equal Protection Clause.'' Id. at
736. Justice Harlan dissented wholly, denying that the equal protection
clause had any application at all to apportionment and districting and
contending that the decisions were actually the result of a
``reformist'' nonjudicial attitude on the part of the Court. 377 U.S. at
589. Justices Stewart and Clark dissented in two and concurred in four
cases on the basis of their view that the equal protection clause was
satisfied by a plan that was rational and that did not systematically
frustrate the majority will. 377 U.S., 741, 744.
---------------------------------------------------------------------------
``We hold that, as a basic constitutional standard, the Equal
Protection Clause requires that the seats in both houses of a bicameral
state legislature must be apportioned on a population basis. Simply
stated, an individual's right to vote for state legislators is
unconstitutionally impaired when its weight is in a substantial fashion
diluted when compared with the votes of citizens living in other parts
of the State.''\143\ What was required was that each
[[Page 1903]]
State ``make an honest and good faith effort to construct districts, in
both houses of its legislature, as nearly of equal population as is
practicable. We realize that it is a practical impossibility to arrange
legislative districts so that each one has an identical number of
residents, or citizens, or voters. Mathematical exactness or precision
is hardly a workable constitutional requirement.''\144\
\143\Reynolds v. Sims, 377 U.S. 533, 568 (1964).
\144\Id. at 577.
---------------------------------------------------------------------------
Among the principal issues raised by these decisions were which
units were covered by the principle, to what degree of exactness
population equality had to be achieved, and to what other elements of
the apportionment and districting process the equal protection clause
extended.
The first issue has largely been resolved, although some few
problem areas persist. It has been held that a school board the members
of which were appointed by boards elected in units of disparate
populations and which exercised only administrative powers rather than
legislative powers was not subject to the principle of the apportionment
ruling.\145\ Avery v. Midland County\146\ held that when a State
delegates lawmaking power to local government and provides for the
election by district of the officials to whom the power is delegated,
the districts must be established of substantially equal populations.
But in Hadley v. Junior College District,\147\ the Court abandoned much
of the limitation which was explicit in these two decisions and held
that whenever a State chooses to vest ``governmental functions'' in a
body and to elect the members of that body from districts, the districts
must have substantially equal populations. The ``governmental
functions'' should not be characterized as ``legislative'' or
``administrative'' or necessarily important or unimportant; it is the
fact that members of the body are elected from districts which triggers
the application.\148\
\145\Sailors v. Board of Education, 387 U.S. 105 (1967).
\146\390 U.S. 474 (1968). Justice Harlan continued his dissent
from the Reynolds line of cases, id. at 486, while Justices Fortas and
Stewart called for a more discerning application and would not have
applied the principle to the county council here. Id. at 495, 509.
\147\397 U.S. 50 (1970). The governmental body here was the
board of trustees of a junior college district. Justices Harlan and
Stewart and Chief Justice Burger dissented. Id. at 59, 70.
\148\The Court observed that there might be instances ``in which
a State elects certain functionaries whose duties are so far removed
from normal governmental activities and so disproportionately affect
different groups that a popular election in compliance with Reynolds
supra, might not be required. . . .'' Id. at 56. For cases involving
such units, see Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S.
719 (1973); Associated Enterprises v. Toltec Watershed Imp. Dist., 410
U.S. 743 (1973); Ball v. James, 451 U.S. 355 (1981). Judicial districts
need not comply with Reynolds. Wells v. Edwards, 347 F. Supp. 453 (M.D.
La. 1972) (three-judge court), aff'd. per curiam, 409 U.S. 1095 (1973).
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[[Page 1904]]
The second issue has been largely but not precisely resolved. In
Swann v. Adams,\149\ the Court set aside a lower court ruling ``for the
failure of the State to present or the District Court to articulate
acceptable reasons for the variations among the populations of the
various legislative districts. . . . De minimis deviations are
unavoidable, but variations of 30% among senate districts and 40% among
house districts can hardly be deemed de minimis and none of our cases
suggests that differences of this magnitude will be approved without a
satisfactory explanation grounded on acceptable state policy.'' Two
congressional district cases were disposed of on the basis of
Swann,\150\ but when the Court ruled that no congressional districting
could be approved without a ``good-faith effort to achieve precise
mathematical equality'' or the justification of ``each variance, no
matter how small,\151\ it did not then purport to utilize this standard
in judging legislative apportionment and districting.\152\ And in Abate
v. Mundt\153\ the Court approved a plan for apportioning a county
governing body which permitted a substantial population disparity,
explaining that in the absence of a built-in bias tending to favor any
particular area or interest, a plan could take account of localized
factors in justifying deviations from equality which might in other
circumstances cause the invalidation of a plan.\154\ The total
population deviation allowed in Abate was 11.9%; the Court refused,
[[Page 1905]]
however, to extend Abate to approve a total deviation of 78% resulting
from an apportionment plan providing for representation of each of New
York City's five boroughs on the New York City Board of Estimate.\155\
\149\385 U.S. 440, 443-44 (1967). See also Kilgarlin v. Hill,
386 U.S. 120 (1967).
\150\Kirkpatrick v. Preisler, 385 U.S. 450 (1967); Duddleston v.
Grills, 385 U.S. 455 (1967).
\151\Kirkpatrick v. Preisler, 394 U.S. 526, 530-31 (1969); Wells
v. Rockefeller, 394 U.S. 542 (1969). Supra, pp. 107-08. The Court has
continued to adhere to this strict standard for congressional
districting, voiding a plan in which the maximum deviation between
largest and smallest district was 0.7%, or 3,674 persons. Karcher v.
Daggett, 462 U.S. 725 (1983) (rejecting assertion that deviations less
than estimated census error are necessarily permissible).
\152\The Court relied on Swann in disapproving of only slightly
smaller deviations (roughly 28% and 25%) in Whitcomb v. Chavis, 403 U.S.
124, 161-63 (1971). In Connor v. Williams, 404 U.S. 549, 550 (1972), the
Court said of plaintiffs' reliance on Preisler and Wells that ``these
decisions do not squarely control the instant appeal since they do not
concern state legislative apportionment, but they do raise substantial
questions concerning the constitutionality of the District Court's plan
as a design for permanent apportionment.''
\153\403 U.S. 182 (1971).
\154\It should also be noted that while the Court has used total
population figures for purposes of computing variations between
districts, it did approve in Burns v. Richardson, 384 U.S. 73 (1966),
the use of eligible voter population as the basis for apportioning in
the context of a State with a large transient military population, but
with the caution that such a basis would be permissible only so long as
the results did not diverge substantially from that obtained by using a
total population base. Merely discounting for military populations was
disapproved in Davis v. Mann, 377 U.S. 678, 691 (1964), but whether some
more precise way of distinguishing between resident and nonresident
population would be constitutionally permissible is unclear. Kirkpatrick
v. Preisler, 394 U.S. 526, 534 (1969); Hadley v. Junior College Dist.,
397 U.S. 50, 57 n.9 (1970).
\155\New York City Bd. of Estimate v. Morris, 489 U.S. 688
(1989). Under the plan each of the City's five boroughs was represented
on the board by its president and each of these members had one vote;
three citywide elected officials (the mayor, the comptroller, and the
president of the city council) were also placed on the board and given
two votes apiece (except that the mayor had no vote on the acceptance or
modification of his budget proposal). The Court also ruled that, when
measuring population deviation for a plan that mixes at-large and
district representation, the at-large representation must be taken into
account. Id. at 699-701.
---------------------------------------------------------------------------
Nine years after Reynolds v. Sims, the Court reexamined the
population equality requirement of the apportionment cases. Relying upon
language in prior decisions that distinguished legislative apportionment
from congressional districting as possibly justifying different
standards of permissible deviations from equality, the Court held that
more flexibility is constitutionally permissible with respect to the
former than to the latter.\156\ But it was in determining how much
greater flexibility was permissible that the Court moved in new
directions. First, applying the traditional standard of rationality
rather than the strict test of compelling necessity, the Court held that
a maximum 16.4% deviation from equality of population was justified by
the State's policy of maintaining the integrity of political subdivision
lines, or according representation to subdivisions qua subdivisions,
because the legislature was responsible for much local legislation.\157\
Second, just as the first case ``demonstrates, population deviations
among districts may be sufficiently large to require justification but
nonetheless be justified and legally sustainable. It is now time to
recognize . . . that minor deviations from mathematical equality among
state legislative districts are insufficient to make out a prima facie
case of invidious
[[Page 1906]]
discrimination under the Fourteenth Amendment so as to require
justification by the State.''\158\ This recognition of a de minimis
deviation, below which no justification was necessary, was mandated, the
Court felt, by the margin of error in census statistics, by the
population change over the ten-year life of an apportionment, and by the
relief it afforded federal courts able thus to avoid over-involvement in
essentially a political process. The ``goal of fair and effective
representation'' is furthered by eliminating gross population variations
among districts, but it is not achieved by mathematical equality solely.
Other relevant factors are to be taken into account.\159\ But when a
judicially-imposed plan is to be formulated upon state default, it
``must ordinarily achieve the goal of population equality with little
more than de minimis variation'' and deviations from approximate
population equality must be supported by enunciation of historically
significant state policy or unique features.\160\
\156\Mahan v. Howell, 410 U.S. 315, 320-25 (1973).
\157\Id. at 325-30. The Court indicated that a 16.4% deviation
``may well approach tolerable limits.'' Id. at 329. Dissenting, Justices
Brennan, Douglas, and Marshall would have voided the plan; additionally,
they thought the deviation was actually 23.6% and that the plan
discriminated geographically against one section of the State, an issue
not addressed by the Court. In Chapman v. Meier, 420 U.S. 1, 21-26
(1975), holding that a 20% variation in a court-developed plan was not
justified, the Court indicated that such a deviation in a legislatively-
produced plan would be quite difficult to justify. See also Summers v.
Cenarrusa, 413 U.S. 906 (1973) (vacating and remanding for further
consideration the approval of a 19.4% deviation). In Brown v. Thomson,
462 U.S. 835 (1983), the Court held that a consistent state policy
assuring each county at least one representative can justify substantial
deviation from population equality when only the marginal impact of
representation for the state's least populous county was challenged (the
effect on plaintiffs, voters in larger districts, was that they would
elect 28 of 64 members rather than 28 of 63), but there was indication
in Justice O'Connor's concurring opinion that a broader-based challenge
to the plan, which contained a 16% average deviation and an 89% maximum
deviation, could have succeeded.
\158\Gaffney v. Cummings, 412 U.S. 735, 745 (1973). The maximum
deviation was 7.83%. The Court did not precisely indicate at what point
a deviation had to be justified, but it applied the de minimis standard
in White v. Regester, 412 U.S. 755 (1973), in which the maximum
deviation was 9.9%. ``Very likely, larger differences between districts
would not be tolerable without justifications.'' Id. at 764. Justices
Brennan, Douglas, and Marshall dissented. See also Brown v. Thomson, 462
U.S. 835, 842 (1983): ``Our decisions have established, as a general
matter, that an apportionment plan with a maximum population deviation
under 10% falls within [the] category of minor deviations [insufficient
to make out a prima facie case].''
\159\Gaffney v. Cummings, 412 U.S. 735, 748 (1973). By contrast,
the Court has held that estimated margin of error for census statistics
does not justify deviation from population equality in congressional
districting. Karcher v. Daggett, 462 U.S. 725 (1983).
\160\Chapman v. Meier, 420 U.S. 1, 21-27 (1975). The Court did
say that court-ordered reapportionment of a state legislature need not
attain the mathematical preciseness required for congressional
redistricting. Id. at 27 n.19. Apparently, therefore, the Court's
reference to both ``de minimis'' variations and ``approximate population
equality'' must be read as referring to some range approximating the
Gaffney principle. See also Connor v. Finch, 431 U.S. 407 (1977).
---------------------------------------------------------------------------
Gerrymandering and the permissible use of multimember districts
present examples of the third major issue. It is clear that racially
based gerrymandering is unconstitutional under the Fifteenth Amendment,
at least when it is accomplished through the manipulation of district
lines.\161\ Partisan gerrymandering raised more difficult issues.
Several lower courts ruled that the issue was beyond judicial
cognizance,\162\ and the Supreme Court itself, upholding an
apportionment plan frankly admitted to have been drawn with the intent
to achieve a rough approximation of the
[[Page 1907]]
statewide political strengths of the two parties, recognized the goal as
legitimate and observed that, while the manipulation of apportionment
and districting is not wholly immune from judicial scrutiny, ``we have
not ventured far or attempted the impossible task of extirpating
politics from what are the essentially political processes of the
sovereign States.''\163\
\161\Gomillion v. Lightfoot, 364 U.S. 339 (1960); Wright v.
Rockefeller, 376 U.S. 52 (1964); Sims v. Baggett, 247 F. Supp. 96 (M.D.
Ala. 1965) (three-judge court).
\162\E.g., WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D.N.Y.
1965) (three-judge court), aff'd, 382 U.S. 4 (1965); Sincock v. Gately,
262 F. Supp. 739 (D. Del. 1967) (three-judge court).
\163\Gaffney v. Cummings, 412 U.S. 735, 751, 754 (1973).
---------------------------------------------------------------------------
More recently, however, in a decision of potentially major
import reminiscent of Baker v. Carr, the Court in Davis v. Bandemer\164\
ruled that partisan gerrymandering in state legislative redistricting is
justiciable under the Equal Protection Clause. But although the vote was
6 to 3 in favor of justiciability, a majority of Justices could not
agree on the proper test for determining whether particular
gerrymandering is unconstitutional, and the lower court's holding of
unconstitutionality was reversed by vote of 7 to 2.\165\ Thus, while
courthouse doors are now ajar for claims of partisan gerrymandering, it
is unclear what it will take to succeed on the merits. On the
justiciability issue, the Court viewed the ``political question''
criteria as no more applicable than they had been in Baker v. Carr.
Because Reynolds v. Sims had declared ``fair and effective
representation for all citizens''\166\ to be ``the basic aim of
legislative apportionment,'' and because racial gerrymandering issues
had been treated as justiciable, the Court viewed the representational
issues raised by partisan gerrymandering as indistinguishable. Agreement
as to the existence of ``judicially discoverable and manageable
standards for resolving'' gerrymandering issues, however, did not result
in a consensus as to what those standards are.\167\ While a majority of
Justices agreed that discriminatory ef
[[Page 1908]]
fect as well as discriminatory intent must be shown, there was
significant disagreement as to what constitutes discriminatory effect.
Justice White's plurality opinion suggested that there need be
``evidence of continued frustration of the will of a majority of the
voters or effective denial to a minority of voters of a fair chance to
influence the political process.''\168\ Moreover, continued frustration
of the chance to influence the political process can not be demonstrated
by the results of only one election; there must be a history of
disproportionate results or a finding that such results will continue.
Justice Powell, joined by Justice Stevens, did not formulate a strict
test, but suggested that ``a heavy burden of proof'' should be required,
and that courts should look to a variety of factors as they relate to
``the fairness of a redistricting plan'' in determining whether it
contains invalid gerrymandering. Among these factors are the shapes of
the districts, adherence to established subdivision lines, statistics
relating to vote dilution, the nature of the legislative process by
which the plan was formulated, and evidence of intent revealed in
legislative history.\169\
\164\478 U.S. 109 (1986). The vote on justiciability was 6-3,
with Justice White's opinion of the Court being joined by Justices
Brennan, Marshall, Blackmun, Powell, and Stevens. This represented an
apparent change of view by 3 of the majority Justices, who just 2 years
earlier had denied that ``the existence of noncompact or gerrymandered
districts is by itself a constitutional violation.'' Karcher v. Daggett,
466 U.S. 910, 917 (1983) (Justice Brennan, joined by Justices White and
Marshall, dissenting from denial of stay in challenge to district
court's rejection of a remedial districting plan on the basis that it
contained ``an intentional gerrymander'').
\165\Only Justices Powell and Stevens thought the Indiana
redistricting plan void; Justice White, joined by Justices Brennan,
Marshall, and Blackmun, thought the record inadequate to demonstrate
continuing discriminatory impact, and Justice O'Connor, joined by Chief
Justice Burger and by Justice Rehnquist, would have ruled that partisan
gerrymandering is nonjusticiable as constituting a political question
not susceptible to manageable judicial standards.
\166\377 U.S. 533, 565-66 (1964). This phrase has had a life of
its own in the commentary. See D. Alfange, Jr., Gerrymandering and the
Constitution: Into the Thorns of the Thicket at Last, 1986 Sup. Ct. Rev.
175, and sources cited therein. It is not clear from its original
context, however, that the phrase was coined with such broad application
in mind.
\167\The quotation is from the Baker v. Carr measure for
existence of a political question, 369 U.S. 186, 217 (1962).
\168\478 U.S. at 133. Joining in this part of the opinion were
Justices Brennan, Marshall, and Blackmun.
\169\478 U.S. at 173. A similar approach had been proposed in
Justice Stevens' concurring opinion in Karcher v. Daggett, 462 U.S. 725,
744 (1983).
---------------------------------------------------------------------------
It had been thought that the use of multimember districts to
submerge racial, ethnic, and political minorities might be treated
differently,\170\ but in Whitcomb v. Chavis\171\ the Court, while
dealing with the issue on the merits, so enveloped it in strict
standards of proof and definitional analysis as to raise the possibility
that it might be beyond judicial review.
\170\Fortson v. Dorsey, 379 U.S. 433, 439 (1965); Burns v.
Richardson, 384 U.S. 73, 88-89 (1965); Kilgarlin v. Hill, 386 U.S. 120,
125 n.3 (1967).
\171\403 U.S. 124 (1971). Justice Harlan concurred specially,
id. at 165, and Justices Douglas, Brennan, and Marshall, dissented,
finding racial discrimination in the operation of the system. Id. at
171.
---------------------------------------------------------------------------
In Chavis the Court held that inasmuch as the multimember
districting represented a state policy of more than 100 years observance
and could not therefore be said to be motivated by racial or political
bias, only an actual showing that the multimember delegation in fact
inadequately represented the allegedly submerged minority would suffice
to raise a constitutional question. But the Court also rejected as
impermissible the argument that any interest group had any sort of right
to be represented in a legislative body, in proportion to its members'
numbers or on some other basis, so that the failure of that group to
elect anyone merely meant that alone or in combination with other groups
it simply lacked the strength to obtain enough votes, whether the
election be
[[Page 1909]]
in single-member or in multimember districts. That fact of life was not
of constitutional dimension, whether the group was composed of blacks,
or Republicans or Democrats, or some other category of persons. Thus,
the submerging argument was rejected, as was the argument of a voter in
another county that the Court should require uniform single-member
districting in populous counties because voters in counties which
elected large delegations in blocs had in effect greater voting power
than voters in other districts; this argument the Court found too
theoretical and too far removed from the actualities of political life.
Subsequently, and surprisingly in light of Chavis, the Court in
White v. Regester\172\ affirmed a district court invalidation of the use
of multimember districts in two Texas counties on the ground that, when
considered in the totality of the circumstances of discrimination in
registration and voting and in access to other political opportunities,
such use denied African Americans and Mexican Americans the opportunity
to participate in the election process in a reliable and meaningful
manner.\173\
\172\412 U.S. 755, 765-70 (1973).
\173\``To sustain such claims, it is not enough that the racial
group allegedly discriminated against has not had legislative seats in
proportion to its voting potential. The plaintiffs' burden is to produce
evidence to support findings that the political processes leading to
nomination and election were not equally open to participation by the
group in question--that its members had less opportunity than did other
residents in the district to participate in the political processes and
to elect legislators of their choice.'' Id. at 765-66.
---------------------------------------------------------------------------
Doubt was cast on the continuing vitality of White v. Regester,
however, by the badly split opinion of the Court in City of Mobile v.
Bolden.\174\ A plurality undermined the earlier case in two respects,
although it is not at all clear that a majority of the Court had been or
could be assembled on either point. First, the plurality argued that an
intent to discriminate on the part of the redistricting body must be
shown before multimember districting can be held to violate the equal
protection clause.\175\ Second, the plurality read White v. Regester as
being consistent with this principle and the various factors developed
in that case to demonstrate the existence of unconstitutional
discrimination to be in fact indicia of intent; however, the plurality
seemingly disregarded the totality of
[[Page 1910]]
circumstances test utilized in Regester and evaluated instead whether
each factor alone was sufficient proof of intent.\176\
\174\446 U.S. 55 (1980). On Congress' response to the case, see
supra, pp. 1818-19; infra, p. 1936.
\175\Id. at 65-68 (Justices Stewart, Powell, Rehnquist, and
Chief Justice Burger). On intent versus impact analysis, see supra, pp.
1815-20. Justices Blackmun and Stevens concurred on other grounds, id.
at 80, 83, and Justices White, Brennan, and Marshall dissented. Id. at
94, 103. Justice White agreed that purposeful discrimination must be
found, id. at 101, while finding it to have been shown, Justice Blackmun
assumed that intent was required, and Justices Stevens, Brennan, and
Marshall would not so hold.
\176\Id. at 68-74. Four Justices rejected this view of the
plurality, while Justice Stevens also appeared to do so but followed a
mode of analysis significantly different than that of any other Justice.
---------------------------------------------------------------------------
Again switching course, the Court in Rogers v. Lodge\177\
approved the findings of the lower courts that a multimember electoral
system for electing a county board of commissioners was being maintained
for a racially discriminatory purpose, although it had not been
instituted for that purpose. Applying a totality of the circumstances
test, and deferring to lower court factfinding, the Court, in an opinion
by one of the Mobile dissenters, canvassed a range of factors which it
held could combine to show a discriminatory motive, and largely
overturned the limitations which the Mobile plurality had attempted to
impose in this area. With the enactment of federal legislation
specifically addressed to the issue of multimember districting and
dilution of the votes of racial minorities, however, it may be that the
Court will have little further opportunity to develop the matter in the
context of constitutional litigation.\178\ In Thornburg v. Gingles,\179\
the Court held that multimember districting violates Sec. 2 of the
Voting Rights Act by diluting the voting power of a racial minority when
that minority is ``sufficiently large and geographically compact to
constitute a majority in a single-member district,'' when it is
politically cohesive, and when block voting by the majority ``usually''
defeats preferred candidates of the minority.
\177\458 U.S. 613 (1982). Joining the opinion of the Court were
Justices White, Brennan, Marshall, Blackmun, O'Connor, and Chief Justice
Burger. Dissenting were Justices Powell and Rehnquist, id. at 628, and
Justice Stevens. Id. at 631.
\178\On the legislation, see supra, pp. 1818-19; infra, p. 1936.
\179\478 U.S. 30, 50-51 (1986). Use of multimember districting
for purposes of political gerrymandering was at issue in Davis v.
Bandemer, 478 U.S. 109 (1986), decided the same day as Gingles, but
there was no agreement as to the appropriate constitutional standard. A
plurality led by Justice White relied on the Whitcomb v. Chavis
reasoning, suggesting that proof that multimember districts were
constructed for the advantage of one political party falls short of the
necessary showing of deprivation of opportunity to participate in the
electoral process. 478 U.S. at 136-37. Two Justices thought the proof
sufficient for a holding of invalidity, the minority party having won
46% of the vote but only 3 of 21 seats from the multimember districts,
and ``the only discernible pattern [being] the appearance of these
districts in areas where their winner-take-all aspects can best be
employed to debase [one party's] voting strength,'' (id. at at 179-80,
Justices Powell and Stevens), and three Justices thought political
gerrymandering claims to be nonjusticiable.
---------------------------------------------------------------------------
Finally, it should be said that the Court has approved the
discretionary exercise of equity powers by the lower federal courts in
drawing district boundaries and granting other relief in districting and
apportionment cases,\180\ although that power is bounded by
[[Page 1911]]
the constitutional violations found, so that courts do not have carte
blanche, and they should ordinarily respect the structural decisions
made by state legislatures and the state constitutions.\181\
\180\E.g., Reynolds v. Sims, 377 U.S. 533, 586-87 (1964); Sixty-
Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 195-200 (1972);
White v. Weiser, 412 U.S. 783, 794-95 (1973); Upham v. Seamon, 456 U.S.
37, 41-42 (1982). When courts draw their own plans, the court is held to
tighter standards than is a legislature and has to observe smaller
population deviations and utilize single-member districts more than
multimember ones. Connor v. Johnson, 402 U.S. 690, 692 (1971); Chapman
v. Meier, 420 U.S. 1, 14-21 (1975); Wise v. Lipscomb, 437 U.S. 535, 540
(1978). Cf. Mahan v. Howell, 410 U.S. 315, 333 (1973).
\181\E.g., Sixty-Seventh Minnesota State Senate v. Beens, 406
U.S. 187 (1972) (reduction of numbers of members); Whitcomb v. Chavis,
403 U.S. 124, 160-61 (1971) (disregard of policy of multimember
districts not found unconstitutional); White v. Weiser, 412 U.S. 783,
794-95 (1973); Upham v. Seamon, 406 U.S. 37 (1982). But see Karcher v.
Daggett, 466 U.S. 910 (1983) (denying cert. over dissent's suggestion
that court-adopted congressional districting plan had strayed too far
from the structural framework of the legislature's invalidated plan).
---------------------------------------------------------------------------
Weighing of Votes.--It is not the weighing of votes but the
manner in which it is done which brings the equal protection clause into
play. Gray v. Sanders\182\ struck down the Georgia county unit system
under which each county was allocated either two, four, or six votes in
statewide elections and the candidate carrying the county received those
votes. Since there were a few very populous counties and scores of
poorly-populated ones, the rural counties in effect dominated statewide
elections and candidates with popular majorities statewide could be and
were defeated. But Gordon v. Lance\183\ approved a provision requiring a
60 percent affirmative vote in a referendum election before
constitutionally prescribed limits on bonded indebtedness or tax rates
could be exceeded. The Court acknowledged that the provision departed
from strict majority rule but stated that the Constitution did not
prescribe majority rule; it instead proscribed discrimination through
dilution of voting power or denial of the franchise because of some
class characteristic--race, urban residency, or the like--while the
provision in issue was neither directed to nor affected any identifiable
class.
\182\372 U.S. 368 (1963).
\183\403 U.S. 1 (1971).
---------------------------------------------------------------------------
FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
THE NEW EQUAL PROTECTION
The Right to Travel
Durational Residency Requirements.--A durational residency
requirement creates two classes of persons: those who have been within
the State for the prescribed period and those who have not been.\1\ But
persons who have moved recently, at least from
[[Page 1912]]
State to State,\2\ have exercised a right protected by the Constitution
of the United States, and the durational residency classification either
deters the exercise of the right or penalizes those who have exercised
the right.\3\ Any such classification is invalid ``unless shown to be
necessary to promote a compelling governmental interest.''\4\ The
constitutional right to travel has long been recognized,\5\ but it is
only relatively recently that the strict standard of equal protection
review has been applied to nullify those durational residency provisions
which have been brought before the Court.
\1\Dunn v. Blumstein, 405 U.S. 330, 334 (1972). Inasmuch as the
right to travel is implicated by state distinctions between residents
and nonresidents, the relevant constitutional provision is the
privileges and immunities clause, Article IV, Sec. 2, cl. 1.
\2\Intrastate travel is protected to the extent that the
classification fails to meet equal protection standards in some respect.
Compare Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970) (three-judge
court), aff'd. per curiam, 405 U.S. 1035 (1972), with Arlington County
Bd. v. Richards, 434 U.S. 5 (1977). The same principle applies in the
commerce clause cases, in which discrimination may run against in-state
as well as out-of-state concerns. Cf. Dean Milk Co. v. City of Madison,
340 U.S. 349 (1951).
\3\Shapiro v. Thompson, 394 U.S. 618, 629-31, 638 (1969); Dunn
v. Blumstein, 405 U.S. 330, 338-42 (1972); Memorial Hospital v. Maricopa
County, 415 U.S. 250 (1974); Jones v. Helms, 452 U.S. 412, 420-21
(1981). See also Oregon v. Mitchell, 400 U.S. 112, 236-39 (1970)
(Justices Brennan, White, and Marshall), and id. at 285-92 (Justices
Stewart and Blackmun and Chief Justice Burger).
\4\Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (emphasis by
Court); Graham v. Richardson, 403 U.S. 365, 375-76 (1971).
\5\Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868); Edwards v.
California, 314 U.S. 160 (1941) (both cases in context of direct
restrictions on travel). The source of the right to travel and the
reasons for reliance on the equal protection clause are questions
puzzled over and unresolved by the Court. United States v. Guest, 383
U.S. 745, 758, 759 (1966), and id. at 763-64 (Justice Harlan concurring
and dissenting), id. at 777 n.3 (Justice Brennan concurring and
dissenting); Shapiro v. Thompson, 394 U.S. 618, 629-31 (1969), and id.
at 671 (Justice Harlan dissenting); San Antonio School Dist. v.
Rodriguez, 411 U.S. 1, 31-32 (1973); Jones v. Helms, 452 U.S. 412, 417-
19 (1981); Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at
66-68 (Justice Brennan concurring), 78-81 (Justice O'Connor concurring).
---------------------------------------------------------------------------
Thus, in Shapiro v. Thompson,\6\ durational residency
requirements conditioning eligibility for welfare assistance on one
year's residence in the State\7\ were voided. If the purpose of the
requirements was to inhibit migration by needy persons into the State or
to bar the entry of those who came from low-paying States to higher-
paying ones in order to collect greater benefits, the Court said, the
purpose was impermissible.\8\ If on the other hand the purpose was to
serve certain administrative and related governmental objectives--the
facilitation of the planning of budgets, the provision of an objective
test of residency, minimization of opportunity for fraud, and
encouragement of early entry of new residents into the labor force--the
requirements were rationally related to the pur
[[Page 1913]]
pose but they were not compelling enough to justify a classification
which infringed on a fundamental interest.\9\ Similarly, in Dunn v.
Blumstein,\10\ where the durational residency requirements denied the
franchise to newcomers, the assertion of such administrative
justifications was constitutionally insufficient to justify the
classification.
\6\394 U.S. 618 (1969).
\7\The durational residency provision established by Congress
for the District of Columbia was also voided. Id. at 641-42.
\8\Id. at 627-33. Gaddis v. Wyman, 304 F. Supp. 717 (N.D.N.Y.
1969), aff'd sub nom. Wyman v. Bowens, 397 U.S. 49 (1970), struck down a
provision construed so as to bar only persons who came into the State
solely to obtain welfare assistance.
\9\394 U.S. at 633-38. Shapiro was reaffirmed in Graham v.
Richardson, 403 U.S. 365 (1971) (striking down durational residency
requirements for aliens applying for welfare assistance), and in
Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974) (voiding
requirement of one year's residency in county as condition to indigent's
receiving nonemergency hospitalization or medical care at county's
expense). When Connecticut and New York reinstituted the requirements,
pleading a financial emergency as the compelling state interest, they
were summarily rebuffed. Rivera v. Dunn, 329 F. Supp. 554 (D. Conn.
1971), aff'd per curiam, 404 U.S. 1054 (1972); Lopez v. Wyman, Civ. No.
1971-308 (W.D.N.Y. 1971), aff'd per curiam, 404 U.S. 1055 (1972). The
source of the funds, state or federal, is irrelevant to application of
the principle. Pease v. Hansen, 404 U.S. 70 (1971).
\10\405 U.S. 330 (1972). But see Marston v. Lewis, 410 U.S. 679
(1973), and Burns v. Fortson, 410 U.S. 686 (1973). Durational residency
requirements of five and seven years respectively for candidates for
elective office were sustained in Kanapaux v. Ellisor, 419 U.S. 891
(1974), and Sununu v. Stark, 420 U.S. 958 (1975).
---------------------------------------------------------------------------
However, a state one-year durational residency requirement for
the initiation of a divorce proceeding was sustained in Sosna v.
Iowa.\11\ While it is not clear what the precise basis of the ruling is,
it appears that the Court found that the State's interest in requiring
that those who seek a divorce from its courts be genuinely attached to
the State and its desire to insulate divorce decrees from the likelihood
of collateral attack justified the requirement.\12\ Similarly,
durational residency requirements for lower in-state tuition at public
colleges have been held constitutionally justifiable, again, however,
without a clear statement of reason.\13\
\11\419 U.S. 393 (1975). Justices Marshall and Brennan dissented
on the merits. Id. at 418.
\12\Id. at 409. But the Court also indicated that the plaintiff
was not absolutely barred from the state courts, but merely required to
wait for access (which was true in the prior cases as well and there
held immaterial), and that possibly the state interests in marriage and
divorce were more exclusive and thus more immune from federal
constitutional attack than were the matters at issue in the previous
cases. The Court also did not indicate whether it was using strict or
traditional scrutiny.
\13\Starns v. Malkerson, 326 F. Supp. 234 (D.Minn. 1970), aff'd
per curiam, 401 U.S. 985 (1971). Cf. Vlandis v. Kline, 412 U.S. 441, 452
& n.9 (1973), and id. at 456, 464, 467 (dicta). In Memorial Hospital v.
Maricopa County, 415 U.S. 250, 256 (1974), the Court, noting the
results, stated that ``some waiting periods . . . may not be penalties''
and thus would be valid.
---------------------------------------------------------------------------
A state scheme for returning to its residents a portion of the
income earned from the vast oil deposits discovered within Alaska
foundered upon the formula for allocating the dividends; that is, each
adult resident received one unit of return for each year of residency
subsequent to 1959, the first year of Alaska's statehood. The law thus
created fixed, permanent distinctions between an ever-in
[[Page 1914]]
creasing number of classes of bona fide residents based on how long they
had been in the State. The differences between the durational residency
cases previously decided did not alter the bearing of the right to
travel principle upon the distribution scheme, but the Court's decision
went off on the absence of any permissible purpose underlying the
apportionment classification and it thus failed even the rational basis
test.\14\
\14\Zobel v. Williams, 457 U.S. 55 (1982). Somewhat similar was
the Court's invalidation on equal protection grounds of a veterans
preference for state employment limited to persons who were state
residents when they entered military service; four Justices also thought
the preference penalized the right to travel. Attorney General of New
York v. Soto-Lopez, 476 U.S. 898 (1986).
---------------------------------------------------------------------------
Unresolved still are issues such as durational residency
requirements for occupational licenses and other purposes.\15\ Too, it
should be noted that this line of cases does not apply to state
residency requirements themselves, as distinguished from durational
provisions,\16\ and the cases do not inhibit the States when, having
reasons for doing so, they bar travel by certain persons.\17\
\15\La Tourette v. McMaster, 248 U.S. 465 (1919), upholding a
two-year residence requirement to become an insurance broker, must be
considered of questionable validity. Durational periods for admission to
the practice of law or medicine or other professions have evoked
differing responses by lower courts.
\16\E.g., McCarthy v. Philadelphia Civil Service Comm'n, 424
U.S. 645 (1976) (ordinance requiring city employees to be and to remain
city residents upheld). See Memorial Hospital v. Maricopa County, 415
U.S. 250, 255 (1974). See also Martinez v. Bynum, 461 U.S. 321 (1983)
(bona fide residency requirement for free tuition to public schools).
\17\Jones v. Helms, 452 U.S. 412 (1981) (statute made it a
misdemeanor to abandon a dependent child but a felony to commit the
offense and then leave the State).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
THE NEW EQUAL PROTECTION
Marriage and Familial Relations
In Zablocki v. Redhail,\18\ importing into equal protection
analysis the doctrines developed in substantive due process, the Court
identified the right to marry as a ``fundamental interest'' that
necessitates ``critical examination'' of governmental restrictions which
``interfere directly and substantially'' with the right.\19\ Struck down
was a statute that prohibited any resident under an obligation to
support minor children from marrying without a court order; such order
could only be obtained upon a showing that the support obligation had
been and was being complied with and that the children were not and were
not likely to become public charges. The plaintiff was an indigent
wishing to marry but prevented from doing so because he was not
complying with a court order to pay support to an illegitimate child he
had fathered, and because the child was re
[[Page 1915]]
ceiving public assistance. Applying ``critical examination,'' the Court
observed that the statutory prohibition could not be sustained unless it
was justified by sufficiently important state interests and was closely
tailored to effectuate only those interests.\20\ Two interests were
offered that the Court was willing to accept as legitimate and
substantial: requiring permission under the circumstances furnished an
opportunity to counsel applicants on the necessity of fulfilling support
obligations, and the process protected the welfare of children who
needed support, either by providing an incentive to make support
payments or by preventing applicants from incurring new obligations
through marriage. The first interest was not served, the Court found,
there being no provision for counseling and no authorization of
permission to marry once counseling had taken place. The second interest
was found not to be effectuated by the means. Alternative devices to
collect support existed, the process simply prevented marriage without
delivering any money to the children, and it singled out obligations
incurred through marriage without reaching any other obligations.
\18\434 U.S. 374 (1978).
\19\Although the Court's due process decisions have broadly
defined a protected liberty interest in marriage and family, no previous
case had held marriage to be a fundamental right occasioning strict
scrutiny. Id. at 396, 397 (Justice Powell concurring).
\20\Id. at 388. Although the passage is not phrased in the usual
compelling interest terms, the concurrence and the dissent so viewed it
without evoking disagreement from the Court. Id. at 396 (Justice
Powell), 403 (Justice Stevens), 407 (Justice Rehnquist). Justices Powell
and Stevens would have applied intermediate scrutiny to void the
statute, both for its effect on the ability to marry and for its impact
upon indigents. Id. at 400, 406 n.10.
---------------------------------------------------------------------------
Other restrictions that relate to the incidents of or
prerequisites for marriage were carefully distinguished by the Court as
neither entitled to rigorous scrutiny nor put in jeopardy by the
decision.\21\ For example, in Califano v. Jobst,\22\ a unanimous Court
sustained a Social Security provision that revoked disabled dependents'
benefits of any person who married, except when the person married
someone who was also entitled to receive disabled dependents' benefits.
Plaintiff, a recipient of such benefits, married someone who was also
disabled but not qualified for the benefits, and his benefits were
terminated. He sued, alleging that distinguishing between classes of
persons who married eligible persons and who married ineligible persons
infringed upon his right to marry. The Court rejected the argument,
finding that benefit entitlement was not based upon need but rather upon
actual dependency upon the insured wage earner; marriage, Congress could
have assumed, generally terminates the dependency upon a parent-wage
earner. Therefore, it was permissible as an administrative convenience
to make marriage the terminating point but to make an exception
[[Page 1916]]
when both marriage partners were receiving benefits, as a means of
lessening hardship and recognizing that dependency was likely to
continue. The marriage rule was therefore not to be strictly scrutinized
or invalidated ``simply because some persons who might otherwise have
married were deterred by the rule or because some who did marry were
burdened thereby.''\23\
\21\Id. at 386-87. Chief Justice Burger thought the interference
here was ``intentional and substantial,'' whereas the provision in Jobst
was neither. Id. at 391 (concurring).
\22\434 U.S. 47 (1977).
\23\Id. at 54. See also Mathews v. De Castro, 429 U.S. 181
(1976) (provision giving benefits to a married woman under 62 with
dependent children in her care whose husband retires or becomes disabled
but denying them to a divorced woman under 62 with dependents represents
a rational judgment by Congress with respect to likely dependency of
married but not divorced women and does not deny equal protection);
Califano v. Boles, 443 U.S. 282 (1979) (limitation of certain Social
Security benefits to widows and divorced wives of wage earners does not
deprive mother of illegitimate child who was never married to wage
earner of equal protection).
---------------------------------------------------------------------------
It seems obvious, therefore, that the determination of marriage
and familial relationships as fundamental will be a fruitful beginning
of litigation in the equal protection area.\24\
\24\See, e.g., Quilloin v. Walcott, 434 U.S. 246 (1978) (State's
giving to father of legitimate child who is divorced or separated from
mother while denying to father of illegitimate child a veto over the
adoption of the child by another does not under the circumstances deny
equal protection. The circumstances were that the father never exercised
custody over the child or shouldered responsibility for his supervision,
education, protection, or care, although he had made some support
payments and given him presents). Accord, Lehr v. Robertson, 463 U.S.
248 (1983).
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FOURTEENTH AMENDMENT
SECTION 1. RIGHTS GUARANTEED
THE NEW EQUAL PROTECTION
Poverty and Fundamental Interests: The Intersection of Due Process
and Equal Protection
Generally.--Whatever may be the status of wealth distinctions
per se as a suspect classification,\25\ there is no doubt that when the
classification affects some area characterized as or considered to be
fundamental in nature in the structure of our polity--the ability of
criminal defendants to obtain fair treatment throughout the system, the
right to vote, to name two examples--then the classifying body bears a
substantial burden in justifying what it has done. The cases begin with
Griffin v. Illinois,\26\ surely one of the most seminal cases in modern
constitutional law. There, the State conditioned full direct appellate
review, review as to which all convicted defendants were entitled, on
the furnishing of a bill of exceptions or report of the trial
proceedings, in the preparation of which the stenographic transcript of
the trial was usually essential. Only indigent defendants sentenced to
death were furnished free transcripts; all other convicted defendants
had to pay a fee to obtain them. ``In criminal trials,'' Justice Black
wrote in the plurality opinion, ``a State can no more discriminate on
account of pov
[[Page 1917]]
erty than on account of religion, race, or color.'' While the State was
not obligated to provide an appeal at all, when it does so it may not
structure its system ``in a way that discriminates against some
convicted defendants on account of their poverty.'' The system's fault
was that it treated defendants with money differently than it treated
defendants without money. ``There can be no equal justice where the kind
of trial a man gets depends on the amount of money he has.''\27\
\25\San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973).
\26\351 U.S. 12 (1956). The opinion of the court was joined by
Justices Black, Douglas, and Clark, and Chief Justice Warren. Justice
Frankfurter concurred. Id. at 20. Justices Burton, Minton, Reed, and
Harlan dissented. Id. at 26, 29.
\27\Id. at 17, 18, 19. Although Justice Black was not explicit,
it seems clear that the system was found to violate both the due process
and the equal protection clauses. Justice Frankfurter's concurrence
dealt more expressly with the premise of the Black opinion. ``It does
not face actuality to suggest that Illinois affords every convicted
person, financially competent or not, the opportunity to take an appeal,
and that it is not Illinois that is responsible for disparity in
material circumstances. Of course, a State need not equalize economic
conditions. . . . But when a State deems it wise and just that
convictions be susceptible to review by an appellate court, it cannot by
force of its exactions draw a line which precludes convicted indigent
persons, forsooth erroneously convicted, from securing such a review
merely by disabling them from bringing to the notice of an appellate
tribunal errors of the trial court which would upset the conviction were
practical opportunity for review not foreclosed.'' Id. at 23.
---------------------------------------------------------------------------
The principle of Griffin was extended in Douglas v.
California,\28\ in which the court held to be a denial of due process
and equal protection a system whereby in the first appeal as of right
from a conviction counsel was appointed to represent indigents only if
the appellate court first examined the record and determined that
counsel would be of advantage to the appellant. ``There is lacking that
equality demanded by the Fourteenth Amendment where the rich man, who
appeals as of right, enjoys the benefit of counsel's examination into
the record, research of the law, and marshalling of arguments on his
behalf, while the indigent, already burdened by a preliminary
determination that his case is without merit, is forced to shift for
himself.''\29\
\28\372 U.S. 353 (1963). Justice Clark dissented, protesting the
Court's ``new fetish for indigency,'' id. at 358, 359, and Justices
Harlan and Stewart dissented. Id. at 360.
\29\Id. at 357-58.
---------------------------------------------------------------------------
From the beginning, Justice Harlan opposed reliance on the equal
protection clause at all, arguing that a due process analysis was the
proper criterion to follow. ``It is said that a State cannot
discriminate between the `rich' and the `poor' in its system of criminal
appeals. That statement of course commands support, but it hardly sheds
light on the true character of the problem confronting us here. . . .
All that Illinois has done is to fail to alleviate the consequences of
differences in economic circumstances that exist wholly apart from any
state action.'' A fee system neutral on its face was not a
classification forbidden by the equal protection clause.
[[Page 1918]]
``[N]o economic burden attendant upon the exercise of a privilege bears
equally upon all, and in other circumstances the resulting
differentiation is not treated as an invidious classification by the
State, even though discrimination against `indigents' by name would be
unconstitutional.''\30\ As he protested in Douglas: ``The States, of
course, are prohibited by the Equal Protection Clause from
discriminating between `rich' and `poor' as such in the formulation and
application of their laws. But it is a far different thing to suggest
that this provision prevents the State from adopting a law of general
applicability that may affect the poor more harshly than it does the
rich, or, on the other hand, from making some effort to redress economic
imbalances while not eliminating them entirely.''\31\
\30\Griffin v. Illinois, 351 U.S. 12, 34, 35 (1956).
\31\Douglas v. California, 372 U.S. 353, 361 (1963).
---------------------------------------------------------------------------
Due process furnished the standard, Justice Harlan felt, for
determining whether fundamental fairness had been denied. Where an
appeal was barred altogether by the imposition of a fee, the line might
have been crossed to unfairness, but on the whole he did not see that a
system which merely recognized differences between and among economic
classes, which as in Douglas made an effort to ameliorate the fact of
the differences by providing appellate scrutiny of cases of right, was a
system which denied due process.\32\
\32\Id. at 363-67.
---------------------------------------------------------------------------
The Court has reiterated that both due process and equal
protection concerns are implicated by restrictions on indigents'
exercise of the right of appeal. ``In cases like Griffin and Douglas,
due process concerns were involved because the States involved had set
up a system of appeals as of right but had refused to offer each
defendant a fair opportunity to obtain an adjudication on the merits of
his appeal. Equal protection concerns were involved because the State
treated a class of defendants--indigent ones--differently for purposes
of offering them a meaningful appeal.''\33\
\33\Evitts v. Lucey, 469 U.S. 387, 405 (1985) (holding that due
process requires that counsel provided for appeals as of right must be
effective).
---------------------------------------------------------------------------
Criminal Procedure.--``[I]t is now fundamental that, once
established . . . avenues [of appellate review] must be kept free of
unreasoned distinctions that can only impede open and equal access to
the courts.''\34\ ``In all cases the duty of the State is to provide the
indigent as adequate and effective an appellate review as that given
appellants with funds. . . .''\35\ No State may condition the right to
appeal\36\ or the right to file a petition for habeas cor
[[Page 1919]]
pus\37\ or other form of postconviction relief upon the payment of a
docketing fee or some other type of fee when the petitioner has no means
to pay. Similarly, although the States are not required to furnish full
and complete transcripts of their trials to indigents when exerpted
versions or some other adequate substitute is available, if a transcript
is necessary to adequate review of a conviction, either on appeal or
through procedures for postconviction relief, the transcript must be
provided to indigent defendants or to others unable to pay.\38\ This
right may not be denied by drawing a felony-misdemeanor distinction or
by limiting it to those cases in which confinement is the penalty.\39\ A
defendant's right to counsel is to be protected as well as the similar
right of the defendant with funds.\40\ The right to counsel on appeal
necessarily means the right to effective assistance of counsel.\41\
\34\Rinaldi v. Yeager, 384 U.S. 305, 310 (1966).
\35\Draper v. Washington, 372 U.S. 487, 496 (1963).
\36\Burns v. Ohio, 360 U.S. 252 (1959); Douglas v. Green, 363
U.S. 192 (1960).
\37\Smith v. Bennett, 365 U.S. 708 (1961).
\38\Griffin v. Illinois, 351 U.S. 12 (1956); Eskridge v.
Washington State Bd. of Prison Terms & Paroles, 357 U.S. 214 (1958)
(unconstitutional to condition free transcript upon trial judge's
certification that ``justice will thereby be promoted''); Draper v.
Washington, 372 U.S. 487 (1963) (unconstitutional to condition free
transcript upon judge's certification that the allegations of error were
not ``frivolous''); Lane v. Brown, 372 U.S. 477 (1963) (unconstitutional
to deny free transcript upon determination of public defender that
appeal was in vain); Long v. District Court, 385 U.S. 192 (1966)
(indigent prisoner entitled to free transcript of his habeas corpus
proceeding for use on appeal of adverse decision therein); Gardner v.
California, 393 U.S. 367 (1969) (on filing of new habeas corpus petition
in appellate court upon an adverse nonappealable habeas ruling in a
lower court where transcript was needed, one must be provided an
indigent prisoner). See also Rinaldi v. Yeager, 384 U.S. 305 (1966). For
instances in which a transcript was held not to be needed, see Britt v.
North Carolina, 404 U.S. 266 (1971); United States v. MacCollom, 426
U.S. 317 (1976).
\39\Williams v. Oklahoma City, 395 U.S. 458 (1969); Mayer v.
City of Chicago, 404 U.S. 189 (1971).
\40\Douglas v. California, 372 U.S. 353 (1963); Swenson v.
Bosler, 386 U.S. 258 (1967); Anders v. California, 386 U.S. 738 (1967);
Entsminger v. Iowa, 386 U.S. 748 (1967). A rule requiring a court-
appointed appellate counsel to file a brief explaining reasons why he
concludes that a client's appeal is frivolous does not violate the
client's right to assistance of counsel on appeal. McCoy v. Court of
Appeals, 486 U.S. 429 (1988). The right is violated if the court allows
counsel to withdraw by merely certifying that the appeal is
``meritless'' without also filing an Anders brief supporting the
certification. Penson v. Ohio, 488 U.S. 75 (1988). On the other hand,
since there is no constitutional right to counsel for indigent prisoners
seeking postconviction collateral relief, there is no requirement that
withdrawal be justified in an Anders brief if a state has provided
counsel for postconviction proceedings. Pennsylvania v. Finley, 481 U.S.
551 (1987) (counsel advised the court that there were no arguable bases
for collateral relief).
\41\Evitts v. Lucey, 469 U.S. 387 (1985).
---------------------------------------------------------------------------
But, deciding a point left unresolved in Douglas, the Court held
that neither the due process nor the equal protection clause required a
State to furnish counsel to a convicted defendant seeking, after he had
exhausted his appeals of right, to obtain discretionary review of his
case in the State's higher courts or in the United States Supreme Court.
Due process fairness does not re
[[Page 1920]]
quire that after an appeal has been provided the State must always
provide counsel to indigents at every stage. ``Unfairness results only
if indigents are singled out by the State and denied meaningful access
to that system because of their poverty.'' That essentially equal
protection issue was decided against the defendant in the context of an
appellate system in which one appeal could be taken as of right to an
intermediate court, with counsel provided if necessary, and in which
further appeals might be granted not primarily upon any conclusion about
the result below but upon considerations of significant importance.\42\
Not even death row inmates have a constitutional right to an attorney to
prepare a petition for collateral relief in state court.\43\
\42\Ross v. Moffitt, 417 U.S. 600 (1974). See also Fuller v.
Oregon, 417 U.S. 40 (1974) (statute providing, under circumscribed
conditions, that indigent defendant, who receives state-compensated
counsel and other assistance for his defense, who is convicted, and who
subsequently becomes able to repay costs, must reimburse State for costs
of his defense in no way operates to deny him assistance of counsel or
the equal protection of the laws).
\43\Murray v. Giarratano, 492 U.S. 1 (1989) (upholding
Virginia's system under which ``unit attorneys'' assigned to prisons are
available for some advice prior to the filing of a claim, and a personal
attorney is assigned if an inmate succeeds in filing a petition with at
least one non-frivolous claim).
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This right to legal assistance, especially in the context of the
constitutional right to the writ of habeas corpus, means that in the
absence of other adequate assistance, as through a functioning public
defender system, a State may not deny prisoners legal assistance of
another inmate\44\ and it must make available certain minimal legal
materials.\45\
\44\Johnson v. Avery, 393 U.S. 483 (1969).
\45\Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430
U.S. 817 (1977).
---------------------------------------------------------------------------
The Criminal Sentence.--A convicted defendant may not be
imprisoned solely because of his indigency. Williams v. Illinois\46\
held that it was a denial of equal protection for a State to extend the
term of imprisonment of a convicted defendant beyond the statutory
maximum provided because he was unable to pay the fine which was also
levied upon conviction. And Tate v. Short\47\ held that in situations in
which no term of confinement is prescribed for an offense but only a
fine, the court may not jail persons who cannot pay the fine, unless it
is impossible to develop an alternative, such as installment payments or
fines scaled to ability to pay. Willful refusal to pay may, however, be
punished by confinement.
\46\399 U.S. 235 (1970).
\47\401 U.S. 395 (1971). The Court has not yet treated a case in
which the permissible sentence is ``$30 or 30 days'' or some similar
form where either confinement or a fine will satisfy the State's penal
policy.
---------------------------------------------------------------------------
[[Page 1921]]
Voting.--Treatment of indigency in a civil type of ``fundamental
interest'' analysis came in Harper v. Virginia Board of Elections,\48\
in which it was held that ``a State violates the Equal Protection Clause
. . . whenever it makes the affluence of the voter or payment of any fee
an electoral standard. Voter qualifications have no relation to wealth
nor to paying or not paying this or any other tax.'' The Court
emphasized both the fundamental interest in the right to vote and the
suspect character of wealth classifications. ``[W]e must remember that
the interest of the State, when it comes to voting, is limited to the
power to fix qualifications. Wealth, like race, creed, or color, is not
germane to one's ability to participate intelligently in the electoral
process. Lines drawn on the basis of wealth or property, like those of
race . . . are traditionally disfavored.''\49\
\48\383 U.S. 663, 666 (1966). The poll tax required to be paid
as a condition of voting was $1.50 annually. Justices Black, Harlan, and
Stewart dissented. Id. at 670, 680.
\49\Id. at 668. The Court observed that ``the right to vote is
too precious, too fundamental to be so burdened or conditioned.'' Id. at
670.
---------------------------------------------------------------------------
The two factors--classification in effect along wealth lines and
adverse effect upon the exercise of the franchise--were tied together in
Bullock v. Carter\50\ in which the setting of high filing fees for
certain offices was struck down upon analysis by a stricter standard
than the traditional equal protection standard but apparently a somewhat
lesser standard than the compelling state interest test. The Court held
that the high filing fees were not rationally related to the State's
interest in allowing only serious candidates on the ballot since some
serious candidates could not pay the fees while some frivolous
candidates could and that the State could not finance the costs of
holding the elections from the fees when the voters were thereby
deprived of their opportunity to vote for candidates of their
preferences.
\50\405 U.S. 134 (1972).
---------------------------------------------------------------------------
Extending Bullock, the Court has held it impermissible for a
State to deny indigents, and presumably other persons unable to pay
filing fees, a place on the ballot for failure to pay filing fees,
however reasonable in the abstract the fees may be. A State must provide
such persons a reasonable alternative for getting on the ballot.\51\
Similarly, a sentencing court in revoking probation must consider
alternatives to incarceration if the reason for revocation is the
inability of the indigent to pay a fine or restitution.\52\
\51\Lubin v. Panish, 415 U.S. 709 (1974). Note that the Court
indicated that Bullock was decided on the basis of restrained review.
Id. at 715.
\52\Bearden v. Georgia, 461 U.S. 660 (1983).
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[[Page 1922]]
Access to Courts.--In Boddie v. Connecticut,\53\ Justice Harlan
carried a majority of the Court with him in utilizing a due process
analysis to evaluate the constitutionality of a State's filing fees in
divorce actions which a group of welfare assistance recipients attacked
as preventing them from obtaining divorces. The Court found that when
the State monopolized the avenues to a pacific settlement of a dispute
over a fundamental matter such as marriage--only the State could
terminate the marital status--then it denied due process by inflexibly
imposing fees which kept some persons from using that avenue. Justice
Harlan's opinion averred that a facially neutral law or policy which did
in fact deprive an individual of a protected right would be held invalid
even though as a general proposition its enforcement served a legitimate
governmental interest. The opinion concluded with a cautioning
observation that the case was not to be taken as establishing a general
right to access to the courts.
\53\401 U.S. 371 (1971).
---------------------------------------------------------------------------
The Boddie opinion left unsettled whether a litigant's interest
in judicial access to effect a pacific settlement of some dispute was an
interest entitled to some measure of constitutional protection as a
value of independent worth or whether a litigant must be seeking to
resolve a matter involving a fundamental interest in the only forum in
which any resolution was possible. Subsequent decisions established that
the latter answer was the choice of the Court. In United States v.
Kras,\54\ the Court held that the imposition of filing fees which
blocked the access of an indigent to a discharge of his debts in
bankruptcy denied the indigent neither due process nor equal protection.
The marital relationship in Boddie was a fundamental interest, the Court
said, and upon its dissolution depended associational interests of great
importance; however, an interest in the elimination of the burden of
debt and in obtaining a new start in life, while important, did not rise
to the same constitutional level as marriage. Moreover, a debtor's
access to relief in bankruptcy had not been monopolized by the
government to the same degree as dissolution of a marriage; one may,
``in theory, and often in actuality,'' manage to resolve the issue of
his debts by some other means, such as negotiation. While the
alternatives in many cases, such as Kras, seem barely likely of
successful pursuit, the Court seemed to be suggesting that absolute
preclusion was a necessary element before a right of access could be
considered.\55\
\54\409 U.S. 434 (1973).
\55\Id. at 443-46. The equal protection argument was rejected by
utilizing the traditional standard of review, bankruptcy legislation
being placed in the area of economics and social welfare, and the use of
fees to create a self-sustaining bankruptcy system being considered to
be a rational basis. Dissenting, Justice Stewart argued that Boddie
required a different result, denied that absolute preclusion of
alternatives was necessary, and would have evaluated the importance of
an interest asserted rather than providing that it need be fundamental.
Id. at 451. Justice Marshall's dissent was premised on an asserted
constitutional right to be heard in court, a constitutional right of
access regardless of the interest involved. Id. at 458. Justices Douglas
and Brennan concurred in Justice Stewart's dissent, as indeed did
Justice Marshall.
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[[Page 1923]]
Subsequently, on the initial appeal papers and without hearing
oral argument, the Court summarily upheld the application to indigents
of filing fees that in effect precluded them from appealing decisions of
a state administrative agency reducing or terminating public
assistance.\56\
\56\Ortwein v. Schwab, 410 U.S. 656 (1973). The division was the
same 5-to-4 that prevailed in Kras. See also Lindsey v. Normet, 405 U.S.
56 (1972). But cases involving the Boddie principle do continue to
arise. Little v. Streater, 452 U.S. 1 (1981) (in paternity suit that
State required complainant to initiate, indigent defendant entitled to
have State pay for essential blood grouping test); Lassiter v.
Department of Social Services, 452 U.S. 18 (1981) (recognizing general
right of appointed counsel in indigent parents when State seeks to
terminate parental status, but using balancing test to determine that
right was not present in this case).
---------------------------------------------------------------------------
Educational Opportunity.--Making even clearer its approach in de
facto wealth classification cases, the Court in San Antonio School
District v. Rodriguez\57\ rebuffed an intensive effort with widespread
support in lower court decisions to invalidate the system prevalent in
49 of the 50 States of financing schools primarily out of property
taxes, with the consequent effect that the funds available to local
school boards within each state were widely divergent. Plaintiffs had
sought to bring their case within the strict scrutiny--compelling state
interest doctrine of equal protection review by claiming that under the
tax system there resulted a de facto wealth classification that was
``suspect'' or that education was a ``fundamental'' right and the
disparity in educational financing could not therefore be justified. The
Court held, however, that there was neither a suspect classification nor
a fundamental interest involved, that the system must be judged by the
traditional restrained standard, and that the system was rationally
related to the State's interest in protecting and promoting local
control of education.\58\
\57\411 U.S. 1 (1973). The opinion by Justice Powell was
concurred in by the Chief Justice and Justices Stewart, Blackmun, and
Rehnquist. Justices Douglas, Brennan, White, and Marshall dissented. Id.
at 62, 63, 70.
\58\Id. at 44-55. Applying the rational justification test,
Justice White would have found that the system did not use means
rationally related to the end sought to be achieved. Id. at 63.
---------------------------------------------------------------------------
Important as the result of the case is, the doctrinal
implications are far more important. The attempted denomination of
wealth as a suspect classification failed on two levels. First, the
Court noted that plaintiffs had not identified the ``class of dis
[[Page 1924]]
advantaged `poor''' in such a manner as to further their argument. That
is, the Court found that the existence of a class of poor persons,
however defined, did not correlate with property-tax-poor districts;
neither as an absolute nor as a relative consideration did it appear
that tax-poor districts contained greater numbers of poor persons than
did property-rich districts, except in random instances. Second, the
Court held, there must be an absolute deprivation of some right or
interest rather than merely a relative one before the deprivation
because of inability to pay will bring into play strict scrutiny. ``The
individuals, or groups of individuals, who constituted the class
discriminated against in our prior cases shared two distinguishing
characteristics: because of their impecunity they were completely unable
to pay for some desired benefit, and as a consequence, they sustained an
absolute deprivation of a meaningful opportunity to enjoy that
benefit.''\59\ No such class had been identified here and more
importantly no one was being absolutely denied an education; the
argument was that it was a lower quality education than that available
in other districts. Even assuming that to be the case, however, it did
not create a suspect classification.
\59\Id. at 20. But see id. at 70, 117-24 (Justices Marshall and
Douglas dissenting).
---------------------------------------------------------------------------
Education is an important value in our society, the Court
agreed, being essential to the effective exercise of freedom of
expression and intelligent utilization of the right to vote. But a right
to education is not expressly protected by the Constitution, continued
the Court, nor should it be implied simply because of its undoubted
importance. The quality of education increases the effectiveness of
speech or the ability to make informed electoral choice but the
judiciary is unable to determine what level of quality would be
sufficient. Moreover, the system under attack did not deny educational
opportunity to any child, whatever the result in that case might be; it
was attacked for providing relative differences in spending and those
differences could not be correlated with differences in educational
quality.\60\
\60\Id. at 29-39. But see id. at 62 (Justice Brennan
dissenting), 70, 110-17 (Justices Marshall and Douglas dissenting).
---------------------------------------------------------------------------
Rodriguez clearly promised judicial restraint in evaluating
challenges to the provision of governmental benefits when the effect is
relatively different because of the wealth of some of the recipients or
potential recipients and when the results, what is obtained, vary in
relative degrees. Wealth or indigency is not a per se suspect
classification but it must be related to some interest that is
fundamental, and Rodriguez doctrinally imposed a considerable
[[Page 1925]]
barrier to the discovery or creation of additional fundamental
interests. As the decisions reviewed earlier with respect to marriage
and the family reveal, that barrier has not held entirely firm, but
within a range of interests, such as education,\61\ the case remains
strongly viable. Relying on Rodriguez and distinguishing Plyler, the
Court in Kadrmas v. Dickinson Public Schools\62\ rejected an indigent
student's equal protection challenge to a state statute permitting
school districts to charge a fee for school bus service, in the process
rejecting arguments that either ``strict'' or ``heightened'' scrutiny is
appropriate. Moreover, the Court concluded, there is no constitutional
obligation to provide bus transportation, or to provide it for free if
it is provided at all.\63\
\61\Cf. Plyler v. Doe, 457 U.S. 202 (1982). The case is also
noted for its proposition that there were only two equal protection
standards of review, a proposition even the author of the opinion has
now abandoned.
\62\487 U.S. 450 (1988). This was a 5-4 decision, with Justice
O'Connor's opinion of the Court being joined by Chief Justice Rehnquist
and Justices White, Scalia, and Kennedy, and with Justices Marshall,
Brennan, Stevens, and Blackmun dissenting.
\63\487 U.S. at 462. The plaintiff child nonetheless continued
to attend school, so the requirement was reviewed as an additional
burden but not a complete obstacle to her education.
---------------------------------------------------------------------------
Abortion.--Rodriguez furnished the principal analytical basis
for the Court's subsequent decision in Maher v. Roe,\64\ holding that a
State's refusal to provide public assistance for abortions that were not
medically necessary under a program that subsidized all medical expenses
otherwise associated with pregnancy and childbirth did not deny to
indigent pregnant women equal protection of the laws. As in Rodriguez,
it was held that the indigent are not a suspect class.\65\ Again, as in
Rodriguez and in Kras, it was held that when the State has not
monopolized the avenues for relief and the burden is only relative
rather than absolute, a governmental failure to offer assistance, while
funding alternative actions, is not undue governmental interference with
a fundamental right.\66\ Expansion of this area of the law of equal
protection seems especially limited.
\64\432 U.S. 464 (1977).
\65\Id. at 470-71.
\66\Id. at 471-74. See also Harris v. McRae, 448 U.S. 297, 322-
23 (1980). Total deprivation was the theme of Boddie and was the basis
of concurrences by Justices Stewart and Powell in Zablocki v. Redhail,
434 U.S. 374, 391, 396 (1978), in that the State imposed a condition
indigents could not meet and made no exception for them. The case also
emphasized that Dandridge v. Williams, 397 U.S. 471 (1970), imposed a
rational basis standard in equal protection challenges to social welfare
cases. But see Califano v. Goldfarb, 430 U.S. 199 (1977), where the
majority rejected the dissent's argument that this should always be the
same.
FOURTEENTH AMENDMENT
SECTION 2. APPORTIONMENT OF REPRESENTATION
Section 2. Representatives shall be apportioned among the several
States according to their respective numbers, counting
[[Page 1926]]
the whole number of persons in each State, excluding Indians not taxed.
But when the right to vote at any election for the choice of electors
for President and Vice President of the United States, Representatives
in Congress, the Executive and Judicial officers of a State, or the
members of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, and citizens
of the United States, or in any way abridged, except for participation
in rebellion, or other crime, the basis of representation therein shall
be reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of age
in such State.
APPORTIONMENT OF REPRESENTATION
With the abolition of slavery by the Thirteenth Amendment, the
African Americans formerly counted as three-fifths of persons would be
fully counted in the apportionment of seats in the House of
Representatives, increasing as well the electoral vote, there appeared
the prospect that politically the readmitted Southern States would gain
the advantage in Congress when combined with Democrats from the North.
Inasmuch as the South was adamantly opposed to African American
suffrage, all the congressmen would be elected by whites. Many wished to
provide for the enfranchisement of the African American and proposals to
this effect were voted on in both the House and the Senate, but only a
few Northern States permitted African Americans to vote and a series of
referenda on the question in Northern States revealed substantial white
hostility to the proposal. Therefore, a compromise was worked out, to
effect a reduction in the representation of any State which
discriminated against males in the franchise.\67\
\67\See generally J. James, The Framing of the Fourteenth
Amendment (1956).
---------------------------------------------------------------------------
No serious effort was ever made in Congress to effectuate
Sec. 2, and the only judicial attempt was rebuffed.\68\ With subsequent
constitutional amendments adopted and the utilization of federal coer
[[Page 1927]]
cive powers to enfranchise persons, the section is little more than an
historical curiosity.\69\
\68\Saunders v. Wilkins, 152 F.2d 235 (4th Cir. 1945), cert.
denied, 328 U.S. 870 (1946).
\69\The section did furnish a basis to Justice Harlan to argue
that inasmuch as Sec. 2 recognized a privilege to discriminate subject
only to the penalty provided, the Court was in error in applying Sec. 1
to questions relating to the franchise. Compare Oregon v. Mitchell, 400
U.S. 112, 152 (1970) (Justice Harlan concurring and dissenting), with
id. at 229, 250 (Justice Brennan concurring and dissenting). The
language of the section recognizing 21 as the usual minimum voting age
no doubt played some part in the Court's decision in Oregon v. Mitchell
as well. It should also be noted that the provision relating to
``Indians not taxed'' is apparently obsolete now in light of an Attorney
General ruling that all Indians are subject to taxation. 39 Op. Att'y
Gen. 518 (1940).
---------------------------------------------------------------------------
However, in Richardson v. Ramirez,\70\ the Court relied upon the
implied approval of disqualification upon conviction of crime to uphold
a state law disqualifying convicted felons for the franchise even after
the service of their terms. It declined to assess the state interests
involved and to evaluate the necessity of the rule, holding rather that
because of Sec. 2 the equal protection clause was simply inapplicable.
\70\418 U.S. 24 (1974). Justices Marshall, Douglas, and Brennan
dissented. Id. at 56, 86.
FOURTEENTH AMENDMENT
SECTIONS 3 AND 4. DISQUALIFICATION AND PUBLIC DEBT
Section 3. No Person shall be a Senator or Representative in Congress,
or elector of President and Vice President, or hold any office, civil or
military, under the United States, or under any State, who, having
previously taken an oath, as a member of Congress, or as an officer of
the United States, or as a member of any State legislature, or as an
executive or judicial officer of any State, to support the Constitution
of the United States, shall have engaged in insurrection or rebellion
against the same, or given aid or comfort to the enemies thereof. But
congress may by a vote of two thirds of each House, remove such
disability.
Section 4. The validity of the public debt of the United States,
authorized by law, including debts incurred for payment of pensions and
bounties for services in suppressing insurrection or rebellion, shall
not be questioned. But neither the United States nor any State shall
assume or pay any debt or obliga
[[Page 1928]]
tion incurred in aid of insurrection or rebellion against the United
States, or any claim for the loss or emancipation of any slave; but all
such debts, obligations and claims shall be held illegal and void.
DISQUALIFICATION AND PUBLIC DEBT
The right to remove disabilities imposed by this section was
exercised by Congress at different times on behalf of enumerated
individuals.\71\ In 1872, the disabilities were removed, by a blanket
act, from all persons ``except Senators and Representatives of the
Thirty-sixth and Thirty-seventh Congresses, officers in the judicial,
military and naval service of the United States, heads of departments,
and foreign ministers of the United States.''\72\ Twenty-six years
later, Congress enacted that ``the disability imposed by section 3 . . .
incurred heretofore, is hereby removed.''\73\
\71\E.g., and notably, the Private Act of December 14, 1869,
ch.1, 16 Stat. 607.
\72\Ch. 193, 17 Stat. 142.
\73\Act of June 6, 1898, ch. 389, 30 Stat. 432. Legislation by
Congress providing for removal was necessary to give effect to the
prohibition of Sec. 3, and until removed in pursuance of such
legislation persons in office before promulgation of the Fourteenth
Amendment continued to exercise their functions lawfully. Griffin's
Case, 11 Fed. Cas. 7 (C.C.D.Va. 1869) (No. 5815). Nor were persons who
had taken part in the Civil War and had been pardoned by the President
before the adoption of this Amendment precluded by this section from
again holding office under the United States. 18 Op. Att'y Gen. 149
(1885). On the construction of ``engaged in rebellion,'' see United
States v. Powell, 27 Fed. Cas. 605 (C.C.D.N.C. 1871) (No. 16,079).
---------------------------------------------------------------------------
Although Sec. 4 ``was undoubtedly inspired by the desire to put
beyond question the obligations of the Government issued during the
Civil War, its language indicates a broader connotation. . . . `[T]he
validity of the public debt'. . . [embraces] whatever concerns the
integrity of the public obligations,'' and applies to government bonds
issued after as well as before adoption of the Amendment.\74\
\74\Perry v. United States, 294 U.S. 330, 354 (1935), in which
the Court concluded that the Joint Resolution of June 5, 1933, insofar
as it attempted to override the gold-clause obligation in a Fourth
Liberty Loan Gold Bond ``went beyond the congressional power.'' On a
Confederate bond problem, see Branch v. Haas, 16 F. 53 (C.C.M.D. Ala.
1883) (citing Hanauer v. Woodruff, 82 U.S. (15 Wall.) 439 (1873), and
Thorington v. Smith, 75 U.S. (8 Wall.) 1 (1869)). See also The Pietro
Campanella, 73 F. Supp. 18 (D. Md. 1947).
FOURTEENTH AMENDMENT
SECTION 5. ENFORCEMENT
Section 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
ENFORCEMENT
Generally.--In the aftermath of the Civil War, Congress, in
addition to proposing to the States the Thirteenth, Fourteenth, and
[[Page 1929]]
Fifteenth Amendments, enacted seven statutes designed in a variety of
ways to implement the provisions of these Amendments.\75\ Several of
these laws were general civil rights statutes which broadly attacked
racial and other discrimination on the part of private individuals and
groups as well as by the States, but the Supreme Court declared
unconstitutional or rendered ineffective practically all of these laws
over the course of several years.\76\ In the end, Reconstruction was
abandoned and with rare exceptions no cases were brought under the
remaining statutes until fairly recently.\77\ Beginning with the Civil
Rights Act of 1957, however, Congress generally acted pursuant to its
powers under the commerce clause\78\ until Supreme Court decisions
indicated an expansive concept of congressional power under the Civil
War Amendments,\79\ which culminated in broad provisions against private
interference with civil rights in the 1968 legislation.\80\ The story of
these years is largely an account of the ``state action'' doctrine in
terms of its limitation on congressional powers;\81\ lately, it is the
still-unfolding history of the lessening of the doctrine combined with a
judicial vesting of discretion in Congress to reinterpret the scope and
content of the rights guaranteed in these three constitutional
amendments.
\75\Civil Rights Act of 1866, ch. 31, 14 Stat. 27; the
Enforcement Act of 1870, ch. 114, 16 Stat. 140; Act of February 28,
1871, ch. 99, 16 Stat. 433; the Ku Klux Klan Act of 1871, ch. 22, 17
Stat. 13; Civil Rights Act of 1875; 18 Stat. 335. The modern provisions
surviving of these statutes are 18 U.S.C. Sec. Sec. 241, 242, 42 U.S.C.
Sec. Sec. 1981-83, 1985-1986, and 28 U.S.C. Sec. 1343. Two lesser
statutes were the Slave Kidnapping Act of 1866, ch. 86, 14 Stat. 50, and
the Peonage Abolition Act, ch. 187, 14 Stat. 546, 18 U.S.C.
Sec. Sec. 1581-88, and 42 U.S.C. Sec. 1994.
\76\See generally R. Carr, Federal Protection of Civil Rights:
Quest for a Sword (1947).
\77\For cases under 18 U.S.C. Sec. Sec. 241 and 242 in their
previous codifications, see United States v. Mosley, 238 U.S. 383
(1915); United States v. Gradwell, 243 U.S. 476 (1917); United States v.
Bathgate, 246 U.S. 220 (1918); United States v. Wheeler, 254 U.S. 281
(1920). The resurgence of the use of these statutes began with United
States v. Classic, 313 U.S. 299 (1941), and Screws v. United States, 325
U.S. 91 (1945).
\78\The 1957 and 1960 Acts primarily concerned voting; the
public accommodations provisions of the 1964 Act and the housing
provisions of the 1968 Act were premised on the commerce power.
\79\United States v. Guest, 383 U.S. 745 (1966); Katzenbach v.
Morgan, 384 U.S. 641 (1966). The development of congressional
enforcement powers in these cases was paralleled by a similar expansion
of the enforcement powers of Congress with regard to the Thirteenth
Amendment, Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), supra, pp.
1554-55, and the Fifteenth Amendment. South Carolina v. Katzenbach, 383
U.S. 301 (1966), infra, pp. 1946-50.
\80\82 Stat. 73, 18 U.S.C. Sec. 245. The statute has yet to
receive its constitutional testing.
\81\On the ``state action'' doctrine in the context of the
direct application of 1 of the Fourteenth Amendment, see supra, pp.
1786-1802.
---------------------------------------------------------------------------
State Action.--In enforcing by appropriate legislation the
Fourteenth Amendment guarantees against state denials, Congress
[[Page 1930]]
has the discretion to adopt remedial measures, such as authorizing
persons being denied their civil rights in state courts to remove their
cases to federal courts,\82\ and to provide criminal\83\ and civil\84\
liability for state officials and agents\85\ or persons associated with
them\86\ who violate protected rights. These statutory measures designed
to eliminate discrimination ``under color of law''\87\ present no
problems of constitutional foundation, although there may well be other
problems of application.\88\ But the Reconstruction Congresses did not
stop with statutory implementation of rights guaranteed against state
infringement, moving as well against private interference.
\82\Section 3 of the Civil Rights Act of 1866, 14 Stat. 27, 28
U.S.C. Sec. 1443. See Virginia v. Rives, 100 U.S. 313, 318 (1880);
Strauder v. West Virginia, 100 U.S. 303 (1880). The statute is of
limited utility because of the interpretation placed on it almost from
the beginning. Compare Georgia v. Rachel, 384 U.S. 780 (1966), with City
of Greenwood v. Peacock, 384 U.S. 808 (1966).
\83\18 U.S.C. Sec. Sec. 241, 242. See Screws v. United States,
325 U.S. 91 (1945); Williams v. United States, 341 U.S. 97 (1951);
United States v. Guest, 383 U.S. 745 (1966); United States v. Price, 383
U.S. 787 (1966); United States v. Johnson, 390 U.S. 563 (1968).
\84\42 U.S.C. Sec. 1983. See Monroe v. Pape, 365 U.S. 167
(1961); see also 42 U.S.C. Sec. 1985(3), construed in Griffin v.
Breckenridge, 403 U.S. 88 (1971).
\85\Ex parte Virginia, 100 U.S. 339 (1880).
\86\United States v. Price, 383 U.S. 787 (1966).
\87\Both 18 U.S.C. Sec. 242 and 42 U.S.C. Sec. 1983 contain
language restricting application to deprivations under color of state
law, whereas 18 U.S.C. Sec. 241 lacks such language. The newest statute,
18 U.S.C. Sec. 245, contains, of course, no such language. On the
meaning of ``custom'' as used in the ``under color of'' phrase, see
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).
\88\E.g., the problem of ``specific intent'' in Screws v. United
States, 325 U.S. 91 (1945), and Williams v. United States, 341 U.S. 97
(1951), and the problem of what ``right or privilege'' is ``secured'' to
a person by the Constitution and laws of the United States, which
divided the Court in United States v. Williams, 341 U.S. 70 (1951), and
which was resolved in United States v. Price, 383 U.S. 787 (1966).
---------------------------------------------------------------------------
Thus, in the Civil Rights Act of 1875 \89\ Congress had
proscribed private racial discrimination in the admission to and use of
inns, public conveyances, theaters, and other places of public
amusement. The Civil Rights Cases\90\ found this enactment to be beyond
Congress' power to enforce the Fourteenth Amendment. It was observed
that Sec. 1 was prohibitory only upon the States and did not reach
private conduct. Therefore, Congress' power under Sec. 5 to enforce
Sec. 1 by appropriate legislation was held to be similarly limited. ``It
does not invest Congress with power to legislate upon subjects which are
within the domain of State legislation; but to provide modes of relief
against State legislation, or State action, of the kind referred to. It
does not authorize Congress to create a code of
[[Page 1931]]
municipal law for the regulation of private rights; but to provide modes
of redress against the operation of State laws, and the action of State
officers executive or judicial, when these are subversive of the
fundamental rights specified in the amendment.''\91\ The holding in this
case had already been preceded by United States v. Cruikshank\92\ and by
United States v. Harris\93\ in which the Federal Government had
prosecuted individuals for killing and injuring African Americans. The
Amendment did not increase the power of the Federal Government vis-a-vis
individuals, the Court held, only with regard to the States
themselves.\94\
\89\18 Stat. 335, Sec. Sec. 1, 2.
\90\109 U.S. 3 (1883). The Court also rejected the Thirteenth
Amendment foundation for the statute, a foundation revived by Jones v.
Alfred H. Mayer Co., 392 U.S. 409 (1968).
\91\109 U.S. at 11. Justice Harlan's dissent reasoned that
Congress had the power to protect rights secured by the Fourteenth
Amendment against invasion by both state and private action, but also
viewed places of public accommodation as serving a quasi-public function
which satisfied the state action requirement in any event. Id. at 46-48,
56-57.
\92\92 U.S. 542 (1876). The action was pursuant to Sec. 6 of the
1870 Enforcement Act, ch. 114, 16 Stat. 140, the predecessor of 18
U.S.C. Sec. 241.
\93\106 U.S. 629 (1883). The case held unconstitutional a
provision of Sec. 2 of the 1871 Act, ch. 22, 17 Stat. 13.
\94\See also Baldwin v. Franks, 120 U.S. 678 (1887); Hodges v.
United States, 203 U.S. 1 (1906); United States v. Wheeler, 254 U.S. 281
(1920). Under the Fifteenth Amendment, see James v. Bowman, 190 U.S. 127
(1903).
---------------------------------------------------------------------------
Cruikshank did, however, recognize a small category of federal
rights which Congress could protect against private deprivation, rights
which the Court viewed as deriving particularly from one's status as a
citizen of the United States and which Congress had a general police
power to protect.\95\ These rights included the right to vote in federal
elections, general and primary,\96\ the right to federal protection
while in the custody of federal officers,\97\ and the right to inform
federal officials of violations of federal law.\98\ The right of
interstate travel is a basic right derived from the Federal Constitution
which Congress may protect.\99\ In United States v. Williams,\100\ in
the context of state action, the Court divided four-to-four over whether
the predecessor of 18 U.S.C. Sec. 241 in its reference to a ``right or
privilege secured . . . by the Constitution or laws of the United
States'' encompassed rights guaranteed by the Fourteenth Amendment, or
was restricted to those rights ``which Congress can beyond doubt
constitutionally secure against inter
[[Page 1932]]
ference by private individuals.'' This issue was again reached in United
States v. Price\101\ and United States v. Guest,\102\ again in the
context of state action, in which the Court concluded that the statute
included within its scope rights guaranteed by the due process and equal
protection clauses.
\95\United States v. Cruikshank, 92 U.S. 542, 552-53, 556
(1876). The rights which the Court assumed the United States could
protect against private interference were the right to petition Congress
for a redress of grievances and the right to vote free of interference
on racial grounds in a federal election.
\96\Ex parte Yarbrough, 110 U.S. 651 (1884); United States v.
Classic, 313 U.S. 299 (1941).
\97\Logan v. United States, 144 U.S. 263 (1892).
\98\In re Quarles, 158 U.S. 532 (1895). See also United States
v. Waddell, 112 U.S. 76 (1884) (right to homestead).
\99\United States v. Guest, 383 U.S. 745 (1966); Griffin v.
Breckenridge, 403 U.S. 88 (1971).
\100\341 U.S. 70 (1951).
\101\383 U.S. 787 (1966) (due process clause).
\102\383 U.S. 745 (1966) (equal protection clause).
---------------------------------------------------------------------------
Inasmuch as both Price and Guest concerned conduct which the
Court found implicated with sufficient state action, it did not then
have to reach the question of Sec. 241's constitutionality when applied
to private action interfering with rights not the subject of a general
police power. But Justice Brennan, responding to what he apparently
intepreted as language in the opinion of the Court construing Congress'
power under Sec. 5 of the Fourteenth Amendment to be limited by the
state action requirement, appended a lengthy statement, which a majority
of the Justices joined, arguing that Congress' power was broader.\103\
``Although the Fourteenth Amendment itself . . . `speaks to the State or
to those acting under the color of its authority,' legislation
protecting rights created by that Amendment, such as the right to equal
utilization of state facilities, need not be confined to punishing
conspiracies in which state officers participate. Rather, Sec. 5
authorizes Congress to make laws that it concludes are reasonably
necessary to protect a right created by and arising under that
Amendment; and Congress is thus fully empowered to determine that
punishment of private conspiracies interfering with the exercise of such
a right is necessary to its full protection.''\104\ The Justice
throughout the opinion refers to ``Fourteenth Amendment rights,'' by
which he meant rights which, in the words of 18 U.S.C. Sec. 241, are
``secured . . . by the Constitution,'' i.e., by the Fourteenth Amendment
through prohibitory words addressed only to governmental officers. Thus,
the equal protection clause commands that all ``public facilities owned
or operated by or on behalf of the State,'' be available equally to all
persons; that ac
[[Page 1933]]
cess is a right granted by the Constitution, and Sec. 5 is viewed ``as a
positive grant of legislative power, authorizing Congress to exercise
its discretion in fashioning remedies to achieve civil and political
equality for all citizens.'' Within this discretion is the ``power to
determine that in order adequately to protect the right to equal
utilization of state facilities, it is also appropriate to punish other
individuals'' who would deny such access.\105\
\103\Justice Brennan's opinion, id. at 774, was joined by Chief
Justice Warren and Justice Douglas. His statement that ``[a] majority of
the members of the Court expresses the view today that Sec. 5 empowers
Congress to enact laws punishing all conspiracies to interfere with the
exercise of Fourteenth Amendment rights, whether or not state officers
or others acting under the color of state law are implicated in the
conspiracy,'' id. at 782 (emphasis by the Justice), was based upon the
language of Justice Clark, joined by Justices Black and Fortas, id. at
761, that inasmuch as Justice Brennan reached the issue the three
Justices were also of the view ``that there now can be no doubt that the
specific language of Sec. 5 empowers the Congress to enact laws
punishing all conspiracies--with or without state action--that interfere
with Fourteenth Amendment rights.'' Id. at 762. In the opinion of the
Court, Justice Stewart disclaimed any intention of speaking of Congress'
power under Sec. 5. Id. at 755.
\104\Id. at 782.
\105\Id. at 777-79, 784.
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It is not clear, following changes in Court personnel and in the
absence of definitive adjudication, whether this expansion of Congress'
power still commands a majority of the Court.\106\ If the Court adheres
to the expansion, it is not clear what the limits and potentialities of
the expansion are, whether it is only with regard to ``state
facilities'' that Congress may reach private interfering conduct, and
what ``rights'' are reasonably and properly encompassed within the
concept of ``Fourteenth Amendment rights.''
\106\The civil statute paralleling the criminal statute held
unconstitutional in United States v. Harris, 106 U.S. 629 (1883), is 42
U.S.C. Sec. 1985(3), similarly derived from Sec. 2 of the 1871 Act, 17
Stat. 13, and it too lacks a ``color of law'' requirement. This
provision was read into it in Collins v. Hardyman, 341 U.S. 651 (1951),
to avoid what the Court then saw as a substantial constitutional
problem. In Griffin v. Breckenridge, 403 U.S. 88 (1971), ``color of
law'' was read out of the statute. While it might be ``difficult to
conceive of what might constitute a deprivation of the equal protection
of the laws by private persons . . . there is nothing inherent in the
phrase that requires the action working the deprivation to come from the
State.'' Id. at 97. What the language actually required, said the
unanimous Court, was an ``intent to deprive of equal protection, or
equal privileges and immunities, means that there must be some racial,
or perhaps otherwise class-based, invidiously discriminatory animus
behind the conspirators' action. The conspiracy, in other words, must
aim at a deprivation of the equal enjoyment of rights secured by the law
to all.'' Id. at 102. As so construed, the statute was held
constitutional as applied in the complaint before the Court on the basis
of the Thirteenth Amendment and the right to travel; there was no
necessity therefore, to consider Congress' Sec. 5 powers. Id. at 107.
The lower courts are quite divided with respect to what
constitutes a nonrace, class-based animus within the requisite for
Sec. 1985(3) coverage and whether a private conspiracy may be reached.
See, e.g., Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971); Dombrowski
v. Dowling, 459 F.2d 190 (7th Cir. 1972); Great American Fed. S. & L.
Ass'n v. Novotny, 584 F.2d 1235 (3d Cir. 1978) (en banc), rev'd, 442
U.S. 366 (1979); Scott v. Moore, 680 F.2d 979 (5th Cir. 1982) (en banc).
The Supreme Court's Novotny decision was based solely on statutory
interpretation and avoided both questions, although both Justices Powell
and Stevens would require a showing of state action. 442 U.S. at 378,
381 (concurring).
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Congressional Definition of Fourteenth Amendment Rights.--In the
Civil Rights Cases,\107\ the Court observed that ``the legislation which
Congress is authorized to adopt in this behalf is not general
legislation upon the rights of the citizen, but corrective
legislation,'' that is, laws to counteract and overrule those state laws
which Sec. 1 forbade the States to adopt. And the Court was quite clear
that under its responsibilities of judicial re
[[Page 1934]]
view, it was the body which would determine that a state law was
impermissible and that a federal law passed pursuant to Sec. 5 was
necessary and proper to enforce Sec. 1.\108\ But in United States v.
Guest,\109\ Justice Brennan protested that this view ``attributes a far
too limited objective to the Amendment's sponsors, that in fact ``the
primary purpose of the Amendment was to augment the power of Congress,
not the judiciary.''
\107\109 U.S. 3, 13-14 (1883).
\108\Cf. Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803).
\109\383 U.S. 745, 783 and n.7 (1966) (concurring and
dissenting).
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In Katzenbach v. Morgan,\110\ Justice Brennan, this time
speaking for the Court, in effect overrode the limiting view and posited
a doctrine by which Congress was to define the substance of what the
legislation enacted pursuant to Sec. 5 must be appropriate to. That is,
in upholding the constitutionality of a provision of the Voting Rights
Act of 1965 \111\ barring the application of English literacy
requirements to a certain class of voters, the Court rejected a state
argument ``that an exercise of congressional power under Sec. 5 . . .
that prohibits the enforcement of a state law can only be sustained if
the judicial branch determines that the state law is prohibited by the
provisions of the Amendment that Congress sought to enforce.''\112\
Inasmuch as the Court had previously upheld an English literacy
requirement under equal protection challenge,\113\ acceptance of the
argument would have doomed the federal law. But, said Justice Brennan,
Congress itself might have questioned the justifications put forward by
the State in defense of its law and might have concluded that instead of
being supported by acceptable reasons the requirements were unrelated to
those justifications and discriminatory in intent and effect. The Court
would not evaluate the competing considerations which might have led
Congress to its conclusion; since Congress ``brought a specially
informed legislative competence'' to an appraisal of voting
requirements, ``it was Congress' prerogative to weigh'' the
considerations and the Court would sustain the conclusion if ``we
perceive a basis upon which Congress
[[Page 1935]]
might predicate a judgment'' that the requirements constituted invidious
discrimination.\114\
\110\384 U.S. 641 (1966). Besides the ground of decision
discussed here, Morgan also advanced an alternative ground for upholding
the statute. That is, Congress might have overridden the state law not
because the law itself violated the equal protection clause but because
being without the vote meant the class of persons was subject to
discriminatory state and local treatment and giving these people the
ballot would afford a means of correcting that situation. The statute
therefore was an appropriate means to enforce the equal protection
clause under ``necessary and proper'' standards. Id. at 652-653. A
similar ``necessary and proper'' approach underlay South Carolina v.
Katzenbach, 383 U.S. 301 (1966), under the Fifteenth Amendment's
enforcement clause.
\111\79 Stat. 439, 42 U.S.C. Sec. 1973b(e).
\112\384 U.S. at 648.
\113\Lassiter v. Northampton County Bd. of Elections, 360 U.S.
45 (1959).
\114\Katzenbach v. Morgan, 384 U.S. 641, 653-56 (1966).
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In dissent, Justice Harlan protested that ``[i]n effect the
Court reads Sec. 5 of the Fourteenth Amendment as giving Congress the
power to define the substantive scope of the Amendment. If that indeed
be the true reach of Sec. 5, then I do not see why Congress should not
be able as well to exercise its Sec. 5 `discretion' by enacting statutes
so as in effect to dilute equal protection and due process decisions of
this Court.''\115\ Justice Brennan rejected this reasoning. ``We
emphasize that Congress' power under Sec. 5 is limited to adopting
measures to enforce the guarantees of the Amendment; Sec. 5 grants
Congress no power to restrict, abrogate, or dilute these
guarantees.''\116\ Congress responded, however, in both fashions. On the
one hand, in the 1968 Civil Rights Act it relied on Morgan in expanding
federal powers to deal with private violence that is racially motivated,
and to some degree in outlawing most private housing
discrimination;\117\ on the other hand, it enacted provisions of law
purporting to overrule the Court's expansion of the self-incrimination
and right-to-counsel clauses of the Bill of Rights, expressly invoking
Morgan.\118\
\115\Id. at 668. Justice Stewart joined this dissent.
\116\Id. at 651 n.10. Justice O'Connor for the Court quoted and
reiterated Justice Brennan's language in Mississippi Univ. for Women v.
Hogan, 458 U.S. 718, 731-33 (1982).
\117\82 Stat. 73, 18 U.S.C. Sec. 245. See S. Rep. No. 721, 90th
Congress, 1st Sess. 6-7 (1967). See also 82 Stat. 81, 42 U.S.C.
Sec. 3601 et seq.
\118\Title II, Omnibus Safe Streets and Crime Control Act, 82
Stat. 210, 18 U.S.C. Sec. Sec. 3501, 3502. See S. Rep. No. 1097, 90th
Congress, 2d Sess. 53-63 (1968). The cases which were subjects of the
legislation were Miranda v. Arizona, 384 U.S. 436 (1966), and United
States v. Wade, 388 U.S. 218 (1967), insofar as federal criminal trials
were concerned.
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Congress' power under Morgan returned to the Court's
consideration when several States challenged congressional
legislation\119\ lowering the voting age in all elections to 18 and
prescribing residency and absentee voting requirements for the conduct
of presidential elections. In upholding the latter provision and in
dividing over the former, the Court revealed that Morgan's vitality was
in some considerable doubt, at least with regard to the reach which many
observers had previously seen.\120\ Four Justices accepted Morgan in
full,\121\ while one Justice rejected it totally\122\ and an
[[Page 1936]]
other would have limited it to racial cases.\123\ The other three
Justices seemingly restricted Morgan to its alternate rationale in
passing on the age reduction provision but the manner in which they
dealt with the residency and absentee voting provision afforded Congress
some degree of discretion in making substantive decisions about what
state action is discriminatory above and beyond the judicial view of the
matter.\124\
\119\Titles II and III of the Voting Rights Act Amendments of
1970, 84 Stat. 316, 42 U.S.C. Sec. Sec. 1973aa-1, 1973bb.
\120\Oregon v. Mitchell, 400 U.S. 112 (1970).
\121\Id. at 229, 278-81 (Justices Brennan, White, and Marshall),
135, 141-44 (Justice Douglas).
\122\Id. at 152, 204-09 (Justice Harlan).
\123\Id. at 119, 126-31 (Justice Black).
\124\The age reduction provision could be sustained ``only if
Congress has the power not only to provide the means of eradicating
situations that amount to a violation of the Equal Protection Clause,
but also to determine as a matter of substantive constitutional law what
situations fall within the ambit of the clause, and what state interests
are `compelling.''' Id. at 296 (Justices Stewart and Blackmun and Chief
Justice Burger). In their view, Congress did not have that power and
Morgan did not confer it. But in voting to uphold the residency and
absentee provision, the Justices concluded that ``Congress could
rationally conclude that the imposition of durational residency
requirements unreasonably burdens and sanctions the privilege of taking
up residence in another State'' without reaching an independent
determination of their own that the requirements did in fact have that
effect. Id. at 286.
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More recent decisions read broadly Congress' power to make
determinations that appear to be substantive decisions with respect to
constitutional violations.\125\ Acting under both the Fourteenth and
Fifteenth Amendments, Congress has acted to reach state electoral
practices that ``result'' in diluting the voting power of minorities,
although the Court apparently requires that it be shown that electoral
procedures must have been created or maintained with a discriminatory
animus before they may be invalidated under the two Amendments.\126\
Moreover, movements have been initiated in Congress by opponents of
certain of the Court's decisions, notably the abortion rulings, to
utilize Sec. 5 powers to curtail the rights the Court has derived from
the due process clause and other provisions of the Constitution.\127\
\125\See City of Rome v. United States, 446 U.S. 156, 173-83
(1980), under the Fifteenth Amendment. Infra, pp. 1948-50. See also
Fullilove v. Klutznick, 448 U.S. 448, 476-78 (1980) (plurality opinion
by Chief Justice Burger), and id. at 500-02 (Justice Powell concurring).
\126\The Voting Rights Act Amendments of 1982, Pub. L. 97-205,
96 Stat. 131, amending 42 U.S.C. Sec. 1973, were designed to overturn
City of Mobile v. Bolden, 446 U.S. 55 (1980). A substantial change of
direction in Rogers v. Lodge, 458 U.S. 613 (1982), handed down
coextensively with congressional enactment, seems to have brought
Congress and the Court into essential alignment, thus avoiding a
possible constitutional conflict.
\127\See The Human Life Bill, Hearings before the Senate
Judiciary Subcommittee on Separation of Powers, 97th Congress, lst sess.
(1981). An elaborate constitutional analysis of the bill appears in
Estreicher, Congressional Power and Constitutional Rights: Reflections
on Proposed ``Human Life'' Legislation, 68 Va. L. Rev. 333 (1982).