[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




        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).

        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).

        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 

        \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 
        \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.

        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).


[[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).

        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.

        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 

        \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).

        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.

        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).


[[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 

        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).

        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).

        ``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).

        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 

        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 

        \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).

        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 

        \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).

        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).


[[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 
        \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).

        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).

        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 

        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 
        \68\Liggett Co. v. Baldridge, 278 U.S. 105, 111-12 (1928); 
Treigle v. Acme Homestead Ass'n, 297 U.S. 189, 197 (1936).

        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 
        \73\Abie State Bank v. Bryan, 282 U.S. 765, 776 (1931).

[[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).

                          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).

        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. 

        \80\169 U.S. 366 (1898).
        \81\198 U.S. 45 (1905).
        \82\127 U.S. 678 (1888).
        \83\123 U.S. 623 (1887).

        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).

        Seven years later, however, a radically altered Court was 
predisposed in favor of the doctrine of judicial notice, and applied 

[[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.

        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 

        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 

        \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 

[[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).
        \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 

        \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 
        \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).

        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).

        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 

        \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 
        \108\Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 

        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 
        \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).

        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).


[[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).

        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).


[[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.

                          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 

        \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 

        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 
        \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 

                          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 

        \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 

        \164\Reagan v. Farmers' Loan & Trust Co., 154, U.S. 362, 397 
        \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 

        \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).

        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).

        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 

        \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).

        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 
        (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 
        \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).


[[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).

                          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 

        \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).

        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 

        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).

        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 

        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).

        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).

        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 
        \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 
        \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 

        ``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).

        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 

        \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 
        \225\Chicago, M. & St. P. Ry. v. Iowa, 233 U.S. 334 (1914).

        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 

        \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 
        \227\Wadley Southern Ry. v. Georgia, 235 U.S. 651 (1915).

        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).

        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 
        \241\Chicago & N.W. Ry. v. Nye Schneider Fowler Co., 260 U.S. 35 
        \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).

        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 

        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).

                          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).


[[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 

        \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 
        \6\Asbury Hospital v. Cass County, 326 U.S. 207 (1945).

        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).

        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).

        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 

        \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).

        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).

        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 
        \22\Armor & Co. v. North Dakota, 240 U.S. 510 (1916).

        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 

        \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).


[[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 

        \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).

        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).

        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).

        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 

        \33\Doty v. Love, 295 U.S. 64 (1935).
        \34\Farmers Bank v. Federal Reserve Bank, 262 U.S. 649 (1923).

        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).

        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).

        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 

        \44\Allgeyer v. Louisiana, 165 U.S. 578 (1897).
        \45\New York Life Ins. Co. v. Dodge, 246 U.S. 357 (1918).

        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).

        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).

        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 

        \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).

        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).

        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).

        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).

        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.

        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 

[[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).

                          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 
        \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 
        \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 

        \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 

[[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. 
        \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 

        \90\Miller v. Schoene, 276 U.S. 272, 277, 279 (1928).
        \91\Sligh v. Kirkwood, 237 U.S. 52 (1915).

        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 

        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 

                          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).

        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 
        \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 
        \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 

        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 

        \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).

        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).

        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 

        \123\Demorest v. City Bank Co., 321 U.S. 36, 47-48 (1944).

        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 

        \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).

        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 

        \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.

                          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.

        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).

        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 
        \135\Hutchinson v. City of Valdosta, 227 U.S. 303 (1913).

        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 
        \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 

        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).

        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 
        \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).

        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).

        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).

        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 

        \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).


[[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).

                          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 

                          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).

        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).

                          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).

        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).

        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 

        \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).

        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).

        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 

        \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).

        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).

        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 
        \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.

        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).

        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).

[[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).

        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).

        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 
        \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 
        \37\Wagner v. Baltimore, 239 U.S. 207 (1915).
        \38\Charlotte Harbor Ry. v. Welles, 260 U.S. 8 (1922).

                          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).

[[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).

        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 

        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. 
        \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 

        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).

[[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 

        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).

        (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).

        (3) Investments, in the form of loans to a resident, made by a 
resident agent of a nonresident creditor, are taxable to the nonresident 

        \61\Bristol v. Washington County, 177 U.S. 133, 141 (1900).

        (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 

        (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).

[[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).

        (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).

        (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).

        (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).

        (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).

        (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).

        The following personal property taxes on intangibles have been 

        (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).

        (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 

        \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).

        (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).

        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 
        \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 
        \84\Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U.S. 
385 (1903).

        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 

        \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).

        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).

        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).

        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).

        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.

        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 
        \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).

        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 

        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).

        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 

        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).

        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).

        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 
        \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 

                          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).

        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).

        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 

        \137\Id. at 710.

        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 
        \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).

        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 

        \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).

[[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).

        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 


[[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 

        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 

        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).

        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 

        \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).

        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).

        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 

        \179\Farncomb v. Denver, 252 U.S. 7 (1920).
        \180\Pullman Co. v. Knott, 235 U.S. 23 (1914).

                          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. 

                          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 
        \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).

        ``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 
        \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.

        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 

        ``(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 

[[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).

        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.
        \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.

[[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.
        \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 

        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 
        \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 

[[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 
        \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 

        \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 
        \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 

        \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 
        \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 

        \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 

        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 

        \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 

        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 
        \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, 
        \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 

        \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 
        \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 

        \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).


[[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 

[[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 
        \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.

        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).

        ``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 

        \314\497 U.S. 261 (1990).
        \315\Id. at 286.
        \316\Id. at 281-82.

        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 

        \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).

                          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).

        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 

        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).

        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).

        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, 
        \9\Ohio ex rel. Bryant v. Akron Park Dist., 281 U.S. 74, 79 
        \10\Carfer v. Caldwell, 200 U.S. 293, 297 (1906).

[[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.


[[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).

        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).

        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).

        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).

        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).

[[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 
        \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 
        \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).

        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).

        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).

        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).

        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).

[[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 

        \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 
        \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).

        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).

        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 

[[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 
        \72\Montana Co. v. St. Louis M. & M. Co., 152 U.S. 160, 171 
        \73\See Jordan v. Massachusetts, 225 U.S. 167, 176 (1912).
        \74\See Maxwell v. Dow, 176 U.S. 581, 602 (1900).

        Appeals.--If a full and fair trial on the merits is provided, 
due process does not require a State to provide appellate review.\75\ 

[[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 

        \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


        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).

        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 

        \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.

        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 
        \93\Id. at 294 (internal quotation from International Shoe Co. 
v. Washington, 326 U.S. 310, 319 (1945)).

        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 
        \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.

[[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 

        \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 
        \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 
        \120\International Shoe Co. v. Washington, 326 U.S. 310, 316-17 
        \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 

        \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 
        \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 
        \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 

        \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 
        \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 
        \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 

        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 
        \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 


[[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. 

        \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.

        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 
        \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 
        \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 

        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 

        \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 

        \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 
        \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)).

        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 

        \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 
        \226\United States v. Florida East Coast Ry., 410 U.S. 224 
        \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 
        \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 

        \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).

[[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.

        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'' 

        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 
        \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 

        \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 

        \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.

        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).

        Finally, one may waive his due process rights, though as with 
other constitutional rights the waiver must be knowing and 

        \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).

        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 
        \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).

        (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 
        \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).

        (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).

        (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.

        (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 

        \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).

        (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).

        (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).

                          FOURTEENTH AMENDMENT
                       SECTION 1. RIGHTS GUARANTEED:


        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).

        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 
        \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).


[[Page 1747]]

                          FOURTEENTH AMENDMENT

                      SECTION 1. RIGHTS GUARANTEED


      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 


[[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).

        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).

        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 

        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.

        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).


[[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 

[[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 
        \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 
        \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 

        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 

        \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).

        ``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).

        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 

        \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).

        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).

        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).

        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 

        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 
        \62\North v. Russell, 427 U.S. 328 (1976).

        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).


[[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).

        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 

        \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 
        \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).

        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 

        \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).


[[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.

        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 

        \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).

        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 

        \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 
        \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).

        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).

        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 

        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-

        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 

        \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.


[[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 

        \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).

        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).


[[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 

        \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).

        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 

        \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).

        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-
        \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.


[[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).

        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 

        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 
        \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.

        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 

        \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).

[[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).

        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).

        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).

        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.

        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.

        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).

[[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 

        \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 

        \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 
        \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 

        \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 

        \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. 

        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 

        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 

        \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 

        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 

[[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 
        \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 

        \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 

        \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 
        \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 
        \51\Flagg Bros. v. Brooks, 436 U.S. 149, 156 (1978) (due 
        \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).

        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 
        \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).

        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.

        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 

        \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 

        \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 
        \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] 

        \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 

        \90\Simon v. Eastern Kentucky Welfare Rights Organization, 426 
U.S. 26 (1976). See id. at 46, 63-64 (Justice Brennan concurring and 

        ``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 
        \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 
        \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).


[[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 
        \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 

        \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 

        \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 
        \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.


[[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.

        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 
        \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).


[[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 

        \140\San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 
        \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 
        \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 

        \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 

        \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 
        \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 

        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 
        \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 
        \160\San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 
        \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) 
        \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 

        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).

        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.

        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 

        \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 
        \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).


[[Page 1821]]

                          FOURTEENTH AMENDMENT
                      SECTION 1. RIGHTS GUARANTEED:
                      EXERCISES OF THE POLICE POWER


        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 

[[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 

        \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 
        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).

        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 

        \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 
        \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 
        \217\Wheeling Steel Corp. v. Glander, 337 U.S. 562, 571, 572 
        \218\393 U.S. 117 (1968).

        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 

        \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).

        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 

        \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).

        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).

        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).

        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 
        \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.

        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 
        \249\Hillsborough v. Cromwell, 326 U.S. 620, 623 (1946); 
Allegheny Pittsburgh Coal Co. v. Webster County Comm'n, 488 U.S. 336 
        \250\St. Louis-San Francisco Ry v. Middlekamp, 256 U.S. 226, 230 

        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 
        \254\Branson v. Bush, 251 U.S. 182 (1919).
        \255\Columbus & Greenville Ry. v. Miller, 283 U.S. 96 (1931).

                          FOURTEENTH AMENDMENT

                      SECTION 1. RIGHTS GUARANTEED

                      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).

        ``[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 
        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 
        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 
        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 
        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).


[[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 

        \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.

                          FOURTEENTH AMENDMENT

                      SECTION 1. RIGHTS GUARANTEED

                      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).

        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 

        \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 
        \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.

        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 
        \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 

        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 

        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 

        \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 

        \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 
        \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 
        \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 
        \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


        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 

[[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


        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 
        \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 

        \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 

        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).


[[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. 
        \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).

        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.

        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 

        \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.


[[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 

        \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.

        ``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.

        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.

        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.


[[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. 
        \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).

        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 

        \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 

        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 

        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).

                          FOURTEENTH AMENDMENT

                      SECTION 1. RIGHTS GUARANTEED

                        EQUAL PROTECTION AND RACE


        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-
        \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 
        \81\Id.; Turner v. Fouche, 396 U.S. 346 (1970).

        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 
        \86\Carter v. Jury Comm'n of Greene County, 396 U.S. 320, 331-37 
(1970), and cases cited.
        \87\Id. at 340-41.

        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).

        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 

                          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.

                          FOURTEENTH AMENDMENT

                      SECTION 1. RIGHTS GUARANTEED

                        EQUAL PROTECTION AND RACE


        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 

        \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).

        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 

[[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 

        \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 

        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 

        \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 

        \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).

[[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 

        \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 

        \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 
        \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 

        \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 
        \145\Id. at 484-85, 489 (Chief Justice Burger), 513-15 (Justice 
        \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

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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 
        \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 

        \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 
        \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 

        \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]]