1665

FOURTEENTH AMENDMENT 

RIGHTS GUARANTEED 

PRIVILEGES AND IMMUNITIES OF CITIZENSHIP, 

DUE PROCESS AND EQUAL PROTECTION 

CONTENTS

Page

Section 1. Rights Guaranteed ................................................................................................... 1671 

The Fourteenth Amendment and States’ Rights ............................................................. 1671 

Citizens of the United States ............................................................................................ 1671 

Privileges or Immunities .................................................................................................... 1674

Due Process of Law ............................................................................................................ 1678

Generally ...................................................................................................................... 1678 

Definitions .................................................................................................................... 1679 

‘‘Person’’ ................................................................................................................. 1679

‘‘Property’’ and Police Power ............................................................................... 1681 

‘‘Liberty’’ ................................................................................................................ 1682

The Rise and Fall of Economic Substantive Due Process: Overview ...................... 1682 

Regulation of Labor Conditions .................................................................................. 1689 

Liberty of Contract ............................................................................................... 1689 

Laws Regulating Working Conditions and Wages ............................................ 1693 

Workers’ Compensation Laws ............................................................................. 1696 

Collective Bargaining ........................................................................................... 1697 

Regulation of Business Enterprises: Price Controls ................................................. 1700 

Types of Businesses That May be Regulated ..................................................... 1700 

Substantive Review of Price Controls ................................................................ 1703 

Early Limitations on Review ............................................................................... 1705 

History of the Valuation Question ...................................................................... 1707 

Regulation of Public Utilities and Common Carriers ............................................... 1710 

In General ............................................................................................................. 1710 

Compulsory Expenditures: Grade Crossings, and the Like .............................. 1711 

Compellable Services ........................................................................................... 1712 

Imposition of Statutory Liabilities and Penalties Upon Common Carriers .... 1715 

Regulation of Businesses, Corporations, Professions, and Trades .......................... 1716 

Generally ............................................................................................................... 1716 

Laws Prohibiting Trusts, Restraint of Trade or Fraud ..................................... 1717 

Banking, Wage Assignments and Garnishment ................................................ 1719 

Insurance .............................................................................................................. 1720 

Miscellaneous Businesses and Professions ........................................................ 1722 

Protection of State Resources ..................................................................................... 1724 

Oil and Gas ........................................................................................................... 1724 

Protection of Property and Agricultural Crops .................................................. 1726 

Water, Fish and Game ......................................................................................... 1727 

Ownership of Real Property: Rights and Limitations .............................................. 1728 

Zoning and Similar Actions ................................................................................. 1728 

Estates, Succession, Abandoned Property .......................................................... 1730 

Health, Safety, and Morals ......................................................................................... 1732 

1666 AMENDMENT 14—RIGHTS GUARANTEED 

Section 1. Rights Guaranteed—Continued 

Due Process of Law—Continued 

Health ................................................................................................................... 1732 

Safety .................................................................................................................... 1734

Morality ................................................................................................................. 1736 

Vested and Remedial Rights ...................................................................................... 1736 

State Control over Local Units of Government ......................................................... 1737 

Taxing Power ............................................................................................................... 1738

Generally ............................................................................................................... 1738 

Jurisdiction to Tax ...................................................................................................... 1742 

Generally ............................................................................................................... 1742 

Real Property ........................................................................................................ 1743 

Tangible Personalty ............................................................................................. 1743 

Intangible Personalty ........................................................................................... 1745 

Transfer (Inheritance, Estate, Gift) Taxes ......................................................... 1748 

Corporate Privilege Taxes ................................................................................... 1752 

Individual Income Taxes ..................................................................................... 1753 

Corporate Income Taxes: Foreign Corporations ................................................ 1754 

Insurance Company Taxes .................................................................................. 1755 

Procedure in Taxation ................................................................................................. 1756 

Generally ............................................................................................................... 1756 

Notice and Hearing in Relation to Taxes ........................................................... 1756 

Notice and Hearing in Relation to Assessments ............................................... 1757 

Collection of Taxes ............................................................................................... 1759 

Sufficiency and Manner of Giving Notice ........................................................... 1761 

Sufficiency of Remedy .......................................................................................... 1762 

Laches ................................................................................................................... 1762 

Eminent Domain ......................................................................................................... 1762 

Fundamental Rights (Noneconomic Substantive Due Process) ............................... 1763 

Development of the Right of Privacy .................................................................. 1763 

Abortion ................................................................................................................ 1768 

Privacy after Roe: Informational Privacy, Privacy of the Home or Personal 

Autonomy? ......................................................................................................... 1778 

Family Relationships ........................................................................................... 1787 

Liberty Interests of the Retarded, Mentally Ill or Abnormal: Commitment 

and Treatment .................................................................................................. 1789 

‘‘Right to Die’’ ....................................................................................................... 1792 

Procedural Due Process: Civil ........................................................................................... 1794 

Generally ...................................................................................................................... 1794 

Relevance of Historical Use ................................................................................. 1794 

Non-Judicial Proceedings .................................................................................... 1795 

The Requirements of Due Process ...................................................................... 1795 

The Procedure Which Is Due Process ........................................................................ 1800 

The Interests Protected: ‘‘Life, Liberty and Property’’ ...................................... 1800 

The Property Interest .......................................................................................... 1800 

The Liberty Interest ............................................................................................. 1806 

Proceedings in Which Procedural Due Process Need Not Be Observed .......... 1809 

When Process Is Due ........................................................................................... 1811 

Jurisdiction .................................................................................................................. 1817

Generally ............................................................................................................... 1817 

In Personam Proceedings Against Individuals .................................................. 1818 

Suing Out-of-State (Foreign) Corporations ........................................................ 1821 

Actions in Rem: Proceedings Against Property ................................................. 1827 

AMENDMENT 14—RIGHTS GUARANTEED 1667

Section 1. Rights Guaranteed—Continued 

Procedural Due Process: Civil—Continued 

Quasi in Rem: Attachment Proceedings ............................................................. 1829 

Actions in Rem: Estates, Trusts, Corporations .................................................. 1831 

Notice: Service of Process .................................................................................... 1833 

Power of the States to Regulate Procedure ............................................................... 1834 

Generally ............................................................................................................... 1834 

Commencement of Actions .................................................................................. 1835 

Defenses ................................................................................................................ 1836 

Costs, Damages, and Penalties ........................................................................... 1837 

Statutes of Limitation .......................................................................................... 1838 

Burden of Proof and Presumptions ..................................................................... 1840 

Trials and Appeals ............................................................................................... 1844 

Procedural Due Process: Criminal .................................................................................... 1844 

Generally: The Principle of Fundamental Fairness ................................................. 1844 

The Elements of Due Process ..................................................................................... 1846 

Initiation of the Prosecution ................................................................................ 1846 

Clarity in Criminal Statutes: The Void-for-Vagueness Doctrine ..................... 1846 

Entrapment .......................................................................................................... 1851 

Criminal Identification Process ........................................................................... 1852 

Fair Trial .............................................................................................................. 1853 

Prosecutorial Misconduct ..................................................................................... 1856 

Proof, Burden of Proof, and Presumptions ......................................................... 1859 

The Problem of the Incompetent or Insane Defendant or Convict .................. 1865 

Guilty Pleas .......................................................................................................... 1866 

Sentencing ............................................................................................................ 1868 

Corrective Process: Appeals and Other Remedies ............................................. 1871 

Rights of Prisoners ............................................................................................... 1873 

Probation and Parole ........................................................................................... 1877 

The Problem of the Juvenile Offender ............................................................... 1881 

The Problem of Civil Commitment ..................................................................... 1884 

Equal Protection of the Laws ............................................................................................ 1886 

Scope and Application ................................................................................................. 1886 

State Action .......................................................................................................... 1886 

‘‘Person’’ ................................................................................................................. 1904

‘‘Within Its Jurisdiction’’ ...................................................................................... 1904 

Equal Protection: Judging Classifications by Law ................................................... 1905 

Traditional Standard: Restrained Review .......................................................... 1906 

The New Standards: Active Review ................................................................... 1910 

Testing Facially Neutral Classifications Which Impact on Minorities ................... 1916 

Traditional Equal Protection: Economic Regulation and Related Exercises of the Police Powers ....................................................................................................................... 1922 

Taxation ....................................................................................................................... 1922 

Classification for Purpose of Taxation ................................................................ 1923 

Foreign Corporations and Nonresidents ............................................................ 1925 

Income Taxes ........................................................................................................ 1926 

Inheritance Taxes ................................................................................................. 1927 

Motor Vehicle Taxes ............................................................................................. 1927 

Property Taxes ..................................................................................................... 1928 

Special Assessment .............................................................................................. 1930 

Police Power Regulation ............................................................................................. 1930 

Classification ........................................................................................................ 1930 

Other Business and Employment Relations ............................................................. 1935 

1668 AMENDMENT 14—RIGHTS GUARANTEED 

Section 1. Rights Guaranteed—Continued 

Traditional Equal Protection: Economic Regulation and Related Exercises of the Police Powers—Continued 

Labor Relations .................................................................................................... 1935 

Monopolies and Unfair Trade Practices ............................................................. 1936 

Administrative Discretion ................................................................................... 1937 

Social Welfare ....................................................................................................... 1937 

Punishment of Crime ........................................................................................... 1939 

Equal Protection and Race ................................................................................................ 1941 

Overview ...................................................................................................................... 1941

Education ..................................................................................................................... 1942

Development and Application of ‘‘Separate But Equal’’ .................................... 1942 

Brown v. Board of Education .............................................................................. 1943 

Brown’s Aftermath ............................................................................................... 1944 

Implementation of School Desegregation ........................................................... 1946 

Northern Schools: Inter- and Intradistrict Desegregation ................................ 1948 

Efforts to Curb Busing and Other Desegregation Remedies ............................ 1953 

Termination of Court Supervision ...................................................................... 1955 

Juries ............................................................................................................................ 1956 

Capital Punishment .................................................................................................... 1959 

Housing ........................................................................................................................ 1960 

Other Areas of Discrimination ................................................................................... 1960 

Transportation ...................................................................................................... 1960 

Public Facilities .................................................................................................... 1961 

Marriage ............................................................................................................... 1962 

Judicial System .................................................................................................... 1962 

Public Designation ............................................................................................... 1962 

Public Accommodations ....................................................................................... 1962 

Elections ................................................................................................................ 1963 

Permissible Remedial Utilization of Racial Classifications ..................................... 1963 

The New Equal Protection ................................................................................................. 1971 

Classifications Meriting Close Scrutiny .................................................................... 1971 

Alienage and Nationality ..................................................................................... 1971 

Sex ......................................................................................................................... 1977

Illegitimacy ........................................................................................................... 1990 

Fundamental Interests: The Political Process .......................................................... 1995 

Voter Qualifications ............................................................................................. 1997 

Access to the Ballot .............................................................................................. 2001 

Apportionment and Districting ........................................................................... 2005 

Counting and Weighing of Votes ........................................................................ 2015 

The Right to Travel ..................................................................................................... 2016 

Durational Residency Requirements .................................................................. 2017 

Marriage and Familial Relations ............................................................................... 2020 

Sexual Orientation ...................................................................................................... 2022 

Poverty and Fundamental Interests: The Intersection of Due Process and Equal 

Protection ................................................................................................................. 2023

Generally ............................................................................................................... 2023 

Criminal Procedure .............................................................................................. 2025 

The Criminal Sentence ........................................................................................ 2027 

Voting .................................................................................................................... 2027

Access to Courts ................................................................................................... 2028 

Educational Opportunity ..................................................................................... 2030 

Abortion ................................................................................................................ 2032 

AMENDMENT 14—RIGHTS GUARANTEED 1669

Section 2. Apportionment of Representation ........................................................................... 2033 

Sections 3 and 4. Disqualification and Public Debt ................................................................ 2034 

Section 5. Enforcement .............................................................................................................. 2036 

Generally ............................................................................................................................. 2036 

State Action ......................................................................................................................... 2038 

Congressional Definition of Fourteenth Amendment Rights .......................................... 2041 

1671

1Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). 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). 

RIGHTS GUARANTEED 

FOURTEENTH AMENDMENT 

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. 

THE FOURTEENTH AMENDMENT AND STATES’ RIGHTS 

Amendment of the Constitution during the post-Civil War Reconstruction period resulted in a fundamental shift in the relationship between the Federal Government and the States. The Civil 

War had been fought over issues of States’ rights, including the 

right to control the institution of slavery. In the wake of the war, 

the Congress submitted, and the States ratified, the Thirteenth 

Amendment (making slavery illegal), the Fourteenth Amendment 

(defining and granting broad rights of national citizenship), and the 

Fifteenth Amendment (forbidding racial discrimination in elections). The Fourteenth Amendment was the most controversial and 

far-reaching of the three ‘‘Reconstruction Amendments.’’ 

CITIZENS OF THE UNITED STATES 

The citizenship provisions of the Fourteenth Amendment may 

be seen as a repudiation of one of the more politically divisive cases 

of the nineteenth century. Under common law, free persons born 

within a State or nation were citizens thereof. In the Dred Scott 

Case, 1 however, Chief Justice Taney, writing for the Court, ruled 

that this rule did not apply to freed slaves. The Court held that 

United States citizenship was enjoyed by only two classes of individuals: (1) white persons born in the United States as descendants 

1672 AMENDMENT 14—RIGHTS GUARANTEED 

2Scott v. Sandford, 60 U.S. (19 How.) at 404–06, 417–18, 419–20 (1857). 

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. 4The 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). 

6 ‘‘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.’’ 7 United States v. Wong Kim Ark, 169 U.S. 649 (1898). 

8 169 U.S. at 682 (these are recognized exceptions to the common-law rule of acquired citizenship by birth). 9 169 U.S. at 680-82; Elk v. Wilkins, 112 U.S. 94, 99 (1884). 

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. Freed slaves fell into neither of these categories. 

The Court further held that, although a State could confer 

state citizenship upon whomever it chose, it could not make the recipient of such status a citizen of the United States. Thus, the 

‘‘Negro,’’ as an enslaved race, was ineligible to attain United States 

citizenship, either from a State or by virtue of birth in the United 

States. Even 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 was held ineligible for citizenship. 2 Congress subsequently repudiated this concept of citizenship, first in section 1 of the Civil 

Rights Act of 1866 3 and then in section 1 of the Fourteenth 

Amendment. 4 In doing so, Congress set aside the Dred Scott holding, and restored the traditional precepts of citizenship by birth. 5

Based on the first sentence of section 1, 6 the Court has held 

that a child born in the United States of Chinese parents who were 

ineligible to be naturalized themselves is nevertheless a citizen of 

the United States entitled to all the rights and privileges of citizenship. 7 The requirement that a person be ‘‘subject to the jurisdiction 

thereof,’’ however, excludes its application to children born of diplomatic representatives of a foreign state, children born of alien enemies in hostile occupation, 8 or children of members of Indian 

tribes subject to tribal laws. 9 In addition, the citizenship of children born on vessels in United States territorial waters or on the 

AMENDMENT 14—RIGHTS GUARANTEED 1673

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). 11 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 (1868), to the effect that corporations were not within the scope of the 

privileges and immunities clause of state citizenship set out in Article IV, § 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). 12 387 U.S. 253 (1967). Though the Court had previously 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 the 

Court, by a five-to-four decision, 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 of ‘‘Expatriation’’ under Article I, supra. In the years 

before Afroyim, a series of decisions had curbed congressional power. 13 Afroyim v. Rusk, 387 U.S. 253, 262–63 (1967). The Court went on to say ‘‘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.’’ Four dissenters, Justices Harlan, Clark, Stewart, and White, controverted the Court’s reliance on the history and meaning of the Fourteenth Amendment and reasserted Justice Frankfurter’s previous reasoning in Perez. Id. at 268. 

high seas has generally been held by the lower courts to be determined by the citizenship of the parents. 10 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. 11

In Afroyim v. Rusk, 12 a divided Court extended the force of 

this first sentence beyond prior holdings, ruling that it withdrew 

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.’’ 13 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 section 1 and 

1674 AMENDMENT 14—RIGHTS GUARANTEED 

14 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. 15 83 U.S. (16 Wall.) 36, 71, 77–79 (1873). 

that Congress could therefore impose a reasonable and non-arbitrary condition subsequent upon their continued retention of 

United States citizenship. 14 Between these two decisions there is 

a tension which should call forth further litigation efforts to explore 

the meaning of the citizenship sentence of the Fourteenth Amendment.

PRIVILEGES OR IMMUNITIES 

Unique among constitutional provisions, the clause prohibiting 

state abridgement of the ‘‘privileges or immunities’’ of United 

States citizens was rendered a ‘‘practical nullity’’ by a single decision of the Supreme Court issued within five years of its ratification. In the Slaughter-House Cases, 15 the Court evaluated a Louisiana statute which conferred a monopoly upon a single corporation to engage in the business of slaughtering cattle. In determining whether this statute abridged the ‘‘privileges’’ of other 

butchers, the Court frustrated the aims of the most aggressive 

sponsors of the Privileges or Immunities Clause. According to the 

Court, these sponsors had sought to centralize ‘‘in the hands of the 

Federal Government large powers hitherto exercised by the States’’ 

by converting the rights of the citizens of each State at the time 

of the adoption of the Fourteenth Amendment into protected privileges and immunities of United States citizenship. This interpretation would have allowed business to develop unimpeded by state interference by limiting state laws ‘‘abridging’’ these privileges. 

According to the Court, however, such an interpretation would 

have ‘‘transfer[red] 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 would ‘‘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’’ 

AMENDMENT 14—RIGHTS GUARANTEED 1675

16 83 U.S. at 78-79. 17 83 U.S. at 79-80. 18 211 U.S. 78, 97 (1908). 19 Citing Crandall v. Nevada, 73 U.S. (6 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 or 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 

this amendment, and that the sole ‘‘pervading purpose’’ of this and 

the other War Amendments was ‘‘the freedom of the slave race.’’ 

Based on these conclusions, the Court held that none of the 

rights alleged by the competing New Orleans butchers to have been 

violated were derived from the butcher’s national citizenship; insofar as the Louisiana law interfered with their pursuit of the business of butchering animals, the privilege was one which ‘‘belonged 

to the citizens of the States as such.’’ Despite the broad language 

of this clause, the Court held that the privileges and immunities 

of state citizenship had been ‘‘left to the state governments for security and protection’’ and had not been placed by the 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 or immunities clause to a superfluous reiteration of 

a prohibition already operative against the states. 

Although the Slaughter-House Cases Court expressed a reluctance to enumerate those privileges and immunities of United 

States citizens which are protected against state encroachment, it 

nevertheless felt obliged to suggest some. 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. 17

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 

1676 AMENDMENT 14—RIGHTS GUARANTEED 

(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). 26 Colgate v. Harvey, 296 U.S. 404 (1935), which was overruled five years later, 

see Madden v. Kentucky, 309 U.S. 83, 93 (1940), represented the first attempt by 

the Court since adoption of the Fourteenth Amendment to convert the privileges or 

immunities clause into a source of protection of other than those ‘‘interests growing 

out of the relationship between the citizen and the national government.’’ In Harvey, the Court declared that the right of a citizen to engage in lawful business in 

other states, such as by entering into contracts or by loaning money, was a privilege 

of national citizenship, and this privilege was abridged by a state income tax law 

which excluded interest received on money from loans from taxable income only if 

the loan was made within the State. 27 307 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. 28 314 U.S. 160, 177–83 (1941). 29See also Oregon v. Mitchell, 400 U.S. 112, 149 (1970) (Justice Douglas); id. 

at 285–87 (Justices Stewart and Blackmun and Chief Justice Burger). 30 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 

of grievances, 20 the right to vote for national officers, 21 the right 

to enter public lands, 22 the right to be protected against violence 

while in the lawful custody of a United States marshal, 23 and the 

right to inform the United States authorities of violation of its 

laws. 24 Earlier, in a decision not mentioned in Twining, the Court 

had also acknowledged that the carrying on of interstate commerce 

is ‘‘a right which every citizen of the United States is entitled to 

exercise.’’ 25

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. 26 In

Hague v. CIO, 27 two and perhaps three justices thought that the 

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 28 four Justices 

were prepared to rely on the clause. 29 In many other respects, however, claims based on this clause have been rejected. 30

AMENDMENT 14—RIGHTS GUARANTEED 1677

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¢ 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). 31 332 U.S. 633, 640 (1948). 

In Oyama v. California, 31 the Court, in a single sentence, 

agreed with the contention of a native-born youth that a state 

Alien Land Law, which resulted in the 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 forth in 

any of the enumerations as one of the privileges protected against 

1678 AMENDMENT 14—RIGHTS GUARANTEED 

32 Civil Rights Act of 1866, ch. 31, 14 Stat. 27, now 42 U.S.C. § 1982, as amended. 33See The Right to Travel, infra. 34Saenz v. Roe, 526 U.S. 489 (1999). 35 526 U.S. at 525 (Thomas, J., dissenting). 36The right of United States citizens to choose their state of residence is specifically protected by the first sentence of the 14th Amendment ‘‘All persons born or 

naturalized in the United States, and subject to the jurisdiction thereof, are citizens 

of the United States and of the State wherein they reside. . . .’’ 

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

In a doctrinal shift of uncertain significance, the Court will apparently evaluate challenges to durational residency requirements, 

previously considered as violations of the right to travel derived 

from the Equal Protection Clause, 33 as a potential violation of the 

Privileges or Immunities Clause. Thus, where a California law restricted the level of welfare benefits available to Californians who 

have been residents for less than a year to the level of benefits 

available in the State of their prior residence, the Court found a 

violation of the right of newly-arrived citizens to be treated the 

same as other state citizens. 34 Despite suggestions that this opinion will open the door to ‘‘guaranteed equal access to all public benefits,’’ 35 it seems more likely that the Court is protecting the privilege of being treated immediately as a full citizen of the state one 

chooses for permanent residence. 36

DUE PROCESS OF LAW 

Generally

Due process under the Fourteenth Amendment can be broken 

down into two categories—procedural due process and substantive 

due process. Procedural due process, based on principles of ‘‘fundamental fairness,’’ addresses which legal procedures are required to 

be followed in state proceedings. Relevant issues, as discussed in 

detail below, include notice, opportunity for hearing, confrontation 

and cross-examination, discovery, basis of decision, and availability 

of counsel. Substantive due process, while also based on principles 

of ‘‘fundamental fairness,’’ is used to evaluate whether a law can 

fairly be applied by states at all, regardless of the procedure followed. Substantive due process has generally dealt with specific 

subject areas, such as liberty of contract or privacy, and over time 

has alternately emphasized the importance of economic and noneconomic matters. In theory, the issues of procedural and substantive due process are closely related. In reality, substantive due 

AMENDMENT 14—RIGHTS GUARANTEED 1679

37The Privileges or Immunities Clause, more so than the Due Process Clause, 

appears at first glance to speak directly to the issue of state intrusions on substantive rights and privileges— ‘‘No State shall make or enforce any law which shall 

abridge the privileges or immunities of citizens of the United States . . . .’’. See

AKHIL REED AMAR, THE BILL OF RIGHTS 163-180 (1998). As discussed earlier, however, the Court limited the effectiveness of that clause soon after the ratification of 

the 14th Amendment. See Privileges or Immunities, supra. Instead, the Due Process 

Clause, though selective incorporation, has become the basis for the Court to recognize important substantive rights against the states. 38See Bill of Rights, Fourteenth Amendment, supra. 39See Graham, The ‘Conspiracy Theory’ of the Fourteenth Amendment, 47 YALE

L. J. 371 (1938). 40Munn v. Illinois, 94 U.S. 113 (1877). In a case arising under the Fifth Amendment, decided almost at the same time, the Court explicitly declared the United 

States ‘‘equally with the States . . . are prohibited from depriving persons or corporations of property without due process of law.’’ Sinking Fund Cases, 99 U.S. 700, 

718–19 (1879). 

process has had greater political import, as significant portions of 

a state legislature’s substantive jurisdiction can be restricted by its 

application.

While the extent of the rights protected by substantive due 

process may be controversial, its theoretical basis is firmly established and forms the basis for much of modern constitutional case 

law. Passage of the Reconstruction Amendments (13th, 14th and 

15th) gave the federal courts the authority to intervene when a 

state threatened fundamental rights of its citizens, 37 and one of the 

most important doctrines flowing from this is the application of the 

Bill of Rights to the states through the due process clause. 38

Through the process of ‘‘selective incorporation,’’ most of the provisions of the first eight Amendments such as free speech, freedom 

of religion, and protection against unreasonable searches and seizures are applied against the states as they are against the federal 

government. Though application of these rights against the states 

is no longer controversial, the incorporation of other substantive 

rights, as is discussed in detail below, has been. 

Definitions

‘‘Person’’.—The due process clause provides that no States 

shall deprive any ‘‘person’’ of ‘‘life, liberty or property’’ without due 

process of law. A historical controversy 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. 39 As early as the 1877 

Granger Cases 40 the Supreme Court upheld various regulatory 

state laws without raising any question as to whether a corporation 

could advance due process claims. Further, there is no doubt that 

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41Smyth 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). 42 As to the natural persons protected by the due process clause, these include 

all human beings regardless of race, color, or citizenship. 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). 43 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.’’ 44Grosjean 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). 45Pennie 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). 46 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). 47 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., 

ess of law. 41 While various decisions have held that the ‘‘liberty’’ 

guaranteed by the Fourteenth Amendment is the liberty of natural, 42 not artificial, persons, 43 nevertheless, in 1936, a newspaper 

corporation successfully objected that a state law deprived it of liberty of the press. 44

A separate question is the ability of a government official to invoke the due process clause to protect the interests of his office. Ordinarily, the mere official interest of a public officer, such as the 

interest in enforcing a law, has not been deemed adequate to enable him to challenge the constitutionality of a law under the Fourteenth Amendment. 45 Similarly, municipal corporations have no 

standing ‘‘to invoke the provisions of the Fourteenth Amendment 

in opposition to the will of their creator,’’ the State. 46 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. 47

AMENDMENT 14—RIGHTS GUARANTEED 1681

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). 48This power is not confined to the suppression of what is offensive, disorderly, 

or unsanitary. Long ago Chief Justice Marshall described the police power as ‘‘that 

immense mass of legislation, which embraces every thing within the territory of a 

State, not surrendered to the general government.’’ Gibbons v. Ogden, 22 U.S. (9 

Wheat.) 1, 202 (1824). See California Reduction Co. v. Sanitary Works, 199 U.S. 306, 

318 (1905); Chicago B. & Q. Ry. v. Drainage Comm’rs, 200 U.S. 561, 592 (1906); 

Bacon v. Walker, 204 U.S. 311 (1907); Eubank v. Richmond, 226 U.S. 137 (1912); 

Schmidinger v. Chicago, 226 U.S. 578 (1913); Sligh v. Kirkwood, 237 U.S. 52, 58– 

59 (1915); Nebbia v. New York, 291 U.S. 502 (1934); Nashville, C. & St. L. Ry. v. 

Walters, 294 U.S. 405 (1935). See also Penn Central Transp. Co. v. City of New 

York, 438 U.S. 104 (1978) (police power encompasses preservation of historic landmarks; land-use restrictions may be enacted to enhance the quality of life by preserving the character and aesthetic features of city); City of New Orleans v. Dukes, 

427 U.S. 297 (1976); Young v. American Mini Theatres, 427 U.S. 50 (1976). 49 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). ‘‘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.’’ Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548, 558 

(1914). 50Pennsylvania 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 also analysis of 

‘‘Regulatory Takings’’ under the Fifth Amendment. Although the Fourteenth 

Amendment does not contain a ‘‘takings’’ provisions such as is found in the Fifth 

Amendment, the Court has held that such provision has been incorporated. Webb’s 

Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 159 (1980). 51Liggett Co. v. Baldridge , 278 U.S. 105, 111–12 (1928); Treigle v. Acme Homestead Ass’n, 297 U.S. 189, 197 (1936). 

‘‘Property’’ and Police Power.—States have an inherent ‘‘police power’’ to promote public safety, health, morals, public convenience, and general prosperity, 48 but the extent of the power may 

vary based on the subject matter over which it is exercised. 49 If a 

police power regulation goes too far, it will be recognized as a taking of property for which compensation must be paid. 50 Thus, the 

means employed to affect 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, safety, or morals, or 

some other aspect of the general welfare. 51

An ulterior public advantage, however, may justify a comparatively insignificant taking of private property for what seems to be 

1682 AMENDMENT 14—RIGHTS GUARANTEED 

52 Noble State Bank v. Haskell, 219 U.S. 104, 110 (1911) (bank may be required 

to contribute to fund to guarantee the deposits of contributing banks). 53 Erie R.R. v. Williams, 233 U.S. 685, 700 (1914). 54 New Orleans Public Service v. New Orleans, 281 U.S. 682, 687 (1930). 55 Abie State Bank v. Bryan, 282 U.S. 765, 776 (1931). 56See 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. 57See 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, 503 U.S. 115 (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); County of Sacramento v. Lewis, 523 U.S. 833 (1998) (high-speed automobile 

chase by police officer causing death through deliberate or reckless indifference to 

life would not violate the Fourteenth Amendment’s guarantee of substantive due 

process).

a private use. 52 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.’’ 53 Moreover,

it is elementary that enforcement of a law passed in the legitimate 

exertion of the police power is not a taking without due process of 

law, even if the cost is borne by the regulated. 54 Initial compliance 

with a regulation which is valid when adopted, however, does not 

preclude later protest if that regulation subsequently becomes confiscatory in its operation. 55

‘‘Liberty’’.—As will be discussed in detail below, the ‘‘liberty’’ 

guaranteed by the due process clause has been variously defined by 

the Court. 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. 56 Nonetheless, the Court is generally chary 

of expanding the concept absent statutorily recognized rights. 57

The Rise and Fall of Economic Substantive Due Process: 

Overview

Long before the passage of the 14th Amendment, the due process clause of the Fifth Amendment was recognized as a restraint 

upon the Federal Government, but only in the narrow sense that 

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AMENDMENT 14—RIGHTS GUARANTEED 1683

58The conspicuous exception to this was the holding in the Dred Scott case that 

former slaves, as non-citizens, could not claim the protections of the clause. Scott 

v. Sandford, 60 U.S. (19 How.) 393, 450 (1857). 59See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (‘‘[a]n act of the legislature (for I cannot call it a law) contrary to the first great principles of the social 

compact, cannot be considered a rightful exercise of legislative authority’’). 60 In the years following the ratification of the 14th Amendment, the Court often 

observed that the due process clause ‘‘operates to extend . . . the same protection 

against arbitrary state legislation, affecting life, liberty and property, as is offered 

by the Fifth Amendment,’’ Hibben v. Smith, 191 U.S. 310, 325 (1903), 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,’’ 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). There is support for the notion, however, that 

the proponents of the 14th Amendment envisioned a more expansive substantive interpretation of that Amendment than had developed under the Fifth Amendment. 

See AKHIL REED AMAR, THE BILL OF RIGHTS 181-197 (1998). 61 83 U.S. (16 Wall.) 36, 80–81 (1873). 62See Privileges or Immunities Clause 63 94 U.S. 113, 134 (1877). 

forcement of law. 58 Although individual justices suggested early on 

that particular legislation could be so in conflict with precepts of 

natural law as to render it wholly unconstitutional, 59 the potential 

of the due process clause of the 14th Amendment as a substantive 

restraint on state action appears to have been grossly underestimated in the years immediately following its adoption. 60

Thus, early invocations of ‘‘substantive’’ due process were unsuccessful. In the Slaughter-House Cases, 61 discussed previously in 

the context of the Privileges or Immunities Clause, 62 a group of 

butchers challenged a Louisiana statute conferring the exclusive 

privilege of butchering cattle in New Orleans to one corporation. In 

reviewing the validity of this monopoly, the Court noted that the 

prohibition against a deprivation of property without due process 

‘‘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, 63 the Court reviewed the 

regulation of rates charged for the transportation and warehousing 

of grain, and again refused to interpret the due process clause as 

invalidating substantive state legislation. Rejecting contentions 

1684 AMENDMENT 14—RIGHTS GUARANTEED 

64 96 U.S. 97, 103–04 (1878). 

that such legislation effected an unconstitutional deprivation of 

property by preventing the owner from earning a reasonable compensation for its use and by transferring an interest in a private 

enterprise to the public, 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.’’ 

In Davidson v. New Orleans, 64 Justice Miller also counseled 

against a departure from these conventional applications of due 

process, although he acknowledged the difficulty of arriving at a 

precise, all-inclusive definition of the clause. ‘‘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 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. 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 

AMENDMENT 14—RIGHTS GUARANTEED 1685

65 110 U.S. 516, 528, 532, 536 (1884). 

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, however, in Hurtado v. California, 65 the Justices gave warning of an impending modification 

of their views. Justice Mathews, speaking for the Court, noted that 

due process under the United States Constitution differed from due 

process in English common law in that the latter only applied to 

executive and judicial acts, while the former additionally applied to 

legislative acts. Consequently, the limits of the due process under 

the 14th Amendment could not be appraised solely in terms of the 

‘‘sanction of settled usage’’ under common law. The Court then 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.’’ By this language, the States were put on notice 

that all types of state legislation, whether dealing with procedural 

or substantive rights, were now subject to the scrutiny of the Court 

when questions of essential justice were raised. 

What induced the Court to overcome its fears of increased judicial oversight and of upsetting the balance of powers between the 

Federal Government and the states was state remedial social legislation, enacted in the wake of industrial expansion, and the impact 

of such legislation on property rights. The added emphasis on the 

due process clause also afforded the Court an opportunity to compensate for its earlier nullification of much of the privileges or immunities clause of the Amendment. Legal theories about the relationship between the government powers and private rights were 

available to demonstrate the impropriety of leaving to the state legislatures the same ample range of police power they had enjoyed 

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1686 AMENDMENT 14—RIGHTS GUARANTEED 

66 94 U.S. 113, 141–48 (1877). 67 ‘‘It is true that the legislation which secures to all protection in their rights, 

and the equal use and enjoyment of their property, embraces an almost infinite variety of subjects. Whatever affects the peace, good order, morals, and health of the 

community, comes within its scope; and every one must use and enjoy his property 

subject to the restrictions which such legislation imposes. What is termed the police 

power of the State, which, from the language often used respecting it, one would 

suppose to be an undefined and irresponsible element in government, can only interfere with the conduct of individuals in their intercourse with each other, and in the 

use of their property, so far as may be required to secure these objects. The compensation which the owners of property, not having any special rights or privileges 

from the government in connection with it, may demand for its use, or for their own 

services in union with it, forms no element of consideration in prescribing regulations for that purpose.’’ 94 U.S. at 145-46. 68 123 U.S. 623, 661 (1887). 69 83 U.S. (16 Wall.) 36, 113–14, 116, 122 (1873). 70Loan 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 . . . .’’ 71 ‘‘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 

House Cases and Munn v. Illinois had to be overruled at least in 

part.

About twenty years were required to complete this process, in 

the course of which two strands of reasoning were developed. The 

first was a view advanced by Justice Field in a dissent in Munn

v. Illinois, 66 namely, that state police power is solely a power to 

prevent injury to the ‘‘peace, good order, morals, and health of the 

community.’’ 67 This reasoning was adopted by the Court in Mugler

v. Kansas, 68 where, despite upholding a state alcohol regulation, 

the Court held that ‘‘[i]t does not at all follow that every statute 

enacted ostensibly for the promotion of [public health, morals or 

safety] is to be accepted as a legitimate exertion of the police powers of the state.’’ The second strand, which had been espoused by 

Justice Bradley in his dissent in the Slaughter-House Cases, 69 tentatively transformed ideas embodying the social compact and natural rights into constitutionally enforceable limitations upon government. 70 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 fundamental 

natural rights of liberty and property. As articulated by Justice 

Bradley, these rights were equated with freedom to pursue a lawful 

calling and to make contracts for that purpose. 71

AMENDMENT 14—RIGHTS GUARANTEED 1687

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). 72 143 U.S. 517, 551 (1892). 73See Fletcher v. Peck, 10 U.S. (6 Cr.) 87, 128 (1810). 74 94 U.S. 113, 123, 182 (1877). 75 123 U.S. 623 (1887). 76 123 U.S. 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.’’ 77The following year the Court, confronted with an act restricting the sale of 

oleomargarine, of which the Court could not claim a like measure of common knowledge, briefly retreated to the doctrine of presumed validity, declaring that ‘‘it does 

not appear upon the face of the statute, or from any of the facts of which the Court 

must take judicial cognizance, that it infringes rights secured by the fundamental 

law.’’ Powell v. Pennsylvania, 127 U.S. 678, 685 (1888). 

Having narrowed the scope of the state’s police power in deference to the natural rights of liberty and property, the Court proceeded to incorporate into due process theories of laissez faire economics, reinforced by the doctrine of Social Darwinism (as elaborated by Herbert Spencer). Thus, ‘‘liberty’’ became synonymous 

with governmental non-interference in the field of private economic 

relations. For instance, in Budd v. New York, 72 Justice Brewer declared in dictum: ‘‘[t]he 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.’’ 

Next, the Court watered down the accepted maxim that a state 

statute must be presumed to be valid until clearly shown to be otherwise, by shifting focus to whether facts existed to justify a particular law. 73 The original position could be seen in earlier cases 

such as Munn v. Illinois, 74 where the Court sustained legislation 

before it by presuming that such facts existed: ‘‘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, however, in 

Mugler v. Kansas, 75 rather than presume the relevant facts, the 

Court sustained a statewide anti-liquor law based on the proposition that the deleterious social effects of the excessive use of alcoholic liquors were sufficiently notorious for the Court to be able to 

take notice of them. 76 This opened the door for future Court appraisals of the facts which had induced the legislature to enact the 

statute. 77

The implications of Mugler were significant, as it carried the 

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78 291 U.S. 502 (1934). 

79 348 U.S. 483 (1955). 

80 348 U.S. at 488. 

81 348 U.S. at 487, 491. 

ence of justifying fact, it would invalidate a police power regulation 

as bearing no reasonable or adequate relation to the purposes to 

be subserved by the latter—namely, health, morals, or safety. Interestingly, the Court found the rule of presumed validity quite 

serviceable for appraising state legislation affecting neither liberty 

nor property, but for legislation constituting governmental interference in the field of economic relations, especially labor-management relations, the Court found the principle of judicial notice more 

advantageous. In litigation embracing the latter type of legislation, 

the Court would also tend to shift the burden of proof, which had 

been with litigants challenging legislation, to the State seeking enforcement. Thus, the State had the task of demonstrating that a 

statute interfering with a 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. As will be 

discussed in detail below, this approach was utilized from the turn 

of the century through the mid 1930s to strike down numerous 

laws which were seen as restricting economic liberties. 

As a result of the Depression, however, the laissez faire approach to economic regulation lost favor to the dictates of the New 

Deal. Thus, in 1934, the Court in Nebbia v. New York 78 discarded

this approach to economic legislation. The modern approach is exemplified by the 1955 decision, Williamson v. Lee Optical Co., 79

which upheld a statutory scheme regulating the sale of eyeglasses 

which favored ophthalmologists and optometrists in private professional practice and disadvantaged opticians and 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.’’’ 80 The Court did go 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. 81 More recent decisions have limited this inquiry to whether the legislation is arbiVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00018 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 1689

82The 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 

and Engineers v. Chicago, R.I. & P. R.R., 393 U.S. 129, 143 (1968); Ferguson v. 

Skrupa, 372 U.S. 726, 730, 733 (1963). 83 83 U.S. (16 Wall.) 36 (1873). 84 165 U.S. 578 (1897). Freedom of contract was also alluded to as a property 

right, as is evident in the language of the Court in Coppage v. Kansas, 236 U.S. 

1, 14 (1915). ‘‘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 bestruck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long-established constitutional sense.’’ 85 165 U.S. at 589. 

trary or irrational, and have abandoned any requirement of ‘‘reasonableness.’’ 82

Regulation of Labor Conditions 

Liberty of Contract.—One of the most important concepts 

utilized during the ascendancy of economic due process was liberty 

of contract. The original idea of economic liberties was advanced by 

Justices Bradley and Field in the Slaughter-House Cases, 83 and

elevated to the status of accepted doctrine in Allgeyer v. Louisiana. 84 It was then used repeatedly during the early part of this 

century to strike down state and federal labor regulations. ‘‘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.’’ 85

The Court, however, did sustain some labor regulations 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 

1690 AMENDMENT 14—RIGHTS GUARANTEED 

86 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). 87 169 U.S. 366 (1898). 88 198 U.S. 45 (1905). 89 169 U.S. 366, 398 (1898). 90 198 U.S. 45 (1905). 

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.’’ 86

Still, the Court 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 

serve this end, 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 87 and Lochner v. New York. 88 In

Holden v. Hardy, 89 the Court, in reliance upon the principle of presumed validity, allowed the burden of proof to remain with those 

attacking 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 law which the 

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.’’ 

Seven years later, however, a radically altered Court was predisposed in favor of the doctrine of judicial notice. In Lochner v. 

New York, 90 the Court found that a law restricting employment in 

bakeries to ten hours per day and 60 hours per week was not a 

true health measure, but was merely a labor regulation, and thus 

was an unconstitutional interference with the right of adult laborers, sui juris, to contract for their means of livelihood. Denying that 

the Court was 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.’’ Then, in disregard of the medical 

evidence proffered, the Justice stated: ‘‘[i]n 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 

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AMENDMENT 14—RIGHTS GUARANTEED 1691

91 198 U.S. at 58-59. 92 198 U.S. at 71, 74 (quoting Atkin v. Kansas, 191 U.S. 207, 223 (1903)). 

pations more or less affect the health. . . . But are we all, on that 

account, at the mercy of the legislative majorities?’’ 91

Justice Harlan, in dissent, asserted that the law was a health 

regulation, 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. He concluded that the very existence of such evidence left 

the reasonableness of the measure open to discussion and thus 

within the discretion of the legislature. ‘‘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.’’ 92

A second dissenting opinion, written by Justice Holmes, has received the greater measure of attention as a forecast of the line of 

reasoning to be followed 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 

1692 AMENDMENT 14—RIGHTS GUARANTEED 

93 198 U.S. at 75-76. 94Thus, Justice Holmes’ criticism of his colleagues was unfair, as even a ‘‘rational and fair man’’ would be guided by some preferences or ‘‘economic predilections.’’ 95 208 U.S. 412 (1908). 96 243 U.S. 426 (1917). 97 Named for attorney (later Justice) Louis Brandeis, who presented voluminous 

documentation to support the regulation of women’s working hours in Muller v. Oregon, 208 U.S. 412 (1908). 98 E.g., Muller v. Oregon; Bunting v. Oregon. 99See, e.g., Adkins v. Children’s Hospital, 261 U.S. 525 (1923). 

the question whether statutes embodying them conflict with the 

Constitution. . . . I think that the word liberty in the Fourteenth 

Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational 

and fair man necessarily would admit that the statute proposed 

would infringe fundamental principles as they have been understood by the traditions of our people and our law.’’ 93

It should be noted that Justice Holmes did not reject the basic 

concept of substantive due process, but rather the Court’s presumption against economic regulation. 94 Thus, Justice Holmes, whether 

consciously or not, was prepared to support, along with his opponents in the majority, a ‘‘perpetual censorship’’ over state legislation. The basic distinction, therefore, between the positions taken 

by Justice Peckham for the majority and Justice Holmes, for what 

was then the minority, was the use of the doctrine of judicial notice 

by the former and the doctrine of presumed validity by the latter. 

The Holmes dissent soon bore fruit in Muller v. Oregon 95 and

Bunting v. Oregon, 96 which allowed, respectively, regulation of 

hours worked by women and by men in certain industries. The doctrinal approach employed was to find that the regulation was supported by evidence despite the shift in the burden of proof entailed 

by application of the principle of judicial notice. Thus, counsel defending the constitutionality of social legislation developed the 

practice of submitting voluminous factual briefs, known as ‘‘Brandeis Briefs,’’ 97 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, 98 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 a minimum 

wage for women and children, 99 it brushed aside such supporting 

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AMENDMENT 14—RIGHTS GUARANTEED 1693

100West 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). 101Miller 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). 102See, e.g., Holden v. Hardy, 169 U.S. 366 (1898) (statute limiting the hours 

of labor in mines and smelters to eight hours per day); Bunting v. Oregon, 243 U.S. 

426 (1917) (statute limiting to ten hours per day, with the possibility of 3 hours per 

day of overtime at time-and-a-half pay, work in any mill, factory, or manufacturing 

establishment).

ty, and condemned the statute as an arbitrary interference with 

freedom of contract. 

During the great Depression, however, the laissez faire tenet of 

self-help was replaced by the belief that it is peculiarly the duty 

of government to help those who are unable to help themselves. To 

sustain this remedial legislation, the Court had to extensively revise its previously formulated concepts of ‘‘liberty’’ under the due 

process clause. Thus, the Court, in overturning prior holdings and 

sustaining minimum wage legislation, 100 took judicial notice of the 

demands for relief arising from the Depression. And, in upholding 

state legislation designed to protect workers in their efforts to organize and bargain collectively, the Court reconsidered the scope of 

an employer’s liberty of contract, and recognized a correlative liberty of employees that state legislatures could protect. 

To the extent that it acknowledged that liberty of the individual may be infringed by the coercive conduct of private individuals no less than by 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 Working Conditions and Wages.—As

noted, 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 101 and to all workers in 

specified lines of work thought to be physically demanding or otherwise worthy of special protection. 102 Similarly, the regulation of 

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103Statute requiring redemption in cash of store orders or other evidences of indebtedness issued by employers in payment of wages did not violate liberty of contract. 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). 104Laws requiring railroads to pay their employees semimonthly, Erie R.R. v. 

Williams, 233 U.S. 685 (1914), or to pay them on the day of discharge, without 

abatement or reduction, any funds due them, St. Louis, I. Mt. & S.P. Ry. v. Paul, 

173 U.S. 404 (1899), do not violate due process. 105Freedom 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. Rail Coal Co. v. Ohio Industrial Comm’n, 236 

U.S. 338 (1915). See also McLean v. Arkansas, 211 U.S. 539 (1909). 106 Atkin v. Kansas, 191 U.S. 207 (1903). 107Sturges & Burn v. Beauchamp, 231 U.S. 320 (1913). 108St. Louis Consol. Coal Co. v. Illinois, 185 U.S. 203 (1902). 109Wilmington Mining Co. v. Fulton, 205 U.S. 60 (1907). 110 Barrett v. Indiana, 229 U.S. 26 (1913). 111Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 (1914). 112 Booth v. Indiana, 237 U.S. 391 (1915). 113 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). 

ment, 103 its frequency, 104 and how such payment was to be 

calculated. 105 And, because of the almost plenary powers of the 

State and its municipal subdivisions to determine the conditions for 

work on public projects, statutes limiting the hours of labor on public works were also upheld at a relatively early date. 106 Further,

states could prohibit the employment of persons under 16 years of 

age in dangerous occupations and require employers to ascertain 

whether their employees were in fact below that age. 107

The regulation of mines represented a further exception to the 

Lochner era’s anti-discrimination tally. As such health and safety 

regulation was clearly within a State’s police power, a State’s laws 

providing for mining inspectors (paid for by mine owners), 108 licensing mine managers and mine examiners, and imposing liability 

upon mine owners for failure to furnish a reasonably safe place for 

workmen were upheld during this period. 109 Other similar regulations which were sustained included laws requiring that underground passageways meet or exceed a minimum width, 110 that

boundary pillars be installed between adjoining coal properties as 

a protection against flood in case of abandonment, 111 and that 

washhouses be provided for employees. 112

One of the more significant negative holdings of the 

Lochner era was that states could not regulate how much wages 

were to be paid to employees. 113 As with the other condition and 

wage issues, however, concern for the welfare of women and children seemed to weigh heavily on the justices, and restrictions on 

AMENDMENT 14—RIGHTS GUARANTEED 1695

114West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (overruling Adkins v. 

Children’s Hospital, 261 U.S. 525 (1923), a Fifth Amendment case); Morehead v. 

New York ex rel. Tipaldo, 298 U.S. 587 (1936). 115Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952) (sustaining a 

Missouri statute giving employees the right to absent themselves for four hours 

while the polls were open on election day without deduction of wages for their absence). The Court in Day-Brite Lighting, Inc. recognized that the legislation in question served as a form of wage control for men, which had previously found unconstitutional. Justice Douglas, however, wrote that ‘‘the protection of the right of suffrage 

under our scheme of things is basic and fundamental,’’ and hence within the states’ 

police power. 

minimum wages for these groups were discarded in 1937. 114 Ultimately, the reasoning of these cases was extended to more broadly 

based minimum wage laws, as the Court began to offer significant 

deference to the states to enact economic and social legislation benefitting labor. 

The modern theory regarding substantive due process and 

wage regulation was explained by Justice Douglas in 1952 in the 

following terms: ‘‘Our recent decisions make plain that we do not 

sit as a super legislature 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 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.’’ 115

The Justice further noted that ‘‘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 wellbeing, 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 

1696 AMENDMENT 14—RIGHTS GUARANTEED 

116 342 U.S. 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). 117 New York Cent. R.R. v. White, 243 U.S. 188, 200 (1917). ‘‘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 employment 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.’’ Arizona Employers’ Liability Cases, 250 U.S. 400, 419–20 (1919). 118 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). 119 Nor does it violate due process to deprive an employee or his dependents of 

the higher damages which, in some cases, might be rendered under these doctrines. 

New York Central R.R. v. White, 243 U.S. 188 (1917); Mountain Timber Co. v. 

Washington, 243 U.S. 219 (1917). 120 Arizona Employers’ Liability Cases, 250 U.S. 400 (1919). 121 Chicago, B. & Q. R.R. v. McGuire, 219 U.S. 549 (1911) (prohibiting contracts 

limiting liability for injuries and stipulating that acceptance of benefits under such 

contracts shall not constitute satisfaction of a claim); Alaska Packers Ass’n v. Industrial Accident Comm’n, 294 U.S. 532 (1935) (forbidding contracts exempting employers hired-in-state from liability for injuries outside the State); Thornton v. Duffy, 

254 U.S. 361 (1920) (required contribution to a state insurance fund by an employer 

even though employer had obtained protection from an insurance company under 

previous statutory scheme); Booth Fisheries v. Industrial Comm’n, 271 U.S. 208 

(1926) (finding of fact of an industrial commission conclusive if supported by any 

evidence regardless of its preponderance, right to come under a workmen’s comlegislative decision. We could strike down this law only if we returned to the philosophy of the Lochner, Coppage, and Adkins

cases.’’ 116

Workers’ Compensation Laws.—Workers’ compensation laws 

also evaded the ravages of Lochner. The 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.’’ 117 Accordingly, a state statute which provided an exclusive 

system to govern the liabilities of employers for disabling injuries 

and death caused by accident in certain hazardous occupations, 118

irrespective of the doctrines of negligence, contributory negligence, 

assumption of risk, and negligence of fellow-servants, was held not 

to work a denial of due process. 119 Likewise, an act which allowed 

an injured employee, though guilty of contributory negligence, an 

election of remedies between restricted recovery under a compensation law or full compensatory damages under the Employers’ Liability Act, did not deprive an employer of his property without due 

process of law. 120 A variety of other statutory schemes have also 

been upheld. 121

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pensation statute is optional with employer); Staten Island Ry. v. Phoenix Co., 281 

U.S. 98 (1930) (wrongdoer is obliged to indemnify employer or the insurance carrier 

of the employer in the amount which the latter were required to contribute into special compensation funds); Sheehan Co. v. Shuler, 265 U.S. 371 (1924) (where an injured employee dies without dependents, employer or carrier required to make payments into special funds to be used for vocational rehabilitation or disability compensation of injured workers of other establishments); New York State Rys. v. 

Shuler, 265 U.S. 379 (1924) (same holding as above case); 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) (compensation need not be based exclusively on loss of earning power, 

and award authorized for injuries resulting in disfigurement of the face or head, 

independent of compensation for inability to work). 122 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 14–20 (1976). But see id.

at 38 (Justice Powell concurring). 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.’’

Even the imposition upon coal mine operators of the liability 

of compensating former employees who terminated work in the industry before passage of the law for black lung disabilities 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. 122 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. Consequently, legislation imposing liability on the 

basis of deterrence or of blameworthiness might not have passed 

muster.

Collective Bargaining.—During the Lochner era, liberty of 

contract, as translated into what one Justice labeled the 

Allgeyer- Lochner- Adair- Coppage doctrine, 123 was used to strike 

down legislation calculated to enhance the bargaining capacity of 

1698 AMENDMENT 14—RIGHTS GUARANTEED 

124 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 Packing 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. 125Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922). Added provisions that 

such letters should be on plain paper selected by the employee, 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. Chicago, R.I. 

& P. Ry. v. Perry, 259 U.S. 548 (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. 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. Dorchy v. Kansas, 272 U.S. 306 (1926). 126 301 U.S. 486 (1937). 127 301 U.S. 468 (1937). 128 257 U.S. 312 (1921). 129The 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. 

workers as against that already possessed by their employers. 124

The Court did, however, on occasion sustain measures affecting the 

employment relationship, such as a statute requiring every corporation to furnish a departing employee a letter setting forth the 

nature and duration of the employee’s service and the true cause 

for leaving. 125 In Senn v. Tile Layers Union, 126 however, the Court 

began to show a greater willingness to defer to legislative judgment 

as to the wisdom and need of such enactments. 

The significance of Senn 127 was, in part, that the case upheld 

a statute that was not appreciably different from a law voided five 

years earlier in Truax v. Corrigan. 128 In Truax, the Court found 

that a statute forbidding injunctions on labor protest activities was 

unconstitutional as applied to a labor dispute involving picketing, 

libelous statements, and threats. The statute subsequently upheld 

in Senn, on the other hand, authorized publicizing labor disputes, 

declared peaceful picketing and patrolling lawful, and prohibited 

the granting of injunctions against such conduct. 129 The difference 

between these statutes, according to the Court, was that the law 

in Senn applied to ‘‘peaceful’’ picketing only, while the law in 

Truax ‘‘was . . . applied to legalize conduct which was not simply 

AMENDMENT 14—RIGHTS GUARANTEED 1699

130 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. 131 335 U.S. 525 (1949). 132 335 U.S. 538 (1949). 133 335 U.S. at 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 

peaceful picketing.’’ 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. 

Years later, after regulations protective of labor allowed unions 

to amass enormous economic power, many state legislatures attempted to control the abuse of this power, and the Court’s new 

found deference to state labor regulation was also applied to restrictions on unions. Thus the Court upheld state prohibitions on 

racial discrimination by unions, rejecting claims that the measure 

interfered unlawfully with the union’s right to choose its members, 

abridged its property rights, or violated its 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. 130

Similarly, state laws outlawing closed shops were upheld in 

Lincoln Federal Labor Union v. Northwestern Iron & Metal Company 131 and AFL v. American Sash & Door Co. 132 When labor 

unions attempted to invoke freedom of contract, 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.’’ 133

1700 AMENDMENT 14—RIGHTS GUARANTEED 

more appropriate than self-discipline and pressure of public opinion. . . .’’ Id. at 538, 

549–50. 134 336 U.S. 245 (1949). 135 336 U.S. at 253. See also Giboney v. Empire Storage Co., 336 U.S. 490 (1949) 

(upholding state law forbidding agreements in restraint of trade as applied to union 

ice peddlers picketing wholesale ice distributor to induce the latter not to sell to 

nonunion peddlers). Other cases regulating picketing are treated under the First 

Amendment topics, ‘‘Picketing and Boycotts by Labor Unions’’ and ‘‘Public Issue 

Picketing and Parading,’’ supra. 136 94 U.S. 113 (1877). See also Davidson v. New Orleans, 96 U.S. 97 (1878); 

Peik v. Chicago & Nw. Ry., 94 U.S. 164 (1877); 137The 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. 

And, in UAW v. WERB, 134 the Court upheld the Wisconsin 

Employment Peace Act, which had been used to proscribe unfair 

labor practices by a union. In UAW, the Union, acting after collective bargaining negotiations had become deadlocked, had attempted to coerce an employer through calling frequent, irregular, 

and unannounced union meetings during working hours, resulting 

in a slowdown in production. ‘‘No one,’’ declared the Court, can 

question ‘‘the State’s power to police coercion by . . . methods’’ 

which involve ‘‘considerable injury to property and intimidation of 

other employees by threats.’’ 135

Regulation of Business Enterprises: Price Controls 

In examining whether the due process clause allows the regulation of business prices, the Supreme Court, almost from the inception of the Fourteenth Amendment, has devoted itself to the examination of two questions: (1) whether the clause restricted such 

regulation to certain types of business, and (2) the nature of the 

regulation allowed as to those businesses. 

Types of Businesses That May be Regulated.—For a brief 

interval following the ratification of the Fourteenth Amendment, 

the Supreme Court found the due process clause to impose no substantive restraint on the power of States to fix rates chargeable by 

any industry. Thus, in Munn v. Illinois, 136 the first of the ‘‘Granger

Cases,’’ maximum charges established by a state 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. 137 The Court, in an opinion that was largely dictum, declared that the due process clause did not operate as a safeguard against oppressive rates, and 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 

AMENDMENT 14—RIGHTS GUARANTEED 1701

138 Chicago, M. & St. P. Ry. v. Minnesota, 134 U.S. 418 (1890). 139Wolff Packing Co. v. Industrial Court, 262 U.S. 522, 535–36 (1923). 140Munn 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). 141 Cotting v. Kansas City Stock Yards Co., 183 U.S. 79 (1901). 142Townsend v. Yeomans, 301 U.S. 441 (1937). 143German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914); Aetna Insurance 

Co. v. Hyde, 275 U.S. 440 (1928). 144O’Gorman & Young v. Hartford Ins. Co., 282 U.S. 251 (1931). 

from this position, and by 1890 138 it had fully converted the due 

process clause into a restriction on state agencies seeking to impose 

rates which, in a judge’s estimation, were arbitrary or unreasonable. This state of affairs continued for more than fifty years. 

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. 139 ‘‘(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.’’ 

Through application of this formula, the Court sustained state 

laws regulating charges made by grain elevators, 140 stockyards, 141

and tobacco warehouses, 142 and fire insurance rates 143 and commissions paid to fire insurance agents. 144 The Court also voided 

1702 AMENDMENT 14—RIGHTS GUARANTEED 

145Williams v. Standard Oil Co., 278 U.S. 235 (1929). 146Tyson & Bro. v. Banton, 273 U.S. 418 (1927). 147 New State Ice Co. v. Liebmann, 285 U.S. 262 (1932). See also Adams v. Tanner, 244 U.S. 590 (1917); Weaver v. Palmer Bros., 270 U.S. 402 (1926). 148 291 U.S. 502, 531–32, 535–37, 539 (1934). 149 In reaching this conclusion the Court might be said to have elevated to the 

status of prevailing doctrine the views advanced in previous decisions by dissenting 

Justices. Thus, Justice Stone, dissenting in Ribnik v. McBride, 277 U.S. 350, 359– 

60 (1928), had declared: ‘‘Price regulation is within the State’s power whenever any 

combination of circumstances seriously curtails the regulative force of competition 

so that buyers or sellers are placed at such a disadvantage in the bargaining struggle that a legislature might reasonably anticipate serious consequences to the community as a whole.’’ In his dissenting opinion in New State Ice Co. v. Liebmann, 

285 U.S. 262, 302–03 (1932), Justice Brandeis had also observed: ‘‘The notion of a 

distinct category of business ‘affected with a public interest’ employing property ‘devoted to a public use’ rests upon historical error. In my opinion the true principle 

is that the State’s power extends to every regulation of any business reasonably required and appropriate for the public protection. I find in the due process clause 

no other limitation upon the character or the scope of regulation permissible.’’ 150Older decisions overturning price regulation were now viewed as resting 

upon this basis, i.e., that due process was violated because the laws were arbitrary 

in their operation and effect. 151The Court was not disturbed by the ‘‘scientific validity’’ that had been 

claimed for the theory of Adam Smith that ‘‘price that will clear the market,’’ and 

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. The minority continued to stress the unreasonableness of any state regulation interfering with 

the determination of prices by ‘‘natural forces.’’ Justice McReynolds, speaking for the 

dissenting Justices, labeled 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 

statutes regulating business not ‘‘affected with a public interest,’’ 

including state statutes fixing the price at which gasoline may be 

sold, 145 regulating the prices for which ticket brokers may resell 

theater tickets, 146 and limiting competition in the manufacture and 

sale of ice through the withholding of licenses to engage therein. 147

In the 1934 case of Nebbia v. New York, 148 however, the Court 

finally shelved the concept of ‘‘a business affected with a public interest,’’ 149 upholding, by a vote of five-to-four, a depression-induced 

New York statute fixing fluid milk prices. ‘‘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.’’ 150 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. 151

AMENDMENT 14—RIGHTS GUARANTEED 1703

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). 152 313 U.S. 236, 246 (1941). 153The older case of Ribnik v. McBride, which had invalidated similar legislation upon the now obsolete concept of a ‘‘business affected with a public interest,’’ 

was expressly overruled. 277 U.S. 350 (1928). Adams v. Tanner, 244 U.S. 590 

(1917), was disapproved in Ferguson v. Skrupa, 372 U.S. 726 (1963), and Tyson & 

Bro. v. Banton, 273 U.S. 418 (1927), was effectively overruled in Gold v. DiCarlo, 

380 U.S. 520 (1965), without the Court hearing argument on it. 154 116 U.S. 307 (1886). 155This was contrary to its earlier holding in Davidson v. New Orleans, 96 U.S. 

97 (1877). 

Having thus concluded that it is no longer the nature of the 

business that determines the validity of a price regulation, the 

Court had little difficulty in upholding a state law prescribing the 

maximum commission which private employment agencies may 

charge. Rejecting contentions that the need for such protective legislation had not been shown, the Court, in Olsen v. Nebraska 152

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. 153

Substantive Review of Price Controls.—Ironically, private 

businesses, once they had been found subject to price regulation, 

seemed to have less protection than public entities. Thus, unlike 

operators of public utilities who, in return for a government grant 

of virtually monopolistic privileges must provide continuous service, proprietors of other businesses receive no similar special advantages and accordingly are unrestricted in their right to liquidate and close. Owners of ordinary businesses, therefore, are at 

liberty to escape the consequences of publicly imposed charges by 

dissolution, and have been found less in need of protection through 

judicial review. Thus, case law upholding challenges to price controls deals predominantly with governmentally imposed rates and 

charges for public utilities. 

In 1886, Chief Justice Waite, in the Railroad Commission 

Cases, 154 warned that the ‘‘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 government on a regulated entity. By 

treating ‘‘due process of law’’ and ‘‘just compensation’’ as equivalents, 155 the Court was in effect asserting that the imposition of a 

rate so low as to damage or diminish private property ceased to be 

1704 AMENDMENT 14—RIGHTS GUARANTEED 

156Dow v. Beidelman, 125 U.S. 680 (1888). 157 134 U.S. 418, 458 (1890). 158 Budd v. New York, 143 U.S. 517 (1892). 159 154 U.S. 362, 397 (1894). 160 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. 161 169 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 

an exercise of a State’s police power and became one of eminent domain. Nevertheless, even this doctrine proved inadequate to satisfy 

public utilities, as it allowed courts to intervene only to prevent imposition of a confiscatory rate, i.e., 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 to challenge this doctrine, 156 it finally acceded 

to the wishes of the utilities in 1890 in Chicago, M. & St. P. Railway v. Minnesota. 157 In this case, the Court ruled that ‘‘[t]he 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. . . .’’ 

Although the Court made a last-ditch attempt to limit the ruling of Chicago, M. & S.P. Railway to rates fixed by a commission 

as opposed to rates imposed by a legislature, 158 the Court in 

Reagan v. Farmer’s Loan and Trust Co. 159 finally removed all lingering doubts over the scope of judicial intervention. In Reagan,

the Court declared that, ‘‘if a carrier . . . attempted to charge a 

shipper an unreasonable sum,’’ the Court, in accordance with common law principles, would 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.’’ 160 Reiterating

virtually the same principle in Smyth v. Ames, 161 the Court not 

AMENDMENT 14—RIGHTS GUARANTEED 1705

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). 162 Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362, 397 (1894). 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 merely because such power was unwisely or expediently 

exercised. 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. 163This distinction was accorded adequate emphasis by the Court in Louisville 

& Nashville R.R. v. Garrett, 231 U.S. 298, 310–13 (1913), 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 

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 further determines whether the rate permits the utility to earn a fair return on 

a fair valuation of its investment. 

Early Limitations on Review.—Even while reviewing the 

reasonableness of rates the Court recognized some limits on judicial review. As early as 1894, the Court asserted that ‘‘[t]he 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.’’ 162 One can also infer 

from these early holdings a distinction between unreviewable fact 

questions that relate only to the wisdom or expediency of a rate 

order, and reviewable factual determinations that bear on a commission’s power to act. 163

1706 AMENDMENT 14—RIGHTS GUARANTEED 

whereby the commission determined that the existing rate was excessive, but not 

the expediency or wisdom of the commission’s having superseded that rate with a 

rate regulation of its own. 164Des Moines Gas Co. v. Des Moines, 238 U.S. 153 (1915). 165Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 452 (1913). 166Knoxville v. Water Co., 212 U.S. 1 (1909). 167Willcox v. Consolidated Gas Co., 212 U.S. 19 (1909). However, 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. Smith v. Illinois Bell Tel. Co., 270 U.S. 587 (1926). 168 174 U.S. 739, 750, 754 (1899). See also Minnesota Rate Cases (Simpson v. 

Shepard), 230 U.S. 352, 433 (1913). 169San 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). 170Moreover, in reviewing orders of the Interstate Commerce Commission, the 

Court, at least in earlier years, 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., 222 U.S. 541, 

547–48 (1912) 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, 

Further, 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, 164 but he must present a case of 

‘‘manifest constitutional invalidity.’’ 165 And, if, notwithstanding 

this effort, the question of confiscation remains in doubt, no relief 

will be granted. 166 Moreover, even the Court was inclined to withhold judgement on the application of a rate until the practical effect could be surmised. 167

In the course of time this distinction solidified. Thus, the Court 

initially adopted the position that it would not disturb findings of 

fact insofar as these were supported by substantial evidence. For 

instance, in San Diego Land Company v. National City, 168 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 

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 169 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.’’ 170

AMENDMENT 14—RIGHTS GUARANTEED 1707

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.’’ See also ICC v. Illinois Cent. R.R., 215 U.S. 452, 470 (1910). 171 253 U.S. 287 (1920). 172 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. 253 U.S. 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. 173Without departing from the ruling previously enunciated in Louisville & 

Nashville R.R. Co. v. Garrett, 231 U.S. 298 (1913) 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 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.’’ 253 U.S. 287, 291, 295 (1920). 

These standards of review were, however, abruptly rejected by 

the Court in Ohio Valley Co. v. Ben Avon Borough 171 as being no 

longer sufficient to satisfy the requirements of due process, ushering in a long period where courts substantively evaluated the 

reasonableness of rate settings. Although the state court in Ben

Avon had in fact reviewed the evidence and ascertained that the 

state commission’s findings of fact were supported by substantial 

evidence, 172 it also construed the statute providing for review as 

denying to state courts ‘‘the power to pass upon the weight of such 

evidence.’’ Largely on the strength of this interpretation of the applicable state statute, the Court held that when the order of a legislature, or of a commission, prescribing a schedule of maximum future rates is challenged as confiscatory, ‘‘the State must provide a 

fair opportunity for submitting that issue to a judicial tribunal for 

determination upon its own independent judgment as to both law 

and facts; otherwise the order is void because in conflict with the 

due process clause, Fourteenth Amendment.’’ 173

History of the Valuation Question.—For almost fifty years 

the Court wandered through a maze of conflicting formulas and 

factors for valuing public service corporation property including 

1708 AMENDMENT 14—RIGHTS GUARANTEED 

174Smyth v. Ames, 169 U.S. 466, 546–47 (1898) (‘‘fair value’’ necessitated consideration of original cost of construction, permanent improvements, amount and 

market value of bonds and stock, replacement cost, probable earning capacity, and 

operating expenses). 175 Various valuation cases emphasized reproduction costs, i.e, the present as 

compared with the original cost of construction. See, e.g., 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) 176Missouri ex rel. Southwestern Bell Tel. Co. v. Public Serv. Comm’n, 262 U.S. 

276, 291–92, 302, 306–07 (1923) (Brandeis, J., concurring) (cost includes both operating expenses and capital charges i.e interest for the use of capital, allowance for 

the risk incurred, funds to attract capital). This method would require ‘‘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.’’ 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. 177Knoxville v. Water Co., 212 U.S. 1, 9–10 (1909) (considering depreciation as 

part of cost). 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. 

591, 606 (1944), 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. 178Des Moines Gas Co. v. Des Moines, 238 U.S. 153, 165 (1915) (finding ‘‘going 

concern value’’ in an assembled and established plant, doing business and earning 

money, over one not thus advanced). 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). 179Market Street Ry. v. Railroad Comm’n, 324 U.S. 548, 562, 564 (1945) (where 

a street-surface railroad had lost all value except for scrap or salvage it was permissible for a commission to consider the price at which the utility offered to sell its 

property to a citizen); Denver v. Denver Union Water Co., 246 U.S. 178 (1918) 

(where water company 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). 180FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 590 (1942) (‘‘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’’). 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 

>‘fair value,’’ 174 ‘‘reproduction cost,’’ 175 ‘‘prudent investment’’, 176 ‘‘depreciation’’, 177 ‘‘going concern value and good will’’, 178 ‘‘salvage

value,’’ 179 and ‘‘past losses and gains’’ 180 only to emerge therefrom 

AMENDMENT 14—RIGHTS GUARANTEED 1709

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 94 U.S. 113 (1877). 182 315 U.S. 575, 586 (1942). 183 320 U.S. 591, 602 (1944). Although this and the previously cited decision 

arose out of controversies involving the National Gas Act of 1938, the principles laid 

down therein are believed to be applicable to the review of rate orders of state commissions, except insofar as the latter operate in obedience to laws containing unique 

standards or procedures. 184Ohio Valley Co. v. Ben Avon Borough, 253 U.S. 287 (1920). 185 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.’’ 186FPC 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). 

in 1944 at a point not very far removed from Munn v. Illinois and

its deference to rate-making authorities. 181 By holding in FPC v. 

Natural Gas Pipeline Co., 182 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 Natural Gas Co., 183 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. 184 Without surrendering the judicial power to declare rates unconstitutional on ground of a substantive deprivation of due process, 185 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.’’ 186

1710 AMENDMENT 14—RIGHTS GUARANTEED 

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 ratesetting methodology best meets their needs in balancing the interests of the utility 

and the public.’’ 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). 187FPC v. Hope Natural Gas Co., 320 U.S. 591, 603 (1944) (citing Chicago & 

Grand Trunk 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). 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). 

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

Regulation of Public Utilities and Common Carriers 

In General.—Because of the nature of the business they carry 

on and the public’s interest in it, public utilities and common carriers are subject to state regulation, whether exerted directly by 

legislatures or under authority delegated to administrative bodies. 188 But because the property of these entities remains under the 

full protection of the Constitution, it follows that due process is violated when the state regulates in a manner that infringes the right 

of ownership in what the Court considers to be an ‘‘arbitrary’’ or 

‘‘unreasonable’’ way. 189 Thus, when a street railway company lost 

its franchise, the city could not simply take possession of its equipment, 190 although it could subject the company to the alternative 

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AMENDMENT 14—RIGHTS GUARANTEED 1711

191Detroit United Ry. v. Detroit, 255 U.S. 171 (1921). See also Denver v. New 

York Trust Co., 229 U.S. 123 (1913). 192Los 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). 194Western Union Tel. Co. v. Richmond, 224 U.S. 160 (1912). 195Pierce Oil Corp. v. Phoenix Ref. Co., 259 U.S. 125 (1922). 196 Norfolk Turnpike Co. v. Virginia, 225 U.S. 264 (1912) (requiring a turnpike 

company to suspend tolls until the road is put in good order not a violation of due 

process of law, notwithstanding the fact that present patronage does not yield revenue sufficient to maintain the road in proper condition ); International Bridge Co. 

v. New York, 254 U.S. 126 (1920) (in the absence of proof that the addition will not 

yield a reasonable return, railroad bridge company not deprived of its property when 

it is ordered to widen its bridge by inclusion of a pathway for pedestrians and a 

roadway for vehicles.); Chicago, B. & Q. R.R. v. Nebraska, 170 U.S. 57 (1898) (railroads may be required to repair viaduct under which they operate); Chicago, B. & 

Q. Ry. v. Drainage Comm’n, 200 U.S. 561 (1906) (reconstruct a bridge or provide 

means for passing water for drainage through their embankment,); Chicago & Alton 

R.R. v. Tranbarger, 238 U.S. 67 (1915) (drainage requirements); Lake Shore & Mich. 

So. Ry. v. Clough, 242 U.S. 375 (1917) (drainage requirements) Pacific Gas Co. v. 

Police Court, 251 U.S. 22 (1919) (requirement to sprinkle street occupied by railroad.). But see Chicago, St. P., Mo. & O. Ry. v. Holmberg, 282 U.S. 162 (1930) (due 

process violated by requirement that an underground cattle-pass is be constructed, 

not as a safety measure but as a convenience to farmers). 

ations and removing its property from the streets. 191 Likewise, a 

city wanting to establish 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 a city 

may compete with a company that has no exclusive charter. 193

However, a municipal ordinance that demanded, as a condition for 

placing poles and conduits in city streets, that a telegraph company 

carry the city’s wires free of charge, and that required that conduits be moved at company expense, was constitutional. 194

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 which requires 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

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 in violation of due process. 196 Thus, where 

a water company laid its lines on an ungraded street, and the applicable rule at the time of the granting of its charter compelled the 

company to furnish connections at its own expense to one residing 

1712 AMENDMENT 14—RIGHTS GUARANTEED 

197 Consumers’ Co. v. Hatch, 224 U.S. 148 (1912). 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 Panhandle Eastern Pipeline Co. v. Highway Comm’n, 294 U.S. 613 

(1935). 198 New Orleans Gas Co. v. Drainage Comm’n, 197 U.S. 453 (1905). 199 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). 200 Atchison, T. & S.F. Ry. v. Public Util. Comm’n, 346 U.S. 346, 352 (1953). 201 Atchison, T. & S.F. Ry. v. Public Util. Comm’n, 346 U.S. at 394-95 (1953). 

See Minneapolis & St. L. R.R. v. Minnesota, 193 U.S. 53 (1904) (obligation to establish stations at places convenient for patrons); Gladson v. Minnesota, 166 U.S. 427 

(1897) (obligation to stop all their intrastate trains at county seats); Missouri Pac. 

Ry. v. Kansas, 216 U.S. 262 (1910) (obligation to run a regular passenger train instead of a mixed passenger and freight train) Chesapeake & Ohio Ry. v. Public Serv. 

Comm’n, 242 U.S. 603 (1917) (obligation to furnish passenger service on a branch 

line previously devoted exclusively to carrying freight); Lake Erie & W.R.R. v. Public 

Util. Comm’n, 249 U.S. 422 (1919) (obligation 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, a sidetrack ); Western & Atlantic R.R. v. Public 

on such a street, due process is not violated. 197 Or, where a gas 

company laid its pipes under city streets, it may validly be obligated to assume the cost of moving them to accommodate a municipal drainage system. 198 Or, railroads may be required to help fund 

the elimination of grade crossings, even though commercial highway users, who make no contribution whatsoever, benefit from 

such improvements. 

While the power of the State in this respect is not unlimited, 

and an ‘‘arbitrary’’ and ‘‘unreasonable’’ imposition on these businesses may be set aside, the Court’s modern approach to substantive due process analysis makes this possibility far less likely 

than it once was. For instance, a 1935 case invalidated a requirement that railroads share 50% of the cost of grade separation, irrespective of the value of such improvements to the railroad, suggesting that railroads could not be required to subsidize competitive transportation modes. 199 But in 1953 the Court distinguished 

this case, ruling that the costs of grade separation improvements 

need not be allocated solely on the basis of benefits that would accrue to railroad property. 200 While the Court cautioned that ‘‘allocation of costs must be fair and reasonable,’’ it was 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, ‘‘the cost of such improvements may be allocated all to the railroads.’’ 

Compellable Services.—A State may require that common 

carriers such as railroads provide services in a manner suitable for 

the convenience of the communities they serve. 201 Similarly, a priVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00042 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 1713

Comm’n, 267 U.S. 493 (1925) (same); Alton R.R. v. Illinois Commerce Comm’n, 305 

U.S. 548 (1939) (obligation for upkeep of a switch track leading from its main line 

to industrial plants.). But see Missouri Pacific Ry. v. Nebraska, 217 U.S. 196 (1910) 

(requirement, without indemnification, to install switches on the application of owners of grain elevators erected on right-of-way held void). 202 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). 203Missouri Pacific 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). 204 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). 205 Chesapeake & Ohio Ry. v. Public Serv. Comm’n, 242 U.S. 603, 607 (1917). 206 ‘‘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 

mary duty of a public utility is to serve all those who desire the 

service it renders, and so it follows that a company cannot pick and 

choose to serve only those portions of its territory which it finds 

most profitable. Therefore, compelling a gas company to continue 

serving specified cities as long as it continues to do business in 

other parts of the State does not result in an unconstitutional deprivation. 202 Likewise, requiring a railway to continue the service of 

a branch or part of a line is acceptable, even if that portion of the 

operation is an economic drain. 203 A company, however, cannot be 

compelled to operate its franchise at a loss, but must be at liberty 

to surrender it and discontinue operations. 204

As the standard for regulation of a utility is whether a particular directive is reasonable, the question of whether a state 

order requiring the provision of services is reasonable could include 

a consideration of the likelihood of pecuniary loss, 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. 205 An example of the 

kind of regulation where the issue of reasonableness would require 

an evaluation of numerous practical and economic factors is where 

railroads are required to lay tracks and otherwise provide the required equipment to facilitate the connection of separate track 

lines. 206

1714 AMENDMENT 14—RIGHTS GUARANTEED 

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 volume of business to be affected, the saving in time and 

expense to the shipper, as against the cost and loss to the carrier.’’ 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). 207Due 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. Chicago, M. & St. P. Ry. v. Minneapolis Civic Ass’n, 247 U.S. 490 (1918). Nor are railroads denied due process 

when they are forbidden to exact a greater charge for a shorter distance than for 

a longer distance. Louisville & Nashville R.R. v. Kentucky, 183 U.S. 503, 512 (1902); 

Missouri Pacific Ry. v. McGrew Coal Co., 244 U.S. 191 (1917). Nor is it ‘‘unreasonable’’ or ‘‘arbitrary’’ to require a railroad to desist from demanding advance payment 

on merchandise received from one carrier while it accepts merchandise of the same 

character at the same point from another carrier without such prepayment. Wadley 

Southern Ry. v. Georgia, 235 U.S. 651 (1915). 208 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. Louisville & Nashville R.R. v. Stock 

Yards Co., 212 U.S. 132 (1909). But a carrier may be compelled to interchange its 

freight cars with other carriers under reasonable terms, Michigan Cent. R.R. v. 

Michigan R.R. Comm’n, 236 U.S. 615 (1915), and to accept cars already loaded and 

in suitable condition. for reshipment over its lines to points within the State. Chicago, M. & St. P. Ry. v. Iowa, 233 U.S. 334 (1914). 209The following cases all concern the operation of railroads: Railroad Co. v. 

Richmond, 96 U.S. 521 (1878) (prohibition against operation on certain streets); Atlantic Coast Line R.R. v. Goldsboro, 232 U.S. 548 (1914) (restrictions on speed and 

operations in business sections); Great Northern Ry. v. Minnesota ex rel. Clara City, 

246 U.S. 434 (1918) (restrictions on speed and operations in business section) Denver & R.G. R.R. v. Denver, 250 U.S. 241 (1919) (or removal of a track crossing at 

a thoroughfare); Nashville, C. & St. L. Ry. v. White, 278 U.S. 456 (1929) (compelling 

the presence of a flagman at a crossing notwithstanding that automatic devices 

might be cheaper and better); Nashville, C. & St. L. Ry. v. Alabama, 128 U.S. 96 

(1888) (compulsory examination of employees for color blindness); Chicago, R.I. & 

P. Ry. v. Arkansas, 219 U.S. 453 (1911) (full crews on certain trains); St. Louis I. 

Mt. & So. Ry. v. Arkansas, 240 U.S. 518 (1916) (same); Missouri Pacific R.R. v. Norwood, 283 U.S. 249 (1931) (same); Firemen v. Chicago, R.I. & P.R.R., 393 U.S. 129 

(1968) (same); Atlantic Coast Line R.R. v. Georgia, 234 U.S. 280 (1914) (specification 

of a type of locomotive headlight ); Erie R.R. v. Solomon, 237 U.S. 427 (1915) (safety 

appliance regulations); New York, N.H. and H.R.R. v. New York, 165 U.S. 628 

(1897) (prohibition on the heating of passenger cars from stoves or furnaces inside 

or suspended from the cars). 

Generally, regulation of a utility’s service to commercial customers attracts less scrutiny 207 than regulations intended to facilitate the operations of a competitor, 208 and governmental power to 

regulate in the interest of safety has long been conceded. 209 Requirements for service having no substantial relation to a utility’s 

AMENDMENT 14—RIGHTS GUARANTEED 1715

210 Chicago, M. & St. P. R.R. v. Wisconsin, 238 U.S. 491 (1915). 211 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). 212 Atlantic Coast Line R.R. v. Glenn, 239 U.S. 388 (1915). 213St. Louis & San Francisco Ry. v. Mathews, 165 U.S. 1 (1897). 214 Chicago & N.W. Ry. v. Nye Schneider Fowler Co., 260 U.S. 35 (1922) (penalty imposed if claimant subsequently obtained by suit more than the amount tendered by the railroad). But see Kansas City Ry. v. Anderson, 233 U.S. 325 (1914) 

(levying double damages and an attorney’s fee upon a railroad for failure to pay 

damage claims only where the plaintiff had not demanded more than he recovered 

in court); St. Louis, I. Mt. & So. Ry. v. Wynne, 224 U.S. 354 (1912) (same); Chicago, 

M. & St. P. Ry. v. Polt, 232 U.S. 165 (1914) (same). 215Missouri Pacific Ry. v. Tucker, 230 U.S. 340 (1913). 

regulated function, however, have been voided, such as requiring 

railroads to maintain scales to facilitate trading in cattle, or a prohibiting letting down an unoccupied upper berth on a rail car while 

the lower berth was occupied. 210

Imposition of Statutory Liabilities and Penalties Upon 

Common Carriers.—Legislators have considerable latitude to impose legal burdens upon common carriers, as long as the carriers 

are not precluded from shifting such burdens. Thus, a statute may 

make an initial rail carrier, 211 or the connecting or delivering carrier, 212 liable to the shipper for the nondelivery of goods which results from the fault of another, as long as the carrier has a subrogated right to proceed against the carrier at fault. Similarly, a 

railroad may be held responsible for damages to the owner of property injured by fire caused by locomotive engines, as the statute 

also granted the railroad an insurable interest in such property 

along its route, allowing the railroad to procure insurance against 

such liability. 213 Equally consistent with the requirements of due 

process are enactments imposing on all common carriers a penalty 

for failure to settle claims for freight lost or damaged in shipment 

within a reasonable specified period. 214

The Court has, however, established some limits on the imposition of penalties on common carriers. During the Lochner era, the 

Court invalidated an award of $500 in liquidated damages plus 

reasonable attorney’s fees imposed on a carrier that had collected 

transportation charges in excess of established maximum rates as 

disproportionate. The Court also noted that the penalty was exacted under conditions not affording the carrier an adequate opportunity to test the constitutionality of the rates before liability attached. 215 Where the carrier did have an opportunity to challenge 

the reasonableness of the rate, however, the Court indicated that 

the validity of the penalty imposed need not be determined by comparison with the amount of the overcharge. Inasmuch as a penalty 

is imposed as punishment for violation of law, the legislature may 

1716 AMENDMENT 14—RIGHTS GUARANTEED 

216 In accordance with this 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. St. Louis, I. Mt. & So. Ry. v. Williams, 251 U.S. 63, 67 (1919). See

also Missouri Pacific Ry. v. Humes, 115 U.S. 512 (1885) (statute requiring railroads 

to erect and maintain fences and cattle guards subject to award of double damages 

for failure to so maintain them upheld); Minneapolis Ry. v. Beckwith, 129 U.S. 26 

(1889) (same); Chicago, B. & Q.R.R. v. Cram, 228 U.S. 70 (1913) (required payment 

of $10 per car per hour to owner of livestock for failure to meet minimum rate of 

speed for delivery upheld). But see Southwestern Tel. Co. v. Danaher, 238 U.S. 482 

(1915) (fine of $3,600 imposed on a telephone company for suspending service of patron in arrears in accordance with established and uncontested regulations struck 

down as arbitrary and oppressive). 217 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). 218 New Orleans Debenture Redemption Co. v. Louisiana, 180 U.S. 320 (1901). 219 National Council U.A.M. v. State Council, 203 U.S. 151, 162–63 (1906). 

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 disproportionate to the offense and obviously unreasonable.’’ 216

Regulation of Businesses, Corporations, Professions, and 

Trades

Generally.—States may impose significant regulations on 

businesses without violating due process. ‘‘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.’’ 217 Still, the fact the State reserves the power to amend 

or repeal corporate charters does not support the taking of corporate property without due process of law, as termination of the 

corporate structure merely results in turning over corporate property to the stockholders after liquidation. 218

Foreign (out-of-state) corporations also enjoy the protection 

under the due process clauses, but this does not grant them an unconditional right to enter another State or to continue to do business therein. Language in some early cases suggested that States 

had plenary power to exclude or to expel a foreign corporation. 219

This power is clearly limited by the modern doctrine of the ‘‘negative’’ commerce clause, which constrains states’ authority to discriminate against foreign corporations in favor of local commerce. 

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AMENDMENT 14—RIGHTS GUARANTEED 1717

220Munday v. Wisconsin Trust Co., 252 U.S. 499 (1920). 221State Farm Ins. Co. v. Duel, 324 U.S. 154 (1945). 222Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954). Similarly 

a statute requiring a foreign hospital corporation to dispose of farm land not necessary to the conduct of their business was invalid even though the hospital, because of changed economic conditions, was unable to recoup its original investment 

from the sale. New Orleans Debenture Redemption Co. v. Louisiana, 180 U.S. 320 

(1901). 223See, e.g., Grenada Lumber Co. v. Mississippi, 217 U.S. 433 (1910) (statute 

prohibiting retail lumber dealers from agreeing not to purchase materials from 

wholesalers selling directly to consumers in the retailers’ localities upheld); Aikens 

v. Wisconsin, 195 U.S. 194 (1904) (law punishing combinations for ‘‘maliciously’’ injuring a rival in the same business, profession, or trade upheld). 224Smiley 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. 225 International Harvester Co. v. Missouri, 234 U.S. 199 (1914). See also American Machine Co. v. Kentucky, 236 U.S. 660 (1915). 226 Central Lumber Co. v. South Dakota, 226 U.S. 157 (1912) (prohibition on intentionally destroying competition of a rival business by making sales at a lower 

rate, after considering distance, in one section of the State than in another upheld). 

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). 227Old Dearborn Co. v. Seagram Corp., 299 U.S. 183 (1936) (prohibition of 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 

upheld); Pep Boys v. Pyroil, 299 U.S. 198 (1936) (same); Safeway Stores v. Oklaporate entry or continued operation to reasonable, non-discriminatory conditions. Thus, for instance, a state law which requires the 

filing of articles with a local official as a prerequisite to the validity 

of conveyances of local realty to such corporations is not violative 

of due process. 220 Or, statutes which require a foreign insurance 

company to maintain reserves computed by a specific percentage of 

premiums (including membership fees) received in all States, 221 or

to consent to direct actions filed against it by persons injured in the 

host State are valid. 222

Laws Prohibiting Trusts, Restraint of Trade or Fraud.—

Even during the period when the Court was invalidating statutes 

under liberty of contract principles, it recognized the right of states 

to prohibit combinations in restraint of trade. 223 Thus, states could 

prohibit agreements to pool and fix prices, divide net earnings, and 

prevent competition in the purchase and sale of grain. 224 Further,

the Court held that the Fourteenth Amendment does not preclude 

a State from adopting a policy prohibiting competing corporations 

from combinations, even when such combinations were induced by 

good intentions and from which benefit and no injury have resulted. 225 The Court also upheld a variety of statutes prohibiting 

activities taken by individual businesses intended to harm competitors 226 or restrain the trade of others. 227

1718 AMENDMENT 14—RIGHTS GUARANTEED 

homa Grocers, 360 U.S. 334 (1959) (application of an unfair sales act to enjoin a 

retail grocery company from selling below statutory cost upheld, even though competitors were selling at unlawful prices, as there is no constitutional right to employ 

retaliation against action outlawed by a State and appellant could enjoin illegal activity of its competitors) 228Schmidinger v. City of Chicago, 226 U.S. 578, 588 (1913) (citing McLean v. 

Arkansas, 211 U.S. 539, 550 (1909)). See Hauge v. City of Chicago, 299 U.S. 387 

(1937) (municipal ordinance requiring that commodities sold by weight be weighed 

by a public weighmaster within the city valid even as applied to one delivering coal 

from state-tested scales at a mine outside the city); Lemieux v. Young, 211 U.S. 489 

(1909) (statute requiring merchants to record sales in bulk not made sin the regular 

course of business valid)); Kidd, Dater Co. v. Musselman Grocer Co., 217 U.S. 461 

(1910) (same). 229Merchants Exchange v. Missouri, 248 U.S. 365 (1919). 230Pacific States Co. v. White, 296 U.S. 176 (1935) (administrative order prescribing the dimensions, form, and capacity of containers for strawberries and raspberries is not arbitrary as the form and dimensions bore a reasonable relation to 

the protection of the buyers and the preservation in transit of the fruit); 

Schmidinger v. City of Chicago, 226 U.S. 578 (1913) (ordinance fixing standard sizes 

is not unconstitutional); Armor & Co. v. North Dakota, 240 U.S. 510 (1916) (law 

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 valid); Petersen Baking 

Co. v. Bryan, 290 U.S. 570 (1934) (regulations which imposed a rate of tolerance 

for the minimum weight for a loaf of bread upheld); But cf. Burns Baking Co. v. 

Bryan, 264 U.S. 504 (1924) (tolerance of only two ounces in excess of the minimum 

weight per loaf is unreasonable, given finding that it was impossible to manufacture 

good bread without frequently exceeding the prescribed tolerance). 231 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). 232 Advance-Rumely Co. v. Jackson, 287 U.S. 283 (1932). 

Laws and ordinances tending to prevent frauds by requiring 

honest weights and measures in the sale of articles of general consumption have long been considered lawful exertions of the police 

power. 228 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. 229 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. 230

A variety of other business regulations which tend to prevent 

fraud have withstood constitutional scrutiny. Thus, a State may require that the nature of a product be fairly set forth, despite the 

right of a manufacturer to maintain secrecy as to his compounds. 231 Or, 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 may rescind 

the contract if the machinery does not prove reasonably adequate, 

does not violate the due process clause. 232 Further, in the exercise 

of its power to prevent fraud and imposition, a State may regulate 

AMENDMENT 14—RIGHTS GUARANTEED 1719

233 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). 234 Booth v. Illinois, 184 U.S. 425 (1902). 235Otis v. Parker, 187 U.S. 606 (1903). 236 Brodnax v. Missouri, 219 U.S. 285 (1911). 237 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). 238 House v. Mayes, 219 U.S. 270 (1911). 239Doty v. Love, 295 U.S. 64 (1935) (rights of creditors in an insolvent bank 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) 

Farmers Bank v. Federal Reserve Bank, 262 U.S. 649 (1923) (Federal Reserve bank 

not unlawfully deprived of business rights of liberty of contract by a law which allows state banks to pay checks in exchange when presented by or through a Federal 

Reserve bank, post office, or express company and when not made payable otherwise 

by a maker). 240 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). 

trading in securities within its borders, require a license of those 

engaging in such dealing, make issuance of a license dependent on 

the good repute of the applicants, and permit, subject to judicial review of his findings, revocation of the license. 233

The power to regulate also includes the power to forbid certain 

business practices. Thus, a State may forbid the giving of options 

to sell or buy any commodity at a future time 234 It may also forbid 

sales on margin for future delivery, 235 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. 236 A prohibitive license fee upon the use of trading 

stamps is not unconstitutional, 237 nor is imposing criminal penalties for any deductions by purchasers from the actual weight of 

grain, hay, seed, or coal purchased, even when such deduction is 

made under a claim of custom or under a rule of a board of 

trade. 238

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. 239 A variety of regulations 

have 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. 240 Also, a law 

requiring savings banks to turn over deposits inactive for thirty 

years to the State (when the depositor cannot be found), with provision for payment to the depositor or his heirs on establishment of 

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 proVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00049 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1720 AMENDMENT 14—RIGHTS GUARANTEED 

241Provident 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 preexisting 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). 242Griffith v. Connecticut, 218 U.S. 563 (1910). 243Mutual Loan Co. v. Martell, 222 U.S. 225 (1911). 244La Tourette v. McMaster, 248 U.S. 465 (1919); Stipich v. Insurance Co., 277 

U.S. 311, 320 (1928). 245German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914). 246O’Gorman & Young v. Hartford Ins. Co., 282 U.S. 251 (1931). 247 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). 248Daniel v. Family Ins. Co., 336 U.S. 220 (1949). 

tective custody of the State deposits that, depending on the nature 

of the deposit, have been inactive ten or twenty-five years. 241

A State is acting clearly within its police power in fixing maximum rates of interest on money loaned within its border, and such 

regulation is within legislative discretion if not unreasonable or arbitrary. 242 Equally valid 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. 243

Insurance.—Those engaged in the insurance business 244 as

well as the business itself have been peculiarly subject to supervision and control. 245 Even during the Lochner era the Court recognized that government may fix insurance rates and regulate the 

compensation of insurance agents, 246 and over the years the Court 

has upheld a wide variety of regulation. For instance, a state may 

impose a fine on ‘‘any person ‘who shall act in any manner in the 

negotiation or transaction of unlawful insurance . . . with a foreign 

insurance company not admitted to do business [within said 

State].’’’ 247 Or, a state may forbid life insurance companies and 

their agents to engage in the undertaking business and undertakers to serve as life insurance agents. 248 Further, foreign casualty and surety insurers were not deprived of due process 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 

AMENDMENT 14—RIGHTS GUARANTEED 1721

249Osborn 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. 250 California Auto. Ass’n v. Maloney, 341 U.S. 105 (1951). 251 Allgeyer v. Louisiana, 165 U.S. 578 (1897). 252 New York Life Ins. Co. v. Dodge, 246 U.S. 357 (1918). 253 National Ins. Co. v. Wanberg, 260 U.S. 71 (1922). 254 Hartford Accident Co. v. Nelson Co., 291 U.S. 352 (1934). 255Merchants Liability Co. v. Smart, 267 U.S. 126 (1925). 

with a nonresident broker. 249 And just as all banks may be required to contribute to a depositors’ guaranty fund, so may 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. 250

However, the Court has discerned some limitations to such regulations. 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. 251 For the same reason, the Court held, a State may not prevent a citizen from concluding a policy loan agreement with a foreign life insurance company at its home office whereby the policy on his life is pledged as 

collateral security for a cash loan to become due upon default in 

payment of premiums, in which case the entire policy reserve 

might be applied to discharge the indebtedness. Authority to subject such an agreement to the conflicting provisions of domestic law 

is not deducible from the power of a State to license a foreign insurance company as a condition of its doing business therein. 252

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. 253 No unconstitutional restraint was imposed upon the liberty of contract of surety companies by a statute providing that, after enactment, any bond executed for the faithful performance of a building contract shall inure 

to the benefit of material men and laborers, notwithstanding any 

provision of the bond to the contrary. 254 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. 255 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 

1722 AMENDMENT 14—RIGHTS GUARANTEED 

256Orient Ins. Co. v. Daggs, 172 U.S. 577 (1899) (the statute was in effect when 

the contract at issue was signed). 257 Hooperston Co. v. Cullen, 318 U.S. 313 (1943). 258German Alliance Ins. Co. v. Hale, 219 U.S. 307 (1911). See also Carroll v. 

Greenwich Ins. Co., 199 U.S.401 (1905). 259Life & Casualty Co. v. McCray, 291 U.S. 566 (1934). 260 Northwestern Life Ins. Co. v. Riggs, 203 U.S. 243 (1906). 261Whitfield v. Aetna Life Ins. Co., 205 U.S. 489 (1907). 262Polk v. Mutual Reserve Fund, 207 U.S. 310 (1907). 263 Neblett v. Carpenter, 305 U.S. 297 (1938). 

time of the loss, rather than the actual cash value of the property 

at the time of loss. 256

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. 257 Also, to discourage monopolies and to encourage rate competition, a State constitutionally may impose on all 

fire insurance companies connected with a tariff association fixing 

rates a liability or penalty to be collected by the insured of 25% in 

excess of actual loss or damage, stipulations in the insurance contract to the contrary notwithstanding. 258

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. 259 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. 260 A provision that 

suicide, unless contemplated when the application for a policy was 

made, shall be no defense is equally valid. 261 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 

of their property without due process of law. 262 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. 263

Miscellaneous Businesses and Professions.—The practice 

of medicine, using this word in its most general sense, has long 

AMENDMENT 14—RIGHTS GUARANTEED 1723

264McNaughton v. Johnson, 242 U.S. 344, 349 (1917). See 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); See

also 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. § 192. Three Justices, Black, Douglas, and Frankfurter, dissented. 265 Collins v. Texas, 223 U.S. 288 (1912); Hayman v. Galveston, 273 U.S. 414 

(1927). 266Semler 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). 267 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. 268Olsen v. Smith, 195 U.S. 332 (1904). 269 Nashville, C. & St. L. R.R. v. Alabama, 128 U.S. 96 (1888). 270Smith 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. 271 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 ‘‘conbeen the subject of regulation. 264 A State may exclude osteopathic 

physicians from hospitals maintained by it or its municipalities, 265

or 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. 266 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. 267

While statutes requiring pilots to be licensed 268 and setting 

reasonable competency standards (e.g., that railroad engineers pass 

color blindness tests) have been sustained, 269 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. 270

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. 271 Also,

1724 AMENDMENT 14—RIGHTS GUARANTEED 

stitutional 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.’’ 272Ferguson v. Skrupa, 372 U.S. 726 (1963). 273Western Turf Ass’n v. Greenberg, 204 U.S. 359 (1907). 274W.W. Cargill Co. v. Minnesota, 180 U.S. 452 (1901). 275Lehon v. Atlanta, 242 U.S. 53 (1916). 276Gundling v. Chicago, 177 U.S. 183, 185 (1900). 277 Bourjois, Inc. v. Chapman, 301 U.S. 183 (1937). 278Weller v. New York, 268 U.S. 319 (1925). 279Packer Corp. v. Utah, 285 U.S. 105 (1932). 280 Halter v. Nebraska, 205 U.S. 34 (1907). 281McCloskey v. Tobin, 252 U.S. 107 (1920). 282 Natal v. Louisiana, 139 U.S. 621 (1891). 283Murphy v. California, 225 U.S. 623 (1912). 284 Rosenthal v. New York, 226 U.S. 260 (1912). 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 obtain 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. Williamson 

v. Lee Optical Co., 348 U.S. 483 (1955). 285 Cities Service Co. v. Peerless Co., 340 U.S. 179 (1950) (sustaining orders of 

the Oklahoma Corporation Commission fixing a minimum price for gas and requiring one producer to buy gas from another producer in the same field at a dictated 

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. 272

The Court has also upheld a variety of other licensing or regulatory legislation applicable to places of amusement, 273 grain elevators, 274 detective agencies, 275 the sale of cigarettes 276 or cosmetics, 277 and the resale of theatre tickets. 278 Restrictions on advertising have also been upheld, including absolute bans on the advertising of cigarettes 279 or the use of a representation of the 

United States flag on an advertising medium. 280 Similarly constitutional were prohibitions on the solicitation by a layman of the business of collecting and adjusting claims, 281 the keeping of private 

markets within six squares of a public market, 282 the keeping of 

billiard halls except in hotels, 283 or the purchase by junk dealers 

of wire, copper, and other items, without ascertaining the seller’s 

right to sell. 284

Protection of State Resources 

Oil and Gas.—A state may prohibit conduct that leads to the 

waste of natural resources without violating due process. 285 Thus,

AMENDMENT 14—RIGHTS GUARANTEED 1725

price, based on a finding that low field prices for natural gas were resulting in economic and physical waste); Phillips Petroleum Co. v. Oklahoma, 340 U.S. 190 

(1950). 286This can be done regardless of whether the benefit is to the owners of oil 

and gas in a common reservoir or because of the public interests involved. 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). 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. Champlin Ref. 

Co. v. Corporation Comm’n, 286 U.S. 210 (1932). 287 Railroad Comm’n v. Rowan & Nichols Oil Co., 310 U.S. 573 (1940) (evaluating whether proration based on hourly potential is as fair as one based upon estimated recoverable reserves or some other combination of factors). See also Railroad

Comm’n v. Rowan & Nichols Oil Co., 311 U.S. 570 (1941); Railroad Comm’n v. Humble Oil & Ref. Co., 311 U.S. 578 (1941). 288Thompson v. Consolidated Gas Co., 300 U.S. 55 (1937). 289Walls v. Midland Carbon Co., 254 U.S. 300 (1920). See also Henderson Co. 

v. Thompson, 300 U.S. 258 (1937). 290 Bandini Co. v. Superior Court, 284 U.S. 8 (1931). 

for instance, where there is a limited market for natural gas acquired attendant to oil production or where the pumping of oil and 

gas from one location may limit the ability of others to recover oil 

from a large reserve, a state may require that production of oil be 

limited or prorated among producers. 286 Generally, whether a system of proration is fair is a question for administrative and not judicial judgment. 287 On the other hand, where the evidence showed 

that an order prorating allowed production among several wells 

was actually intended to compel pipeline owners to furnish a market to those who had no pipeline connections, the order was held 

void as a taking of private property for private benefit. 288

A state may act to conserve resources even if it works to the 

economic detriment of the producer. Thus, a State may forbid certain uses of natural gas, such as the production of carbon black, 

where the gas is burned without fully utilizing the heat therein for 

other manufacturing or domestic purposes. Such regulations were 

sustained even where the carbon black was more valuable than the 

gas from which it was extracted, and notwithstanding the fact that 

the producer had made significant investment in a plant for the 

manufacture of carbon black. 289 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 unless its lifting 

power was utilized to produce the greatest proportional quantity of 

oil. 290

1726 AMENDMENT 14—RIGHTS GUARANTEED 

291Gant v. Oklahoma City, 289 U.S. 98 (1933) (statute requiring bond of 

$200,000 per well-head, such bond to be executed, not by personal sureties, but by 

authorized bonding company). 292 260 U.S. 393 (1922). 293The ‘‘taking’’ jurisprudence that has stemmed from the Pennsylvania Coal 

Co. v. Mahon is discussed, supra, at ‘‘Regulatory Takings,’’ under the Fifth Amendment . 294Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 488 (1987). 

The Court in Pennsylvania Coal had viewed that case as relating to a ‘‘a single private house.’’ 260 U.S. at 413. 

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. Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962). 295Miller v. Schoene, 276 U.S. 272, 277, 279 (1928). 296Sligh v. Kirkwood, 237 U.S. 52 (1915). 

Protection of Property and Agricultural Crops.—Special

precautions may be required to avoid or compensate for harm 

caused by extraction of natural resources. Thus, a state may require the filing of a bond to secure payment for damages to any 

persons or property resulting from an oil and gas drilling or production operation. 291 On the other hand, in Pennsylvania Coal Co. 

v. Mahon, 292 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 too restrictive on the 

use of private property and hence a denial of due process and a 

‘‘taking’’ without compensation. 293 Years later, however, a quite 

similar Pennsylvania statute was upheld, the Court finding that 

the new law no longer involved merely a balancing of private economic interests, but instead promoted such ‘‘important public interests’’ as conservation, protection of water supplies, and preservation of land values for taxation. 294

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. 295 Similarly, Florida was held to possess constitutional authority to protect the reputation of one of its major industries by penalizing the delivery for shipment in interstate commerce of citrus 

fruits so immature as to be unfit for consumption. 296

AMENDMENT 14—RIGHTS GUARANTEED 1727

297 Hudson Water Co. v. McCarter, 209 U.S. 349, 356–57 (1908). 298Sporhase 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). 299See, 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). 300 Bayside Fish Co. v. Gentry, 297 U.S. 422, 426 (1936). 301Manchester v. Massachusetts, 139 U.S. 240 (1891); Geer v. Connecticut, 161 

U.S. 519 (1896). 302Miller v. McLaughlin, 281 U.S. 261, 264 (1930). 303 Bayside Fish Co. v. Gentry, 297 U.S. 422 (1936). See also New York ex rel. 

Silz v. Hesterberg, 211 U.S. 31 (1908) (upholding law proscribing possession during 

the closed season of game imported from abroad). 304See, 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). 305 441 U.S. 322 (1979) (formally overruling Geer). 

Water, Fish and Game.—A statute making it unlawful for a 

riparian owner to divert water into another State was held not to 

deprive the property owner of due process. ‘‘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.’’ 297 This holding has since been disapproved, but on interstate commerce rather than due process grounds. 298 States may, 

however, enact and enforce a variety of conservation measures for 

the protection of watersheds. 299

Similarly, a State has sufficient control over fish and wild 

game found within its boundaries 300 so that it may regulate or prohibit fishing and hunting. 301 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. 302 The

Court has also upheld a state law restricting a commercial reduction plant from accepting more fish than it could process without 

spoilage in order to conserve fish found within its waters, even allowing the application of such restriction to fish imported into the 

State from adjacent international waters. 303

The Court’s early decisions rested on the legal fiction that the 

states owned the fish and wild game within their borders, and thus 

could reserve these possessions for use by their own citizens. The 

Court soon backed away from the ownership fiction, 304 and in 

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1728 AMENDMENT 14—RIGHTS GUARANTEED 

306 441 U.S. at 336, 338-39. 307 Baldwin v. Montana Fish and Game Comm’n, 436 U.S. 371 (1978). 308 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). 309 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). 310 Hadacheck v. Sebastian, 239 U.S. 394 (1915). 

cating that state conservation measures discriminating against outof-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. 306

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 

or Immunities Clause, and that consequently a state could charge 

out-of-staters significantly more than in-staters for a hunting license. 307 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 challenged under commerce or privileges and immunities 

principles, rather than under substantive due process. 

Ownership of Real Property: Rights and Limitations 

Zoning and Similar Actions.—It is now well established 

that states and municipalities have the police power to zone land 

for designated uses. Zoning authority gained judicial recognition 

early in the 20th century. Initially, an analogy was drawn to public 

nuisance law, so that States and their municipal subdivisions could 

declare that specific businesses, although not nuisances per se,

were nuisances in fact and in law in particular circumstances and 

in particular localities. 308 Thus, a State could declare the emission 

of dense smoke in populous areas a nuisance and restrain it, even 

though this affected the use of property and subjected the owner 

to the expense of compliance. 309 Similarly, the Court upheld an ordinance that prohibited brick making in a designated area, even 

though the specified land contained valuable clay deposits which 

could not profitably be removed for processing elsewhere, was far 

more valuable for brick making than for any other purpose, had 

been acquired before it was annexed to the municipality, and had 

long been used as a brickyard. 310

AMENDMENT 14—RIGHTS GUARANTEED 1729

311 Cf. Developments in the Law-Zoning, 91 HARV. L. REV. 1427 (1978). 312Welch v. Swasey, 214 U.S. 91 (1909). 313Gorieb v. Fox, 274 U.S. 603 (1927). 314 Agins v. City of Tiburon, 447 U.S. 255 (1980). 315Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). 316 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). 317See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), and 

discussion of ‘‘Regulatory Taking’’ under the Fifth Amendment, supra 318 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). 319 Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). 320 431 U.S. 494 (1977). A plurality of the Court struck down the ordinance as 

a violation of substantive due process, an infringement 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. 321 Buchanan v. Warley, 245 U.S. 60 (1917). 

With increasing urbanization came a broadening of the philosophy of land-use regulation to protect not only health and safety 

but also the amenities of modern living. 311 Consequently, the Court 

has recognized the power of government, within the loose confines 

of the due process clause, to zone in many ways and for many purposes. Governments may regulate the height of buildings, 312 establish building setback requirements, 313 preserve open spaces 

(through density controls and restrictions on the numbers of 

houses), 314 and preserve historic structures. 315 The Court will generally uphold a challenged land-use plan unless it determines that 

either the overall plan is arbitrary and unreasonable with no substantial relation to the public health, safety, or general welfare, 316

or that the plan as applied amounts to a taking of property without 

just compensation. 317

Applying these principles, the Court has held that the exclusion of apartment houses, retail stores, and billboards from a ‘‘residential district’’ in a village is a permissible exercise of municipal 

power. 318 Similarly, a housing ordinance in a community of singlefamily dwellings, in which any number of related persons (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.’’ 319

Such a fundamental interest, however, was found to be implicated 

in Moore v. City of East Cleveland 320 by a ‘‘single family’’ zoning 

ordinance which defined a ‘‘family’’ to exclude a grandmother who 

had been living with her two grandsons of different children. 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. 321

1730 AMENDMENT 14—RIGHTS GUARANTEED 

322 Eubank v. City of Richmond, 226 U.S. 137 (1912). 323Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928). 

In a more recent case, the Court held that the zoning power may not be delegated 

to a church. Larkin v. Grendel’s Den, 459 U.S. 116 (1982) (invalidating under the 

Establishment Clause a state law permitting any church to block issuance of a liquor license for a facility to be operated within 500 feet of the church). 324Thomas 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 the force of law to the decision of a narrow segment of the 

community, 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 

531.325 City of Eastlake v. Forest City Enterprises, 426 U.S. 668 (1976). Such 

referenda do, however, raise equal protection problems. See, e.g., Reitman v. 

Mulkey, 387 U.S. 369 (1967). 

In one aspect of zoning—the degree to which such decisions 

may be delegated to private persons—the Court has not been consistent. Thus, for instance, 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. 322 Or, in 

another case, 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 twothirds of the property within 400 feet of the proposed facility. 323 In

a decision falling chronologically between these two, however, the 

Court sustained an ordinance which permitted property owners to 

waive a municipal restriction prohibiting the construction of billboards. 324

In its most recent decision, the Court upheld a city charter provision permitting a petition process by which a citywide referendum could be held on zoning changes and variances. The provision required a 55% approval vote in the referendum to sustain the 

commission’s decision, and the Court distinguished between delegating such authority to a small group of affected landowners and 

the people’s retention of the ultimate legislative power in themselves which for convenience they had delegated to a legislative 

body. 325

Estates, Succession, Abandoned Property.—The Due Process Clause does not prohibit a State from varying the rights of 

those receiving benefits under intestate laws. Thus, the Court held 

that the rights of an estate were not impaired where a New York 

Decedent Estate Law granted a surviving spouse the right to take 

as in intestacy, despite the fact that the spouse had waived any 

right to her husband’s estate before the enactment of the 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 

AMENDMENT 14—RIGHTS GUARANTEED 1731

326 Irving Trust Co. v. Day, 314 U.S. 556, 564 (1942). 327Demorest v. City Bank Co., 321 U.S. 36, 47–48 (1944). Under the peculiar 

facts of the case, however, the remainderman’s right had been created by judicial 

rules promulgated after the death of the decedent, so the case is not precedent for 

a broad rule of retroactivity. 328 Connecticut Mut. Life 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.329 341 U.S. 428 (1951). 

the surviving spouse regardless of any waiver, however formally 

executed. 326

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. For instance, the Great Depression resulted in the default of numerous 

mortgages which were held by trusts, which had the affect of putting an unexpected accumulation of real property into those trusts. 

Under these circumstance, the Court upheld the retroactive application of a statute reallocating distribution within these trusts, 

even where the administration of the estate had already begun, 

and the new statute had the effect of taking away a remainderman’s right to judicial review of the trustee’s computation of income. 327

The states have significant discretion to regulate abandoned 

property. For instance, states have several jurisdictional bases to 

allow for the lawful application of escheat and abandoned property 

laws to out-of-state corporations. Thus, application of New York’s 

Abandoned Property Law to New York residents’ life insurance 

policies, even when 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. 328 Or, in Standard Oil Co. v. 

New Jersey, 329 a divided Court held that due process is not violated 

by a state statute escheating shares of stock in a domestic corporation, including unpaid dividends, even though the last known owners were nonresidents and the stock was issued and the dividends 

held in another State. The State’s power over the debtor corporation gives it power to seize the debts or demands represented by 

the stock and dividends. 

1732 AMENDMENT 14—RIGHTS GUARANTEED 

330 454 U.S. 516 (1982). 331With 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. 332The act provided a grace period and specified several actions which were sufficient to avoid extinguishment. 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. 333Generally, property owners are charged with maintaining knowledge of the 

legal conditions of property ownership. 334 454 U.S. at 538. The four dissenters thought that some specific notice was 

required for persons holding before enactment. Id. at 540. 335See, e.g., Mugler v. Kansas, 123 U.S. 623, 661 (1887), and discussion supra 

under ‘‘The Development of Substantive Due Process.’’ 

A state’s wide discretion to define abandoned property and dispose of abandoned property can be seen in Texaco v. Short. 330

There, an Indiana statute was upheld which terminated interests 

in coal, oil, gas, or other minerals which had not been used in 

twenty years and which provided for reversion to the owner of the 

interest out of which the mining interests had been carved. 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. Indeed, merely filing a claim with the local recorder would preserve the interest. 331

The statute provided no notice to owners of interests, however, 

save for its own publication, nor did it require surface owners to 

notify owners of mineral interests that the interests were about to 

expire. 332 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. 333 The State ‘‘may impose on an owner of a mineral interest the burden of using that interest or filing a current statement 

of interests’’ and it may similarly ‘‘impose on him the lesser burden 

of keeping informed of the use or nonuse of his own property.’’ 334

Health, Safety, and Morals 

Health.—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. 335 For instance, an ordinance for incineration of garbage and refuse at a designated place as a means of 

protecting public health is not a taking of private property without 

just compensation, even though such garbage and refuse may have 

AMENDMENT 14—RIGHTS GUARANTEED 1733

336 California Reduction Co. v. Sanitary Works, 199 U.S. 306 (1905). 337 Hutchinson v. City of Valdosta, 227 U.S. 303 (1913). 338 ‘‘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.’’ Sligh v. Kirkwood, 237 U.S. 52, 59–60 (1915). 339Powell v. Pennsylvania, 127 U.S. 678 (1888); Magnano v. Hamilton, 292 U.S. 

40 (1934). 340 North American Storage Co. v. City of Chicago, 211 U.S. 306 (1908). 341 Adams v. City of Milwaukee, 228 U.S. 572 (1913). 342 Baccus v. Louisiana, 232 U.S. 334 (1914). 343 Roschen v. Ward, 279 U.S. 337 (1929). 344Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45 (1921). 345 Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916). 346 Hebe Co. v. Shaw, 248 U.S. 297 (1919). 347Price v. Illinois, 238 U.S. 446 (1915). 348Sage Stores Co. v. Kansas, 323 U.S. 32 (1944). Where health or fraud are 

not an issue, however, police power may be more limited. Thus, a statute forbidding 

the sale of bedding made with shoddy materials, even if sterilized and therefore 

harmless to health, was held to be arbitrary and therefore invalid Weaver v. Palmer 

Bros. Co., 270 U.S. 402 (1926). 

some elements of value for certain purposes. 336 Or, 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. 337

There are few constitutional restrictions on the extensive state 

regulations on the production and distribution of food and drugs. 338

Statutes forbidding or regulating the manufacture of oleomargarine 

have been upheld, 339 as have statutes ordering the destruction of 

unsafe food 340 or confiscation of impure milk, 341 notwithstanding

that, in the latter cases, 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 342 or the sale of spectacles by an 

establishment where a physician or optometrist is not in charge. 343

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. 344

Equally valid as police power regulations are laws forbidding 

the sale of ice cream not containing a reasonable proportion of butter fat, 345 of condensed milk made from skimmed milk rather than 

whole milk, 346 or of food preservatives containing boric acid. 347

Similarly, a statute intended to prevent fraud and deception by 

prohibiting the sale of ‘‘filled milk’’ (milk to which has been added 

any fat or oil other than a milk fat) is valid, at least where such 

milk has the taste, consistency, and appearance of whole milk products. The Court reasoned that 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. 348

1734 AMENDMENT 14—RIGHTS GUARANTEED 

349 ‘‘[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. . . .’’ Beer Co. v. Massachusetts, 97 

U.S. 25, 33 (1878). See 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); James Clark Distilling Co. v. Western Md. Ry., 242 U.S. 311 (1917); Barbour v. Georgia, 249 U.S. 

454 (1919). 350Mugler v. Kansas, 123 U.S. 623, 671 (1887). 351 Hawes v. Georgia, 258 U.S. 1 (1922); Van Oster v. Kansas, 272 U.S. 465 

(1926). 352Pierce Oil Corp. v. Hope, 248 U.S. 498 (1919). 353Standard Oil Co. v. Marysville, 279 U.S. 582 (1929). 354 Barbier v. Connolly, 113 U.S. 27 (1885); Soon Hing v. Crowley, 113 U.S. 703 

(1885). 355Maguire v. Reardon, 225 U.S. 271 (1921). 356Queenside Hills Co. v. Saxl, 328 U.S. 80 (1946). 357Stephenson v. Binford, 287 U.S. 251 (1932). 

Even before the passage of the 21st Amendment, which granted states the specific authority to regulate alcoholic beverages, the 

Supreme Court had found that the states have significant authority 

in this regard. 349 A State may declare places where liquor is manufactured or kept to be common nuisances, 350 and may even subject 

an innocent owner to the forfeiture of his property if he allows it 

to be used for the illegal production or transportation of alcohol. 351

Safety.—Regulations designed to promote public safety are 

also well within a state’s authority to implement. For instance, various 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, 352 require that all gas 

storage tanks with a capacity of more than ten gallons be buried 

at least three feet under ground, 353 or prohibit washing and ironing in public laundries and wash houses within defined territorial 

limits from 10 p.m. to 6 a.m. 354 A city’s demolition and removal of 

wooden buildings erected in violation of regulations was also consistent with the Fourteenth Amendment. 355 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 lodging houses of non-fireproof 

construction, can be applied to a lodging house constructed in 1940, 

even though compliance entails an expenditure of $7,500 on a property worth only $25,000. 356

States exercise extensive regulation over transportation safety. 

Although state highways are used primarily for private purposes, 

they are public property, and the use of a highway for financial 

gain may be prohibited by the legislature or conditioned as it sees 

fit. 357 Consequently, a State may reasonably provide that intraVerDate Aug<10>2004 02:45 Sep 16, 2004 Jkt 077500 PO 00000 Frm 00064 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 1735

358Stanley v. Public Utilities Comm’n, 295 U.S. 76 (1935). 

359Stephenson v. Binford, 287 U.S. 251 (1932). But any attempt to convert private carriers into common carriers, Michigan Pub. Utils. Comm’n v. Duke, 266 U.S. 

570 (1925), 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. 

Frost Trucking v. Railroad Comm’n, 271 U.S. 583 (1926); Smith v. Cahoon, 283 U.S. 

553 (1931). 

360 Bradley v. Public Utils. Comm’n, 289 U.S. 92 (1933). 

361 Accordingly, a statute limiting to 7,000 pounds the net load permissible for 

trucks is not unreasonable. Sproles v. Binford, 286 U.S. 374 (1932). 

362 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. Railway Express 

Agency v. New York, 336 U.S. 106 (1949). 

state carriers who have furnished adequate, responsible, and continuous service over a given route from a specified date in the past 

shall be entitled to licenses as a matter of right, but that issuance 

to those whose service began later shall depend upon public convenience and necessity. 358 A state may require private contract carriers for hire to obtain a certificate of convenience and necessity, 

and decline to grant one if the service of common carriers is impaired thereby. A state may also fix minimum rates applicable to 

such private carriers, which are not less than those prescribed for 

common carriers, as a valid as a means of conserving highways. 359

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. 360

In exercising its authority over its highways, a State is not 

limited 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. 361 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. 362 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 disVerDate Aug<10>2004 06:58 Sep 16, 2004 Jkt 077500 PO 00000 Frm 00065 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1736 AMENDMENT 14—RIGHTS GUARANTEED 

363 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). 364 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). 365L’Hote v. New Orleans, 177 U.S. 587 (1900). 366 Ah Sin v. Wittman, 198 U.S. 500 (1905). 367Marvin v. Trout, 199 U.S. 212 (1905). 368 Bennis v. Michigan, 516 U.S. 442 (1996). 369Stone v. Mississippi, 101 U.S. 814 (1880); Douglas v. Kentucky, 168 U.S. 488 

(1897). 370See, 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). 371 Angle v. Chicago, St. Paul, M. & D. Ry., 151 U.S. 1 (1894). 372 Coombes v. Getz, 285 U.S. 434, 442, 448 (1932). 

charged. 363 Compulsory automobile insurance is so plainly valid as 

to present no federal constitutional question. 364

Morality.—Legislatures have wide discretion in regulating 

‘‘immoral’’ activities. Thus, legislation suppressing prostitution 365

or gambling 366 will be upheld by the Court as within the police 

power of a State. Accordingly, a state statute may provide that 

judgment against a party to recover illegal gambling winnings may 

be enforced by a lien on the property of the owner of the building 

where the gambling transaction was conducted when the owner 

knowingly consented to the gambling. 367 Similarly, a court may 

order a car used in an act of prostitution forfeited as a public nuisance, even if this works a deprivation on an innocent joint owner 

of the car. 368 For the same reason, lotteries, including those operated under a legislative grant, may be forbidden, regardless of any 

particular equities. 369

Vested and Remedial Rights 

As the Due Process Clause protects against arbitrary deprivation of ‘‘property,’’ privileges or benefits that constitute property are 

entitled to protection. 370 Because an existing right of action to recover damages for an injury is property, that right of action is protected by the clause. 371 Thus, where repeal of a provision that 

made directors liable for moneys embezzled by corporate officers 

was applied retroactively, it deprived certain creditors of their 

property without due process of law. 372 A person, however, has no 

AMENDMENT 14—RIGHTS GUARANTEED 1737

373Gibbes 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). 374Shriver v. Woodbine Bank, 285 U.S. 467 (1932). 375 Chase Securities Corp. v. Donaldson, 325 U.S. 304, 315–16 (1945). 376Soliah 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. See ‘‘Fundamental Interests: The 

Political Process,’’ infra. 377 City of Chicago v. Sturges, 222 U.S. 313 (1911). 378Louisiana ex rel. Folsom v. Mayor of New Orleans, 109 U.S. 285, 289 (1883). 

constitutionally protected property interest in any particular form 

of remedy and is guaranteed only the preservation of a substantial 

right to redress by an effective procedure. 373

Similarly, a statute creating an additional remedy for enforcing 

liability is not, as applied to stockholders then holding stock, violative of due process. 374 Nor is a law that lifts a statute of limitations 

and makes possible a suit, theretofore barred, 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.’’ 375

State Control over 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. 376 Nor

does a statute requiring cities to indemnify owners of property 

damaged by mobs or during riots result in an unconstitutional deprivation of the property, even when the city could not have prevented the violence. 377 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. 378

Local units of government obliged to surrender property to 

other units newly created out of the territory of the former cannot 

1738 AMENDMENT 14—RIGHTS GUARANTEED 

379Michigan ex rel. Kies v. Lowrey, 199 U.S. 233 (1905). 380 Hunter v. Pittsburgh, 207 U.S. 161 (1907). 381Stewart v. Kansas City, 239 U.S. 14 (1915). 382Tonawanda v. Lyon, 181 U.S. 389 (1901); Cass Farm Co. v. Detroit, 181 U.S. 

396 (1901). 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. 

Southwestern Oil Co. v. Texas, 217 U.S. 114, 119 (1910). 383Fox v. Standard Oil Co., 294 U.S. 87, 99 (1935). 384Stewart 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). 385 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). 386Loan 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).387Taxes levied for each of the following purposes have been held to be for a 

public use: a city coal and fuel yard, Jones v. City of Portland, 245 U.S. 217 (1917), 

a state bank, a warehouse, an elevator, a flourmill system, homebuilding projects, 

successfully invoke the due process clause, 379 nor may taxpayers 

allege any unconstitutional deprivation as a result of changes in 

their tax burden attendant upon the consolidation of contiguous 

municipalities. 380 Nor is a statute requiring counties to reimburse 

cities of the first class but not cities of other classes for rebates allowed for prompt payment of taxes in conflict with the due process 

clause. 381

Taxing Power 

Generally.—It was not contemplated that the adoption of the 

Fourteenth Amendment would restrain or cripple the taxing power 

of the States. 382 When the power to tax exists, the extent of the 

burden is a matter for the discretion of the lawmakers, 383 and the 

Court will refrain from condemning a tax solely on the ground that 

it is excessive. 384 Nor can the constitutionality of taxation be made 

to depend upon the taxpayer’s enjoyment of any special benefits 

from use of the funds raised by taxation. 385

Theoretically, 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. 386 However, modern notions of public 

purpose have expanded to the point where the limitation has little 

practical import. 387 Whether a use is public or private, while it is 

AMENDMENT 14—RIGHTS GUARANTEED 1739

Carmichael v. Southern Coal & Coke Co., 300 U.S. 644 (1937), a society for preventing cruelty to animals (dog license tax), Nicchia v. New York, 254 U.S. 228 

(1920), a railroad tunnel, Milheim v. Moffat Tunnel Dist., 262 U.S. 710 (1923), books 

for school children attending private as well as public schools, Cochran v. Board of 

Education, 281 U.S. 370 (1930), and relief of unemployment, Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 515 (1937). 388 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, 301 U.S. 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). 389 New York ex rel. Cohn v. Graves, 300 U.S. 308, 313 (1937). 390 300 U.S. at 313. See also Shaffer v. Carter, 252 U.S. 37, 49–52 (1920); and 

Travis v. Yale & Towne Mfg. Co., 252 U.S. 60 (1920) (states may tax the income 

of nonresidents derived from property or activity within the state). 391See, 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). 392Welch 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. 393Stebbins v. Riley, 268 U.S. 137, 140, 141 (1925). 

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.’’ 388

The authority of states to tax income is ‘‘universally recognized.’’ 389 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.’’ 390 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, 391 and there are also situations 

in which courts have upheld retroactive application to the preceding year or two. 392

A state also has broad tax authority over wills and inheritance. 

A State may apply an inheritance tax to the transmission of property by will or descent, or to the legal privilege of taking property 

by devise or descent, 393 although such tax must be consistent with 

1740 AMENDMENT 14—RIGHTS GUARANTEED 

394When 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. Coolidge v. Long, 282 U.S. 582 (1931). 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 have refrained from making 

had he anticipated the tax . . . [is] thought to be so arbitrary . . . as to be a denial 

of due process.’’ Welch v. Henry, 305 U.S. 134, 147 (1938). But where the 

remaindermen’s interests are contingent and do not vest until the donor’s death 

subsequent to the adoption of the statute, the tax is valid. Stebbins v. Riley, 268 

U.S. 137 (1925). 395 Cahen v. Brewster, 203 U.S. 543 (1906). 396Keeney v. New York, 222 U.S. 525 (1912). 397Puget Sound Co. v. Seattle, 291 U.S. 619 (1934). 398 New York Tel. Co. v. Dolan, 265 U.S. 96 (1924). 399 Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362 (1940). 400Paddell v. City of New York, 211 U.S. 446 (1908). 

other due process considerations. 394 Thus, 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. 395 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. 396

The taxation of entities that are franchises within the jurisdiction of the governing body raises few concerns. Thus, a city ordinance imposing annual license taxes on light and power companies 

does not violate the due process clause merely because the city has 

entered the power business in competition with such companies. 397

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. 398

States have significant discretion in how they value real property for tax purposes. Thus, assessment of properties for tax purposes over real market value is allowed as merely another way of 

achieving an increase in the rate of property tax, and does not violate due process. 399 Likewise, land subject to mortgage may be 

taxed for its full value without deduction of the mortgage debt from 

the valuation. 400

A State also has wide discretion in how to apportion real property tax burdens. Thus, a State may defray the entire expense of 

creating, developing, and improving a political subdivision either 

AMENDMENT 14—RIGHTS GUARANTEED 1741

401 Hagar v. Reclamation Dist., 111 U.S. 701 (1884). 402 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. Missouri Pacific R.R. v. Road District, 266 U.S. 187 (1924). See also Roberts v. Irrigation Dist., 

289 U.S. 71 (1933) (an assessment to pay the general indebtedness of an irrigation 

district is valid, even though in excess of the benefits received). 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 benefitted by the completed drainage 

plans. Houck v. Little River Dist., 239 U.S. 254 (1915). 403 Road Dist. v. Missouri Pac. R.R., 274 U.S. 188 (1927). 404Kansas City Ry. v. Road Dist., 266 U.S. 379 (1924). 405Louisville & Nashville R.R. v. Barber Asphalt Co., 197 U.S. 430 (1905). 406Myles Salt Co. v. Iberia Drainage Dist., 239 U.S. 478 (1916). 407Wagner v. Baltimore, 239 U.S. 207 (1915). 408 Charlotte Harbor Ry. v. Welles, 260 U.S. 8 (1922). 

from funds raised by general taxation, 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. 401 Or, where a state statute authorizes municipal authorities to define the district to be benefitted 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, cannot, if not arbitrary or fraudulent, be reviewed 

under the Fourteenth Amendment upon the ground that other 

property benefitted by the improvement was not included. 402

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, 403 whereas any gains from 

increased traffic reasonably expected to result from a road improvement will suffice to sustain an assessment thereon. 404 Also the 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. 405

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. 406 Finally, a State may levy an assessment for special 

benefits resulting from an improvement already made 407 and may 

validate an assessment previously held void for want of authority. 408

1742 AMENDMENT 14—RIGHTS GUARANTEED 

409For discussion of the relationship between the taxation of interstate commerce and the dormant commerce clause, see Taxation, supra. 410 504 U.S. 298 (1992). 411 504 U.S. 298 (1992). 412The 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). 

Jurisdiction to Tax 

Generally.—The operation of the Due Process Clause as a jurisdictional limitation on the taxing power of the states has been 

an issue in a variety of different contexts, but most involve one of 

two basic questions. First, is there a sufficient relationship between 

the state exercising taxing power and the object of the exercise of 

that power? Second, is the degree of contact sufficient to justify the 

state’s imposition of a particular obligation? Illustrative of the factual settings in which such issues arise are 1) determining the 

scope of the business activity of a multi-jurisdictional 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 multi-jurisdictional entities for tax purposes; 4) the scope 

of state authority to tax income of nonresidents; and 5) collection 

of state use taxes. 

The Court’s opinions in these cases have often discussed due 

process and dormant Commerce Clause issues as if they were indistinguishable. 409 A more recent decision in Quill Corp. v. North Dakota, 410 however, utilized a two-tier analysis that found sufficient 

contact to satisfy due process but not dormant Commerce Clause 

requirements. In Quill, 411 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 based 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.’’ 412 Thus, Quill may be read as implying that the 

more stringent Commerce Clause standard subsumes due process 

jurisdictional issues, and that consequently these due process 

AMENDMENT 14—RIGHTS GUARANTEED 1743

413 A physical presence within the state is necessary, however, under the Commerce Clause analysis applicable to taxation of mail order sales. See Quill Corp. v. 

North Dakota, 504 U.S. at 309-19 (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). 414 Union Transit Co. v. Kentucky, 199 U.S. 194, 204 (1905). See also Louisville

& Jeffersonville Ferry Co. v. Kentucky, 188 U.S. 385 (1903). 415 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). 416 New York ex rel. New York Cent. R.R. v. Miller, 202 U.S. 584 (1906). 417Wheeling 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). 418 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 

issues need no longer be separately considered. 413 This interpretation has yet to be confirmed, however, and a detailed review of due 

process precedents may prove useful. 

Real Property.—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.’’ 414 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. 

Tangible Personalty.—A State may tax tangible property located within its borders (either directly through an ad valorem tax

or indirectly through death taxes) irrespective of the residence of 

the owner. 415 By the same token, if tangible personal property 

makes only occasional incursions into other States, its permanent 

situs remains in the State of origin, and, subject to certain exceptions, is taxable only by the latter. 416 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.’’ 417

Thus, when rolling stock is permanently located and used in a 

business outside the boundaries of a domiciliary State, the latter 

has no jurisdiction to tax it. 418 Further, vessels that merely touch 

1744 AMENDMENT 14—RIGHTS GUARANTEED 

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 jurisdiction 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, 199 U.S. at 211. 419Southern Pacific Co. v. Kentucky, 222 U.S. 63 (1911). Ships operating wholly 

on the waters within one State, however, are taxable there and not at the domicile 

of the owners. Old Dominion Steamship Co. v. Virginia, 198 U.S. 299 (1905). 420 Noting that an 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. Northwest Airlines v. Minnesota, 322 U.S. 292, 294–97 (1944). 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. Union Transit Co. v. Kentucky, 199 U.S. 194 (1905), which disallowed the taxing of tangibles located permanently outside the domicile state, was held to be inapplicable. 322 U.S. at 295 

(1944). Instead, the case was said to be governed by New York ex rel. New York 

Cent. R.R. v. Miller, 202 U.S. 584, 596 (1906). As to the problem of multiple taxation of such airplanes, which had in fact been taxed proportionately by other 

States, the Court declared that the ‘‘taxability of any part of this fleet by any other 

State, than Minnesota, in view of the taxability of the entire fleet by that State, 

is not now before us.’’ Justice Jackson, in a concurring opinion, would treat Minnesota’s right to tax as exclusively of any similar right elsewhere. 421 Johnson Oil Co. v. Oklahoma, 290 U.S. 158 (1933). Moreover, in assessing 

that part of a railroad within its limits, a State need not treat it as an independent 

line valued as if it was operated separately from the balance of the railroad. 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. Pittsburgh 

C.C. & St. L. Ry. v. Backus, 154 U.S. 421 (1894). 

briefly at numerous ports never acquire a taxable situs at any one 

of them, and are taxable in the domicile of their owners or not at 

all. 419 Thus, where airplanes are continuously in and out of a state 

during the course of a tax year, the entire fleet may be taxed by 

the domicile state. 420

Conversely, a nondomiciliary State, although it may not tax 

property belonging to a foreign corporation which has never come 

within its borders, may levy a tax 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 State may nevertheless tax the number of cars which on 

the average are found to be present within its borders. 421 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 

AMENDMENT 14—RIGHTS GUARANTEED 1745

422Wallace 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). 423Great Northern Ry. v. Minnesota, 278 U.S. 503 (1929). If a tax reaches only 

revenues derived from local operations, the fact that the apportionment formula 

does not result in mathematical exactitude is not a constitutional defect. Illinois 

Cent. R.R. v. Minnesota, 309 U.S. 157 (1940). 424 Howard, State Jurisdiction to Tax Intangibles: A Twelve Year Cycle, 8 MO.

L. REV. 155, 160–62 (1943); Rawlins, State Jurisdiction to Tax Intangibles: Some 

Modern Aspects, 18 TEX. L. REV. 196, 314–15 (1940). 425Kirtland v. Hotchkiss, 100 U.S. 491, 498 (1879). 426Savings Society v. Multnomah County, 169 U.S. 421 (1898). 427 Bristol v. Washington County, 177 U.S. 133, 141 (1900). 

to the value of the road and the rights exercised in the State. 422

Or, a state property tax on railroads, which is measured by gross 

earnings apportioned to mileage, is constitutional unless it exceeds 

what would be legitimate as an ordinary tax on the property valued as part of a going concern or is relatively higher than taxes on 

other kinds of property. 423

Intangible Personalty.—To determine whether a State, or 

States, may tax intangible personal property, the Court has applied 

the fiction mobilia sequuntur personam (movable property follows 

the person) and has also recognized that such property may acquire, for tax purposes, a permanent business or commercial situs. 

The Court, however, 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. If the latter, the question would be 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. 424

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; 425

(2) a mortgage owned and kept outside the State by a nonresident 

but on land within the State; 426 (3) investments, in the form of 

loans to a resident, made by a resident agent of a nonresident creditor; 427 (4) deposits of a resident in a bank in another State, where 

he carries on a business and from which these deposits are derived, 

1746 AMENDMENT 14—RIGHTS GUARANTEED 

428These deposits were allowed to be subjected to a personal property tax in the 

city of his residence, regardless of whether or not they are subject to tax in the 

State where the business is carried on Fidelity & Columbia Trust Co. v. Louisville, 

245 U.S. 54 (1917). 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 

429 Rogers v. Hennepin County, 240 U.S. 184 (1916). 

430 Citizens Nat’l Bank v. Durr, 257 U.S. 99, 109 (1921). ‘‘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.’’ 

431 Hawley v. Malden, 232 U.S. 1, 12 (1914). 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. . . .’’ 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.’’

432First Bank Corp. v. Minnesota, 301 U.S. 234, 241 (1937). 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. 

433Schuylkill Trust Co. v. Pennsylvania, 302 U.S. 506 (1938). 

434The Court found that all stockholders were the ultimate beneficiaries of the 

corporation’s activities within the taxing State, were protected by the latter, and 

were thus subject to the State’s jurisdiction. International Harvester Co. v. Department of Taxation, 322 U.S. 435 (1944). This tax, though collected by the corporation, 

is on the transfer to a stockholder of his share of corporate dividends within the 

taxing State and is deducted from said dividend payments. Wisconsin Gas Co. v. 

United States, 322 U.S. 526 (1944). 

435 New York ex rel. Hatch v. Reardon, 204 U.S. 152 (1907). 

but belonging absolutely to him and not used in the business ; 428

(5) membership owned by a nonresident in a domestic exchange, 

known as a chamber of commerce; 429 (6) membership by a resident 

in a stock exchange located in another State; 430 (7) stock held by 

a resident in a foreign corporation that does no business and has 

no property within the taxing State; 431 (8) stock in a foreign corporation owned by another foreign corporation transacting its business within the taxing State; 432 (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; 433 (10)

dividends of a corporation distributed ratably among stockholders 

regardless of their residence outside the State; 434 (11) the transfer 

within the taxing State by one nonresident to another of stock certificates issued by a foreign corporation; 435 and (12) promissory 

AMENDMENT 14—RIGHTS GUARANTEED 1747

436Graniteville Mfg. Co. v. Query, 283 U.S. 376 (1931). 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. 437 Buck v. Beach, 206 U.S. 392 (1907). 438Senior v. Braden, 295 U.S. 422 (1935). 439 Brooke v. City of Norfolk, 277 U.S. 27 (1928). 440Greenough v. Tax Assessors, 331 U.S. 486, 496–97 (1947). 441 277 U.S. 27 (1928). 442 280 U.S. 83 (1929). 

notes executed by a domestic corporation, although payable to 

banks in other States. 436

The following personal property taxes on intangibles have been 

invalidated: (1) debts evidenced by notes in safekeeping within the 

taxing State, but made and payable and secured by property in a 

second State and owned by a resident of a third State; 437 (2) 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, being entitled to 

a share in the net income and, upon sale of the property, to the 

proceeds of the sale. 438

The Court also invalidated 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. 439 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. 440 The first case, Brooke v. Norfolk, 441 is distinguishable by virtue 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, 442 where a property 

tax was unsuccessfully demanded of a nonresident trustee with respect to nonresident intangibles under its control. 

A State in which a foreign corporation has acquired a commercial domicile and in which it maintains its general business offices 

may tax the corporation’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. Similarly, a nondomiciliary State in which a foreign corporation did 

business can tax the ‘‘corporate excess’’ arising from property emVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00077 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1748 AMENDMENT 14—RIGHTS GUARANTEED 

443 Adams Express Co. v. Ohio, 165 U.S. 194 (1897). 444 Alpha Cement Co. v. Massachusetts, 268 U.S. 203 (1925). 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. Wheeling Steel 

Corp. v. Fox, 298 U.S. 193 (1936). See also Memphis Gas Co. v. Beeler, 315 U.S. 

649, 652 (1942). 445 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.446Delaware, L. & W.P.R.R. v. Pennsylvania, 198 U.S. 341 (1905). 447Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U.S. 385 (1903). 448Stebbins v. Riley, 268 U.S. 137, 140–41 (1925). 

ployed and business done in the taxing State. 443 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. 444

Also a domiciliary State which imposes no franchise tax on a 

stock fire insurance corporation may assess a tax on the full 

amount of 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. 445

A property tax on the capital stock of a domestic company, 

however, 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 

law. 446 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. 447

Transfer (Inheritance, Estate, Gift) Taxes.—As a state has 

authority to regulate transfer of property by wills or inheritance, 

it may base its succession taxes upon either the transmission or receipt of property by will or by descent. 448 But whatever may be the 

justification of their power to levy such taxes, since 1905 the States 

have consistently found themselves restricted by the rule in Union

AMENDMENT 14—RIGHTS GUARANTEED 1749

449 199 U.S. 194 (1905) (property taxes).. The rule was subsequently reiterated 

in 1925 in Frick v. Pennsylvania, 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). In 

State Tax Comm’n v. Aldrich, 316 U.S. 174, 185 (1942), however, Justice Jackson, 

in dissent, asserted that a reconsideration of this principle had become timely. 450 240 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). 451Levy of an inheritance tax by a nondomiciliary State was also sustained on 

similar grounds in Wheeler v. New York, 233 U.S. 434 (1914) wherein it was held 

that the presence of a negotiable instrument was sufficient to confer jurisdiction 

upon the State seeking to tax its transfer. 452 Rhode Island Trust Co. v. Doughton, 270 U.S. 69 (1926). 453 277 U.S. 1 (1928). 454The Court conceded, however, that the domiciliary State could tax the transfer of books and certificates of indebtedness found in that safe deposit box as well 

as the decedent’s interest in a foreign partnership. 

Transit Co. v. Kentucky, 449 which precludes imposition of transfer 

taxes upon tangible which are permanently located or have an actual situs outside the State. 

In the case of intangibles, however, the Court has oscillated in 

upholding, then rejecting, and again sustaining the levy by more 

than one State of death taxes upon intangibles. Until 1930, transfer taxes upon intangibles by either the domiciliary or the situs

(but nondomiciliary) State, were with rare exceptions approved. 

Thus, in Bullen v. Wisconsin, 450 the domiciliary State of the creator 

of a trust was held competent to levy an inheritance tax on an 

out-of-state trust fund consisting of stocks, bonds, and notes, as the 

settlor reserved the right to control disposition and to direct payment of income for life. The Court reasoned that such reserved 

powers were the equivalent to a fee in the property. Cognizance 

was taken of the fact that the State in which these intangibles had 

their situs had also taxed the trust. 451

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. 452 Also against 

the trend was Blodgett v. Silberman, 453 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. 454

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 taxes and—by inferVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00079 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1750 AMENDMENT 14—RIGHTS GUARANTEED 

455First 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). 456First National Bank v. Maine, 284 U.S. 312, 330–31 (1932). 457 307 U.S. 357, 363, 366–68, 372 (1939). 

ence—other multiple taxation of intangibles. 455 The Court found 

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.’’ 456 Thus, the Court proceeded to deny the 

right of nondomiciliary States to tax intangibles, rejecting jurisdictional claims founded upon such bases as control, benefit, 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 processclause. 

The Court has expressly overruled only one of these four decisions condemning multiple succession taxation of intangibles. In 

1939, in Curry v. McCanless, 457 the Court 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 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, the domicile of a decedent (Tennessee) and the state where a trust received securities 

conveyed from the decedent by will (Alabama) were both allowed 

to impose a tax on the transfer of these securities. ‘‘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 

AMENDMENT 14—RIGHTS GUARANTEED 1751

458These 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. 459 308 U.S. 313 (1939). 460 307 U.S. 383 (1939). 461 307 U.S. at 386. 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, 315 U.S. 657, 660, 661 (1942), 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, 17 U.S. (4 Wheat.) 316, 429 (1819) 

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, 

319 U.S. 94 (1943), the Court approved a New Jersey transfer tax imposed on the 

occasion of the death of a New Jersey grantor of an irrevocable trust despite the 

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. 458

On the authority of Curry v. McCanless, the Court, in Pearson

v. McGraw 459 sustained the application of an Oregon transfer tax 

to intangibles handled by an Illinois trust company, although the 

property was never physically present in Oregon. Jurisdiction to 

tax was viewed as dependent, not on the location of the property 

in the State, but on the fact that the owner was a resident of Oregon. In Graves v. Elliott, 460 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.’’ 461

1752 AMENDMENT 14—RIGHTS GUARANTEED 

fact that it was executed in New York, the securities were located in New York, and 

the disposition of the corpus was to two nonresident sons. 462 306 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. 463Kansas City Ry. v. Kansas, 240 U.S. 227 (1916); Kansas City, M. & B.R.R. 

v. Stiles, 242 U.S. 111 (1916). Similarly, 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. 

Schwab v. Richardson, 263 U.S. 88 (1923). 464Western Union Tel. Co. v. Kansas, 216 U.S. 1 (1910); Pullman Co. v. Kansas, 

216 U.S. 56 (1910); Looney v. Crane Co., 245 U.S. 178 (1917); International Paper 

Co. v. Massachusetts, 246 U.S. 135 (1918). 

The costliness of multiple taxation of estates comprising intangibles can be appreciably aggravated if one or more States find that 

the decedent died domiciled within its borders. In such cases, contesting States may discover that the assets of the estate are insufficient to satisfy their claims. Thus, in Texas v. Florida, 462 the State 

of Texas filed an original petition in the Supreme Court against 

three other states who claimed to be the domicile of the decedent, 

noting 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 was valued less 

than the total of the demands of the several States, so that the latter were confronted with a prospective inability to collect. 

Corporate Privilege Taxes.—A domestic corporation may be 

subjected to a privilege tax graduated according to paid-up capital 

stock, even though the stock represents capital not subject to the 

taxing power of the State, since the tax is levied not on property 

but on the privilege of doing business in corporate form. 463 However, a State cannot tax property beyond its borders under the 

guise of taxing the privilege of doing an intrastate business. Therefore, a license tax based on the authorized capital stock of an 

out-of-state corporation is void, 464 even though there is a maximum 

AMENDMENT 14—RIGHTS GUARANTEED 1753

465 Cudahy Co. v. Hinkle, 278 U.S. 460 (1929). 466 An example of such an apportioned tax is a franchise tax based on such proportion of outstanding capital stock as is represented by property owned and used 

in business transacted in the taxing State. St. Louis S. W. Ry. v. Arkansas, 235 U.S. 

350 (1914). 467 Atlantic Refining Co. v. Virginia, 302 U.S. 22 (1937). 468 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). 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. 469 James v. Dravo Contracting Co., 302 U.S. 134 (1937). 470Lawrence v. State Tax Comm’n, 286 U.S. 276 (1932). 471Shaffer v. Carter, 252 U.S. 37 (1920); Travis v. Yale & Towne Mfg. Co., 252 

U.S. 60 (1920). 472 New York ex rel. Cohn v. Graves, 300 U.S. 308 (1937). 473Maguire v. Trefy, 253 U.S. 12 (1920). 

fee, 465 unless the tax is apportioned based on property interests in 

the taxing state. 466 On the other hand, a fee collected only once as 

the price of admission to do intrastate business is distinguishable 

from a tax and accordingly may be levied on an out-of-state corporation based on the amount of its authorized capital stock. 467

A municipal license tax imposed on a foreign corporation for 

goods sold within and without the State, but 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. 468 But

a State lacks jurisdiction to extend its privilege tax to the gross receipts of a foreign contracting corporation for fabricating equipment 

outside the taxing State, even if the equipment is 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. 469

Individual Income Taxes.—A State may tax annually the 

entire net income of resident individuals from whatever source received, 470 as jurisdiction is founded upon the rights and privileges 

incident to domicile. A State may also tax the portion of a nonresident’s net income which is derived from property owned, and 

from any business, trade, or profession carried on, by him within 

its borders, 471 based upon the State’s dominion over the property 

or activity from which it is derived and the obligation to contribute 

to the support of a government which secures the collection of such 

income. Accordingly, a State may tax residents on income from 

rents of land located outside the State; from interest on bonds 

physically without the State and secured by mortgage upon lands 

similarly situated; 472 and from a trust created and administered in 

another State, and not directly taxable to the trustee. 473 Further,

1754 AMENDMENT 14—RIGHTS GUARANTEED 

474Guaranty Trust Co. v. Virginia, 305 U.S. 19, 23 (1938). 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. New York ex. rel. Whitney v. Graves, 299 U.S. 

366 (1937). 475 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, 437 

U.S. 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. 476 Evidence may 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 jurisdiction. Hans Rees’ Sons v. 

North Carolina, 283 U.S. 123 (1931). 477Matson Nav. Co. v. State Board, 297 U.S. 441 (1936). 478Wisconsin 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 divithe 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. 474

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, 475 unless the income attributed to the State is out of all appropriate proportion to 

the business there transacted. 476 Thus, a franchise tax on a foreign 

corporation may be measured by income, not just from business 

within the state, but also on net income from interstate and foreign 

business. 477 Inasmuch as the privilege granted by a State to a foreign corporation of carrying on business supports a tax by that 

State, it followed that a Wisconsin privilege dividend tax, could be 

applied to a Delaware corporation despite it 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 could be imposed on the ‘‘privilege of declaring and 

receiving dividends’’ out of income derived from property located 

and business transacted in Wisconsin, equal to a specified percentage of such dividends, the corporation being required to deduct the 

tax from dividends payable to resident and nonresident shareholders. 478

AMENDMENT 14—RIGHTS GUARANTEED 1755

dends, he contended is ‘‘one wholly beyond the reach of Wisconsin’s sovereign power, 

one which it cannot effectively command, or prohibit or condition.’’ The assumption 

that a proportion of the dividends distributed is paid out of earnings in Wisconsin 

for the year immediately preceding payment is arbitrary and not borne out by the 

facts. Accordingly, ‘‘if the exaction is an income tax in any sense it is such upon 

the stockholders (many of whom are nonresidents) and is obviously bad.’’ See

also Wisconsin v. Minnesota Mining Co., 311 U.S. 452 (1940). 

479 Equitable Life Soc’y v. Pennsylvania, 238 U.S. 143 (1915). 480Provident Savings Ass’n v. Kentucky, 239 U.S. 103 (1915). 481State Bd. of Ins. v. Todd Shipyards, 370 U.S. 451 (1962). 482 Continental Co. v. Tennessee, 311 U.S. 5, 6 (1940) (emphasis added). 483Palmetto Ins. Co. v. Connecticut, 272 U.S. 295 (1926). 484St. Louis Compress Co. v. Arkansas, 260 U.S. 346 (1922). 

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, 479 but such a tax is invalid 

if the company has withdrawn all its agents from the State and 

has ceased to do business, merely continuing to receive the renewal 

premiums at its home office. 480 Also violative of due process is a 

state insurance premium tax imposed on a nonresident firm doing 

business in the taxing jurisdiction, which obtained the coverage of 

property within the State from an unlicenced out-of-state insurer 

which consummated the contract, serviced the policy, and collected 

the premiums outside that taxing jurisdiction. 481 However, tax may 

be imposed upon the privilege of entering and engaging in business 

in a State, even if the tax is a percentage of the ‘‘annual premiums 

to be paid throughout the life of the policies issued.’’ Under this 

kind of tax, a State may continue to collect even after the company’s withdrawal from the State. 482

A State may lawfully extend a tax to a foreign insurance company that 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. 483 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. 484 Likewise

a Connecticut life insurance corporation, licensed to do business in 

California, that 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 

1756 AMENDMENT 14—RIGHTS GUARANTEED 

485 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. 

Metropolitan Life Ins. Co. v. City of New Orleans, 205 U.S. 395 (1907). 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. Orleans Parish v. New York Life Ins. Co., 216 U.S 517 (1910). 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. Liverpool & L. & G. Ins. Co. v. Orleans Assessors, 221 U.S. 346 (1911). 

The mere fact that the insurers charge these premiums to local agents and give no 

credit directly to policyholders does not enable them to escape this tax. 486Turpin v. Lemon, 187 U.S. 51, 58 (1902); Glidden v. Harrington, 189 U.S. 

255 (1903). 487McMillen v. Anderson, 95 U.S. 37, 42 (1877). 488 Bell’s Gap R.R. v. Pennsylvania, 134 U.S. 232, 239 (1890). 489 Hodge v. Muscatine County, 196 U.S. 276 (1905). 

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. 485

Procedure in Taxation 

Generally.—Exactly what due process is required 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. 486 Due process of law as applied to taxation does not mean 

judicial process; 487 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. 488 Due Process is satisfied if a taxpayer is given an opportunity to test the validity of a tax at any time before it is final, whether before a board 

having a quasi-judicial character, or before a tribunal provided by 

the State for such purpose. 489

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, 

AMENDMENT 14—RIGHTS GUARANTEED 1757

490 Hagar v. Reclamation Dist., 111 U.S. 701, 709–10 (1884). 491 111 U.S. at 710. 492McMillen v. Anderson, 95 U.S. 37, 42 (1877). 

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 

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.’’ 490

Notice and Hearing in Relation to Assessments.—‘‘But

where a tax is levied on property not specifically, but according to 

its value, to be ascertained by assessors appointed for that purpose 

upon such evidence as they may obtain, a different principle comes 

in. The officers in estimating the value act judicially; and in most 

of the States provision is made for the correction of errors committed by them, through boards of revision or equalization, sitting 

at designated periods provided by law to hear complaints respecting the justice of the assessments. The law in prescribing the time 

when such complaints will be heard, gives all the notice required, 

and the proceedings by which the valuation is determined, though 

it may be followed, if the tax be not paid, by a sale of the delinquent’s property, is due process of law.’’ 491

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. 492 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 

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1758 AMENDMENT 14—RIGHTS GUARANTEED 

493State Railroad Tax Cases, 92 U.S. 575, 610 (1876). 494 Nickey v. Mississippi, 292 U.S. 393, 396 (1934). See also Clement Nat’l Bank 

v. Vermont, 231 U.S. 120 (1913). 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. Pittsburgh 

C.C. & St. L. Ry. v. Backus, 154 U.S. 421 (1894). One hearing is sufficient to constitute due process, Michigan Central R.R. v. Powers, 201 U.S. 245, 302 (1906), 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. Pittsburgh C. C. & St. L. Ry. v. Board of Pub. Works, 172 U.S. 32, 45 

(1898). 495St. 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). 496Tonawanda v. Lyon, 181 U.S. 389, 391 (1901). 497Londoner v. Denver, 210 U.S. 373 (1908). 498Withnell 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). 499Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 168, 175 (1896); Browning v. Hooper, 269 U.S. 396, 405 (1926). 

sonably asked. 493 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 assessment. 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. 494

However, when assessments based on the enjoyment of a special benefit are made by a political subdivision, a taxing board or 

court, the property owner is entitled to be heard as to the amount 

of his assessments and upon all questions properly entering into 

that determination. 495 The hearing need not amount to a judicial 

inquiry, 496 although a mere opportunity to submit objections in 

writing, without the right of personal appearance, is not sufficient. 497 Generally, 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. 498 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. 499 The owner has no constitutional right to be heard in opposition to the launching of a project 

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AMENDMENT 14—RIGHTS GUARANTEED 1759

500 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). 

Nor can he rightfully complain because the statute renders conclusive, after a hearing, the determination as to apportionment by the same body which levied the assessment. Hibben v. Smith, 191 U.S. 310, 321 (1903). 501 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). 502 City of Detroit v. Parker, 181 U.S. 399 (1901). 503Paulsen v. Portland, 149 U.S. 30, 38 (1893). 504 National Safe Deposit Co. v. Stead, 232 U.S. 58 (1914). 505Pierce Oil Corp. v. Hopkins, 264 U.S. 137 (1924). 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. Carstairs v. Cochran, 193 U.S. 10 (1904); 

Hannis Distilling Co. v. Baltimore, 216 U.S. 285 (1910). 506The 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 been viewed as an unreasonable regulation of the conduct of business. Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 75, 76 (1920). 

cluded 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. 500

More specifically, where the mode of assessment resolves itself 

into a meremathematical calculation, there is no necessity for a 

hearing. 501 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. 502 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. 503

Collection of Taxes.—States may undertake a variety of 

methods to collect taxes. For instance, collection of an inheritance 

tax 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. 504 A State may compel retailers 

to collect such gasoline taxes from consumers and, under penalty 

of a fine for delinquency, to remit monthly the amounts thus collected. 505 In collecting personal income taxes, most States require 

employers to deduct and withhold the tax from the wages of employees. 506

States may also use various procedures to collect taxes from 

prior tax years. To reach property which has escaped taxation, a 

State may tax estates of decedents for a period prior to death and 

1760 AMENDMENT 14—RIGHTS GUARANTEED 

507 Bankers Trust Co. v. Blodgett, 260 U.S. 647 (1923). 508 International Harvester Corp. v. Goodrich, 350 U.S. 537 (1956). 509League v. Texas, 184 U.S. 156 (1902). 510Palmer v. McMahon, 133 U.S. 660, 669 (1890). 511Scottish Union & Nat’l Ins. Co. v. Bowland, 196 U.S. 611 (1905). 512King v. Mullins, 171 U.S. 404 (1898); Chapman v. Zobelein, 237 U.S. 135 

(1915). 513Leigh v. Green, 193 U.S. 79 (1904). 514Davidson v. City of New Orleans, 96 U.S. 97, 107 (1878). 515Dewey v. Des Moines, 173 U.S. 193 (1899). 

grant proportionate deductions for all prior taxes which the personal representative can prove to have been paid. 507 Of, it is was 

found not to be a violation of property rights when a state asserts 

a prior lien against trucks repossessed by a vendor from a carrier 

(1) accruing from the operation by the carrier of trucks not 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 the trucks were repossessed, but based upon the carrier’s operations preceding such repossession. Such lien need not be 

limited to trucks owned by the carrier because the wear on the 

highways occasioned by the carrier’s operation is in no way altered 

by the vendor’s retention of title. 508

As a State may provide in advance that taxes will bear interest 

from the time they become due, it may with equal validity stipulate 

that taxes which have become delinquent will bear interest from 

the time the delinquency commenced. Further, a State may adopt 

new remedies for the collection of taxes and apply these remedies 

to taxes already delinquent. 509 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. 510 Nor is a foreign insurance company denied 

due process of law when its personal property is distrained to satisfy unpaid taxes. 511

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. 512 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. 513 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, 514 a judgment imposing personal 

liability against a nonresident taxpayer over whom the state court 

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AMENDMENT 14—RIGHTS GUARANTEED 1761

516League v. Texas, 184 U.S. 156, 158 (1902). See also Straus v. Foxworth, 231 

U.S. 162 (1913). 517Londoner 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). 518 A state statute may designate a corporation as the agent of a nonresident 

stockholder to receive notice and to represent him in proceedings for correcting assessment. Corry v. Baltimore, 196 U.S. 466, 478 (1905). 519Leigh v. Green, 193 U.S. 79, 92–93 (1904). Thus, an assessment for taxes and 

a notice of sale when such taxes are delinquent will be sustained as long as there 

is a description of the land and the owner knows that the property so described is 

his, even if that description is not technically correct. Ontario Land Co. v. Yordy, 

212 U.S. 152 (1909). Where tax proceedings are in rem, owners are bound to take 

notice thereof, and to pay taxes on their property, even if the land is assessed to 

unknown or other persons. Thus, if an owner stands by and sees his property sold 

for delinquent taxes, he is not thereby wrongfully deprived of his property. Id. See 

also Longyear v. Toolan, 209 U.S. 414 (1908). 520 Covey v. Town of Somers, 351 U.S. 141 (1956). 521 Nelson v. New York City, 352 U.S. 103 (1956). This conclusion was unaffected by the disparity between the value of the land taken and the amount owed 

ever, a State is free to adopt new remedies for the collection of 

taxes and even to apply new remedies to taxes already delinquent. 516

Sufficiency and Manner of Giving Notice.—Notice of tax 

assessments or liabilities, insofar as it is required, may be either 

personal, by publication, by statute fixing the time and place of 

hearing, 517 or by delivery to a statutorily designated agent. 518 As

regards land, ‘‘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. . .’’ In fact, compliance with statutory notice requirements combined with actual notice to owners of land can be sufficient in an in rem case , even if there are technical defects in such 

notice. 519

Whether statutorily required notice is sufficient may vary 

based on particular circumstances. Thus, where a taxpayer was not 

legally competent, no guardian had not been appointed and town 

officials were aware of these facts, notice of a foreclosure was defective, even though the tax delinquency was mailed to her, published 

in local papers, and posted in the town post office. 520 On the other 

hand, due process was not denied to appellants who were unable 

to avert foreclosure on certain trust lands (based on liens for unpaid water charges) because their own bookkeeper failed to inform 

them of the receipt of mailed notices. 521

1762 AMENDMENT 14—RIGHTS GUARANTEED 

the city. 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. 522 Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673 (1930). 523 Central of Georgia Ry. v. Wright, 207 U.S. 127 (1907). 524 Carpenter v. Shaw, 280 U.S. 363 (1930). See also Ward v. Love County, 253 

U.S. 17 (1920). 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. McKesson Corp. v. Florida Alcohol & Tobacco Div., 496 U.S. 

18 (1990). See also Reich v. Collins, 513 U.S. 106 (1994) (violation of due process 

to hold out a post-deprivation remedy for unconstitutional taxation and then, after 

the disputed taxes had been paid, to declare that no such remedy exists); Newsweek, Inc. v. Florida Dep’t of Revenue, 522 U.S. 442 (1998) (per curiam) (violation 

of due process to limit remedy to one who pursued pre-payment of tax, where litigant reasonably relied on apparent availability of post-payment remedy). 525 Carpenter v. Shaw, 280 U.S. 363 (1930). 526Farncomb v. Denver, 252 U.S. 7 (1920). 527Pullman Co. v. Knott, 235 U.S. 23 (1914). 

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. 522 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, 523 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. 524 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. 525

Laches.—Persons failing to avail themselves of an opportunity 

to object and be heard cannot thereafter complain of assessments 

as arbitrary and unconstitutional. 526 Likewise a car company, 

which failed to report its gross receipts as required by statute, has 

no further right to contest the state comptroller’s estimate of those 

receipts and his adding thereto the 10 percent penalty permitted 

by law. 527

Eminent Domain 

The due process clause of the Fourteenth Amendment has been 

held to require that when a state or local governmental body, or 

AMENDMENT 14—RIGHTS GUARANTEED 1763

528See analysis under ‘‘National Eminent Domain Power,’’ Fifth Amendment, 

supra. 529See, e.g., RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION

OF THE FOURTEENTH AMENDMENT (Cambridge: 1977). 530See supra Bill of Rights, ‘‘Fourteenth Amendment’’. 531See Roe v. Wade, 410 U.S. 113, 164 (1973). 

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. 528

Fundamental Rights (Noneconomic Substantive Due 

Process)

A counterpart to the now-discredited economic substantive due 

process, noneconomic substantive due process is still vital today. 

The concept has, over time, come to include a number of disparate 

lines of cases, and various labels have been applied to the rights 

protected, including ‘‘fundamental rights,’’ ‘‘privacy rights,’’ ‘‘liberty 

interests’’ and ‘‘incorporated rights.’’ The binding principle of these 

cases is that they involve rights so fundamental that the courts 

must subject any legislation infringing on them to close scrutiny. 

This analysis, criticized by some for being based on 

extra-constitutional precepts of natural law, 529 serves as the basis 

for some of the most significant constitutional holdings of our time. 

For instance, the application of the Bill of Rights to the states, 

seemingly uncontroversial today, is based not on constitutional 

text, but on noneconomic substantive due process and the ‘‘incorporation’’ of fundamental rights. 530 Other noneconomic due process 

holdings, however, such as the cases establishing the right of a 

woman to have an abortion, 531 remain controversial. 

Development of the Right of Privacy.—More so than other 

areas of law, noneconomic substantive due process seems to have 

started with few fixed precepts. Were the rights being protected 

property rights (and thus really protected by economic due process) 

or were they individual liberties? What standard of review needed 

to be applied? What were the parameters of such rights once identified? For instance, did a right of ‘‘privacy’’ relate to protecting 

physical spaces such as one’s home, or was it related to the issue 

of autonomy to make private, intimate decisions? Once a right was 

identified, often using abstract labels, how far could such an abstraction be extended? Did protecting the ‘‘privacy’’ of the decisions 

whether to have a family also include the right to make decisions 

regarding sexual intimacy? While many of these issues have, over 

time, been resolved, others remain. 

1764 AMENDMENT 14—RIGHTS GUARANTEED 

532 Warren and Brandeis, The Right of Privacy, 4 Harv. L. Rev. 193 (1890). 533See Olmstead v. United States, 277 U.S. 438 (1928) (J. Brandeis, dissenting) 

(arguing against the admissibility in criminal trials of secretly taped telephone conversations). In Olmstead, Justice Brandeis said: ‘‘The makers of our Constitution 

undertook to secure conditions favorable to the pursuit of happiness . . . . They 

sought to protect Americans in their beliefs, their emotions and their sensations. 

They conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that 

right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth 

Amendment.’’ 277 U.S. at 473. 534 262 U.S. 390 (1923). Justices Holmes and Sutherland entered a dissent, applicable to Meyer, in Bartels v. Iowa, 262 U.S. 404, 412 (1923). 535 268 U.S. 510 (1925). 

One of the earliest formulations of noneconomic substantive 

due process was the right to privacy. This right was first proposed 

by Samuel Warren and Louis Brandeis in an 1890 Harvard Law 

Review article 532 as a unifying theme to various common law protections of the ‘‘right to be left alone,’’ including the developing 

laws of nuisance, libel, search and seizure, and copyright. According to the authors, ‘‘. . . the right to life has come to mean the right 

to enjoy life,—the right to be let alone . . . . This development of 

the law was inevitable. The intense intellectual and emotional life, 

and the heightening of sensations which came with the advance of 

civilization, made it clear to men that only a part of the pain, 

pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful 

capacity for growth which characterizes the common law enabled 

the judges to afford the requisite protection, without the interposition of the legislature.’’ 

The concepts put forth in this article, which appeared to relate 

as much to private intrusions on persons as to intrusions by government, reappeared years later in a dissenting opinion by Justice 

Brandeis regarding the Fourth Amendment. 533 Then, in the 1920’s, 

at the heyday of economic substantive due process, the Court ruled 

in two cases which, although nominally involving the protection of 

property, foreshadowed the rise of the protection of noneconomic interests. In Meyer v. Nebraska, 534 the Court struck down a state law 

forbidding schools from teaching any modern foreign language to 

any child who had not successfully finished the eighth grade. Then, 

two years later, in Pierce v. Society of Sisters, 535 the Court declared 

it unconstitutional to require public school education of children 

aged eight to sixteen. The statute in Meyer was found to interfere 

with the property interest of the plaintiff, a German teacher, in 

pursuing his occupation, while the private school plaintiffs in 

Pierce were threatened with destruction of their businesses and the 

AMENDMENT 14—RIGHTS GUARANTEED 1765

536Meyer v. Nebraska, 262 U.S. 390, 400 (1923); Pierce v. Society of Sisters, 268 

U.S. 510, 531, 533, 534 (1928). The Court has subsequently made clear that these 

cases dealt with ‘‘a complete prohibition of the right to engage in a calling,’’ holding 

that ‘‘a brief interruption’’ did not constitute a constitutional violation. Conn v. 

Gabbert, 526 U.S. 286, 292 (1999) (search warrant served on attorney prevented attorney from assisting client appearing before a grand jury). 537 262 U.S. at 399. 538 262 U.S. at 400. 539 268 U.S. at 534-35. 540Skinner 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’’). 541 E.g., Jacobson v. Massachusetts, 197 U.S. 11 (1905); Zucht v. King, 260 U.S. 

174 (1922) (allowing compulsory vaccination); Buck v. Bell, 274 U.S. 200 (1927) (allowing 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) (allowing institutionalization of habitual sexual offenders 

as psychopathic personalities). 542 388 U.S. 1, 12 (1967). 

values of their properties. 536 Yet in both cases the Court also permitted the plaintiffs to represent the interests of parents and children in the assertion of other noneconomic forms of ‘‘liberty.’’ 

‘‘Without doubt,’’ Justice McReynolds said in Meyer, 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 own conscience, and generally to enjoy those privileges 

long recognized at common law as essential to the orderly pursuit 

of happiness by free men.’’ 537 The right of the parents to have their 

children instructed in a foreign language was ‘‘within the liberty of 

the [Fourteenth] Amendment.’’ 538 Meyer was then relied on in 

Pierce to assert 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.’’ 539

Although the Supreme Court continued to define noneconomic 

liberty broadly in dicta, 540 this new concept was to have little impact for decades. 541 Finally, in 1967, the Court held in Loving v. 

Virginia 542 that a statute prohibiting interracial marriage denied 

substantive 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,’’ and the 

classification of marriage rights on a racial basis was 

1766 AMENDMENT 14—RIGHTS GUARANTEED 

543 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 

also 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. 544 367 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. 545 According to Justice Harlan, due process is limited neither to procedural 

guarantees nor 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.’’ 367 U.S. at 542, 543. 546 381 U.S. 479 (1965). 547 ‘‘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. at 482 (opinion of Court by Justice Douglas). 548The analysis, while reminiscent of the ‘‘right to privacy’’ first suggested by 

Warren and Brandeis, still approached the matter in reliance on substantive due 

process cases. It should be noted that the separate concurrences of Justices Harlan 

and White were specifically based on substantive due process, 381 U.S. at 499, 502, 

which indicates that the majority’s position was intended to be something different. 

Justice Goldberg, on the other hand, in concurrence, would have based the decision 

>‘unsupportable.’’ Further development of this line of cases was 

slowed by the expanded application of the Bill of Rights to the 

states, which afforded the Court an alternative ground to void state 

policies. 543

Despite the Court’s increasing willingness to overturn state 

legislation, the basis and standard of review that the Court used 

to review infringements on ‘‘fundamental freedoms’’ were not always clear. In Poe v. Ullman, 544 for instance, the Court dismissed 

as non-justiciable a suit challenging a Connecticut statute banning 

the use of contraceptives, even by married couples. In dissent, however, Justice Harlan advocated the application of a due process 

standard of reasonableness—the same lenient standard he would 

have applied to test economic legislation. 545 Applying a lengthy 

analysis, Justice Harlan concluded that the statute in question 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 in Griswold v. Connecticut, 546 a majority of the Justices rejected reliance on substantive due process 547

and instead decided it on another basis—that the statute was an 

invasion of privacy, which was a non-textual ‘‘penumbral’’ right 

protected by a matrix of constitutional provisions. 548 Not only was 

AMENDMENT 14—RIGHTS GUARANTEED 1767

on the Ninth Amendment. 381 U.S. at 486-97. See analysis under the Ninth Amendment, ‘‘Rights Retained By the People,’’ supra. 549See Roe v. Wade, 410 U.S. 113 (1973). 550When the Court began to extend ‘‘privacy’’ rights to unmarried person 

through the equal protection clause, it seemed to rely upon a view of rationality and 

reasonableness not too different from Justice Harlan’s dissent in Poe v. Ullman. 

Eisenstadt v. Baird, 405 U.S. 438 (1972), is the principal case. See also Stanley v. 

Illinois, 405 U.S. 645 (1972). 551Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 

(1992). 552See, e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972). ‘‘If under Griswold the distribution of contraceptives to married persons cannot be prohibited, a ban on distribution to unmarried persons would be equally impermissible. It is true that in 

Griswold the right of privacy in question inhered in the marital relationship. Yet 

the marital couple is not an independent entity with a mind and heart of its own, 

but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into 

matters so fundamentally affecting a person as the decision whether to bear or 

beget a child.’’ 405 U.S. at 453. 553 478 U.S. 186 (1986). 

this right to be protected again governmental intrusion, but there 

was apparently little or no consideration to be given to what governmental interests might justify such an intrusion upon the marital bedroom. 

The apparent lack of deference to state interests in Griswold was borne out in the early abortion cases, discussed in detail 

below, which required the showing of a ‘‘compelling state interest’’ 

to interfere with a woman’s right to terminate a pregnancy. 549 Yet,

in other contexts, the Court appears to have continued to use a 

‘‘reasonableness’’ standard. 550 More recently, the Court has complicated the issue further (again in the abortion context) by the addition of yet another standard, ‘‘undue burden.’’ 551

A further problem confronting the Court is how such abstract 

rights, once established, are to be delineated. For instance, the constitutional protections afforded to marriage, family and procreation 

in Griswold have been extended by the Court to apply to married 

and unmarried couples alike. 552 Yet, in Bowers v. Hardwick, 553 the

Court majority rejected a challenge to a Georgia sodomy law despite the fact that it prohibited the types of intimate activities engaged in by married as well as unmarried couples. The Court interpreted the statute only as applied to the plaintiffs, who were homosexuals, explaining that there was no historical right to engage in 

homosexual sodomy. The dissent, however, would have evaluated 

the statute as applied to both homosexual and heterosexual conduct, and thus would have resolved the issue left unanswered by 

the Court—whether there is a general right to privacy and autonomy in matters of sexual intimacy. 

1768 AMENDMENT 14—RIGHTS GUARANTEED 

554 491 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. 555 491 U.S. at 128 n.6. 556 491 U.S. at 142. 557 410 U.S. 113, 164 (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, 410 U.S. at 173, while Justice White 

left the issue open. 410 U.S. at 223. 558 410 U.S. at 129–47. 

Similar disagreement over the appropriate level of generality 

for definition of a liberty interest was evident in Michael H. v. Gerald D., involving the rights of a biological father to establish paternity and associate with a child born to the wife of another man. 554

While recognizing the protection traditionally afforded a father, 

Justice Scalia, joined only by Chief Justice Rehnquist in this part 

of the plurality decision, rejected the argument that a 

non-traditional familial connection (i.e. the relationship between a 

father and the offspring of an adulterous relationship) qualified for 

constitutional protection, arguing that courts should limit consideration to ‘‘the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.’’ 555 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.’’’ 556

Abortion.—In Roe v. Wade, 557 the Court established a right of 

personal privacy protected by the due process clause that includes 

the right of a woman to determine whether or not to bear a child. 

In doing so, the Court dramatically increased judicial oversight of 

legislation under the privacy line of cases, striking down aspects of 

abortion-related laws in practically all the States, the District of 

Columbia, and the territories. To reach this result, the Court first 

undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion 

were of relatively recent vintage and thus lacked the historical 

foundation which might have preserved them from constitutional 

review. 558 Then, the Court established that the word ‘‘person’’ as 

used in the due process clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn 

AMENDMENT 14—RIGHTS GUARANTEED 1769

559 410 U.S.at 156–59. 560 410 U.S. at 152–53. 561 410 U.S. at 152–53. 562 410 U.S. at 152, 155-56. The ‘‘compelling state interest’’ test in equal protection cases is reviewed under ‘‘The New Standards: Active Review,’’ infra. 563 410 U.S. at 147-52, 159-63. 564 410 U.S. at 163. 

lacked federal constitutional protection. 559 Finally, the Court summarily announced that the ‘‘Fourteenth Amendment’s concept of 

personal liberty and restrictions upon state action’’ includes ‘‘a 

right of personal privacy, or a guarantee of certain areas or zones 

of privacy’’ 560 and that ‘‘[t]his right of privacy . . . is broad enough 

to encompass a woman’s decision whether or not to terminate her 

pregnancy.’’ 561

It was also significant that the Court held this right of privacy 

to be ‘‘fundamental’’ and, drawing upon the strict standard of review found in equal protection litigation, held that the due process 

clause required that any limits on this right be justified only by a 

‘‘compelling state interest’’ and be narrowly drawn to express only 

the legitimate state interests at stake. 562 Assessing the possible interests of the States, the Court rejected justifications relating to 

the promotion of morality and the protection of women from the 

medical hazards of abortions as unsupported in the record and illserved by the laws in question. Further, 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 of when life begins. Two 

valid state interests were, however, recognized. ‘‘[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.’’’ 563

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 

Court found that 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.’’ 564 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 

1770 AMENDMENT 14—RIGHTS GUARANTEED 

565 410 U.S. at 163. 566 410 U.S. at 163-64. A fetus becomes ‘‘viable’’ when it is ‘‘potentially able to 

live outside the mother’s womb, albeit with artificial aid. Viability is usually placed 

at about seven months (28 weeks) but may occur earlier, even at 24 weeks.’’ Id. at 

160 (footnotes omitted). 567Doe v. Bolton, 410 U.S. 179 (1973). 568 410 U.S. at 192-200. In addition, a residency provision was struck down as 

violating the privileges and immunities clause of Article IV, § 2. Id. at 200. See analysis under ‘‘State Citizenship: Privileges and Immunities,’’ supra. 

still not able to survive outside the womb, and consequently the actual decision to have an abortion cannot be otherwise impeded. 565

‘‘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.’’ 566

Thus, the Court concluded that ‘‘(a) for the stage prior to approximately the end of the first trimester, the abortion decision and 

its effectuation must be left to the medical judgment of the pregnant woman’s attending physician; (b) for the stage subsequent to 

approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, 

regulate the abortion procedure in ways that are reasonably related to maternal health; (c) for the stage subsequent to viability, 

the State in promoting its interest in the potentiality of human life 

may, if it chooses, 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.’’ 

Further, in a companion case, the Court struck down three 

procedural provisions relating to a law which did allow some abortions. 567 These regulations required that an 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. 568 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 

AMENDMENT 14—RIGHTS GUARANTEED 1771

569 410 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). 570Planned 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’s 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). 571Planned 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. 572 428 U.S. 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 

abortions inasmuch as the doctor could utilize his best clinical 

judgment in light of all the attendant circumstances. 569

After the decision in Roe, various states attempted to limit access to this newly found right, such as by requiring spousal or parental consent to obtain an abortion. 570 The Court, however, held 

that (1) requiring spousal consent 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, 571 (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, 572 and

1772 AMENDMENT 14—RIGHTS GUARANTEED 

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). 573Planned 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). 574Planned Parenthood v. Danforth, 428 U.S. 52, 75–79 (1976). 575 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. 576Simopoulos v. Virginia, 462 U.S. 506, 516 (1983). 577 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). In City of Akron, the Court explained that while the state has a 

legitimate interest in ensuring that the woman’s consent is informed, it may not de-

(3) that a criminal provision 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. 573 The Court did sustain provisions that required the woman’s 

written consent to an abortion with assurances that it is informed 

and freely given, and the Court also upheld mandatory reporting 

and record keeping for public health purposes with adequate assurances of confidentiality. Another 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 

reasonable protection of maternal health and it instead operated to 

deny the vast majority of abortions after the first 12 weeks. 574

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.’’ 575 The Court held, however, that a state 

may require that abortions be performed in hospitals or licensed

outpatient clinics, as long as licensing standards do not ‘‘depart 

from accepted medical practice.’’ 576 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. 577 The Court 

AMENDMENT 14—RIGHTS GUARANTEED 1773

mand 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. City of Akron, 

462 U.S. 416, 448–49 (1983). 578 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). 579Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476, 486–90 (1983). 580 462 U.S. at 482-86, 505. 581Maher 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, 448 U.S. at 306–11 (same). The state restriction 

in Maher, 432 U.S. 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, 448 U.S. at 323, although it provided Justice Stevens with the basis for reaching different results. Id. at 349 (dissenting). 

also invalidated a 24-hour waiting period following a woman’s written, informed consent. 578

On the other hand, the Court has 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. 579 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. 580 Further, the Court refused to extend 

Roe to require States to pay for abortions for the indigent, holding 

that neither due process nor equal protection requires government 

to use public funds for this purpose. 581

The equal protection discussion in the public funding case 

bears closer examination because of its significance for later cases. 

The equal protection question arose because public funds were 

being made available for medical care to indigents, including costs 

attendant to child birth, but not for expenses associated with abortions. Admittedly, discrimination based on a non-suspect class such 

as indigents does not generally compel strict scrutiny. However, the 

question arose as to whether such a distinction impinged upon the 

right to abortion, and thus should be subjected to heightened scrutiny. The Court rejected this argument and used a rational basis 

test, noting that the condition that was a barrier to getting an 

abortion—indigency—was not created or exacerbated by the government.

In reaching this finding the Court held that, 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. 

And, the Court held, to allocate public funds so as to further a 

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582 ‘‘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.’’ 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. 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. Poelker v. Doe, 432 U.S. 

519 (1977). 583 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. 584 492 U.S. 490 (1989). 585The 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. 586Ohio’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. Ohio v. Akron Center for Reproductive Health, 

497 U.S. 502 (1990). 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. Hodgson v. Minnesota, 497 U.S. 417 (1990). 

stacle to obtaining and does not unduly burden the right. 582 What

is interesting about this holding is that the ‘‘undue burden’’ standard was to take on new significance when the Court began raising 

questions about the scope and even the legitimacy of Roe.

Although the Court expressly reaffirmed Roe v. Wade in

1983, 583 its 1989 decision in Webster v. Reproductive Health Services 584 signaled the beginning of a retrenchment. Webster upheld

two aspects of a Missouri 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 age of 20 weeks, 

make an actual viability determination. 585 This retrenchment was 

also apparent in two 1990 cases in which the Court upheld both 

one-parent and two-parent notification requirements. 586

Webster, however, exposed a split in the Court’s approach to 

Roe v. Wade. The plurality opinion by Chief Justice Rehnquist, 

joined in that part by Justices White and Kennedy, was highly critVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00104 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
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587 492 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. 588 Hodgson v. Minnesota, 497 U.S. 417, 450 (1990). 589 492 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. 590 492 U.S. at 519. 591 492 U.S. 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.’’ 592 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 

ical of Roe, but found no occasion to overrule it. Instead, the plurality’s approach sought to water down Roe by applying a less 

stringent standard of review. For instance, the plurality found the 

viability testing requirement valid because it ‘‘permissibly furthers 

the State’s interest in protecting potential human life.’’ 587 Justice

O’Connor, however, concurred in the result based on her view that 

the requirement did not impose ‘‘an undue burden’’ on a woman’s 

right to an abortion, while Justice Scalia’s concurrence urged that 

Roe be overruled outright. Thus, when a Court majority later invalidated a Minnesota procedure requiring notification of both parents without judicial bypass, it did so because it did ‘‘not reasonably further any legitimate state interest.’’ 588

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 

after viability, and hence did not challenge Roe’s ‘trimester framework. 589 Nonetheless, a majority of Justices appeared 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;’’ 590 Justice O’Connor repeated 

her view that the trimester approach is ‘‘problematic;’’ 591 and, as 

mentioned, Justice Scalia would have done away with Roe altogether.

Three years later, however, the Court invoked principles of 

stare decisis to reaffirm Roe’s ‘‘essential holding,’’ although it had 

by now abandoned the trimester approach and adopted Justice 

O’Connor’s ‘‘undue burden’’ test and Roe’s ‘‘essential holding.’’ 592

1776 AMENDMENT 14—RIGHTS GUARANTEED 

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,’’ id. at 923, 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. 593 505 U.S. 833, 846 (1992). 594 505 U.S. 833, 860 (1992). 595 505 U.S. at 877-78. Application of these principles in Casey led the Court to 

uphold overrule some precedent, but to invalidate arguably the most restrictive provision. The four provisions challenged which were upheld included a narrowed definition of ‘‘medical emergency’’ (which controlled exemptions from the Act’s limitations), record keeping and reporting requirements, an informed consent and 24-hour 

waiting period requirement; and a parental consent requirement, with possibility for 

judicial bypass, applicable to minors. The provisions which was invalidated as an 

According to the Court in Planned Parenthood of Southeastern 

Pennsylvania v. Casey, 593 the right to abortion 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.’’ 

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, however, 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,’’ 594 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 exercise 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.’’ 595

AMENDMENT 14—RIGHTS GUARANTEED 1777

undue burden on a woman’s right to an abortion was a spousal notification requirement. 596 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) 

(invalidating ‘‘informed consent’’ and 24-hour waiting period); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (invalidating 

informed consent requirement). 597 Requiring informed consent for medical procedures was found to be 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 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). 505 U.S. at 885-87. 598The plurality Justices were joined in this part of their opinion by Justices 

Blackmun and Stevens. 599 505 U.S. at 898. 600Stenberg v. Carhart 530 U.S. 914 (2000) 530 

U.S. 914 (2000). 

Casey did, however, overturn earlier decisions striking down 

informed consent and 24-hour waiting periods. 596 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. 597 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. 

On the other hand, the Court 598 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). 599 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. 

The passage of various state laws restricting so-called ‘‘partial 

birth abortions’’ gave observers an opportunity to see if the ‘‘undue 

burden’’ standard was in fact likely to lead to a major retrenchment in abortion regulation. In Stenberg v. Carhart, 600 the Court 

reviewed a Nebraska statute which forbade ‘‘partially delivering 

vaginally a living unborn child before killing the unborn child and 

completing the delivery.’’ The Court noted that the prohibition apVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00107 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1778 AMENDMENT 14—RIGHTS GUARANTEED 

601The Nebraska law provided that such procedures could be performed where 

‘‘necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.’’ Neb. Rev. Stat. Ann. § 28– 

328(1). 602 Roe v. Wade, 410 U.S. 113, 164 (1973). 603For instance, Justice Douglas’s asked rhetorically in Griswold: ‘‘[w]ould we 

allow the police to search the sacred precincts of marital bedrooms for telltale signs 

of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.’’ 381 U.S. at 486. 604Whalen v. Roe, 429 U.S. 589, 598–600 (1977). 

peared to apply to abortions performed throughout a pregnancy, 

and that the lone exception was for an abortion necessary to preserve the life of the mother. 601 Thus the statute brought into question both the distinction maintained in Casey between pre-viability 

and post-viability abortions, and the oft-repeated language from 

Roe, which provides that abortion restrictions must contain exceptions for situations where there is a threat to either the life or the 

health of a pregnant woman. 602 The Court, however, reaffirmed 

these central tenets of its abortion decisions, striking down the Nebraska law because its possible application to pre-viability abortions was too broad and the exception for threats to the life of the 

mother was too narrow. 

Privacy after Roe: Informational Privacy, Privacy of the 

Home or Personal Autonomy?.—The use of strict scrutiny to review intrusions on personal liberties in Roe v. Wade seemed to portend the Court’s striking down many other governmental restraints 

upon personal activities. Those developments have not occurred, 

however, as the Court has been cautious in extending the right to 

privacy. Part of the reason that the Court may have been slow to 

extend the rationale of Roe v. Wade to other contexts was that ‘‘privacy’’ or the right ‘‘to be let alone’’ appears to encompass a number 

of different concepts arising from different parts of the Constitution, and the same combination of privacy rights and competing 

governmental interests are not necessarily implicated in other 

types of ‘‘private’’ conduct. 

For instance, the term ‘‘privacy’’ itself seems to encompass at 

least two different but related issues. First, it relates to disclosure 

of information to the outside world, i.e., the right of individuals to 

determine how much and what information about themselves is to 

be revealed to others. 603 Second, it relates inward toward notions 

of personal autonomy, i.e., the freedom of individuals to perform or 

not perform certain acts or subject themselves to certain experiences. 604 These dual concepts, here referred to as ‘‘informational 

privacy’’ and ‘‘personal autonomy’’, can easily arise in the same 

case, as government regulation of personal behavior can limit perVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00108 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 1779

605 381 U.S. 479 (1965). 

606The predominant concern flowing through the several opinions in Griswold 

v. Connecticut 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 pressures such investigative techniques would impose on the confines of the Fourth 

Amendment’s search and seizure clause, but also included techniques that would 

have been within the range of permissible investigation. 

607 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). 

sonal autonomy, while investigating and prosecuting such behavior 

can expose it to public scrutiny. Unfortunately, some of the Court’s 

cases identified violations of a right of privacy without necessarily 

making this distinction clear. While the main thrust of the Court’s 

fundamental-rights analysis appears to emphasize the personal autonomy aspect of privacy, now often phrased as ‘‘liberty’’ interests, 

a clear analytical framework for parsing of these two concepts in 

different contexts has not yet been established. 

Another reason that there is difficulty in defining ‘‘privacy’’ is 

that the right appears to arise from multiple sources. For instance, 

the Court first identified issues regarding informational privacy as 

specifically tied to various of the provisions of Bill of Rights, including the First and Fourth Amendments. In Griswold v. Connecticut, 605 however, Justice Douglas found an independent right of 

privacy in the ‘‘penumbras’’of these and other constitutional provisions. Although the parameters and limits of the right to privacy 

were not well delineated by that decision, which struck down a 

statute banning married couples from using contraceptives, the 

right appeared to be based on the notion that the government 

should not be allowed to gather information about private, personal 

activities. 606 However, years later, when the closely related abortion cases were decided, the right to privacy being discussed was 

now characterized as a ‘‘liberty interest’’ protected under the due 

process clause of the Fourteenth Amendment, 607 and the basis for 

the right identified was more consistent with a concern for personal 

autonomy.

After Griswold, the Court had several opportunities to address 

and expand on the concept of Fourteenth Amendment informational privacy, but instead it returned to Fourth and Fifth Amendment principles to address official regulation of personal informaVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00109 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1780 AMENDMENT 14—RIGHTS GUARANTEED 

608 E.g., California Bankers Ass’n v. Schultz, 416 U.S. 21 (1974). See also Laird

v. Tatum, 408 U.S. 1 (1972); United States v. United States District Court, 407 U.S. 

297 (1972); United States v. Dionisio, 410 U.S. 1 (1973); Zurcher v. Stanford Daily, 

436 U.S. 547 (1978). 609 425 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). 610The Bank Secrecy Act required the banks to retain cancelled checks. The 

Court held that the checks were business records of the bank in which the depositors had no expectation of privacy and therefore there was no 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. 611See 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). 612 425 U.S. 391 (1976). 613 425 U.S. at 399. 614 425 U.S. at 401. 

tion. 608 For example, in United States v. Miller, 609 the Court in 

evaluating the right of privacy of depositors to restrict Government 

access to cancelled checks maintained by the bank relied on whether there was an expectation of privacy under the Fourth Amendment. 610 Also, the Court has held that First Amendment itself affords some limitation upon governmental acquisition of information, although only where the exposure of such information would 

violate freedom of association or the like. 611

Similarly, in Fisher v. United States, 612 the Court held that the 

Fifth Amendment’s self-incrimination clause did not prevent the 

IRS from obtaining 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. The Court noted that it 

‘‘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.’’ 613 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.’’ 614

AMENDMENT 14—RIGHTS GUARANTEED 1781

615 429 U.S. 589 (1977). 616 429 U.S. 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) (stating that an invasion of privacy claim ‘‘cannot be considered in 

abstract [and] . . . must be weighed against the public interest’’). But see id. at 504, 

525–36 (Chief Justice Burger dissenting), and 545 n.1 (Justice Rehnquist dissenting). 617See, e.g., Plante v. Gonzalez, 575 F.2d 1119, 1134 (5th Cir. 1978) (‘‘. . . we 

believe that the balancing test, more common to due process claims, is appropriate 

here.’’). 618 394 U.S. 557 (1969). 

So what remains of informational privacy? Interestingly, a 

cryptic opinion in Whalen v. Roe 615 may indicate the Court’s continuing willingness to recognize privacy interests as independent 

constitutional rights. At issue was a state’s pervasive regulation of 

prescription drugs with abuse potential, and a centralized computer record-keeping system through which prescriptions, including 

patient identification, could be stored. 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 grievous threat to either interest to 

establish a constitutional violation.’’ 616 Lower court cases have 

raised substantial questions as to whether this case established a 

‘‘fundamental right’’ to informational privacy, and instead found 

that some as yet unspecified balancing test or intermediate level of 

scrutiny was at play. 617

In the interim, the Court briefly considered yet another aspect 

of privacy - the idea that certain personal activities that were otherwise unprotected could obtain some level of constitutional protection by being performed in particular private locations, such as the 

home. In Stanley v. Georgia, 618 the Court held that the government 

may not make private possession of obscene materials for private 

use a crime. Normally, investigation and apprehension of an individual for possessing pornography in the privacy of the home would 

raise obvious First Amendment free speech and the Fourth Amendment search and seizure issues. In this case, however, the material 

was obscenity, unprotected by the First Amendment, and the police 

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1782 AMENDMENT 14—RIGHTS GUARANTEED 

619 In fact, the Court passed over a subsidiary Fourth Amendment issue that 

was available for decision in favor of a broader resolution. 394 U.S. at 569-72. 

(Stewart, J., concurring). 620 394 U.S. at 564-65 621The rights noted by the Court 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. 622 United States v. Reidel, 402 U.S. 351, 354–56 (1971); United States v. Thirty-seven Photographs, 402 U.S. 363, 375–76 (1971); United States v. 12 200-Ft. 

Reels of Film, 413 U.S. 123 (1973). 623 413 U.S. 49 (1973). 624 413 U.S. at 64. Similar themes can be found in Roe v. Wade, 410 U.S. 113, 

148 (1972), decided the year before. Because the Court had determined that the 

cerns. 619 Nonetheless, the Court based its decision upon a person’s 

protected right to receive what information and ideas he wishes, 

which derives from the ‘‘right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy,’’ 620 and from the failure of the state to either justify protecting an individual from himself or to show empirical proof of 

such activity harming society. 621

The potential significance of Stanley was enormous, as any 

number of illegal personal activities, such as drug use or illegal sex 

acts, could arguably be practiced in the privacy of one’s home with 

little apparent effect on others. The Stanley decision, however, was 

quickly restricted to the particular facts of the case, namely possession of pornography in the home. 622 In Paris Adult Theatre v. 

Slaton, 623 which upheld the government’s power to prevent the 

showing of obscene material in an adult theater, the Court recognized that governmental interests in regulating private conduct 

could include the promotion of individual character and public morality, and improvement of the quality of life and ‘‘tone’’ of society. 

‘‘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.’’ 624

AMENDMENT 14—RIGHTS GUARANTEED 1783

right to obtain an abortion constituted a protected ‘‘liberty,’’ the State was required 

to justify its proscription by a compelling interest. Departing from a laissez faire,

‘‘free will’’ approach to individual autonomy, the Court recognized protecting the 

health of the mother as a valid interest. The Court also mentioned but did not rule 

upon a state interest in protecting morality. The Court was referring not to the morality of abortion, but instead to the promotion of sexual morality through making 

abortion unavailable. Roe v. Wade, 410 U.S. 113, 148 (1972).

625Paris Adult Theatre v. Slaton, 413 U.S. 49, 57–63, 63–64, 68–69 (1973); and

see id. at 68 n.15. While denying a privacy right to view obscenity in a theater, the 

Court did recognize that in order to protect otherwise recognized autonomy rights, 

the privacy right might need to be expanded to a variety of different locations: 

‘‘[T]he constitutionally protected privacy of family, marriage, motherhood, 

procreation, and child rearing is not just concerned with a particular place, but with 

a protected intimate relationship. Such protected privacy extends to the doctor’s office, the hospital, the hotel room, or as otherwise required to safeguard the right 

to intimacy involved.’’ Paris Adult Theatre v. Slaton, 413 U.S. 49, 66 n.13 (1973). 

Thus, arguably, the constitutional protection of places (as opposed to activities) 

arises not because of any inherent privacy of the location, but because the protected 

activities normally take place in those locales. 

626 478 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 207–08. 

627 478 U.S. 186, 195 (1986). 

Furthermore, continued the Paris Adult Theatre Court ‘‘[o]ur 

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.’’’ 625

Ultimately, the idea that acts should be protected not because 

of what they are, but because of where they are performed, may 

have begun and ended with Stanley. The limited impact of Stanley was reemphasized in Bowers v. Hardwick. The Court in Bowers, finding that there is no protected right to engage in homosexual sodomy in the privacy of the home, held that Stanley did not 

implicitly create protection for ‘‘voluntary sexual conduct [in the 

home] between consenting adults.’’ 626 Instead, the Court found 

Stanley ‘‘firmly grounded in the First Amendment,’’ 627 and noted 

that extending the reasoning of that case to homosexual conduct 

would result in protecting all voluntary sexual conduct between 

1784 AMENDMENT 14—RIGHTS GUARANTEED 

628 Roe v. Wade, 410 U.S. 113, 152 (1973). 629 478 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. 630 ‘‘[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. 631 478 U.S. 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.’’ 632 478 U.S. at 191. 

consenting adults, including adultery, incest, and other sexual 

crimes. This, said the Court, was a step it was not willing to take. 

So, what of an expansion of the right to privacy under the rubric of personal autonomy? The Court speaking in Roe in 1973 

made it clear that, despite the importance of its decision, the protection of personal autonomy was limited to a relatively narrow 

range of behavior. ‘‘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.’’ 628

The limits of this doctrine were amply demonstrated in 1986 

by, again, Bowers v. Hardwick, 629 where the Court by 5–4 vote 

roundly rejected the suggestion that the privacy cases protecting 

‘‘family, marriage, or procreation’’ extend protection to private consensual homosexual sodomy, 630 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.’’ 631 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. 632 In addition, the Court concluded that rationales relied upon in the earlier 

AMENDMENT 14—RIGHTS GUARANTEED 1785

633 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.’’ 478 U.S. at 191-92. 634 478 U.S. at 191-92. Chief Justice Burger’s brief concurring opinion amplified 

this theme, concluding that constitutional protection for ‘‘the act of homosexual sodomy . . . would . . . cast aside millennia of moral teaching.’’ Id. 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. 635The 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.’’ 478 U.S. 

at 195-96. Dissenting Justices Blackmun (id. at 209 n.4) and Stevens (id. at 217– 

18) suggested that these crimes are readily distinguishable. 636 478 U.S. 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. 637 478 U.S. at 204-06. 638 478 U.S. at 190. See also Paul v. Davis, 424 U.S. 693, 713 (1976). 639 431 U.S. 678 (1977). 

privacy cases do not extend ‘‘a fundamental right to homosexuals 

to engage in acts of consensual sodomy.’’ 633 Heavy reliance was 

placed on the fact that prohibitions on sodomy have ‘‘ancient roots,’’ 

and on the fact that half of the states still prohibited the practices. 634 The privacy of the home does not immunize all behavior 

from state regulation, and the Court was ‘‘unwilling to start down 

[the] road’’ of immunizing ‘‘voluntary sexual conduct between consenting adults.’’ 635

Interestingly, Justice Blackmun’s dissent in Hardwick was

most critical of the Court’s framing of the issue as one of homosexual sodomy, as the sodomy statute at issue was not so limited. 636 Justice Blackmun would have instead addressed the issue 

more broadly as to whether the law violated an 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. 637 This position was rejected 

by the majority, however, which held that the thrust of the fundamental right of privacy in this area is one functionally related to 

‘‘family, marriage, motherhood, procreation, and child rearing.’’ 638

Even as limited by Roe, the concept of privacy still retains sufficient breadth to occasion major constitutional decisions. For instance, in the 1977 case of Carey v. Population Services International, 639 recognition of the ‘‘constitutional protection of individual autonomy in matters of childbearing’’ led the Court to invaliVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00115 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1786 AMENDMENT 14—RIGHTS GUARANTEED 

640 431 U.S. at 684-91. The opinion of the Court on the general principles drew 

the support of Justices Brennan, Stewart, Marshall, Blackmun, and Stevens. Justice 

White concurred in the result in the voiding of the ban on access to adults while 

not expressing an opinion on the Court’s general principles. Id. at 702. Justice Powell agreed the ban on access to adults was void but concurred in an opinion significantly more restrained than the opinion of the Court. Id. at 703. Chief Justice Burger, id. at 702, and Justice Rehnquist, id. at 717, dissented. 

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 attempted 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. 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. 641The Court reserved this question in Carey, 431 U.S. at 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. 642 Roe v. Wade, 410 U.S. 113, 152 (1973). The language is quoted in full in 

Carey, 431 U.S. at 684–85. 

date 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. 640 The

Court significantly extended the Griswold-Baird line of cases 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 burden without justifying the limitation by a compelling state interest and by a regulation narrowly drawn to express 

only that interest or interests. 

As exemplified by this case, the extent to which governmental 

regulation of the sexual activities of minors is subject to constitutional scrutiny is of great and continuing importance. 641 Analysis

of these questions is hampered, however, 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 

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, 642 little elucidates the answers inasmuch as in the 

same Term the Court significantly restricted its equal protection 

AMENDMENT 14—RIGHTS GUARANTEED 1787

643San Antonio School Dist. 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). 644Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 

510 (1928). 645Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality). Unlike 

the liberty interest in property, which derives from early statutory law, these liberties spring instead from natural law traditions, as they are ‘‘intrinsic human 

rights’’. Smith v. Organization of Foster Families, 431 U.S. 816, 845 (1977). These 

rights, however, do not extend to all close relationships. Bowers v. Hardwick, 478 

U.S. 186 (1986) (same sex relationships). 646Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S. 

479, 486 (1965); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–40 (1974); 

Zablocki v. Redhail, 434 U.S. 374, 383–87 (1978). 647Zablocki v. Redhail, 434 U.S. 374, 386 (1978). 648Zablocki 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). 

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.’’ 643

Whether there still exists an expansive right of ‘‘privacy,’’ as 

opposed to the limited ‘‘liberty’’ interest of more recent cases, is 

still unclear. There still appears to be a tendency to designate a 

right or interest as a right of privacy when the Court has already 

concluded that it is valid to extend an existing precedent of the privacy line of cases. Because much of this protection is now settled 

to be a ‘‘liberty’’ protected under the due process clauses, however, 

the analytical validity of denominating the particular right or interest as an element of privacy seems open to question. 

Family Relationships.—Unlike the shifting definitions of the 

‘‘privacy’’ line of case, the Court’s treatment of the ‘‘liberty’’ of familial relationships has a relatively principled doctrinal basis. 

Starting with Meyer and Pierce, 644 the Court has held 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.’’ 645 For instance, the right to marry is a fundamental right protected by the due process clause, 646 and only ‘‘reasonable regulations’’ of such relationship may be imposed. 647 Thus,

the Court has held that a state may not deny the right to marry 

to someone who has failed to meet a child support obligation, as 

the State already has numerous other means for exacting compliance with support obligations. 648 In fact, any regulation which afVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00117 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1788 AMENDMENT 14—RIGHTS GUARANTEED 

649 ‘‘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). 650Moore 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 

513.651Smith v. Organization of Foster Families, 431 U.S. 816 (1977). As the Court 

noted, the rights of a natural family arise independently of statutory law, whereas 

the ties that develop between a foster parent and a foster child arise as a result 

of State-ordered arrangement. As these latter liberty interests arise from positive 

law, they are subject to the limited expectations and entitlements provided under 

those laws. Further, in some cases, such liberty interests may not be recognized 

without derogation of the substantive liberty interests of the natural parents. Although Smith does not define the nature of the interest of foster parents, it would 

appear to be quite limited and attenuated. Id. at 842–47. In a conflict between natural and foster families, a court is likely to defer to a typical state process which 

makes such decisions based on the best interests of the child. See Quilloin v. 

Walcott, 434 U.S. 246 (1978). 652Michael 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. 653The clearest conflict to date was presented by state law 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, 503 U.S. 833 (1992). 

See also Parham v. J. R., 442 U.S. 584 (1979) (parental role in commitment of child 

for treatment of mental illness). 

fects the ability to form, maintain, dissolve, or resolve conflicts 

within a family is subject to rigorous judicial scrutiny. 

There is also a constitutional right to live together as a family, 649 and this right is not limited to the nuclear family. Thus, a 

neighborhood which is zoned for single family occupancy, and 

which defines ‘‘family’’ so as to prevent a grandmother from caring 

for two grandchildren of different children, was found to violate the 

due process clause. 650 And the concept of ‘‘family’’ may extend beyond the biological relationship to the situation of foster families, 

although the Court has acknowledged that such a claim raises complex and novel questions, and that the liberty interests may be limited. 651 On the other hand, the Court has held, the presumption of 

legitimacy accorded to a child born to a married woman living with 

her husband is valid even to defeat the right of the child’s biological father to establish paternity and visitation rights. 652

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. 653 The Court has, 

however, imposed limits on the ability of a court to require that 

AMENDMENT 14—RIGHTS GUARANTEED 1789

654 530 U.S. 57 (2000). 655 530 U.S. at 66. 656These 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). 657 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 (1980) Vitek v. Jones, 445 U.S. 480, 491–94 (1980). 658 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’’). 659 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 

children be made available for visitation with grandparents and 

other third parties. In Troxel v. Granville, 654 the Court evaluated 

a Washington State law which allowed ‘‘any person’’ to petition a 

court ‘‘at any time’’ to obtain visitation rights whenever visitation 

‘‘may serve the best interests’’ of a child. Under this law, a child’s 

grandparents were awarded more visitation with a child than was 

desired by the sole surviving parent. A plurality of the Court, noting the ‘‘fundamental rights of parents to make decisions concerning the care, custody and control of their children,’’ 655 reversed

this decision, noting the lack of deference to the parent’s wishes 

and the contravention of the traditional presumption that a fit parent will act in the best interests of a child. 

Liberty Interests of the Retarded, Mentally Ill or Abnormal: Civil Commitment and Treatment.—The recognition of liberty rights for retarded or handicapped individuals who are involuntarily committed or who voluntarily seek commitment to public 

institutions is potentially a major development in substantive due 

process. 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. 656

Each individual, on the other hand, has a due process protected interest in freedom from confinement and personal restraint, and a 

liberty interest in reducing the degree of confinement exists even 

when individuals are properly committed. 657 Little controversy has 

attended the gradual accretion of case law in the lower courts, now 

confirmed by the Supreme Court, that the due process clause guarantees freedom from unsafe conditions of confinement and undue 

physical restraint. 658 A number of influential lower court decisions 

have also found a significant right to treatment 659 or ‘‘habiliVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00119 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1790 AMENDMENT 14—RIGHTS GUARANTEED 

relation to the purpose for which the individual is committed.’’ Reasoning that if 

commitment is for treatment and betterment of individuals, it must be accompanied 

by adequate treatment, several lower courts recognized a due process right. E.g.,

Wyatt v. Stickney, 325 F. Supp. 781 (M.D.Ala), enforced, 334 F. Supp. 1341 (1971), 

supplemented, 334 F. Supp. 373 and 344 F. Supp. 387 (M.D.Ala. 1972), aff’d in part, 

reserved in part, and remanded, sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th 

Cir. 1974); Donaldson v. O’Connor, 493 F.2d 507 (5th Cir. 1974), vacated on other 

grounds, 432 U.S. 563 (1975). 660 ‘‘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). 661 Youngberg v. Romeo, 457 U.S. 307, 319 (1982). 662 457 U.S. at 318 n.23. 663 457 U.S. 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. 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’’). 

tation,’’ 660 although the Supreme Court’s approach in this area has 

been tentative. 

For instance, in Youngberg v. Romeo, the Court recognized a 

liberty right to ‘‘minimally adequate or reasonable training to ensure safety and freedom from undue restraint.’’ 661 While the lower 

court had 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,’’ 662 the Supreme Court felt that the plaintiff had 

reduced his theory to a claim for ‘‘training related to safety and 

freedom from restraint.’’ 663 But the Court’s concern for federalism, 

its reluctance to approve judicial activism in supervising institutions, and its recognition of the budgetary constraints associated 

with state provision of services caused it to hold that lower federal 

courts need to defer to professional decision making to determine 

what level of 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 deciVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00120 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 1791

664 457 U.S. at 323. 665 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. 666 521 U.S. 346 (1997). 667 521 U.S. at 359. But see Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (holding 

that a state can not hold a person suffering from a personality disorder without 

clear and convincing proof of a mental illness). 668Kansas v. Crane, 532 U.S. 930 (2001). 669See 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). 670Developmentally Disabled Assistance and Bill of Rights Act of 1975, Pub. L. 

No. 94–103, 89 Stat. 486, as amended, 42 U.S.C. §§ 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. § 9401 et seq. 

sion on such a judgment.’’ 664 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. 665

The Court’s resolution of a case involving persistent sexual offenders suggests that state civil commitment systems, besides confining the dangerously mentally ill, may also act to incapacitate 

persons predisposed to engage in specific criminal behaviors. In 

Kansas v. Hendricks, 666 the Court upheld a Kansas law which allowed civil commitment without a showing of ‘‘mental illness,’’ so 

that a defendant diagnosed as a pedophile could be committed 

based on his having a ‘‘mental abnormality’’ which made him ‘‘likely to engage in acts of sexual violence.’’ Although the Court minimized the use of this expanded nomenclature, 667 the concept of 

‘‘mental abnormality’’ appears both more encompassing and less defined than the concept of ‘‘mental illness.’’ It is unclear how, or 

whether, the Court would distinguish this case from the indefinite 

civil commitment of other recidivists such as drug offenders. A subsequent opinion does seem to narrow the Hendricks holding so as 

to require an additional finding that the defendant would have difficulty controlling his or her behavior. 668

Still other issues await exploration. The whole area of the 

rights of committed individuals will likely be explored under a substantive and procedural due process analysis. 669 Additionally, federal legislation is becoming extensive, 670 and state legislative and 

1792 AMENDMENT 14—RIGHTS GUARANTEED 

671See, e.g., Mills v. Rogers, 457 U.S. 291, 299–300 (1982). 672 Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 280 (1990) 

(′′We do not think that a State is required to remain neutral in the face of an informed and voluntary decision by a physically able adult to starve to death′′). 673 497 U.S. 261 (1990). 674 497 U.S. at 279. 675See 497 U.S. at 287 (O’Connor, concurring); id. at 304–05 (Brennan, joined 

by Marshall and Blackmun, dissenting); id. at 331 (Stevens, dissenting). 676 497 U.S. at 286. 

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. 671

‘‘Right to Die’’.—Although the popular term ′′right to die′′ has

been used as a label to describe the debate over end-of-life decisions, the underlying issues include a variety of legal concepts, 

some distinct and some overlapping. For instance, ′′right to die′′ 

could include issues of suicide, passive euthanasia (allowing a person to die by refusal or withdrawal of medical intervention), assisted suicide (providing a person the means of committing suicide), 

active euthanasia (killing another), and palliative care (providing 

comfort care which accelerates the death process). Recently, a new 

category has been suggested—physician-assisted suicide—which 

appears to be an uncertain blend of assisted suicide or active euthanasia undertaken by a licensed physician. 

There has been little litigation of constitutional issues surrounding suicide generally, although Supreme Court dicta seems to 

favor the notion that the state has a constitutionally defensible interest in preserving the lives of healthy citizens. 672 On the other 

hand, the right of a seriously ill person to terminate life-sustaining 

medical treatment has been addressed, but not squarely faced. In 

Cruzan v. Director, Missouri Department of Health, 673 the Court, 

rather than directly addressing the issue, ‘‘assume[d]’’ that a competent person has a constitutionally protected right to refuse lifesaving hydration and nutrition. 674 More importantly, however, a 

majority of the Justices separately declared that such a liberty interest exists. 675 Yet, it is not clear how actively the Court would 

seek to protect this right from state regulation. 

In Cruzan, which involved a patient in a persistent vegetative 

state, the Court upheld a state requirement that there must be 

‘‘clear and convincing evidence’’ of a patient’s previously manifested 

wishes before nutrition and hydration could be withdrawn. Despite 

the existence of a presumed due process right, the Court held that 

a state is not required to follow the judgment of the family, the 

guardian, or ‘‘anyone but the patient herself’’ in making this decision. 676 Thus, in the absence of clear and convincing evidence that 

AMENDMENT 14—RIGHTS GUARANTEED 1793

677 ‘‘A State is entitled to guard against potential abuses’’ that can occur if family members do not protect a patient’s best interests, and ‘‘may properly decline to 

make judgments about the ‘quality’ of life that a particular individual may enjoy, 

and [instead] simply assert an unqualified interest in the preservation of human life 

to be weighed against the . . . interests of the individual.’’ 497 U.S. at 281-82. 

678There was testimony that the patient in Cruzan could be kept ‘‘alive’’ for 

about 30 years if nutrition and hydration were continued. 

679 521 U.S. 702 (1997). In the companion case of Vacco v. Quill, 521 U.S. 793 

(1997), the Court also rejected an argument that a state which prohibited assisted 

suicide but which allowed termination of medical treatment resulting in death unreasonably discriminated against the terminally ill in violation of the Equal Protection Clause of the Fourteenth Amendment. 

680 521 U.S. at 720. 

681 E.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992) (upholding a liberty 

interest in terminating pregnancy). 

the patient 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. 677

Despite the Court’s acceptance of such state requirements, the 

implications of the case are significant. First, the Court appears, 

without extensive analysis, to have adopted the position that refusing nutrition and hydration is the same as refusing other forms of 

medical treatment. Also, the Court seems ready to extend such 

right not only to terminally ill patients, but also to severely incapacitated patients whose condition has stabilized. 678 However, the 

Court made clear in a subsequent case, Washington v. 

Glucksberg, 679 that it intends to draw a line between withdrawal 

of medical treatment and more active forms of intervention. 

In Glucksberg, the Supreme Court rejected an argument that 

the Due Process Clause provides a terminally ill individual the 

right to seek and obtain a physician’s aid in committing suicide. 

Reviewing a challenge to a state statutory prohibition against assisted suicide, the Court noted that it moves with ‘‘utmost care’’ before breaking new ground in the area of liberty interests. 680 The

Court pointed out that suicide and assisted suicide have long been 

disfavored by the American judicial system, and courts have consistently distinguished between passively allowing death to occur 

and actively causing such death. The Court rejected the applicability of Cruzan and other liberty interest cases, 681 noting that 

while many of the interests protected by the Due Process Clause 

involve personal autonomy, not all important, intimate, and personal decisions are so protected. By rejecting the notion that assisted suicide is constitutionally protected, the Court also appears 

1794 AMENDMENT 14—RIGHTS GUARANTEED 

682 A passing reference by Justice O’Connor in a concurring opinion in 

Glucksberg and its companion case Vacco v. Quill may, however, portend a liberty 

interest in seeking pain relief, or ‘‘palliative’’ care. Glucksberg and Vacco, 521 U.S. 

at 736-37 (Justice O’Connor, concurring). 683Thus, where a litigant had 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. Marchant v. Pennsylvania R.R., 153 

U.S. 380, 386 (1894). 684 Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884). ‘‘Due process of law 

is [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.’’ Id. at 708; Accord, Hurtado v. California, 

110 U.S. 516, 537 (1884). 685Twining v. New Jersey, 211 U.S. 78, 101 (1908); Brown v. New Jersey, 175 

U.S. 172, 175 (1899). ‘‘A process of law, which is not otherwise forbidden, must be 

taken to be due process of law, if it can show the sanction of settled usage both in 

England and this country.’’ Hurtado v. California, 110 U.S. at 529. 686Twining, 211 U.S. at 101. 

to preclude constitutional protection for other forms of intervention 

in the death process, such as suicide or euthanasia. 682

PROCEDURAL DUE PROCESS: CIVIL 

Generally

Due process requires that the procedures by which laws are 

applied must be evenhanded, so that individuals are not subjected 

to the arbitrary exercise of government power. 683 Exactly what procedures are needed to satisfy due process, however, will vary depending on the circumstances and subject matter involved. 684 One

of the basic criteria used to establish if due process is satisfied is 

whether such procedure was historically required in like circumstance.

Relevance of Historical Use.—The requirements of due process are determined in part by an examination of the settled usages 

and modes of proceedings of the common and statutory law of England during pre-colonial times and in the early years of this country. 685 In other words, the antiquity of a legal procedure is a factor 

weighing in its favor. 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.’’ 686 Fortunately, the States 

AMENDMENT 14—RIGHTS GUARANTEED 1795

687 Hurtado v. California, 110 U.S. 516, 529 (1884); Brown v. New Jersey, 175 

U.S. 172, 175 (1899); Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 244 (1944). 688 Ballard v. Hunter, 204 U.S. 241, 255 (1907); Palmer v. McMahon, 133 U.S. 

660, 668 (1890). 689For instance, proceedings to raise revenue by levying and collecting taxes are 

not necessarily judicial proceedings, yet their validity is not thereby impaired. 

McMillen v. Anderson, 95 U.S. 37, 41 (1877). 690 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). 691See, e.g., Moore v. Johnson, 582 F.2d 1228, 1232 (9th Cir. 1978) (upholding 

the preclusion of judicial review of decisions of the Veterans Administration regarding veteran’s benefits). 692State statutes vesting in a parole board certain judicial functions, Dreyer v. 

Illinois, 187 U.S. 71, 83–84 (1902), or conferring discretionary power upon administrative boards to grant or withhold permission to carry on a trade, New York ex 

rel. Lieberman v. Van De Carr, 199 U.S. 552, 562 (1905), or vesting in a probate 

court authority to appoint park commissioners and establish park districts, Ohio ex 

rel. Bryant v. Akron Park Dist., 281 U.S. 74, 79 (1930), are not in conflict with the 

due process clause and present no federal question. 693 Carfer v. Caldwell, 200 U.S. 293, 297 (1906). 694Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313 (1950). 695 Carey v. Piphus, 435 U.S. 247, 259 (1978). ‘‘[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.’’ Mathews v. Eldridge, 424 U.S. 319, 344 (1976). 

are not tied down by any provision of the Constitution to the practice and procedure which existed at the common law, but may avail 

themselves of the wisdom gathered by the experience of the country to make changes deemed to be necessary. 687

Non-Judicial Proceedings.—A court proceeding is not a requisite of due process. 688 Administrative and executive proceedings 

are not judicial, yet they may satisfy the due process clause. 689

Moreover, the due process clause does not require de novo judicial

review of the factual conclusions of state regulatory agencies, 690

and may not require judicial review at all. 691 Nor does the Fourteenth Amendment prohibit a State from conferring judicial functions upon non-judicial bodies, or from delegating powers to a court 

that are legislative in nature. 692 Further, it is up to a State to determine to what extent its legislative, executive, and judicial powers should be kept distinct and separate. 693

The Requirements of Due Process.—Although due process 

tolerates variances in procedure ‘‘appropriate to the nature of the 

case,’’ 694 it is nonetheless possible to identify its core goals and requirements. First, ‘‘[p]rocedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.’’ 695 Thus, the required elements of due process are those that ‘‘minimize substantively unfair or mistaken deprivations’’ by enabling persons to 

contest the basis upon which a State proposes to deprive them of 

1796 AMENDMENT 14—RIGHTS GUARANTEED 

696Fuentes 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); Nelson 

v. Adams, 120 S. Ct. 1579 (2000) (amendment of judgement to impose attorney fees 

and costs to sole shareholder of liable corporate structure invalid without notice or 

opportunity to dispute). 697Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950). See also 

Richards v. Jefferson County, 517 U.S. 793 (1996) (res judicata may not apply where 

taxpayer who challenged a county’s occupation tax was not informed of prior case 

and where taxpayer interests were not adequately protected). 698Goldberg v. Kelly, 397 U.S. 254, 267–68 (1970). 699 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). 700 City of West Covina v. Perkins, 525 U.S. 234 (1999). 701Mathews v. Eldridge, 424 U.S. 319, 333 (1976). ‘‘Parties whose rights are to 

be affected are entitled to be heard.’’ Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 

(1863). 702Fuentes 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).703 Armstrong v. Manzo, 380 U.S. 545, 552 (1965) 

protected interests. 696 The core of these requirements is notice and 

a hearing before an impartial tribunal. Due process may also require an opportunity for confrontation and cross-examination, and 

for discovery; that a decision be made based on the record, and that 

a party be allowed to be represented by counsel. 

(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.’’ 697 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. 698

Ordinarily, service of the notice must be reasonably structured to 

assure that the person to whom it is directed receives it. 699 Such

notice, however, need not describe the legal procedures necessary 

to protect one’s interest if such procedures are otherwise set out in 

published, generally available public sources. 700

(2) Hearing. ‘‘[S]ome form of hearing is required before an individual is finally deprived of a property [or liberty] interest.’’ 701 This

right 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 . . . .’’ 702 Thus, the notice of hearing and the opportunity to be heard ‘‘must be granted at a meaningful time and in 

a meaningful manner.’’ 703

AMENDMENT 14—RIGHTS GUARANTEED 1797

704Tumey v. Ohio, 273 U.S. 510 (1927)); In re Murchison, 349 U.S. 133 (1955). 

705Goldberg v. Kelly, 397 U.S. 254, 271 (1970). 

706Marshall v. Jerrico, 446 U.S. 238, 242 (1980); Schweiker v. McClure, 456 

U.S. 188, 195 (1982). 

707Gibson v. Berryhill, 411 U.S. 564 (1973). Or, 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). Wong Yang Sung v. McGrath, 339 U.S. 33 (1950). 

708Schweiker 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). 

709Withrow v. Larkin, 421 U.S. 35 (1975). Where an administrative officer is 

acting in a prosecutorial, rather than judicial or quasi-judicial role, an even lesser 

standard of impartiality applies. 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. 

(3) Impartial Tribunal. Just as in criminal and quasi-criminal 

cases, 704 an impartial decision maker is an essential right in civil 

proceedings as well. 705 ‘‘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.’’ 706 Thus, a showing of bias or of strong implications 

of bias was deemed made where a state optometry board, made up 

of only 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. 707

There is, however, a ‘‘presumption of honesty and integrity in 

those serving as adjudicators,’’ 708 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. Thus, combining functions within an agency, such as 

by allowing members of a State Medical Examining Board to both 

investigate and adjudicate a physician’s suspension, may raise substantial concerns, but does not by itself establish a violation of due 

process. 709 The Court has also held that the official or personal 

stake that school board members had in a decision to fire teachers 

1798 AMENDMENT 14—RIGHTS GUARANTEED 

710 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). 

711Goldberg v. Kelly, 397 U.S. 254, 269 (1970). See also ICC v. Louisville & 

Nashville R.R., 227 U.S. 88, 93–94 (1913). Cf. § 7(c) of the Administrative Procedure Act, 5 U.S.C. § 556(d). 712Greene 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). 713Greene v. McElroy, 360 U.S. 474, 496 (1959), quoted with approval in Goldberg v. Kelly, 397 U.S. 254, 270 (1970). 714 RECOMMENDATIONS AND REPORTS OF THE ADMINISTRATIVE CONFERENCE OF

THE UNITED STATES 571 (1968–1970). 715FMC v. Anglo-Canadian Shipping Co., 335 F.2d 255 (9th Cir. 1964). 716The exclusiveness of the record is fundamental in administrative law. See

§7(d) of the Administrative Procedure Act, 5 U.S.C. § 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).

who had engaged in a strike against the school system in violation 

of state law was not such so as to disqualify them. 710

(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.’’ 711 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 erosion. It has spoken out not only in criminal cases, . . . but also in 

all types of cases where administrative . . . actions were under 

scrutiny.’’ 712

(5) Discovery. The Court has never directly confronted this 

issue, but in one case it did observe in dictum that ‘‘where 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.’’ 713 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. 714 There appear to be no cases, however, holding they must, and there is some authority that they cannot absent congressional authorization. 715

(6) Decision on the Record. While this issue arises principally 

in the administrative law area, 716 it is applicable generally. ‘‘[T]he 

AMENDMENT 14—RIGHTS GUARANTEED 1799

717Goldberg v. Kelly, 397 U.S. 254, 271 (1970). 718 397 U.S. 254, 270–71 (1970). 719Lassiter v. Department of Social Services, 452 U.S. 18 (1981). The Court purported to draw this rule 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, 424 U.S. 319 (1976), 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, the value of the first Eldridge factor is diminished. 

The Court noted, however, that 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. at 344 (1976) 720 452 U.S. at 31–32. The balancing decision is to be made initially by the trial 

judge, subject to appellate review. Id. at 32 721 452 U.S. at 27–31. The decision was a five-to-four, with Justices Stewart, 

White, Powell, and Rehnquist and Chief Justice Burger in the majority, and Justices Blackmun, Brennan, Marshall, and Stevens in dissent. Id. at 35, 59. 

decisionmaker’s conclusion . . . 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.’’ 717

(7) Counsel. In Goldberg v. Kelly, the Court held that an agency must permit a welfare recipient who has been denied benefits 

to be represented by and assisted by counsel. 718 In the years since, 

the Court has struggled with whether civil litigants in court and 

persons before agencies who could not afford retained counsel 

should have counsel appointed and paid for, and the matter seems 

far from settled. The Court has established the presumption that 

an indigent does not have the right to an appointed counsel unless 

his ‘‘physical liberty’’ is threatened. 719 However, where other liberty or property interests are threatened, a litigant may overcome 

this presumption, so that the right of an indigent to appointed 

counsel is to be determined on a case-by-case basis using a balancing standard. 720

For instance, in a case involving a state proceeding to terminate the parental rights of an indigent without providing her counsel, the Court recognized the parent’s interest as ‘‘an extremely important one.’’ The Court, however, also noted the State’s strong interest in protecting the welfare of children. Thus, as the interest 

in correct fact-finding was strong on both sides, 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, the 

litigant did not have a right to appointed counsel. 721 In other due 

process cases involving parental rights, the Court has held that due 

1800 AMENDMENT 14—RIGHTS GUARANTEED 

722See 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). 723Morrissey v. Brewer, 408 U.S. 471, 481 (1982). ‘‘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 process is not infinite.’’ Board of Regents v. Roth, 408 U.S. 564, 569–71 (1972). Developments under the Fifth Amendment’s due process clause have been interchangeable. Cf. Arnett v. Kennedy, 416 

U.S. 134 (1974). 724For instance, at 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, and only for offenses deemed by a legislative body to be 

particularly heinous. One’s liberty, generally expressed as 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.

process requires special state attention to parental rights. 722 Thus,

it would appear likely that in other parental right cases, a right 

to appointed counsel could be established. 

The Procedure Which Is Due Process 

The Interests Protected: ‘‘Life, Liberty and Property’’.—

The language of the Fourteenth Amendment requires the provision 

of due process when an interest in one’s ‘‘life, liberty or property’’ 

is threatened. 723 Traditionally, the Court made this determination 

by reference to the common understanding of these terms, as embodied in the development of the common law. 724 In the 1960s, 

however, the Court began a rapid expansion of the ‘‘liberty’’ and 

‘‘property’’ aspects of the clause to include such non-traditional concepts as conditional property rights and statutory entitlements. 

Since then, the Court has followed an inconsistent path of expanding and contracting the breadth of these protected interests. The 

‘‘life’’ interest, on the other hand, while often important in criminal 

cases, has found little application in the civil context. 

The Property Interest.—The expansion of the concept of 

‘‘property rights’’ beyond its common law roots reflected a recognition by the Court that certain interests which fell short of traditional property rights were nonetheless important parts of people’s 

economic well-being. For instance, where household goods were 

sold under an installment contract and title was retained by the 

seller, the possessory interest of the buyer was deemed sufficiently 

important to require procedural due process before repossession 

AMENDMENT 14—RIGHTS GUARANTEED 1801

725Fuentes v. Shevin, 407 U.S. 67 (1972) (invalidating replevin statutes which 

authorized the authorities to seize goods simply upon the filing of an ex parte application and the posting of bond). 726Sniadach v. Family Finance Corp., 395 U.S. 337, 342 (1969) (Harlan, J., concurring). 727 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). But see American Mfrs. Mut. 

Ins. Co. v. Sullivan, 526 U.S. 40 (1999) (no liberty interest in worker’s compensation 

claim where reasonableness and necessity of particular treatment had not yet been 

resolved). 728See LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW685 (2nd. ed) (1988). 729Tribe, supra, at 1084–90. 730McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 2d 517, 522 

(1892). 731 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). 732Flemming v. Nestor, 363 U.S. 603 (1960). 733 Barsky v. Board of Regents, 347 U.S. 442 (1954). 

could occur. 725 Or, the loss of the use of garnished wages between 

the time of garnishment and final resolution of the underlying suit 

was deemed a sufficient property interest to require some form of 

determination that the garnisher was likely to prevail. 726 Or, the 

continued possession of a drivers license, which may be essential 

to one’s livelihood, is protected; thus, a license should not be suspended after an accident for failure to post a security for the 

amount of damages claimed by an injured party without affording 

the driver an opportunity to raise the issue of liability. 727

A more fundamental shift in the concept of property occurred 

with recognition of society’s growing economic reliance on government benefits, employment and contracts, 728 and with the decline 

of the ‘‘right-privilege’’ principle. This principle, discussed previously in the First Amendment context, 729 was pithily summarized by Justice Holmes years ago in dismissing a suit by a policeman protesting being fired from his job: ‘‘[t]he petitioner may have 

a constitutional right to talk politics, but he has no constitutional 

right to be a policeman.’’ 730 Under this theory, a finding that a litigant had no ‘‘vested property interest’’ in government employment 731 or that some form of public assistance was ‘‘only’’ a privilege, 732 meant that no procedural due process was required before 

depriving a person of that interest. 733 The reasoning was that if a 

government was under no obligation to provide something, it could 

choose to provide it subject to whatever conditions or protected by 

whatever procedures it might find appropriate. 

The conceptual underpinnings of this position, however, were 

always in conflict with a line of cases holding that the government 

could not require the diminution of constitutional rights as a condition for receiving benefits. This line of thought, referred to as the 

‘‘unconstitutional conditions’’ doctrine, held that ‘‘even though a 

1802 AMENDMENT 14—RIGHTS GUARANTEED 

734Perry v. Sinderman, 408 U.S. 593, 597 (1972). See Speiser v. Randall, 357 

U.S. 513 (1958). 735See 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). The right-privilege distinction is not, however, totally moribund. 

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). 736Meaning that Congress or a state legislature could still 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). 737 397 U.S. 254 (1970). 738 397 U.S. at 261–62. See also Mathews v. Eldridge, 424 U.S. 319 (1976) (Social Security benefits). 

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.’’ 734 Nonetheless, the two doctrines coexisted in an unstable 

relationship until the 1960s, at which point the right-privilege distinction became largely disregarded. 735

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 736 against erroneous governmental deprivation of something 

it had within its discretion bestowed. Previously, the Court had 

limited due process protections to constitutional rights, traditional 

rights, common law rights and ‘‘natural rights.’’ Now, under a new 

‘‘positivist’’ approach, a protected property or liberty interest might 

be found based on any positive governmental statute or governmental practice that gave rise to a legitimate expectation. Indeed, 

for a time it appeared that this positivist conception of protected 

rights was going to displace the traditional sources. 

As noted previously, the advent of this new doctrine can be 

seen in Goldberg v. Kelly. 737 In Goldberg, the Court held that, inasmuch as termination of welfare assistance may deprive an eligible 

recipient of the means of livelihood, the government must provide 

a pre-termination evidentiary hearing in which an initial determination of the validity of the dispensing agency’s grounds for termination could be made. In order to reach this conclusion, the 

Court found that such benefits ‘‘are a matter of statutory entitlement for persons qualified to receive them.’’ 738 Thus, where the 

loss or reduction of a benefit or privilege was conditioned upon 

specified grounds, it was found that the recipient had a property 

AMENDMENT 14—RIGHTS GUARANTEED 1803

739 Board of Regents v. Roth, 408 U.S. 564, 569–71 (1972). 740 408 U.S. at 577. Although property interests often arise by statute, the Court 

has also recognized interests established by state case law. Thus, where state court 

holdings required that private utilities terminate service only for cause (such as 

nonpayment of charges), then a utility is required to follow procedures to resolve 

disputes about payment or the accuracy of charges prior to terminating service. 

Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978). 741 436 U.S. 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. 436 at 572–75. For an instance of protection accorded a claimant on the basis 

of such an action, see Codd v. Vegler. See also Bishop v. Wood, 426 U.S. 341, 347– 

50 (1976); Vitek v. Jones, 445 U.S. 480, 491- 94 (1980); Board of Curators v. Horowitz, 435 U.S. 78, 82–84 (1978). 742 408 U.S. 593 (1972). See Leis v. Flynt, 439 U.S. 438 (1979) (finding no practice or mutually explicit understanding creating interest). 743 408 U.S. at 601–03 (1972). In contrast, a statutory assurance was found in 

Arnett v. Kennedy, 416 U.S. 134 (1974), where the civil service laws and regulations 

allowed suspension or termination ‘‘only for such cause as would promote the efficiency of the service.’’ 416 U.S. at 140. On the other hand, a policeman who was 

interest entitling him to proper procedure before termination or 

revocation.

At first, the Court’s emphasis on the importance of the statutory rights to the claimant led some lower courts to apply 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.’’ 739 To have a property interest 

in the constitutional sense, the Court held, it was not enough that 

one has an abstract need or desire for a benefit or 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.’’ 740

Consequently, in Board of Regents v. Roth, the Court held that 

the refusal to renew a teacher’s contract upon expiration of his oneyear 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. 741 On the 

other hand, in Perry v. Sindermann, 742 a professor employed for 

several years at a public college was found to have a protected interest, although his employment contract had no tenure provision 

nor was there a statutory assurance of it. 743 The ‘‘existing rules or 

1804 AMENDMENT 14—RIGHTS GUARANTEED 

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 interpreted the ordinance 

as providing only employment at the will and pleasure of the city, an interpretation 

that the Supreme Court chose not to disturb. 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.’’ 426 U.S. at 344–45 (1976). 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. 426 U.S. at 345 (1976). 744 408 U.S. at 601 745 419 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). 746Goss v. Lopez, 419 U.S. at 574.. 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.) 747 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. 748 416 U.S. 134 (1974). 

understandings’’ were deemed to have the characteristics of tenure, 

and thus provided a legitimate expectation independent of any contract provision. 744

The Court has also found ‘‘legitimate entitlements’’ in a variety 

of other situations beyond employment. In Goss v. Lopez, 745 an

Ohio statute provided for both free education to all residents between five and 21 years of age and compulsory school attendance; 

thus, 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. ‘‘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.’’ 746 The Court is highly deferential, however, 

to school dismissal decisions based on academic grounds. 747

An incipient counter-revolution to the expansion of due process 

appears to have been at least temporarily rebuffed, at least as regards entitlements. In Arnett v. Kennedy, 748 three Justices sought 

to qualify the principle laid down in the entitlement cases and to 

restore in effect much of the right-privilege distinction, albeit in a 

new formulation. The case involved a federal law which provided 

that employees could not be discharged except for cause, and the 

AMENDMENT 14—RIGHTS GUARANTEED 1805

749 416 U.S. at 155 (Justices Rehnquist and Stewart and Chief Justice Burger). 750 416 U.S. at 154. 751 416 U.S. 167 (Justices Powell and Blackmun concurring). See 416 U.S. at 177 

(Justice White concurring and dissenting), 203 (Justice Douglas dissenting), 206 

(Justices Marshall, Douglas, and Brennan dissenting). 752 426 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. 753 419 U.S. 565, 573–74 (1975). See id. at 584, 586–87 (Justice Powell dissenting). 754 419 U.S. at 584, 586–87 (Justice Powell dissenting). 

Justices acknowledged that due process rights could be created 

through statutory grants of entitlements. The Justices, however, 

went on to observe that the same law specifically withheld the procedural protections now being sought by the employees. Because 

‘‘the property interest which appellee had in his employment was 

itself conditioned by the procedural limitations which had accompanied the grant of that interest,’’ 749 the employee would have to 

‘‘take the bitter with the sweet.’’ 750 Thus, Congress (and by analogy 

state legislatures) could qualify the conferral of an interest by limiting the process which might be otherwise required. 

But the other six Justices, while disagreeing among themselves 

in other respects, rejected this attempt to so 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 

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.’’ 751 Yet, in Bishop v. Wood, 752 the Court accepted a district 

court’s finding that a policeman held his position ‘‘at will’’ despite 

language setting forth conditions for discharge. Although the majority opinion was couched in terms of statutory construction, the 

majority appeared to come close to adopting the three-Justice 

Arnett position, so much so that the dissenters accused the majority of having repudiated the majority position of the six Justices in 

Arnett. And, in Goss v. Lopez, 753 Justice Powell, writing in dissent 

but using language quite similar to the Rehnquist Arnett language,

seemed to indicate that the right to public education could be qualified by a statute authorizing a school principle to impose a ten day 

suspension. 754

More recently, however, 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 

1806 AMENDMENT 14—RIGHTS GUARANTEED 

755 Vitek v. Jones, 445 U.S. 480, 491 (1980). See also Cleveland Bd. of Educ. v. 

Loudermill, 470 U.S. 532 (1985)). 756 455 U.S. 422 (1982). 757 455 U.S. at 428–33 A different majority of the Court also found an equal protection denial. 455 U.S. 438, 433. 758These procedural liberty interests should not, however, be confused with substantive liberty interests, which, if not outweighed by a sufficient governmental interest, may not be intruded upon regardless of the process followed. See ‘‘Fundamental Rights (Noneconomic Substantive Due Process)’’, supra. 759 430 U.S. 651 (1977) 760 430 U.S. 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 

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 virtually any state-created property interest at will. 755 The most striking application of 

this analysis, to date, is found in Logan v. Zimmerman Brush 

Co.. 756 In Logan, a state anti-discrimination law required the enforcing agency to convene a fact-finding 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 noted that various older cases 

had clearly established that causes of action were property, and, in 

any event, Logan’s claim was an entitlement grounded in state law 

and thus could only be removed ‘‘for cause.’’ This property interest 

existed independently of the 120-day time period and could not 

simply be taken away by agency action or inaction. 757

The Liberty Interest.—With respect to liberty interests, the 

Court has followed a similarly meandering path. Although the traditional concept of liberty was freedom from physical restraint, the 

Court has expanded the concept to include various other protected 

interests, some statutorily created and some not. 758 Thus, in 

Ingraham v. Wright, 759 the Court unanimously agreed that school 

children had a liberty interest in freedom from wrongfully or excessively administered corporal punishment, whether or not such interest was protected by statute. ‘‘The liberty preserved from deprivation without due process included the right ‘generally to enjoy 

those privileges long recognized at common law as essential to the 

orderly pursuit of happiness by free men.’ . . . Among the historic 

liberties so protected was a right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security.’’ 760

AMENDMENT 14—RIGHTS GUARANTEED 1807

(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). 761 Board of Regents v. Roth, 408 U.S. 564, 569–70 (1972); Goss v. Lopez, 419 

U.S. 565 (1975) 762 400 U.S. 433 (1971). 763 424 U.S. 693 (1976). 764 Here the Court, 424 U.S. 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.’’ 424 

U.S. 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. See discussion supra. And

see Board of Regents v. Roth, 408 U.S. 564, 573 (1972); Siegert v. Gilley, 500 U.S. 

226 (1991); 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). 

The Court also appeared to have expanded the notion of ‘‘liberty’’ to include the right to be free of official stigmatization, and 

found that such threatened stigmatization could in and of itself require due process. 761 Thus, in Wisconsin v. Constantineau, 762 the

Court invalidated a statutory scheme in which persons could be labeled ‘‘excessive drinkers,’’ without any opportunity for a hearing 

and rebuttal, and could then be barred from places where alcohol 

was served. The Court, without discussing the source of the entitlement, noted that the governmental action impugned the individual’s reputation, honor, and integrity. 

But, in Paul v. Davis, 763 the Court appeared to retreat from 

recognizing damage to reputation alone, holding instead that the 

liberty interest extended only to those situations where loss of one’s 

reputation also resulted in loss of a statutory entitlement. In 

Davis, the police had included plaintiff’s photograph and name on 

a list of ‘‘active shoplifters’’ circulated to merchants without an opportunity for notice or hearing. But the Court held that ‘‘Kentucky 

law does not extend to respondent any legal guarantee of present 

enjoyment of reputation which has been altered as a result of petitioners’ actions. Rather, his interest in reputation is simply one of 

a number which the State may protect against injury by virtue of 

its tort law, providing a forum for vindication of those interest by 

means of damage actions.’’ 764 Thus, unless the government’s official 

defamation has a specific negative effect on an entitlement, such as 

the denial to ‘‘excessive drinkers’’ of the right to obtain alcohol that 

occurred in Constantineau, there is no protected liberty interest 

that would require due process. 

A number of liberty interest cases which involve statutorily 

created entitlements involve prisoner rights, and thus are dealt 

with more extensively in the section on criminal due process. HowVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00137 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1808 AMENDMENT 14—RIGHTS GUARANTEED 

765 427 U.S. 215 (1976). See also Montanye v. Haymes, 427 U.S. 236 (1976). 766 445 U.S. 480 (1980). 767Morrissey v. Brewer, 408 U.S. 471 (1972); Gagnon v. Scarpelli, 411 U.S. 778 

(1973). 768Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Connecticut Bd. 

of Pardons v. Dumschat, 452 U.S. 458 (1981); Ohio Adult Parole Auth. v. Woodard, 

523 U.S. 272 (1998); 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). 

ever, they are worth noting here. In Meachum v. Fano, 765 the

Court held that a state prisoner was not entitled to a fact-finding 

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. As 

a prisoner could be transferred for any reason or for no reason 

under state law, the decision of prison officials was not dependent 

upon any state of facts, and no hearing was required. 

But in Vitek v. Jones, 766 a state statute 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. Interestingly, however, the Vitek Court also held that 

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, 767 a liberty interest that is separate 

from a statutory 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. 768 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 must be explicit ‘‘mandatory language’’ requiring 

AMENDMENT 14—RIGHTS GUARANTEED 1809

769Kentucky 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). 

770Sandin v. Conner, 515 U.S. 472, 484 (1995) (solitary confinement not atypical 

‘‘in relation to the ordinary incidents of prison life’’). 

771Twining v. New Jersey, 211 U.S. 78, 110 (1908); Jacob v. Roberts, 223 U.S. 

261, 265 (1912). 

772 Bi-Metallic Investment Co. v. State Bd. of Equalization, 239 U.S. 441, 445– 

46 (1915). See also Bragg v. Weaver, 251 U.S. 57, 58 (1919). And cf. Logan v. Zimmerman Brush Co., 445 U.S. 422, 432–33 (1982). 

773 United States v. Florida East Coast Ry., 410 U.S. 224 (1973). 

a particular outcome if substantive predicates are found. 769 In an 

even more recent case, the Court limited the application of this test 

to those circumstances where the restraint on freedom imposed by 

the State creates an ‘‘atypical and significant’’ deprivation. 770

Proceedings in Which Procedural Due Process Need Not 

Be Observed.—While due notice and a reasonable opportunity to 

be heard are two fundamental protections found in almost all systems of law established by civilized countries, 771 there are certain 

proceedings in which the enjoyment of these two conditions has not 

been deemed to be constitutionally necessary. For instance, persons 

adversely affected by a law cannot challenge its validity on the 

ground that the legislative body that enacted it 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 

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.’’ 772

Similarly, when an administrative agency engages in a legislative function, as, for example, when it drafts regulations of general 

application affecting an unknown number of persons, it need not 

afford a hearing prior to promulgation. 773 On the other hand, if a 

regulation, sometimes denominated an ‘‘order,’’ is of limited application, that is, it affects 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 

1810 AMENDMENT 14—RIGHTS GUARANTEED 

774 410 U.S. 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). 775 ‘‘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.’’ Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 246– 

47 (1944). 776Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 

(1856). 777 Coffin Brothers & Co. v. Bennett, 277 U.S. 29 (1928). 778Postal 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). 

must be determined by evaluation of the various factors discussed 

below. 774

One such factor is whether agency action is subject to later judicial scrutiny. 775 In one of the initial decisions construing the due 

process clause of the Fifth Amendment, the Court upheld the authority of the Secretary of the Treasury, acting pursuant to statute, 

to obtain money from a collector of customs alleged to be in arrears. The Treasury simply issued a distress warrant and seized 

the collector’s property, affording him no opportunity for a hearing, 

and requiring him to sue for recovery of his property. While acknowledging that history and settled practice required proceedings 

in which pleas, 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. 776

In more modern times, the Court upheld a procedure under 

which a state banking superintendent, after having taken over a 

closed bank and issuing notices to stockholders of their assessment, 

could issue execution for the amounts due, subject to the right of 

each stockholder to contest his liability for such an assessment by 

an affidavit of illegality. 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. 777

It is a violation of the due process clause for a State to enforce 

a judgment against a party to a proceeding without having given 

him an opportunity to be heard sometime before final judgment is 

entered. 778 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. 

AMENDMENT 14—RIGHTS GUARANTEED 1811

779Lindsey 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). 780 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) 781Saunders v. Shaw, 244 U.S. 317 (1917). 782 ‘‘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.’’ Goldberg v. Kelly, 397 

U.S. 254, 262–63 (1970), (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 

341 U.S. 123, 168 (1951) (Justice Frankfurter concurring)). ‘‘The very nature of due 

process negates any concept of inflexible procedures universally applicable to every 

imaginable situation.’’ Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 

886, 894–95 (1961). 783 424 U.S. 319, 335 (1976). 

The person may be remitted to other actions initiated by him 779 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. 780 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 held to have been deprived of his rights without due process of law. 781

When Process Is Due.—The requirements of due process, as 

has been noted, depend upon the nature of the interest at stake, 

while the form of due process required is determined by the weight 

of that interest balanced against the opposing interests. 782 The currently prevailing standard is that formulated in Mathews v. 

Eldridge, 783 which concerned termination of Social Security benefits. ‘‘Identification 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.’’

1812 AMENDMENT 14—RIGHTS GUARANTEED 

784 397 U.S. 254, 264 (1970). 785Mathews v. Eldridge, 424 U.S. 319, 339–49 (1976). 786Mitchell 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 DiChem. 787 395 U.S. 337 (1969) 788 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 Court by Justice White emphasizing the wages aspect of the earlier case). 789 407 U.S. (1972). 

The termination of welfare benefits in Goldberg v. Kelly, 784

which could have resulted in a ‘‘devastating’’ loss of food and shelter, had required a pre-deprivation hearing. The termination of Social Security benefits at issue in Mathews would require less protection, however, because those benefits 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. 785

Application of the Mathews standard and other considerations 

brought some noteworthy changes to the process accorded debtors 

and installment buyers. Earlier cases, which had focused upon the 

interests of the holders of the property in not being unjustly deprived of the goods and funds in their possession, leaned toward requiring pre-deprivation hearings. Newer cases, however, look 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.’’ 786

Thus, Sniadach v. Family Finance Corp., 787 which mandated 

pre-deprivation hearings before wages may be garnished, has apparently been limited to instances when wages, and perhaps certain other basic necessities, are in issue and the consequences of 

deprivation would be severe. 788 Fuentes v. Shevin, 789 which struck 

AMENDMENT 14—RIGHTS GUARANTEED 1813

790Fuentes was an extension of the Sniadach principle to all ‘‘significant property interests’’ and thus mandated pre-deprivation hearings. 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 419 U.S. at 616–19 

(Justice Blackmun dissenting); Mitchell, 416 U.S. at 635–36 (1974) (Justice Stewart 

dissenting). 791Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); North Georgia Finishing v. 

Di-Chem, 419 U.S. 601 (1975). 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.’’ 501 U.S. at 11. 792Mitchell v. W.T. Grant Co., 416 U.S. at 615–18 (1974) and 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). Efforts to litigate challenges to seizures in actions involving two private parties may be thwarted by findings of ‘‘no 

state action,’’ but there often is sufficient participation by state officials in transferring possession of property to constitute state action and implicate due process. 

Compare Flagg Brothers v. Brooks, 436 U.S. 149 (1978) (no state action in warehouseman’s sale of goods for nonpayment of storage, as authorized by state law), 

with Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) (state officials’ joint participation with private party in effecting prejudgment attachment of property); and

Tulsa Professional Collection Servs. v. Pope, 485 U.S. 478 (1988) (probate court was 

sufficiently involved with actions activating time bar in ‘‘nonclaim’’ statute). 

down a replevin statute which authorized the seizure of property 

(here household goods purchased on an installment contract) simply upon the filing of an ex parte application and the posting of 

bond, has been limited, 790 so that an appropriately structured ex

parte judicial determination before seizure is sufficient to satisfy 

due process. 791 Thus, laws authorizing sequestration, garnishment, 

or other seizure of property of an alleged defaulting debtor need 

only 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 opportunity be assured for an adversary hearing promptly after seizure to determine the merits of 

the controversy, with the burden of proof on the creditor. 792

Similarly, applying the Mathews v. Eldridge standard 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, the avoidance of adminVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00143 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1814 AMENDMENT 14—RIGHTS GUARANTEED 

793 Arnett v. Kennedy, 416 U.S. 134, 170–71 (1974) (Justice Powell concurring), 

and 416 U.S. 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. See also 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). 794Gilbert v. Homar, 520 U.S. 924 (1997) (no hearing required prior to suspension without pay of tenured police officer arrested and charged with a felony). 795 E.g., Dixon v. Love, 431 U.S. 105 (1977) (when suspension of drivers’ license 

is automatic upon conviction of a certain number of offenses, no hearing is required 

because there can be no dispute about facts). 796Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). 797 481 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. 

istrative burdens, and the risk of an erroneous termination combine to require the provision of some minimum pre-termination notice and opportunity to respond, followed by a full post-termination 

hearing, complete with all the procedures normally accorded and 

back pay if the employee is successful. 793 Where the adverse action 

is less than termination of employment, the governmental interest 

is significant, and where reasonable grounds for such action have 

been established separately, then a prompt hearing held after the 

adverse action may be sufficient. 794 In other cases, hearings with 

even minimum procedures may be dispensed with when what is to 

be established is so pro forma or routine that the likelihood of error 

is very small. 795 In a case dealing with 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. 796

In Brock v. Roadway Express, Inc., 797 a Court plurality applied 

a similar analysis to governmental regulation of private employment, determining that an employer may be ordered by an agency 

to reinstate a ‘‘whistle-blower’’ employee without an opportunity for 

a full evidentiary hearing, 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. 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 

AMENDMENT 14—RIGHTS GUARANTEED 1815

798For 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. 799See, e.g. Lujan v. G & G Fire Sprinklers, Inc, 523 U.S. 189 (2001) (breach 

of contract suit against state contractor who withheld payment to subcontractor 

based on state agency determination of noncompliance with Labor Code sufficient 

for due process purposes). 800 Ingraham v. Wright, 430 U.S. 651, 680–82 (1977). 801 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. 802Logan v. Zimmerman Brush Co., 455 U.S. at 435–36 (1982). The Court emphasized that a post-deprivation hearing regarding harm inflicted by a state procedure 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.’’ 455 

U.S. 422, 436–37. 803 455 U.S. at 436 

hearing requirements in the context of regulatory adjudication will 

depend on future developments. 798

In another respect, the balancing standard of Mathews has resulted in a State having wider flexibility in determining what process is required. For instance, in an alteration of previously existing 

law, no hearing is required if a State affords the claimant an adequate alternative remedy, such as a judicial action for damages or 

breach of contract. 799 Thus, the Court, in passing on the infliction 

of corporal punishment in the public schools, held that the existence of common-law tort remedies for wrongful or excessive administration of punishment, plus the context in which the punishment 

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 

not be punished without cause or excessively. 800 The Court did not, 

however, inquire about the availability of judicial remedies for such 

violations in the State in which the case arose. 801

The Court has required greater protection from property deprivations resulting from operation of established state procedures 

than from those resulting from random and unauthorized acts of 

state employees, 802 and presumably this distinction still holds. 

Thus, the Court has held that post-deprivation procedures would 

not satisfy due process if it is ‘‘the state system itself that destroys 

a complainant’s property interest.’’ 803 While the Court did briefly 

entertain the theory that a negligent action (i.e. non-willful) by a 

state official was sufficient to invoke due process, and that a postVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00145 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
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804More expressly adopting the tort remedy theory, the Court in Parratt v. Taylor, 451 U.S. 527 (1981), 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. 451 U.S. at 541, 543–44. It should be noted that 

Parratt was a property loss case, and thus may be distinguished from liberty cases, 

where a tort remedy, by itself, may not be adequate process. See Ingraham v. 

Wright, 430 U.S. at 680–82. 805Daniels v. Williams, 474 U.S. 327, 328 (1986) (involving negligent acts by 

prison officials). 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. § 

1983 for deprivation of rights deriving from the Constitution. Prisoners may resort 

to state tort law in such circumstances, but neither the Constitution nor §1983 provides a federal remedy. 806 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). Of course, 

one may waive his due process rights, though as with other constitutional rights, 

the waiver must be knowing and voluntary. D.H. Overmyer Co. v. Frick Co., 405 

U.S. 174 (1972). See also Fuentes v. Shevin, 407 U.S. 67, 94–96 (1972). 807 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). 808Phillips v. Commissioner, 283 U.S. 589, 597 (1931). 809 Central Union Trust Co. v. Garvan, 254 U.S. 554, 566 (1921). 810 Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961). 811 367 U.S. at 894, 895, 896 (1961). 

deprivation hearing regarding such loss was required, 804 the Court 

subsequently overruled this holding, stating 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.’’ 805

In ‘‘rare and extraordinary situations,’’ 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 later full hearing. 806 Examples are 

seizure of contaminated foods or drugs or other such commodities 

to protect the consumer, 807 collection of governmental revenues, 808

and the seizure of enemy property in wartime. 809 Thus, 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. 810 On the one hand, the 

Court was ambivalent about a right-privilege distinction; 811 on the 

other hand, it contrasted the limited interest of the cook—barred 

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AMENDMENT 14—RIGHTS GUARANTEED 1817

812 367 U.S. 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 416 U.S. at 181–183 (Justice White concurring in part and dissenting in part). 813Scott v. McNeal, 154 U.S. 34, 64 (1894). 814 95 U.S. 714 (1878) 815 Although these two principles were drawn from the writings of Joseph Story 

refining the theories of continental jurists, Hazard, A General Theory of State-Court 

Jurisdiction, 1965 SUP. CT. REV. 241, 252–62. the constitutional basis for them was 

deemed to be in the due process clause of the Fourteenth Amendment. 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 statecourt 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. 816 95 U.S. at 722. The basis for the territorial concept of jurisdiction promulgated in Pennoyer and modified over the years is two-fold: 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. 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), 

and, more important, a concern for the preservation of federalism. International 

Shoe Co. v. Washington, 326 U.S. 310, 319 (1945); Hanson v. Denckla, 357 U.S. 235, 

251 (1958). 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.’’ World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293 (1980). 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.’’ 444 U.S. at 294 (internal quotation from International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)). 

sionaire’s other premises—with the Government’s interest in conducting a high-security program. 812

Jurisdiction

Generally.—Jurisdiction may be defined as the power of a 

government to create legal interests, and the Court has long held 

that the Due Process clause limits the abilities of states to exercise 

this power. 813 In the famous case of Pennoyer v. Neff, 814 the Court 

enunciated two principles of jurisdiction respecting the States in a 

federal system 815 —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.’’ 816 Over a 

long period of time, however, the mobility of American society and 

1818 AMENDMENT 14—RIGHTS GUARANTEED 

817 International Shoe Co. v. Washington, 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)). 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. 818 National Exchange Bank v. Wiley, 195 U.S. 257, 270 (1904); Iron Cliffs Co. 

v. Negaunee Iron Co., 197 U.S. 463, 471 (1905). 819McDonald 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. 820Milliken v. Meyer, 311 U.S. 457 (1940). 821McDonald v. Mabee, 243 U.S. 90 (1917). 

the increasing complexity of commerce led to attenuation of the 

second principle of Pennoyer, and consequently the Court established the modern standard of obtaining jurisdiction based upon 

the nature and the quality of contacts that individuals and corporations have with a State. 817 This ‘‘minimum contacts’’ test, consequently, permits the courts of a State to obtain power over outof-state defendants. 

In Personam Proceedings Against Individuals.—How jurisdiction is determined depends on the nature of the suit being 

brought. If a dispute is directed against a person, not property, the 

proceedings are considered in personam, and jurisdiction must be 

established over the defendant’s person in order to render an effective decree. 818 Generally, presence within the State is sufficient to 

create personal jurisdiction over an individual, if process is 

served. 819 In the case of a resident who is absent from the state, 

domicile alone is deemed to be sufficient to keep him within reach 

of the state courts for purposes of a personal judgment, and process 

can be obtained by means of appropriate, substituted service or by 

actual personal service on the resident outside the State. 820 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. 821

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 

AMENDMENT 14—RIGHTS GUARANTEED 1819

822 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). 823Sugg 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). 824Louisville & 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). 825State legislation which provides that a defendant who comes into court to 

challenge the validity of service upon him in a personal action surrenders himself 

to the jurisdiction of the court, but which allows him to dispute where process was 

served, is constitutional and does not deprive him of property without due process 

of law. In such a situation, the defendant may ignore the proceedings as wholly ineffective, and attack the validity of the judgment if and when an attempt is made to 

take his property thereunder. If he desires, however, to contest the validity of the 

court proceedings and he loses, it is within the power of a State to require that he 

submit to the jurisdiction of the court to determine the merits. 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) 826 Hess v. Pawloski, 274 U.S. 352 (1927): Wuchter v. Pizzutti, 276 U.S. 13 

(1928); Olberding v. Illinois Cent. R.R., 346 U.S. 338, 341 (1953). 

which he neither appeared nor was served or effectively made a 

party. 822 The early cases held that the process of a court of one 

State could not run into another and summon a resident of that 

state to respond to proceedings against him, when neither his person nor his property was within the jurisdiction of the court rendering the judgment. 823 This rule, however, has been attenuated in 

a series of steps. 

Consent has always been sufficient to create jurisdiction, even 

in the absence of any other connection between the litigation and 

the forum. 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, 824 and even 

a special appearance to deny jurisdiction might be treated as consensual submission to the court. 825 The concept of ‘‘constructive 

consent’’ was then seized upon as a basis for obtaining jurisdiction. 

For instance, with the advent of the automobile, States were permitted to engage in the fiction that the use of their highways was 

conditioned upon the consent of drivers to be sued in state courts 

for accidents or other transactions arising out of such use. Thus, 

a state could designate a state official as a proper person to receive 

service of process in such litigation, and establishing jurisdiction 

required only that the official receiving notice communicate it to 

the person sued. 826

Although the Court approved of the legal fiction that such jurisdiction arose out of consent, the basis for jurisdiction was really 

the State’s power to regulate acts done in the state that were danVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00149 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1820 AMENDMENT 14—RIGHTS GUARANTEED 

827 Hess v. Pawloski, 274 U.S. 352, 356–57 (1927). 

828 274 U.S. at 355. See Flexner v. Farson, 248 U.S. 289, 293 (1919). 

829 Henry L. Doherty & Co. v. Goodman, 294 U.S. 623 (1935). 

830 326 U.S. 310, 316 (1945). 

831 436 U.S. 84 (1978). 

832Kulko 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. 436 U.S. at 92–93. 833 436 U.S. at 92. 834 436 U.S. at 96–98. 

gerous to life or property. 827 Inasmuch as the State did not really 

have the ability to prevent nonresidents from doing business in 

their state, 828 this extension was necessary in order to permit 

States to assume jurisdiction over individuals ‘‘doing business’’ 

within the State. 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. 829

The culmination of this trend, established in the case of International Shoe Co. v. Washington, 830 was the requirement that 

there be ‘‘minimum contacts’’ with the State in question in order 

to establish jurisdiction. The outer limit of this test is illustrated 

by Kulko v. Superior Court, 831 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 832 The argument 

was made that the father 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. The Court explained that, 

‘‘[l]ike 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.’’ 833 Although the Court noted that the ‘‘effects’’ test had 

been accepted as a test of contacts when wrongful activity outside 

a State causes injury within the State or when commercial activity 

affects state residents, the Court found that these factors were not 

present in this case, and any economic benefit to Kulko was derived in New York and not in California. 834 As with many such 

cases, the decision was narrowly limited to its facts and does little 

AMENDMENT 14—RIGHTS GUARANTEED 1821

835 Cf. Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 588 (1839). 836 326 U.S. 310 (1945). 837Lafayette 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). 838Presence 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). 839 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). 840 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. 

to clarify the standards applicable to state jurisdiction over nonresidents.

Suing Out-of-State (Foreign) Corporations.—A curious aspect of American law is that a corporation has no legal existence 

outside the boundaries of the State chartering it. 835 Thus, the basis 

for state court jurisdiction over an out-of-state (‘‘foreign’’) corporation has been even more uncertain than that with respect to individuals. Before the case of International Shoe Co. v. Washington, 836

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, 

by accepting service upon corporate agents authorized to operate 

within the State. 837 Further, by doing business in a State, the corporation was deemed to be present there and thus subject to service of process and suit. 838 This theoretical corporate presence conflicted with the idea of corporations having no existence outside 

their State of incorporation, but it 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. 839

Such presence did not, however, expose a corporation to all 

manner of suits. Under the reasoning of these early cases, even 

continuous activity of some sort by a foreign corporation within a 

State would 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. 840 And if the 

1822 AMENDMENT 14—RIGHTS GUARANTEED 

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). 841 Robert Mitchell Furn. Co. v. Selden Breck Constr. Co., 257 U.S. 213 (1921): 

Chipman, Ltd. v. Thomas B. Jeffery Co., 251 U.S. 373, 379 (1920). On a consent 

theory, jurisdiction would continue. Washington ex rel. Bond & Goodwin & Tucker 

v. Superior Court, 289 U.S. 361, 364 (1933). 842Solicitation 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). 843 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). 844 326 U.S. 310 (1945). 845This departure was recognized by Justice Rutledge subsequently in Nippert 

v. City of Richmond, 327 U.S. 416, 422 (1946). Inasmuch as International Shoe, in 

addition to having its agents solicit orders, also permitted them to rent quarters for 

the display of merchandise, the Court could have utilized International Harvester 

Co. v. Kentucky, 234 U.S. 579 (1914), to find it was ‘‘present’’ in the State. 

corporation stopped doing business in the forum State before suit 

against it was commenced, it might well escape jurisdiction altogether. 841 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. 842 In the absence of enough activity to constitute doing business, the mere presence within its territorial limits of an agent, officer, or stockholder, upon whom service might 

readily be had, was not effective to enable a State to acquire jurisdiction over the foreign corporation. 843

The rationales and premises of these cases were swept away 

in International Shoe Co. v. Washington, 844 although the results in 

many of them would stand on the basis of the case’s ‘‘minimum 

contacts’’ analysis. International Shoe, an out-of-state corporation, 

had not been issued a license to do business in Washington State, 

but it systematically and continuously employed a sales force of 

Washington residents to solicit therein, and thus was held amenable to suit in Washington for unpaid unemployment compensation contributions for such salesmen. A notice of assessment was 

served personally upon one of the local sales solicitors, and a copy 

of the assessment was sent by registered mail to the corporation’s 

principal office in Missouri, and this was deemed sufficient to apprize the corporation of the proceeding. 

To reach this conclusion the Court not only overturned prior 

holdings to the effect that mere solicitation of business does not 

constitute a sufficient contact to subject a foreign corporation to a 

State’s jurisdiction, 845 but also rejected the ‘‘presence’’ test as begging the question to be decided. ‘‘The terms ‘present’ or ‘presence,’’’ 

AMENDMENT 14—RIGHTS GUARANTEED 1823

846 International Shoe Co. v. Washington, 326 U.S. 310, 316–17 (1945). 847 326 U.S. at 319 848Travelers 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. d. at 652–53 (distinguishing between the use of the State’s judicial 

power to enforce its legislative powers and the judicial jurisdiction when a private 

party is suing). See id. at 659 (dissent). 849 339 U.S. 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 

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 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.’’ 846 As to the scope of application to be accorded this ‘‘fair 

play and substantial justice’’ doctrine, the Court 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.’’ 847

Extending this logic, a majority of the Court ruled that an outof-state association selling mail order insurance had developed sufficient contacts and ties with Virginia residents so that the State 

could institute enforcement proceedings under its Blue Sky Law by 

forwarding notice to the company by registered mail, notwithstanding that the Association solicited business in Virginia solely 

through recommendations of existing members and was represented therein by no agents whatsoever. 848 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, especially in view of the fact 

that such suits could be more conveniently tried in Virginia where 

claims of loss could be investigated. 849

1824 AMENDMENT 14—RIGHTS GUARANTEED 

unmentioned in the opinion, could not survive McGee v. International Life Ins. Co., 

355 U.S. 220 (1957). 850McGee v. International Life Ins. Co., 355 U.S. 220 (1957). 851 355 U.S. 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. 342 U.S. 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. 852McGee 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). 

Likewise, the Court reviewed a California statute which subjected foreign mail order insurance companies engaged in contracts 

with California residents to suit in California courts, and which 

had authorized the petitioner to serve a Texas insurer by registered mail only. 850 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 and no evidence had been 

presented that it had solicited anyone other than the insured for 

business—the Court sustained jurisdiction on the basis that the 

suit was on a contract which had a substantial connection with 

California. ‘‘The contract was delivered in California, the premiums 

were mailed there and the insured was a resident of that State 

when he died. It cannot be denied that California has a manifest 

interest in providing effective means of redress for its residents 

when their insurers refuse to pay claims.’’ 851

In making this decision, the Court noted that ‘‘[l]ooking back 

over the long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents.’’ 852 However, in Hanson

v. Denckla, decided during the same Term, the Court found in personam jurisdiction lacking for the first time since International

AMENDMENT 14—RIGHTS GUARANTEED 1825

853 357 U.S. 235 (1958). The decision was 5-to-4. See 357 U.S. at 256 (Justice 

Black dissenting), 262 (Justice Douglas dissenting). 854 357 U.S. 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.’’ 357 U.S. at 260. 855 357 U.S. 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. 357 U.S. at 251, 258–59 The Court 

has numerous times asserted that contacts sufficient for the purpose of designating 

Shoe Co. v. Washington, pronouncing firm due process limitations. 

In Hanson, 853 the issue was whether a Florida court considering a 

contested will obtained jurisdiction over corporate trustees of disputed property through use of ordinary mail and publication. The 

will had been entered into and probated in Florida, the claimants 

were resident in Florida and had been personally served, but the 

trustees, who were indispensable parties, were resident in Delaware. Noting the trend in enlarging the ability of the States to obtain in personam jurisdiction over absent defendants, the Court denied the exercise of nationwide in personam jurisdiction by States, 

saying ‘‘it would be a mistake to assume that th[e] trend [to expand 

the reach of state courts] heralds the eventual demise of all restrictions on the personal jurisdiction of state courts.’’ 854

The Court recognized in Hanson 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 Court noted that 

due process restrictions do more than guarantee immunity from inconvenient or distant litigation, in that ‘‘[these restrictions] 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 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.’’ 855

1826 AMENDMENT 14—RIGHTS GUARANTEED 

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

Ins. Co. v. Hague, 449 U.S. 302 (1981). 

856 444 U.S. 286 (1980). 

857 444 U.S. at 297 

858 444 U.S. at 299. 

859 Hanson v. Denckla, 357 U.S. 235, 253 (1985), quoted in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). 

In World-Wide Volkswagen Corp. v. Woodson, 856 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 had sustained personal injuries in Oklahoma in an accident involving an alleged defect in their automobile. The car had been purchased the previous year in New 

York, while the plaintiffs were New York residents, and the accident had occurred while they were driving through Oklahoma on 

their way to a new residence in Arizona. Defendants were the automobile retailer and its wholesaler, both New York corporations that 

did no business in Oklahoma. The Court found no circumstances 

justifying assertion by Oklahoma courts of jurisdiction over defendants. The Court found that the defendants (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 was held to be 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.’’ 857 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. 858

Thus, a defendant must, as the Court said in Denckla, ‘‘ purposefully [avail] itself of the privilege of conducting activities within the 

forum State,’’ 859 if not by carrying on business there within the 

constitutional sense, at least by delivering ‘‘its products into the 

AMENDMENT 14—RIGHTS GUARANTEED 1827

860 444 U.S. 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, 444 U.S. 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. 444 U.S. 

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. 861Keeton 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). 862 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). 863 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).

stream of commerce with the expectation that they will be purchased by consumers in the forum State.’’ 860

The Court has had to decide how to apply International

Shoe principles in several more situations. Thus, circulation of a 

magazine in a state is an adequate basis for that state to exercise 

jurisdiction over an out-of-state corporate magazine publisher in a 

libel action. The fact that the plaintiff did not have ‘‘minimum contacts’’ with the forum state was not dispositive since the relevant 

inquiry is the relations among the defendant, the forum, and the 

litigation. 861 Or, 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 over the out-of-state authors of such article, despite the lack of minimum contact between 

the authors (as opposed to the publishers) and the state. 862 Further, while there is no per se rule that a contract with an out-ofstate party automatically establishes jurisdiction to enforce the 

contract in the other party’s forum, a franchisee who has entered 

into a franchise contract with an out-of-state corporation may be 

subject to suit in the corporation’s home state where the overall circumstances (contract terms themselves, course of dealings) demonstrate a deliberate reaching out to establish contacts with the 

franchisor in the franchisor’s home state. 863

Actions In Rem: Proceeding Against Property.—In an in

rem action, which is brought directly against a property interest, 

a State can validly proceed to settle controversies with regard to 

rights or claims against tangible or intangible property within its 

borders, notwithstanding that jurisdiction over the defendant was 

1828 AMENDMENT 14—RIGHTS GUARANTEED 

864 Accordingly, by reason of its inherent authority over titles to land within its 

territorial confines, a state court could proceed 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. 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). 865 Boswell’s Lessee v. Otis, 50 U.S. (9 How.) 336, 348 (1850). 866 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). 867 Huling v. Kaw Valley Ry. & Improvement Co., 130 U.S. 559 (1889). 868The Confiscation Cases, 87 U.S. (20 Wall.) 92 (1874). 869 Clarke v. Clarke, 178 U.S. 186 (1900); Riley v. New York Trust Co., 315 U.S. 

343 (1942). 870Pennoyer v. Neff, 95 U.S. 714 (1878). Predeprivation notice and hearing may 

be required if the property is not the sort that, given advance warning, could be removed to another jurisdiction, destroyed, or concealed. United States v. James Daniel Good Real Property, 510 U.S. 43 (1993) (notice to owner required before seizure 

of house by government). 871 Arndt v. Griggs, 134 U.S. 316 (1890); Ballard v. Hunter, 204 U.S. 241 (1907); 

Security Savings Bank v. California, 263 U.S. 282 (1923). 872Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950); Walker 

v. City of Hutchinson, 352 U.S. 112 (1956); Schroeder v. City of New York, 371 U.S. 

208 (1962); Robinson v. Hanrahan, 409 U.S. 38 (1972). 873 433 U.S. 186 (1977). 

never established. 864 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 the only 

property in question. 865 Proceedings brought to register title to 

land, 866 to condemn 867 or confiscate 868 real or personal property, or 

to administer a decedent’s estate 869 are typical in rem actions. Due 

process is satisfied by seizure of the property (the ‘‘res’’) and notice 

to all who have or may have interests therein. 870 Under prior case 

law, a court could acquire in rem jurisdiction over nonresidents by 

mere constructive service of process, 871 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 apprized of the state of their property. It was held, however, that this 

fiction did not satisfy the requirements of due process, and, whatever the nature of the proceeding, that 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. 872

Although the Court has now held ‘‘that all assertions of statecourt jurisdiction must be evaluated according to the [‘minimum 

contacts’] standards set forth in International Shoe Co. v. Washington,’’ 873 it does not appear that this will appreciably change the 

result 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 

AMENDMENT 14—RIGHTS GUARANTEED 1829

874 433 U.S. 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. 875 95 U.S. 714 (1878). Cf. Pennington v. Fourth Nat’l Bank, 243 U.S. 269, 271 

(1917); Corn Exch. Bank v. Commissioner, 280 U.S. 218, 222 (1930); Endicott Co. 

v. Encyclopedia Press, 266 U.S. 285, 288 (1924). 876The theory was that property is always in possession of an owner, and that 

seizure of the property will inform him. This theory of notice was disavowed sooner 

than the theory of jurisdiction. See ‘‘Actions in Rem: Proceedings Against Property,’’ 

supra. 877Other, quasi in rem actions, which are directed against persons, but ultimately have property as the subject matter, such as probate, Goodrich v. Ferris, 214 

U.S. 71, 80 (1909), and garnishment of foreign attachment proceedings, Pennington 

v. Fourth Nat’l Bank, 243 U.S. 269, 271 (1917); Harris v. Balk, 198 U.S. 215 (1905), 

might also be prosecuted to conclusion without requiring the presence of all parties 

in interest. The jurisdictional requirements for rendering a valid divorce decree are 

considered under the full faith and credit clause, Art. I, §1. 

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 

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.’’ 874 Thus, for 

‘‘true’’ in rem actions, the old results are likely to still prevail. 

Quasi in Rem: Attachment Proceedings.—If a defendant is 

neither present within a State nor domiciled therein, he cannot be 

served personally, and any judgment in money obtained against 

him would be unenforceable. This does not, however, prevent attachment of a defendant’s property within the state. The practice 

of allowing a State to attach a non-resident’s real and personal 

property situated within its borders to satisfy a debt or other claim 

by one of its citizens goes back to colonial times. Attachment is considered a form of in rem proceeding sometimes called ‘‘quasi in 

rem,’’ and under Pennoyer v. Neff 875 an attachment could be implemented by obtaining a writ against the local property of the defendant and giving notice by publication. 876 The judgement was 

then satisfied from the property attached, and if the attached property was insufficient to satisfy the claim, the plaintiff could go no 

further. 877

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, such as 

1830 AMENDMENT 14—RIGHTS GUARANTEED 

878 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). 879 17 N.Y. 2d 111, 269 N.Y.S. 2d 99, 216 N.E. 2d 312 (1966). 880 198 U.S. 215 (1905). 881 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). 882 433 U.S. 186 (1977). 

where the property was related to the matter sued over. 878 In others, the question was more disputed, as in the famous New York 

Court of Appeals case of Seider v. Roth, 879 in which the property 

subject to attachment was the contractual obligation of the defendant’s insurance company to defend and pay the judgment. But in 

Harris v. Balk, 880 the facts of the case and the establishment of jurisdiction through quasi in rem proceedings raised the issue of fairness and territoriality. The claimant was a Maryland resident who 

was owed a debt by Balk, a North Carolina resident. The Marylander ascertained, apparently adventitiously, that Harris, a North 

Carolina resident who owed Balk an amount of money, was passing 

through Maryland, and the Marylander attached this debt. 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 argued 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. 881

Subsequently, Harris v. Balk was overruled in Shaffer v. 

Heitner, 882 in which the Court rejected the Delaware state court’s 

jurisdiction, holding that the ‘‘minimum contacts’’ test of International Shoe applied to all in rem and quasi in rem actions. The 

case involved a Delaware sequestration statute under which plaintiffs were authorized to bring actions against nonresident defendants by attaching their ‘‘property’’ within Delaware, the property 

here consisting of shares of corporate stock and options to stock in 

the defendant corporation. The stock was considered to be in Delaware because that was the state of incorporation, but none of the 

certificates representing the seized stocks were 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 

AMENDMENT 14—RIGHTS GUARANTEED 1831

883 433 U.S. at 207 (internal quotation from RESTATEMENT (SECOND) OF CONFLICT OF LAWS 56, Introductory Note (1971)). 884 433 U.S. at 207. The characterization of actions in rem as being not actions 

against a res but against persons with interests merely reflects Justice Holmes’ insight in Tyler v. Judges of the Court of Registration, 175 Mass. 71, 76–77, 55 N.E., 

812, 814, appeal dismissed, 179 U.S. 405 (1900). 885 444 U.S. 320 (1980). 886 444 U.S. at 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. 887See O’Conner v. Lee-Hy Paving Corp., 579 F.2d 194 (2d Cir.), cert. denied,

439 U.S. 1034 (1978). 888Goodrich v. Ferris, 214 U.S. 71, 80 (1909); McCaughey v. Lyall, 224 U.S. 558 

(1912).

to jurisdiction over the interests of persons in a thing.’’’ 883 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.’’’ 884

A further tightening of jurisdictional standards occurred in 

Rush v. Savchuk. 885 The plaintiff was injured in a one-car accident 

in Indiana while a passenger in a car 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. 886 Rush thus resulted in the demise of the controversial 

Seider v. Roth doctrine, which lower courts had struggled to save 

after Shaffer v. Heitner. 887

Actions in Rem: Estates, Trusts, Corporations.—Generally,

probate will occur where the decedent was domiciled, and as a probate judgment is considered in rem, a determination as to assets 

in that State will be determinative as to all interested persons. 888

Insofar as the probate affects property, land or personalty beyond 

the State’s boundaries, however, the judgment is in personam and

1832 AMENDMENT 14—RIGHTS GUARANTEED 

889 Baker v. Baker, Eccles & Co., 242 U.S. 394 (1917); Riley v. New York Trust 

Co., 315 U.S. 343 (1942). 890 315 U.S. at 353. 891 357 U.S. 235 (1957). 892The in personam aspect of this decision is considered supra. 893She 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. 894 357 U.S. at 246. 895 357 U.S. 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. 357 U.S. at 256, 262. 896See discussion of Pennoyer, supra. 

can bind only parties thereto or their privies. 889 Thus, the full faith 

and credit clause would not prevent a out-of-state court in the state 

where the property is located from reconsidering the first court’s 

finding of domicile, which could affect the ultimate disposition of 

the property. 890

The difficulty of characterizing the existence of the res in a 

particular jurisdiction is illustrated by the in rem aspects of Hanson v. Denckla. 891 As discussed earlier, 892 the decedent created a 

trust with a Delaware corporation as trustee, 893 and the Florida 

courts had attempted to assert both in personam and 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,’’ 894 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 the domiciliary’s will, under which the foreign 

assets might pass, were a sufficient basis of in rem jurisdiction and 

decided they were not. 895 The effect of International Shoe in this 

area is still to be discerned. 

The reasoning of the Pennoyer 896 rule, that seizure of property 

and publication was sufficient to give notice to nonresidents or absent defendants, has also been applied in proceedings for the forfeiture of abandoned property. If all known claimants were personally served and all claimants who were unknown or nonresident 

AMENDMENT 14—RIGHTS GUARANTEED 1833

897 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). 898 339 U.S. 306 (1950). 899 A related question is which state has the authority to escheat a coporate 

debt. See Western Union Tel. Co. v. Pennsylvania, 368 U.S. 71 (1961); Texas v. New 

Jersey, 379 U.S. 674 (1965). Where a state seeks to escheat intangible corporate 

property such as uncollected debt, the Court found that the multiplicity of States 

with a possible interest made a ‘‘contacts’’ test unworkable. Citing ease of administration rather than logic or jurisdiction, the Court held that the authority to take 

the uncollected claims against a corporation by escheat would be based on whether 

the last known address on the company’s books for the each creditor was in a particular State. 900 ‘‘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.’’ Mullane v. Central Hanover 

Bank & Trust Co., 339 U.S. 306, 314 (1950). ‘‘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). 901McDonald v. Mabee, 243 U.S. 90, 92 (1971). 902Greene v. Lindsey, 456 U.S. 444, 449 (1982) See Dusenbery v. United States, 

534 U.S. 161 (2001) (upholding a notice of forfeiture which was delivered by certified 

mail to the mail-room of a prison where the individual to be served was incarcerated).

were given constructive notice by publication, judgments in these 

proceedings were held binding on all. 897 But in Mullane v. Central 

Hanover Bank & Trust Co., 898 the Court, while declining to characterize the proceeding as in rem or in personam, held that a bank 

managing a common trust fund in favor of nonresident as well as 

resident beneficiaries could not obtain a judicial settlement of accounts if the only notice was publication in a local paper. While 

such notice by publication was sufficient as to beneficiaries whose 

interests or addresses were unknown to the bank, the Court held 

it was feasible to make serious efforts to notify residents and nonresidents whose whereabouts were known, such as by mailing notice to the addresses on record with the bank. 899

Notice: Service of Process.—It is not enough that a State be 

potentially capable of exercising control over persons and property. 

Before a State can legitimately exercise such power, its jurisdiction 

must be perfected by an appropriate service of process which is effective to notify all parties of proceedings which may affect their 

rights. 900 Personal service guarantees actual notice of the pendency 

of a legal action, and has traditionally been deemed necessary in 

actions styled in personam. 901 But less rigorous notice procedures 

have been accepted, in light of history and of the practical obstacles 

to providing personal service in every instance, although these procedures do not carry with them the same certainty of actual notice 

as does personal service. 902 But, whether the action be in rem or

in personam, there is a constitutional minimum; if it be shown that 

1834 AMENDMENT 14—RIGHTS GUARANTEED 

903 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). 904 E.g., McGee v. International Life Ins. Co., 355 U.S. 220 (1957); Travelers 

Health Ass’n ex rel. State Corp. Comm’n, 339 U.S. 643 (1950). 905See, 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). 906Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). 907 E.g., Watson v. Employers Liability Assurance Corp., 348 U.S. 66 (1954) (authorizing direct action against insurance carrier rather than against the insured). 908 Holmes v. Conway, 241 U.S. 624, 631 (1916); Louisville & Nashville R.R. v. 

Schmidt, 177 U.S. 230, 236 (1900). 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.’’ 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). The 

the mode of notice used was not reasonably calculated to provide 

the necessary information, its age and history will not sustain it. 903

The use of mail to convey notice, for instance, has become quite 

established, 904 especially for assertion of in personam jurisdiction

extraterritorially upon individuals and corporations having ‘‘minimum contacts’’ with a forum State, where various ‘‘long-arm’’ statutes authorize notice by mail. 905 Or, in a class action, due process 

is satisfied by mail notification of out-of-state class members, giving such members the opportunity to ‘‘opt out’’ but with no requirement that inclusion in the class be contingent upon affirmative response. 906 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. 907

Power of the States to Regulate Procedure 

Generally.—As long as a party has been given sufficient notice and an opportunity to defend his interest, the due process 

clause of the Fourteenth Amendment does not generally mandate 

the particular forms of procedure to be used in state courts. 908 The

AMENDMENT 14—RIGHTS GUARANTEED 1835

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). 909 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). 

910 Cincinnati Street Ry. v. Snell, 193 U.S. 30, 36 (1904). 911Some recent decisions, however, have imposed some restrictions on state procedures that require substantial reorientation of process. While this is more generally true in the context of criminal cases, in which the appellate process and postconviction 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, 405 U.S. at 64–69. 912Ownbey 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). 913 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. 

States may regulate the manner in which rights may be enforced 

and wrongs remedied, 909 and may create courts and endow them 

with such jurisdiction as, in the judgment of their legislatures, 

seems appropriate. 910 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 ordinarily do not implicate the Fourteenth Amendment. The function of the Fourteenth 

Amendment is negative rather than affirmative 911 and in no way 

obligates the States to adopt specific measures of reform. 912

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. 913 But, foreclosure of all access to 

the courts, 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. Thus, where a State has monopolized the avenues of settleVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00165 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1836 AMENDMENT 14—RIGHTS GUARANTEED 

914 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). 915 Young Co. v. McNeal-Edwards Co., 283 U.S. 398 (1931); Adam v. Saenger, 

303 U.S. 59 (1938). 916 Jones v. Union Guano Co., 264 U.S. 171 (1924). 917Sawyer v. Piper, 189 U.S. 154 (1903). 918Grant Timber & Mfg. Co. v. Gray, 236 U.S. 133 (1915) 919Lindsey 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).. 920 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

ment of disputes between persons by prescribing judicial resolution, 

and where the dispute involves a fundamental interest, such as 

marriage and its dissolution, the State may not deny access to 

those persons unable to pay its fees. 914

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. 915 For similar reasons, a requirement of the performance of 

a chemical analysis as a condition precedent to a suit to recover for 

damages resulting to crops from allegedly deficient fertilizers, while 

allowing other evidence, is not deemed to be arbitrary or unreasonable. 916

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. 917

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. 918 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. 919 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. 920 Similarly, a nonresident deVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00166 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 1837

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). 921Ownbey v. Morgan, 256 U.S. 94 (1921). 922 Ballard v. Hunter, 204 U.S. 241, 259 (1907). 923Missouri, Kansas & Texas Ry. v. Cade, 233 U.S. 642, 650 (1914). 924Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305 (1985) (limitation of attorneys’ fees to $10 in veterans benefit proceedings does not violate claimants’ Fifth Amendment due process rights absent a showing of probability of error 

in the proceedings that presence of attorneys would sharply diminish). See also 

United States Dep’t of Labor v. Triplett, 494 U.S. 715 (1990) (upholding regulations 

under the Black Lung Benefits Act prohibiting contractual fee arrangements). 925Lowe 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). 926 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). 

fendant 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. 921

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. 922 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. 923 Congress

may, however, severely restrict attorney’s fees in an effort to keep 

an administrative claims proceeding informal. 924

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. 925 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. 926

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 

money shall, notwithstanding that he has made restitution, suffer 

1838 AMENDMENT 14—RIGHTS GUARANTEED 

927 Coffey v. Harlan County, 204 U.S. 659, 663, 665 (1907). 928 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). 929Pizitz Co. v. Yeldell, 274 U.S. 112, 114 (1927). 930Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991). 931Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 (1991) (finding sufficient constraints on jury discretion in jury instructions and in post-verdict review). See

also Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) (striking down a provision of 

the Oregon Constitution limiting judicial review of the amount of punitive damages 

awarded by a jury). 932 BMW v. Gore, 517 U.S. 559 (1996) (holding that a $2 million judgement for 

failing to disclose to a purchaser that a ‘‘new’’ car had been repainted was ‘‘grossly 

excessive’’ in relation to the state’s interest, as only a few of the 983 similarly repainted cars had been sold in that same state). But see TXO Corp. v. Alliance Resources, 509 U.S. 443 (1993) (punitive damages of $10 million for slander of title 

does not violate the Due Process Clause even though the jury awarded actual damages of only $19,000). 933 BMW v. Gore, 517 U.S. at 574–75 (1996) 

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. 927 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. 928

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, 929 and may 

also allow punitive damages for fraud perpetrated by employees. 930

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. 931 The Court has indicated, however, that 

the amount of punitive damages are limited to those reasonably 

necessary to vindicate a state’s interest in deterring unlawful conduct. 932 These limits may be discerned by a court by examining the 

degree of reprehensibility of the act, the ratio between the punitive 

award and plaintiff’s actual or potential harm, and the legislative 

sanctions provided for comparable misconduct. 933

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 

AMENDMENT 14—RIGHTS GUARANTEED 1839

934Wheeler 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). 935 Blinn v. Nelson, 222 U.S. 1 (1911). 936Turner v. New York, 168 U.S. 90, 94 (1897). 937Soper 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. 938Mattson v. Department of Labor, 293 U.S. 151, 154 (1934). 

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. 934

Thus, where a receiver for property is appointed 13 years after 

the disappearanceof the owner and notice is made by publication, 

it is not a violation of due process to bar actions relative to that 

property after an interval of only one year after such appointment. 935 When a State, by law, suddenly prohibits all actions to 

contest tax deeds which have been of record for two years unless 

they are brought within six months after its passage, no unconstitutional deprivation is effected. 936 No less valid is a statute which 

provides that when a person has been in possession of wild lands 

under a recorded deed continuously for 20 years and had paid taxes 

thereon during the same, and the former owner in that interval 

pays 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 provision. 937 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. 938

Moreover, 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. Thus, 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 . . . [is not] 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 

1840 AMENDMENT 14—RIGHTS GUARANTEED 

939 Campbell v. Holt, 115 U.S. 620, 623, 628 (1885). 940 Chase Securities Corp. v. Donaldson, 325 U.S. 304 (1945). 941Gange Lumber Co. v. Rowley, 326 U.S. 295 (1945). 942 Campbell v. Holt, 115 U.S. 620, 623 (1885). See also Stewart v. Keyes, 295 

U.S. 403, 417 (1935). 943 Home Ins. Co. v. Dick, 281 U.S. 397, 398 (1930). 944 Hawkins v. Bleakly, 243 U.S. 210, 214 (1917); James-Dickinson Co. v. Harry, 

273 U.S. 119, 124 (1927). Congress’ power to provide rules of evidence and standards of proof in the federal courts stems from its power to create such courts. Vance 

v. Terrazas, 444 U.S. 252, 264–67 (1980); Usery v. Turner Elkhorn Mining Co., 428 

U.S. 1, 31 (1976). In the absence of congressional guidance, the Court has determined the evidentiary standard in certain statutory actions. Nishikawa v. Dulles, 

356 U.S. 129 (1958); Woodby v. INS, 385 U.S. 276 (1966). 945 Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 

U.S. 358, 370 (1970) (Justice Harlan concurring)). 946Mathews v. Eldridge, 424 U.S. 319 (1976). 

child for the use of her property, 939 or a suit to recover the purchase price of securities sold in violation of a Blue Sky Law, 940 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. 941

However, for 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. 942 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. 943

Burden of Proof and Presumptions.—It is clearly within 

the domain of the legislative branch of government to establish presumptions and rules respecting burden of proof in litigation. 944

Nonetheless, the Due Process Clause does prevent the deprivation 

of liberty or property upon application of 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.’’’ 945

Applying the formula it has worked out for determining what 

process is due in a particular situation, 946 the Court has held that 

a standard at least as stringent as clear and convincing evidence 

AMENDMENT 14—RIGHTS GUARANTEED 1841

947 Addington v. Texas, 441 U.S. 418 (1979). 948Santosky 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). 949Stanley 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 950Presumptions 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). 951Presumptions 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). 952The approach was not unprecedented, some older cases having voided tax 

legislation that presumed conclusively an ultimate fact. Schlesinger v. Wisconsin, 

is required in a civil proceeding to commit an individual involuntarily to a state mental hospital for an indefinite period. 947 Similarly, 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 that the parents are unfit by 

clear and convincing evidence. 948 Further, unfitness of a parent 

may not simply be presumed because of some purported assumption about general characteristics, but must be established. 949

As long as a presumption is not unreasonable and is not conclusive, it does not violate the Due Process Clause. Legislative fiat 

may not take the place of fact in the determination of issues involving life, liberty, or property, however, 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. 950 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. 951

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 based on presumed 

characteristics based on the existence of another characteristic. 952

1842 AMENDMENT 14—RIGHTS GUARANTEED 

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). 953 405 U.S. 645 (1972). 954 Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974). 955 Vlandis v. Kline, 412 U.S. 441 (1973). 956Department of Agriculture v. Murry, 413 U.S. 508 (1973). 

Thus, in Stanley v. Illinois, 953 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 requiring pregnant 

teachers to take unpaid maternity leave at a set time 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. 954

Major controversy developed over the application of 

‘‘irrebuttable presumption 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 

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. 955

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. 956

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 

AMENDMENT 14—RIGHTS GUARANTEED 1843

957Thus, 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). 958 422 U.S. 749 (1975). 959Stanley and LaFleur were distinguished as involving fundamental rights of 

family and childbearing, 422 U.S. 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). 960 422 U.S. 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). 961Weinberger v. Salfi, 422 U.S. 749, 772 (1975). 962 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). 963 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, 

validity of certain classifications, 957 and it precluded Congress and 

legislatures from making general classifications that avoided the 

administrative costs of individualization in many areas. 

Utilization of the doctrine was curbed if not halted, however, 

in Weinberger v. Salfi, 958 in which the Court upheld the validity of 

a Social Security provision requiring that the spouse of a covered 

wage earner must have been married to the wage earner for at 

least nine months prior to his death in order to receive benefits as 

a spouse. Purporting to approve but to distinguish the prior cases 

in the line, 959 the Court imported traditional equal protection analysis into considerations of due process challenges to statutory classifications. 960 Extensions of the prior cases to government entitlement classifications, such as the Social Security Act qualification 

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.’’ 961 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) 962 orwhether 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. 963

1844 AMENDMENT 14—RIGHTS GUARANTEED 

284–85 (1979) (Congress must fix general categorization; case-by-case determination 

would be prohibitively costly). 964Walker v. Sauvinet, 92 U.S. 90 (1876); New York Central R.R. v. White, 243 

U.S. 188, 208 (1917). 965Marvin v. Trout, 199 U.S. 212, 226 (1905). 966 In re Delgado, 140 U.S. 586, 588 (1891). 967Wilson v. North Carolina, 169 U.S. 586 (1898); Foster v. Kansas, 112 U.S. 

201, 206 (1884). 968Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 694 (1897). 969Montana Co. v. St. Louis M. & M. Co., 152 U.S. 160, 171 (1894). 970See Jordan v. Massachusetts, 225 U.S. 167, 176 (1912). 971See Maxwell v. Dow, 176 U.S. 581, 602 (1900). 972Lindsey v. Normet, 405 U.S. 56, 77 (1972) (citing cases). 973 405 U.S. 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). 974See analysis under the Bill of Rights, ‘‘Fourteenth Amendment,’’ supra. 

Trials and Appeals.—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. 964 Thus, abolition 

of juries in proceedings to enforce liens, 965 mandamus 966 and quo 

warranto 967 actions, and in eminent domain 968 and equity 969 proceedings has been approved. States are also 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, 970 and petit juries containing eight rather than the 

conventional number of twelve members may be established. 971

If a full and fair trial on the merits is provided, due process 

does not require a State to provide appellate review. 972 But if an 

appeal is afforded, the State must not so structure it as to arbitrarily deny to some persons the right or privilege available to others. 973

PROCEDURAL DUE PROCESS—CRIMINAL 

Generally: The Principle of Fundamental Fairness 

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—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 under the Fourteenth Amendment. 974 Further, the Court 

has held that the due process clause protects against practices and 

AMENDMENT 14—RIGHTS GUARANTEED 1845

975For instance, 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) (defendant 

may not be denied opportunity to explore confession of third party to crime for 

which defendant is charged); Wardius v. Oregon, 412 U.S. 470 (1973) (defendant 

may not be held to rule requiring disclosure to prosecution of an alibi defense unless 

defendant is given reciprocal discovery rights against the state).; Mullaney v. Wilbur, 421 U.S. 684 (1975) (defendant may not be required to carry the burden of disproving an element of a crime for which he is charged).; Estelle v. Williams, 425 

U.S. 501 (1976) (a State cannot compel an accused to stand trial before a jury while 

dressed in identifiable prison clothes); Henderson v. Kibbe, 431 U.S. 145 (1977) (sufficiency of jury instructions); Patterson v. New York, 432 U.S. 197 (1977) (defendant 

may be required to bear burden of affirmative defense); Taylor v. Kentucky, 436 

U.S. 478 (1978) (requiring, upon defense request, jury instruction on presumption 

of innocence); Kentucky v. Whorton, 441 U.S. 786 (1979) (fairness of failure to give 

jury instruction on presumption of innocence evaluated under totality of circumstances) ; Sandstrom v. Montana, 442 U.S. 510 (1979) (conclusive presumptions 

in jury instruction may not be used to shift burden of proof of an element of crime 

to defendant); Hicks v. Oklahoma, 447 U.S. 343 (1980) (where sentencing enhancement scheme for habitual offenders found unconstitutional, defendant’s sentence 

cannot be sustained, even if sentence falls within range of unenhanced sentences). 976 Justice Black thought the Fourteenth Amendment should be limited to the 

specific guarantees found in the Bill of Rights. See, e.g., In re Winship, 397 U.S. 

358, 377 (1970) (dissenting). For Justice Harlan’s response, see id. at 372 n.5 (concurring). 977Twining v. New Jersey, 211 U.S. 78, 106 (1908). The question is phrased as 

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,’’ Palko v. Connecticut, 

302 U.S. 319, 325 (1937), or whether it ‘‘offend[s] 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,’’ Rochin v. California, 342 U.S. 165, 

169 (1952). 

policies which violate precepts of fundamental fairness, 975 even if 

they do not violate specific guarantees of the Bill of Rights. 976 The

standard query in such cases is whether the challenged practice or 

policy violates ‘‘a fundamental principle of liberty and justice which 

inheres in the very idea of a free government and is the inalienable 

right of a citizen of such government.’’ 977

This inquiry contains a historical component, as ‘‘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 

1846 AMENDMENT 14—RIGHTS GUARANTEED 

978Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968). 979 Hurtado v. California, 110 U.S. 516 (1884). The Court has also rejected an 

argument that due process requires that criminal prosecutions go forward only on 

a showing of probable cause. Albright v. Oliver, 510 U.S. 266 (1994) (holding that 

there is no civil rights action based on the Fourteenth Amendment for arrest and 

imposition of bond without probable cause). 980Smith 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 voided). 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). 981See Sixth Amendment, Notice of Accusation, supra. 982 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). On prejudicial publicity, 

see Beck v. Washington, 369 U.S. 541 (1962). 

983 Cantwell v. Connecticut, 310 U.S. 296, 308 (1940). 984Musser v. Utah, 333 U.S. 95, 97 (1948). ‘‘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.’’ Id. at 97. ‘‘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 

context of the criminal processes maintained by the American 

States.’’ 978

The Elements of Due Process 

Initiation of the Prosecution.—Indictment by a grand jury 

is not a requirement of due process; a State may proceed instead 

by information. 979 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, 980 even aside 

from the notice requirements of the Sixth Amendment. 981 Where,

of course, a grand jury is utilized, it must be fairly constituted and 

free from prejudicial influences. 982

Clarity in Criminal Statutes: The Void-for-Vagueness 

Doctrine.—Criminal statutes which lack sufficient definiteness or 

specificity are commonly held ‘‘void for vagueness.’’ 983 Such 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.’’ 984

AMENDMENT 14—RIGHTS GUARANTEED 1847

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). 985Winters v. New York, 333 U.S. 507, 515–16 (1948). ‘‘The vagueness may be 

from uncertainty in regard to persons within the scope of the act . . . or in regard 

to the applicable test to ascertain guilt.’’ Id. Cf. Colten v. Kentucky, 407 U.S. 104, 

110 (1972). Thus, 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.’’ Connally v. General Construction Co., 269 U.S. 385 

(1926). 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. Giaccio v. Pennsylvania, 382 

U.S. 399 (1966). 986Lanzetta v. New Jersey, 306 U.S. 451 (1939); Edelman v. California, 344 U.S. 

357 (1953). 987Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Smith v. Goguen, 

415 U.S. 566 (1974). Generally, a vague statute that regulates in the area of First 

Amendment guarantees will be pronounced wholly void. Winters v. New York, 333 

U.S. 507, 509–10 (1948); Thornhill v. Alabama, 310 U.S. 88 (1940). 988 405 U.S. 156 (1972). 

‘Men of common intelligence cannot be required to guess at the 

meaning of [an] enactment.’ 985

For instance, the Court voided for vagueness a criminal statute 

providing that a person was a ‘‘gangster’’ and subject to fine or imprisonment if he was without lawful employment, had been either 

convicted at least three times for disorderly conduct or had been 

convicted of any other crime, and was ‘‘known to be a member of 

a gang of two or more persons.’’ The Court observed that neither 

common law nor the statute gave the words ‘‘gang’’ or ‘‘gangster’’ 

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, and the Court refused to allow specification of details in the 

particular indictment to save it because it was the statute, not the 

indictment, that prescribed the rules to govern conduct. 986

A statute may be so vague or so threatening to constitutionally-protected activity that it can be pronounced wholly unconstitutional; in other words, it is ‘‘unconstitutional on its face.’’ 987

Thus, for instance, a unanimous Court in Papachristou v. City of 

Jacksonville 988 struck down as invalid on its face a vagrancy 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 freVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00177 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1848 AMENDMENT 14—RIGHTS GUARANTEED 

989 405 U.S. at 156 n.1. Similar concerns regarding vagrancy laws had been expressed previously. See, 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). 990Similarly, 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 found impermissibly vague and void on its face because it encroached on the freedom of assembly. Coates v. City of Cincinnati, 402 U.S. 611 

(1971). See Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) (conviction 

under statute imposing penalty for failure to ‘‘move on’’ voided); Bouie v. City of Columbia, 378 U.S. 347 (1964) (conviction on trespass charges arising out of a sit-in 

at a drugstore lunch counter voided 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); 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). 991Where the terms of a vague statute do not threaten a constitutionally protected right, and where the conduct at issue in a particular case is clearly proscribed, then a due process challenge is unlikely to be successful. Where the conduct 

in question is at the margins of the meaning of an unclear statute, however, it will 

be struck down as applied. E.g., United States v. National Dairy Corp., 372 U.S. 

29 (1963). 992Palmer v. City of Euclid, 402 U.S. 544 (1971); Village of Hoffman Estates v. 

The Flipside, 455 U.S. 489, 494–95 (1982). 993 402 U.S. 544 (1971). 

quenting 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 . . 

. .’’ 989 The ordinance was found to be facially invalid, according to 

Justice Douglas for the Court, because it did not give fair notice, 

it did not require specific intent to commit an unlawful act, it permitted and encouraged arbitrary and erratic arrests and convictions, it committed too much discretion to policemen, and it 

criminalized activities which by modern standards are normally innocent. 990

On the other hand, some less vague statutes may be held unconstitutional only in application to the defendant before the 

Court. 991 For instance, where the terms of a statute could be applied both to innocent or protected conduct (such as free speech) 

and unprotected conduct, but the valuable effects of the law outweigh its potential general harm, such a statute will be held unconstitutional only as applied. 992 Thus, in Palmer v. City of Euclid, 993

an ordinance punishing ‘‘suspicious persons’’ defined as ‘‘[a]ny person who wanders about the streets or other public ways or who is 

found abroad at late or unusual hours in the night without any 

visible or lawful business and who does not give satisfactory account of himself’’ was found void only as applied to a particular defendant. In Palmer, the Court found that the defendant, having 

dropped off a passenger and begun talking into a two-way radio, 

AMENDMENT 14—RIGHTS GUARANTEED 1849

994Kolender v. Lawson, 461 U.S. 352, 358 (1983). 995 City of Chicago v. Morales, 527 U.S. 41 (1998). 996 527 U.S. at 62. 997 Colten v. Kentucky, 407 U.S. 104 (1972). 998Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270 (1940). 

was engaging in conduct which could not reasonably be anticipated 

as fitting within the ‘‘without any visible or lawful business’’ portion of the ordinance’s definition. 

Loitering statutes which are triggered by failure to obey a police dispersal order are suspect, and may be struck down if they 

leave a police officer absolute discretion to give such orders. 994

Thus, a Chicago ordinance which required police to disperse all 

persons in the company of ‘‘criminal street gang members’’ while in 

a public place with ‘‘no apparent purpose,’’ failed to meet the ‘‘requirement that a legislature establish minimal guidelines to govern 

law enforcement.’’ 995 The Court noted that ‘‘no apparent purpose’’ 

is inherently subjective because its application depends on whether 

some purpose is ‘‘apparent’’ to the officer, who would presumably 

have the discretion to ignore such apparent purposes as engaging 

in idle conversation or enjoying the evening air. 996 On the other 

hand, where such a statute additionally required a finding that the 

defendant was intent on causing inconvenience, annoyance, or 

alarm, it was upheld against facial challenge, at least as applied 

to a defendant who was interfering with the ticketing of a car by 

the police. 997

Statutes with vague standards may nonetheless be upheld if 

the text of statute is interpreted by a court with sufficient clarity. 

Thus, the civil commitment of persons of ‘‘such conditions of emotional instability . . . as to render such person irresponsible for his 

conduct with respect to sexual matters and thereby dangerous to 

other persons’’ was upheld by the Court, based on a state court’s 

construction of the statute as only applying to 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. 998

Conceptually related to the problem of definiteness in criminal 

statutes is the problem of notice. Ordinarily, it can be said that ignorance of the law affords no excuse, or, in other instances, that 

the nature of the subject matter or conduct may be sufficient to 

1850 AMENDMENT 14—RIGHTS GUARANTEED 

999 E.g., United States v. Freed, 401 U.S. 601 (1971). Persons may be bound by 

a novel application of a statute, not supported by Supreme Court or other ‘‘fundamentally similar’’ case precedent, so long as the court can find that, under the 

circumstance, ‘‘unlawfulness . . . is apparent’’ to the defendant. United States v. Lanier, 520 U.S. 259, 271–72 (1997). 

1000 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). The Court have even done so when the statute did not 

explictly include such a mens rea requirement. E.g., Morissette v. United States, 342 

U.S. 246 (1952). 

1001See, e.g. Lambert v. California, 355 U.S. 225 (1957) (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.). In Lambert, the 

Court emphasized that the act of being in the city was not itself blameworthy, 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.’’ 

Id. at 228, 229-30. 

1002 532 U.S. 451 (2001). 

1003 Bouie v. City of Columbia, 378 U.S. 347, 354 (1964). 

alert one that there are laws which must be observed. 999 On occasion the Court has even approved otherwise vague statutes because 

the statute forbade only ‘‘willful’’ violations, which the Court construed as requiring knowledge of the illegal nature of the proscribed conduct. 1000 Where conduct is not in and of itself blameworthy, however, a criminal statute may not impose a legal duty 

without notice. 1001

The question of notice has also arisen in the context of 

‘‘judge-made’’ law. While the Ex Post Facto Clauses forbids retroactive application of state and federal criminal laws, no such explicit restriction applies to the courts. Thus, when a state court abrogated the common law rule that a victim must die within a ‘‘year 

and a day’’ in order for homicide charges to be brought in Rogers

v. Tennessee, 1002 the question arose whether such rule could be applied to acts occurring before the court’s decision. The dissent argued vigorously that unlike the traditional common law practice of 

adapting legal principles to fit new fact situations, the court’s decision was an outright reversal of existing law. Under this reasoning, 

the new ‘‘law’’ could not be applied retrospectively. The majority 

held, however, that only those holdings which were ‘‘unexpected 

and indefensible by reference to the law which had been express 

prior to the conduct in issue’’ 1003 could not be applied retroactively. 

The relatively archaic nature of ‘‘year and a day rule’’, its abandonment by most jurisdictions, and its inapplicability to modern times 

AMENDMENT 14—RIGHTS GUARANTEED 1851

1004Some of that difficulty may be alleviated through electronic and other surveillance, which is covered by the search and seizure provisions of the Fourth 

Amendment, or informers may be utilized, which also has constitutional implications.1005For instance, in Sorrells v. United States, 287 U.S. 435, 446–49 (1932) and 

Sherman v. United States, 356 U.S. 369, 380 (1958) government agents solicited defendants to engage in the illegal activity, in United States v. Russell, 411 U.S. 423, 

490 (1973) the agents supplied a commonly available ingredient, and in Hampton 

v. United States, 425 U.S. 484, 488–89 (1976) the agents supplied an essential and 

difficult to obtain ingredient. 1006For instance, this strategy was seen in the ‘‘Abscam’’ congressional bribery 

controversy. The defense of entrapment was rejected as to all the ‘‘Abscam’’ defendants. E.g., United States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983); United States v. 

Williams, 705 F.2d 603 (2d Cir. 1983); United States v. Jannotti, 673 F.2d 578 (3d 

Cir.), cert. denied, 457 U.S. 1106 (1982). 1007For 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 Court’s first discussion of the issue was 

based on statutory grounds, see 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). In Sherman v. United States, 356 U.S. 369, 380 

(1958) (concurring), however, Justice Frankfurter based his opinion on the supervisory powers of the courts. But, utilization of that power was rejected in United 

States v. Russell, 411 U.S. 423, 490 (1973), and by the plurality in Hampton, 425 

U.S. at 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, on the other hand, 411 

U.S. 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. 411 U.S. at 495 (Justices Brennan, 

Stewart, and Marshall); Russell, 411 U.S. at 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) (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, 503 U.S. 

were all cited as reasons that the defendant had fair warning of 

the possible abrogation of the common law rule. 

Entrapment.—Certain criminal offenses, because they are 

consensual actions taken between and among willing parties, 

present police with difficult investigative problems. 1004 Thus, in 

order to deter such criminal behavior, police agents may ‘‘encourage’’ persons to engage in criminal behavior, such as selling narcotics or contraband, 1005 or they may may seek to test the integrity 

of public employees, officers or public officials by offering them 

bribes. 1006 In such cases, an ‘‘entrapment’’ defense is often made, 

though it is unclear whether the basis for the defense is the due 

process clause, the supervisory authority of the federal courts to 

deter wrongful police conduct, or merely statutory construction (interpreting criminal laws to find that the legislature would not have 

intended to punish conduct induced by police agents). 1007

1852 AMENDMENT 14—RIGHTS GUARANTEED 

540 (1992) (invalidating a conviction under the Child Protection Act of 1984 because 

government solicitation induced the defendant to purchase child pornography). 1008 An ‘‘objective approach,’’ while rejected by the Supreme Court, has been advocated by some Justices and recommended for codification by Congress and the 

state legislatures. See American Law Institute, MODEL PENAL CODE § 2.13 (Official 

Draft, 1962); NATIONAL COMMISSION ON REFORM OF FEDERAL CRIMINAL LAWS, A 

PROPOSED NEW FEDERAL CRIMINAL CODE § 702(2) (Final Draft, 1971). 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 would be available. Sorrells v. United States, 287 U.S. 435, 

458–59 (1932) (separate opinion of Justice Roberts); Sherman v. United States, 356 

U.S. 369, 383 (1958) (Justice Frankfurter concurring); United States v. Russell, 411 

U.S. 423, 441 (1973) (Justice Stewart dissenting); Hampton v. United States, 425 

U.S. 484, 496–97 (1976) (Justice Brennan dissenting). 1009 Jacobson v. United States, 503 U.S. 540, 548-49 (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. 1010Sorrells v. United States, 287 U.S. 435, 451–52 (1932); Sherman v. United 

States, 356 U.S. 369, 376–78 (1958); Masciale v. United States, 356 U.S. 386, 388 

(1958); United States v. Russell, 411 U.S. 423, 432–36 (1973); Hampton v. United 

States, 425 U.S. 484, 488–489 (1976) (plurality opinion), and id. at 491 (Justices 

Powell and Blackmun concurring). 1011 Jacobson v. United States, 503 U.S. 540, 553-54 (1992) (pre-indictment); Stovall v. Denno, 388 U.S. 293 (1967) (post-arrest) . 1012Kirby v. Illinois, 406 U.S. 682 (1972). 1013 United States v. Ash, 413 U.S. 300 (1973). 

The Court has employed the so-called ‘‘subjective approach’’ in 

evaluating the defense of entrapment. 1008 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.’’ 1009 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. 1010 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.’’ 1011

Criminal Identification Process.—The use by police of procedures seeking to identify the perpetrators of crimes—by lineups, 

showups, photographic displays, and the like—can raise due process problems. When police use lineups or showups 1012 and other 

identification processes at which the defendant is not present, 1013

AMENDMENT 14—RIGHTS GUARANTEED 1853

1014 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). 1015 Neil v. Biggers, 409 U.S. 188, 198 (1972). 1016Manson v. Brathwaite, 432 U.S. 98, 107–14 (1977). 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). In Manson, the Court evaluated 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. 

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). 1017Snyder v. Massachusetts, 291 U.S. 97, 116, 117 (1934). See also Buchalter

v. New York, 319 U.S. 427, 429 (1943). 1018Lisenba v. California, 314 U.S. 219, 236 (1941). 

the admissibility of a subsequent in-court identification or of testimony about an out-of-court identification is whether there is ‘‘a 

very substantial likelihood of misidentification,’’ and that question 

must be determined ‘‘on the totality of the circumstances.’’ 1014

‘‘Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased 

chance of misidentification is gratuitous.’’ 1015 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. 1016

Fair Trial.—As noted, 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.’’ 1017 Conversely, ‘‘as applied to a criminal 

trial, denial of due 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.’’ 1018

1854 AMENDMENT 14—RIGHTS GUARANTEED 

1019 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). 1020Mayberry v. Pennsylvania, 400 U.S. 455 (1971) ( . . . it is generally wise 

where the marks of unseemly conduct have left persons stings [for a judge] to ask 

a fellow judge to take his place); Taylor v. Hayes, 418 U.S. 488, 503 (1974) (where 

‘‘marked personal feelings were present on both sides,’’ a different judge should preside over a contempt hearing). But see Ungar v. Sarafite, 376 U.S. 575 (1964) (‘‘[w]e 

cannot assume that judges are so irascible and sensitive that they cannot fairly and 

impartially deal with resistance to authority’’). 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). 1021Ordinarily 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. 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). But, 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. 

Mu’Min v. Virginia, 500 U.S. 415 (1991). Nor is it a denial of due process for the 

prosecution, after a finding of guilt, to call the jury’s attention to the defendant’s 

prior criminal record, if the jury has been given a sentencing function to increase 

the sentence which would otherwise be given under a recidivist statute. Spencer v. 

Texas, 385 U.S. 554 (1967). For discussion of the requirements of jury impartiality 

about capital punishment, see discussion under Sixth Amendment, supra. 1022Frank v. Mangum, 237 U.S. 309 (1915); Moore v. Dempsey, 261 U.S. 86 

(1923).

For instance, 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 1019 it was held to violate due process for a judge to receive, in addition to his salary, the 

costs imposed on a convicted defendant, the judge in this case also 

being a mayor of the municipality which received part of the money 

collected in fines. Or, in other cases, the Court has found that contemptuous behavior in court may affect the impartiality of the presiding judge, so as to disqualify such judge from citing and sentencing the contemnors. 1020 Due process is also violated by the participation of a biased or otherwise partial juror, although there is 

no presumption that all jurors with a potential bias are in fact 

prejudiced. 1021

Public hostility toward a defendant which intimidates a jury is, 

or course, a classic due process violation. 1022 More recently, concern 

with the impact of prejudicial publicity upon jurors and potential 

jurors has caused the Court to instruct trial courts that they 

AMENDMENT 14—RIGHTS GUARANTEED 1855

1023Sheppard 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). 1024 Initially, 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. Estes v. 

Texas, 381 U.S. 532 (1965). 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. Chandler v. Florida, 449 U.S. 560 (1981). The decision was 

unanimous but Justices Stewart and White concurred on the basis that Estes had 

established a per se constitutional rule which had to be overruled, id. at 583, 586, 

contrary to the Court’s position. Id. at 570–74. 1025For instance, the presumption of innocence has been central to a number 

of Supreme Court cases. Thus, 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, even though the burden on the defendant is heavy 

to show that an erroneous instruction or the failure to give a requested instruction 

tainted his conviction. 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), (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 skeletal instructions on burden of 

proof combined with the prosecutor’s remarks in his opening and closing statements 

inviting the jury to consider the defendant’s prior record and his indictment in the 

present case as indicating guilt. See also Sandstrom v. Montana, 442 U.S. 510 

(1979) (instructing jury trying person charged with ‘‘purposely or knowingly’’ causing victim’s death that ‘‘law presumes that a person intends the ordinary consequences of his voluntary acts’’ denied due process because jury could have treated 

the presumption as conclusive or as shifting burden of persuasion and in either 

event State would not have carried its burden of proving guilt). And see Cupp v. 

Naughten, 414 U.S. 141 (1973); Henderson v. Kibbe, 431 U.S. 145, 154–55 (1973). 

For other cases applying Sandstrom, see Francis v. Franklin, 471 U.S. 307 (1985) 

(contradictory but ambiguous instruction not clearly explaining state’s burden of 

persuasion on intent does not erase Sandstrom error in earlier part of charge); Rose 

v. Clark, 478 U.S. 570 (1986) (Sandstrom error can in some circumstances constitute 

harmless error under principles of Chapman v. California, 386 U.S. 18 (1967)). Similarly, improper arguments by a prosecutor do not necessarily constitute ‘‘plain 

error,’’ and a reviewing court may consider in the context of the entire record of the 

trial the trial court’s failure to redress such error in the absence of contemporaneous 

objection. United States v. Young, 470 U.S. 1 (1985). 

should be vigilant to guard against such prejudice and to curb both 

the publicity and the jury’s exposure to it. 1023 For instance, the impact of televising trials on a jury has been a source of some concern. 1024

The fairness of a particular rule of procedure may also be the 

basis for due process claims, but such decisions need to be made 

based on the totality of the circumstance surrounding such procedures. 1025 For instance, a court may not restrict the basic due process right to testify in one’s own defense by automatically excluding 

1856 AMENDMENT 14—RIGHTS GUARANTEED 

1026 Rock v. Arkansas, 483 U.S. 44 (1987). 1027Wardius v. Oregon, 412 U.S. 470 (1973). 1028 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). 1029The defendant called the witness because the prosecution would not. 1030 Chambers v. Mississippi, 410 U.S. 284 (1973). See also Davis v. Alaska, 415 

U.S. 308 (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). But see Montana v. Egelhoff, 518 U.S. 37 (1996) 

(state may bar defendant from introducing evidence of intoxication to prove lack of 

mens rea). 1031 North v. Russell, 427 U.S. 328 (1976). 

all hypnotically refreshed testimony. 1026 Or, while a State may require a defendant to give pretrial notice of an intention to rely on 

an alibi defense and to furnish the names of supporting witnesses, 

due process requires reciprocal discovery in such circumstances, necessitating that the State give defendant pretrial notice of its rebuttal evidence on the alibi issue. 1027 Due process is also violated 

when the accused is compelled to stand trial before a jury while 

dressed in identifiable prison clothes, because it may impair the 

presumption of innocence in the minds of the jurors. 1028

The combination of otherwise acceptable rules of criminal 

trials may in some instances deny a defendant due process. Thus, 

based on the particular circumstance of a case, two rules that (1) 

denied defendant the right to cross-examine his own witness in 

order to elicit evidence exculpatory to defendant 1029 and (2) 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, denied defendant his constitutional right to present his 

own defense in a meaningful way. 1030 Similarly, a questionable 

procedure may be saved by its combination with another. Thus, it 

does not deny a defendant due process to subject him initially to 

trial before a non-lawyer police court judge when there is a later 

trial de novo available under the State’s court system. 1031

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 . . . 

AMENDMENT 14—RIGHTS GUARANTEED 1857

1032Mooney v. Holahan, 294 U.S. 103, 112 (1935). 1033The 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). 1034Pyle v. Kansas, 317 U.S. 213 (1942); White v. Ragen, 324 U.S. 760 (1945). 

See also New York ex rel. Whitman v. Wilson, 318 U.S. 688 (1943); Ex parte Hawk, 

321 U.S. 114 (1914). But see Hysler v. Florida, 315 U.S. 411 (1942); Lisenba v. California, 314 U.S. 219 (1941). 1035 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). 1036 386 U.S. 1 (1967). 1037 It should be noted that the obligations discussed below regarding a prosecutor’s obligation to provide information to a defendant do not appear to apply 

where the defendant has agreed to plead guilty, even though such information 

might have affected a defendant’s decision as to whether to accept a plea bargain. 

United States v. Ruiz, 122 S. Ct. 2450 (2002). 1038 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 

is as inconsistent with the rudimentary demands of justice as is 

the obtaining of a like result by intimidation.’’ 1032

The above quoted language was dictum in the case in which 

it was set forth, 1033 but the principle enunciated has required state 

officials to controvert allegations that knowingly false testimony 

had been used to convict 1034 and has upset convictions found to 

have been so procured. 1035 Extending the principle, the Court in 

Miller v. Pate 1036 overturned a conviction obtained after the prosecution had represented to the jury that a pair of men’s shorts 

found near the scene of a sex attack belonged to the defendant and 

that they were stained with blood; the defendant showed in a habeas corpus proceeding that no evidence connected him with the 

shorts and furthermore that the shorts were not in fact bloodstained, and that the prosecution had known these facts. 

This line of reasoning has even resulted in the disclosure to 

the defense of information not relied upon by the prosecution during trial. 1037 In Brady v. Maryland, 1038 the Court held ‘‘that the 

1858 AMENDMENT 14—RIGHTS GUARANTEED 

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. § 3500. 1039While the state court in Brady had allowed a partial retrial so that the accomplice’s confession could be considered in the jury’s determination of whether to 

impose capital punishment, it had declined to order a retrial of the guilt phase of 

the trial. The defendant’s appeal of this latter decisions was rejected, as the issue, 

as seen by the Court, was whether the state court could have excluded the defendant’s confessed participation in the crime on evidentiary grounds, as the defendant 

had confessed to facts sufficient to establish grounds for the crime charged. 1040Moore v. Illinois 408 U.S. 786, 794–95 (1972) (finding Brady inapplicable because the evidence withheld was not material and not exculpatory). 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. See also Wood v. Bartholomew, 516 U.S. 1 (1995) (per curiam) (holding no Due 

Process violation where prosecutor’s failure to disclose the result of a witness’ polygraph test would not have affected the outcome of the case). The beginning in Brady 

toward a general requirement of criminal discovery was not carried forward. See the

division of opinion in Giles v. Maryland, 386 U.S. 66 (1967). 1041 427 U.S. 97 (1976). 1042 427 U.S. at 103-04. This situation is the Mooney v. Holohan type of case. 1043 427 U.S. at 104-06. This the Brady situation. 

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. 1039 ‘‘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.’’ 1040

In United States v. Agurs, 1041 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. First, as 

noted, 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. 1042 Second, as established 

in Brady, 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. 1043 Third (the new law created in Agurs), if the defense did 

not make a request at all, or simply asked for ‘‘all Brady material’’

AMENDMENT 14—RIGHTS GUARANTEED 1859

1044 427 U.S. 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). 1045 473 U.S. 667 (1985). 1046 473 U.S. at 682. 1047See United States v. Malenzuela-Bernal, 458 U.S. 858 (1982) (testimony 

made unavailable by Government deportation of witnesses); Strickland v. Washington, 466 U.S. 668 (1984) (incompetence of counsel). 1048 473 U.S. at 676-77. 1049Strickler v. Greene, 527 U.S. 263 (1999). 

or for ‘‘anything exculpatory,’’ a duty resides in the prosecution to 

reveal to the defense obviously exculpatory evidence; if the prosecutor does not reveal it, reversal of a conviction may be required, 

but only if the undisclosed evidence creates a reasonable doubt as 

to the defendant’s guilt. 1044

This tripartite formulation, however, suffered from two apparent defects. First, it added a new level of complexity to a Brady inquiry by requiring a reviewing court to establish the appropriate 

level of materiality by classifying the situation under which the exculpating information was withheld. Secondly, it was not clear, if 

the fairness of the trial was at issue, why the circumstances of the 

failure to disclose should affect the evaluation of the impact that 

such information would have had on the trial. Ultimately, the 

Court addressed these issues in United States v. Bagley 1045 .

In Bagley, the Court established a uniform test for materiality, 

choosing the most stringent requirement that evidence is material 

if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have 

been different. 1046 This materiality standard, found in contexts outside of Brady inquiries, 1047 is applied not only to exculpatory material, but also to material which would be relevant to the impeachment of witnesses. 1048 Thus, where inconsistent earlier statements 

by a witness to an abduction were not disclosed, the Court weighed 

the specific effect that impeachment of the witness would have had 

on establishing the required elements of the crime and of the punishment, finally concluding that there was no reasonable probability that the jury would have reached a different result. 1049

Proof, Burden of Proof, and Presumptions.—In 1970, the 

Court held in In re Winship that the due process clauses of the 

Fifth and Fourteenth Amendments ‘‘[protect] the accused against 

1860 AMENDMENT 14—RIGHTS GUARANTEED 

1050 In re Winship, 397 U.S. 358, 364 (1970). See also Sullivan v. Louisiana, 508 

U.S. 275 (1993) (Sixth Amendment guarantee of trial by jury requires a jury verdict 

of guilty beyond a reasonable doubt). 1051 397 U.S. 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. 1052Miles 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). 1053 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); Sandstrom 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). 1054 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). But see Victor v. Nebraska, 511 U.S. 1 (1994) (considered as a whole, 

jury instructions that define ‘‘reasonable doubt’’ as requiring a ‘‘moral certainty’’ or 

as equivalent to ‘‘substantial doubt’’ did not violate due process because other clarifying language was included.) 1055 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. 1056Thompson 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 Coconviction except upon proof beyond a reasonable doubt of every 

fact necessary to constitute the crime with which he is 

charged.’’ 1050 ‘‘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.’’’ 1051 In many past cases, this standard was assumed to be the required one, 1052 but because it was so widely accepted only recently has the Court had the opportunity to pronounce it guaranteed by due process. 1053 The presumption of innocence is valuable in assuring defendants a fair trial, 1054 and it operates to ensure that the jury considers the case solely on the evidence. 1055

The Court had long held that, under the due process clause, it 

would set aside convictions that are supported by no evidence at 

all. 1056 The Winship case, however, necessitated a consideration of 

AMENDMENT 14—RIGHTS GUARANTEED 1861

lumbia, 378 U.S. 146 (1964); Johnson v. Florida, 391 U.S. 596 (1968). See also 

Chessman v. Teets, 354 U.S. 156 (1957). 1057 443 U.S. 307 (1979). 1058 443 U.S. at 3116, 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). 1059 421 U.S. 684 (1975). See also Sandstrom v. Montana, 442 U.S. 510, 520–24 

(1979). 1060 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. 1061 432 U.S. 197 (1977). 

whether reviewing courts should weigh the sufficiency of trial evidence. Thus, in Jackson v. Virginia, 1057 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. 1058

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 1059 that it was 

unconstitutional 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 required 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. 

The Court, however, summarily rejected the argument that 

Mullaney means that the prosecution must negate an insanity defense, 1060 and later, in Patterson v. New York, 1061 upheld a state 

statute that provided that required a defendant asserting ‘‘extreme 

1862 AMENDMENT 14—RIGHTS GUARANTEED 

1062Proving the defense would reduce a murder offense to manslaughter. 1063The decisive issue, then, was whether the statute required the state to prove 

beyond a reasonable doubt each element of the offense. 1064Dissenting 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. 432 U.S. 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. 1065McMillan v. Pennsylvania, 477 U.S. 79 (1986). It should be noted that these 

type of cases may also implicate the Sixth Amendment, as the right to a jury extends to all facts establishing the elements of a crime, while sentencing factors may 

be evaluated by a judge. See discussion in ‘‘Criminal Proceedings to Which the 

Guarantee Applies’’, supra.

emotional disturbance’’ as an affirmative defense to murder 1062 to

prove such by a preponderance of the evidence. According to the 

Court, the constitutional deficiency in Mullaney was that the statute made malice an element of the offense, permitted malice to be 

presumed upon proof of the other elements and then required the 

defendant to prove the absence of malice. In Patterson, by contrast, 

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, while allowing the defendant to prove an affirmative 

defense by preponderance of the evidence that would reduce the degree of the offense. 1063 This distinction has been criticized as formalistic, as the legislature can shift burdens of persuasion between 

prosecution and defense easily through the statutory definitions of 

the offenses. 1064

Another important distinction which can substantially affect a 

prosecutor’s burden is whether a fact to be established is an element of a crime or instead is a sentencing factor. While a criminal 

conviction is generally established by a jury using the ‘‘beyond a 

reasonable doubt’’ standard, sentencing factors are generally evaluated by a judge using few evidentiary rules and under the more lenient ‘‘preponderance of the evidence’’ standard. The Court has 

taken a formalistic approach to this issue, allowing states to essentially designate which facts fall under which of these two categories. For instance, the Court has held that whether a defendant 

‘‘visibly possessed a gun’’ during a crime may be designated by a 

state as a sentencing factor, and determined by a judge based on 

the preponderance of evidence. 1065

Although the Court has generally deferred to the legislature’s 

characterizations in this area, it limited this principle in Apprendi

AMENDMENT 14—RIGHTS GUARANTEED 1863

1066 530 U.S. 466, 490 (2000) (interpreting New Jersey’s ‘‘hate crime’’ law). It 

should be noted that prior to its decision in Apprendi the Court had held that sentencing factors determinative of minimum sentences could be decided by a judge. 

McMillan v. Pennsylvania, 477 U.S. 79 (1986). Although the vitality of McMillan 

was put in doubt by Apprendi, McMillan was subsequently reaffirmed in Harris v. 

United States, 122 S. Ct. 2406 (2002). 1067Walton v. Arizona, 497 U.S. 639 (1990) overruled by Ring v. Arizona, 122 

S. Ct. 2428 (2002). 1068This limiting principle does not apply to sentencing enhancements based on 

recidivism. Apprendi, 530 U.S. at 490. As enhancement of sentences for repeat offenders is traditionally considered a part of sentencing, establishing the existence 

of previous valid convictions may be made by a judge, despite its resulting in a significant increase in the maximum sentence available. Almendarez-Torres v. United 

States, 523 U.S. 224 (1998) (deported alien reentering the United States subject to 

a maximum sentence of two years, but upon proof of felony record, is subject to a 

maximum of twenty years). See also Parke v. Raley, 506 U.S. 20 (1992) (where 

prosecutor has burden of establishing a prior conviction, a defendant can be required to bear the burden of challenging the validity of such a conviction). 1069See, 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). 1070 319 U.S. 463, 467-68 (1943). 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). 

v. New Jersey. In Apprendi the Court held that a sentencing factor 

cannot be used to increase the maximum penalty imposed for the 

underlying crime. 1066 This led, in turn, to the Court overruling conflicting prior case law which had held constitutional the use of aggravating sentencing factors by judges when imposing capital punishment. 1067 These holding are subject to at least one exception, 

however, 1068 and the decisions might be evaded by legislatures revising criminal provisions to increase maximum penalties, and then 

providing for mitigating factors within the newly established sentencing range. 

Another closely related issue is statutory presumptions, where 

proof of a ‘‘presumed fact’’ which is a required element of a crime, 

is established by another fact, the ‘‘basic fact.’’ 1069 In Tot v. United 

States, 1070 the Court held that a statutory presumption was valid 

under the due process clause only if it met a ‘‘rational connection’’ 

test. In that case, the Court struck down a presumption that person possessing an illegal firearm had shipped, transported, or received such in interstate commerce. ‘‘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.’’ 

1864 AMENDMENT 14—RIGHTS GUARANTEED 

1071 395 U.S. 6, 36 (1969). 1072 395 U.S. at 37-54. While some of the reasoning in Yee Hem, supra, was disapproved, it was factually distinguished as involving users of ‘‘hard’’ narcotics. 1073 395 U.S. 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). 1074 Ulster County Court v. Allen, 442 U.S. 140, 166–67 (1979). 

In Leary v. United States, 1071 this 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. 1072 The

Court left open the question whether a presumption which survived 

the ‘‘rational connection’’ test ‘‘must also satisfy the criminal ‘reasonable doubt’ standard if proof of the crime charged or an essential element thereof depends upon its use.’’ 1073

In its most recent case, a closely divided Court drew a further 

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.’’ 1074 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.’’ 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 

AMENDMENT 14—RIGHTS GUARANTEED 1865

1075The majority thought that possession was more likely than not the case 

from the circumstances, while the four dissenters disagreed. 442 U.S. at 168 (Justices Powell, Brennan, Stewart, and Marshall). See also Estelle v. McGuire, 502 U.S. 

62 (1991) (upholding a jury instruction that, to dissenting Justices O’Connor and 

Stevens, id. at 75, 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). 1076Pate v. Robinson, 383 U.S. 375, 378 (1966) (citing Bishop v. United States, 

350 U.S. 961 (1956)). 1077Pate v. Robinson, 383 U.S. 375, 378 (1966). 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). 1078Medina v. California, 112 S. Ct. 2572 (1992). It is a violation of due process, 

however, for a state to require that a defendant must prove competence to stand 

trial by clear and convincing evidence. Cooper v. Oklahoma, 517 U.S. 348 (1996). 1079 Jackson v. Indiana, 406 U.S. 715 (1972). 

automobile is presumptive evidence of its illegal possession by all 

persons then occupying the vehicle. 1075 The division of the Court 

in these cases and in the Mullaney v. Wilbur line of cases clearly 

shows the unsettled doctrinal nature of the issues. 

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. 1076 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. 1077 Although there is no constitutional requirement that the state assume the burden of proving the defendant competent, the state must provide the defendant 

with a chance to prove that he is incompetent to stand trial. Thus, 

a statutory presumption that a criminal defendant is competent to 

stand trial or a requirement that the defendant bear the burden of 

proving incompetence by a preponderance of the evidence does not 

violate due process 1078

When a State determines that a person charged with a criminal offense is incompetent to stand trial he cannot be committed 

indefinitely for that reason. The court’s power is to commit him to 

a period no longer than is necessary to determine whether there is 

a substantial probability that he will attain his capacity in the foreseeable future. If it is determined that this is not the case, then 

the State must either release the defendant or institute the customary civil commitment proceeding that would be required to commit any other citizen. 1079

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 

1866 AMENDMENT 14—RIGHTS GUARANTEED 

1080 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. 1081 463 U.S. at 368. 1082 463 U.S. at 370. 1083Foucha v. Louisiana, 504 U.S. 71 (1992). 1084 477 U.S. 399 (1986). 1085There 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. 1086There are a number of other reasons why a defendant may be willing to 

plead guilty. There may be overwhelming evidence against him or his sentence after 

trial will be more severe than if he pleads guilty. 1087 United States v. Jackson, 390 U.S. 570 (1968). 

person could have been sentenced if convicted. 1080 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.’’ 1081 Thus, the insanity 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.’’ 1082 It follows, however, that a state may not indefinitely 

confine an insanity acquittee who is no longer mentally ill but who 

has an untreatable personality disorder that may lead to criminal 

conduct. 1083

The Court held in Ford v. Wainwright that the Eighth Amendment prohibits the state from executing 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. 1084 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. 1085

Guilty Pleas.—A defendant may plead guilty instead of insisting that the prosecution prove him guilty. Often the defendant does 

so as part of a ‘‘plea bargain’’ with the prosecution, where the defendant is guaranteed a light sentence or is allowed to plead to a 

lesser offense. 1086 While the government may not structure its system so as to coerce a guilty plea, 1087 a guilty plea that is entered 

AMENDMENT 14—RIGHTS GUARANTEED 1867

1088 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). 1089 Blackledge v. Allison, 431 U.S. 63, 71 (1977). 1090 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) (after defendant was charged with a misdemeanor, refused to plead guilty and sought a jury trial in district court, the Government obtained a four-count felony indictment and conviction). 1091 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). The distinction appears 

to represent very fine line-drawing, but it appears to be one the Court is committed 

to. 1092 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 

voluntarily, knowingly, and understandingly, even to obtain an advantage, is sufficient to overcome constitutional objections. 1088 The

guilty plea and the often concomitant plea bargain are important 

and necessary components of the criminal justice system, 1089 and

it is permissible for a prosecutor during such plea bargains to require a defendant to forego his right to go to trial in return for escaping additional charges which are likely to result in a much more 

severe penalty. 1090 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. 1091

In accepting a guilty pleas, the court must inquire whether the 

defendant is pleading voluntarily, knowingly, and understandingly, 1092 and ‘‘the adjudicative element inherent in accepting a 

1868 AMENDMENT 14—RIGHTS GUARANTEED 

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). 

1093Santobello 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). 1094 In Townsend v. Burke, 334 U.S. 736, 740–41 (1948) the Court overturned 

a sentence imposed on an uncounseled defendant by a judge who 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.’’ 1095 In Hicks v. Oklahoma, 447 U.S. 343 (1980), the jury had been charged in 

accordance with a 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 statute 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 Chewning v. 

Cunningham, 368 U.S. 443 (1962); Oyler v. Boles, 368 U.S. 448 (1962); Spencer v. 

Texas, 385 U.S. 554 (1967); Parke v. Raley, 506 U.S. 20 (1992). 1096Due process does not impose any limitation upon the sentence that a legislature may affix to any offense; that function is in the Eighth Amendment. 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). 1097 337 U.S. 241 (1949). See also Williams v. Oklahoma, 358 U.S. 576 (1959). 

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.’’ 1093

Sentencing.—In the absence errors by the sentencing 

judge, 1094 or of sentencing jurors considering invalid factors, 1095

the significance of procedural due process at sentencing is limited. 1096 In Williams v. New York, 1097 the Court upheld the imposition of the death penalty, despite a jury’s recommendation of 

mercy, where the judge acted based on information in a 

presentence report not shown to the defendant or his counsel. The 

AMENDMENT 14—RIGHTS GUARANTEED 1869

1098 430 U.S. 349 (1977). 1099 In Gardner, 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. Justices Stevens, Stewart, and Powell 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. 430 U.S. at 357-61. All but one of the other 

Justices joined the result on various other bases. Justice Brennan without elaboration thought the result was compelled by due process, id. at 364, while Justices 

White and Blackmun thought the result was 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). 1100 438 U.S. 41 (1978). 1101 438 U.S. at 49-52. 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. § 3577. 1102See, e.g., Kent v. United States, 383 U.S. 541, 554, 561, 563 (1966), where 

the Court required that before a juvenile court decided to waive jurisdiction and 

transfer a juvenile to an adult court it must hold a hearing and permit defense 

counsel to examine the probation officer’s report which formed the basis for the 

court’s decision. Kent was ambiguous whether it was based on statutory interpretation or constitutional analysis. In re Gault, 387 U.S. 1 (1967), however, appears to 

have constitutionalized the language. 1103 386 U.S. 605 (1967). 

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. 

Further, disclosure of such information to the defense could well 

dry up sources which feared retribution or embarrassment. Thus, 

hearsay and rumors can be considered in sentencing. In Gardner

v. Florida, 1098 however, the Court limited the application of Williams to capital cases. 1099

In United States v. Grayson, 1100 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. the Court declared that 

under the current scheme of individualized indeterminate sentencing, 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. 1101

There are various sentencing proceedings, however, which so 

implicate substantial rights that additional procedural protections 

are required. 1102 Thus, in Specht v. Patterson, 1103 the Court considVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00199 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1870 AMENDMENT 14—RIGHTS GUARANTEED 

1104 389 U.S. 128 (1967). 

1105 512 U.S. 154 (1994). See also Shafer v. South Carolina, 532 U.S. 36 (2001) 

(amended South Carolina law still runs afoul of Simmons). 

1106 530 U.S. 156 (2000). 

1107 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 twotier 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. 

ered a defendant who 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, a habitual offender, or mentally 

ill, the law in effect constituted a new charge that must be accompanied by procedural safeguards. And in Mempa v. Rhay, 1104 the

Court 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. 

Due process considerations can also come into play in sentencing if the State attempts to withhold relevant information from 

the jury. For instance, in Simmons v. South Carolina, the Court 

held that due process requires that if prosecutor makes an argument for the death penalty based on the future dangerousness of 

the defendant to society, the jury must then be informed if the only 

alternative to a death sentence is a life sentence without possibility 

of parole. 1105 But in Ramdass v. Angelone, 1106 the Court refused to 

apply the reasoning of Simmons because the defendant was not 

technically parole ineligible at the time of sentencing. 

A defendant should not be penalized for exercising a right to 

appeal. Thus, 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. 1107 If the judge does impose a longer sentence the second time, he must justify it on the 

AMENDMENT 14—RIGHTS GUARANTEED 1871

1108 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). 1109 Chaffin v. Stynchcombe, 412 U.S. 17 (1973). 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. 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). 1110 Alabama v. Smith, 490 U.S. 794 (1989). 1111McKane 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). 1112Griffin 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). 1113The 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

record by showing, for example, the existence of new information 

meriting a longer sentence. 1108

Because the possibility of vindictiveness in resentencing is de

minimis when it is the jury that sentences, however, the requirement of justifying a more severe sentence upon resentencing is inapplicable to jury sentencing, at least in the absence of a showing 

that the jury knew of the prior vacated sentence. 1109 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. 1110

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.’’ 1111 This

holding has been reaffirmed 1112 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. 1113

1872 AMENDMENT 14—RIGHTS GUARANTEED 

analysis under ‘‘Poverty and Fundamental Interests: The Intersection of Due Process and Equal Protection—Generally’’ infra. 1114 237 U.S. 309, 335 (1915). 1115Moore 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). 1116 Ex parte Hull, 312 U.S. 546 (1941); White v. Ragen, 324 U.S. 760 (1945). 1117 Carter v. Illinois, 329 U.S. 173, 175–76 (1946). 1118 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 violaBut it is not the case that a State is free to have no corrective 

process at all in which defendants may pursue remedies for federal 

constitutional violations. In Frank v. Mangum, 1114 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, 1115 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. 1116

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.’’ 1117 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 adequate remedy in state court, the defendant may petition a federal court for relief through a writ of habeas corpus. 1118

AMENDMENT 14—RIGHTS GUARANTEED 1873

tions, but it dismissed the case when the State in the interim enacted provisions 

for such process. 1119Frank v. Mangum, 237 U.S. 309 (1915). 1120 261 U.S. 86 (1923). 1121 297 U.S. 278 (1936). 1122 Ruffin v. Commonwealth, 62 Va. 790, 796 (1871). 1123 Cf. In re Bonner, 151 U.S. 242 (1894). 1124Price v. Johnston, 334 U.S. 266, 285 (1948). 1125 ‘‘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). 

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. 1119 But in Moore v. Dempsey, 1120 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 1121 and now taken for 

granted.

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.’’ 1122 This view is not now the law, and may 

never have been wholly correct. 1123 In 1948 the Court declared that 

‘‘[l]awful incarceration brings about the necessary withdrawal or 

limitation of many privileges and rights’’; 1124 ‘‘many,’’ indicated less 

than ‘‘all,’’ and it was clear that the due process and equal protection clauses to some extent do apply to prisoners. 1125 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 

1874 AMENDMENT 14—RIGHTS GUARANTEED 

1126 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). 1127 Bell v. Wolfish, 441 U.S. 520, 545–548, 551, 555, 562 (1979) (federal prison); 

Rhodes v. Chapman, 452 U.S. 337, 347, 351–352 (1981). 1128 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. 1129See ‘‘Prisons and Punishment,’’ supra. 1130 E.g., Wolff v. McDonnell, 418 U.S. 539 (1974); Baxter v. Palmigiano, 425 

U.S. 308 (1976); Vitek v. Jones, 445 U.S. 480 (1980); Washington v. Harper, 494 

U.S. 210 (1990) (prison inmate has liberty interest in avoiding the unwanted administration of antipsychotic drugs). 1131 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). 

1132Lee v. Washington, 390 U.S. 333 (1968). 1133 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). 

Establishing a right of access to law materials, however, requires an individualized 

demonstration of an inmate having been hindered in efforts to pursue a legal claim. 

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 . . . .’’ 1126 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. 1127

Save for challenges to conditions of confinement of pretrial detainees, 1128 the Court has generally treated challenges to prison 

conditions as a whole under the cruel and unusual punishments 

clause of the Eighth Amendment, 1129 while challenges to particular 

incidents and practices are pursued under the due process 

clause 1130 or more specific provisions, such as the First Amendment speech and religion clauses. 1131 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. 1132 They

have the right to petition for redress of grievances, which includes 

access to the courts for purposes of presenting their complaints, 1133

AMENDMENT 14—RIGHTS GUARANTEED 1875

See Lewis v. Casey, 518 U.S. 343 (1996) (no requirement that the State ‘‘enable [a] 

prisoner to discover grievances, and to litigate effectively’’). 1134 Haines v. Kerner, 404 U.S. 519 (1972); Preiser v. Rodriguez, 411 U.S. 475 

(1973). 1135 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). 1136 482 U.S. at 89. 1137 482 U.S. at 91. 1138 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). 1139 Hudson v. Palmer, 468 U.S. 517, 530 (1984). 1140 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’’).

and to bring actions in federal courts to recover for damages 

wrongfully done them by prison administrators. 1134 And they have 

a right, circumscribed by legitimate prison administration considerations, to fair and regular treatment during their incarceration. 

In Turner v. Safley, 1135 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.’’ 1136 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. 1137

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. 1138 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. 1139 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. 1140 Due process is not impliVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00205 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1876 AMENDMENT 14—RIGHTS GUARANTEED 

1141Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 

(1986).

1142 418 U.S. 539 (1974). 

1143 418 U.S. at 557. This analysis, of course tracks the interest analysis discussed under ‘‘The Interests Protected: Entitlements and Positivist Recognition,’’ 

supra.

1144 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). 

1145 418 U.S. at 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). 

cated at all by negligent deprivation of life, liberty, or property by 

prison officials. 1141

In Wolff v. McDonnell, 1142 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.

Thus, 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. 1143 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 fact findings 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. 1144 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. 1145 Revocation of good time credits, the Court later ruled, must be supported 

AMENDMENT 14—RIGHTS GUARANTEED 1877

1146Superintendent v. Hill, 472 U.S. 445, 454, 457 (1985). 1147Meachum v. Fano, 427 U.S. 215 (1976); Montanye v. Haymes, 427 U.S. 236 

(1976). 1148Olim v. Wakinekona, 461 U.S. 238 (1983). 1149 Vitek v. Jones, 445 U.S. 480 (1980). 1150 494 U.S. 210 (1990). 

by ‘‘some evidence in the record,’’ but an amount that ‘‘might be 

characterized as meager’’ is constitutionally sufficient. 1146

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. 1147 The same principles govern interstate prison transfers. 1148 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. 1149

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. 1150 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.

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; 

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1878 AMENDMENT 14—RIGHTS GUARANTEED 

1151 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. 1152 389 U.S. 128 (1967). 1153 408 U.S. 471 (1972). 1154 408 U.S. at 480, 482. 1155 408 U.S. at 483-84. 

role 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 governmental 

authority, 1151 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, 1152 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 was entitled to 

counsel at the deferred sentencing hearing. 

In Morrissey v. Brewer 1153 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.’’ 1154 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. 1155

AMENDMENT 14—RIGHTS GUARANTEED 1879

1156 408 U.S. at 484-87. 

1157 408 U.S. at 487-89. 

1158 Black v. Romano, 471 U.S. 606 (1985). 

Minimal due process, the Court held, requires that at both 

stages of the revocation process—the arrest of the parolee and the 

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. 1156

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.’’ 1157 Ordinarily the 

written statement need not indicate that the sentencing court or 

review board considered alternatives to incarceration, 1158 but a 

sentencing court must consider such alternatives if the probation 

1880 AMENDMENT 14—RIGHTS GUARANTEED 

1159 Bearden v. Georgia, 461 U.S. 660, 672 (1983). 1160Gagnon v. Scarpelli, 411 U.S. 778 (1973). 1161 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. 1162Following 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. 1163The Court in Greenholtz held that procedures designed to elicit specific facts 

were inappropriate under the circumstances, and minimizing the risk of error 

should be the prime consideration. This goal may be achieved by the board’s largely 

informal methods; eschewing formal hearings, notice, and specification of particular 

evidence in the record. The inmate in this case 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. 

violation consists of the failure of an indigent probationer, through 

no fault of his own, to pay a fine or restitution. 1159

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 crossexamination of witnesses or presentation of complicated documentary evidence. Presumptively, counsel should be provided where the 

person requests counsel, based on a timely and colorable claim that 

he has not committed the alleged violation, or if that issue be 

uncontested, there are reasons in justification or mitigation that 

might make revocation inappropriate. 1160

With respect to the granting of parole, the Court’s analysis of 

the due process clause’s meaning in Greenholtz v. Nebraska Penal 

Inmates 1161 is much more problematical. The theory was rejected 

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 that a parole statute could create an expectancy of release entitled to some measure of constitutional protection, although a determination would need to be made on a 

case-by-case basis, 1162 and the full panoply of due process guarantees is not required. 1163 Where, however, government by its statutes and regulations creates no obligation of the pardoning authority and thus creates no legitimate expectancy of release, the prisoner may not by showing the favorable exercise of the authority in 

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AMENDMENT 14—RIGHTS GUARANTEED 1881

1164Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998). The mere existence of purely discretionary authority and the frequent exercise of it creates no entitlement. 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 necessary 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. 1165For 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). 1166 In re Gault, 387 U.S. 1, 12–29 (1967). 1167 387 U.S. 1 (1967). 

ancy. The power of the executive to pardon, or grant clemency, 

being a matter of grace, is rarely subject to judicial review. 1164

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. 1165 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. 1166

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. After tracing in much detail this history of juvenile courts, the Court held in In re Gault 1167 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 punishment, a measure of informality, avoidance 

of the stigma of criminal conviction, the low visibility of the procVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00211 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1882 AMENDMENT 14—RIGHTS GUARANTEED 

1168 ‘‘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.’’ 387 U.S. at 27-28. 1169 387 U.S. at 31-35. Justice Harlan concurred in part and dissented in part, 

id. at 65, agreeing on the applicability of due process but disagreeing with the 

standards of the Court. Justice Stewart dissented wholly, arguing that the application of procedures developed for adversary criminal proceedings to juvenile proceedings would endanger their objectives and contending that the decision was a 

backward step toward undoing the reforms instituted in the past. Id. at 78. 1170Kent v. United States, 383 U.S. 541 (1966), noted on this point in In re 

Gault, 387 U.S. 1, 30–31 (1967). 1171 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. 1172McKeiver 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 

ess—but that the consequences of the absence of due process standards made their application necessary. 1168

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. 1169 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. 1170 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 committed by an adult, 1171 but still later the Court held that jury trials 

were not constitutionally required in juvenile trials. 1172

AMENDMENT 14—RIGHTS GUARANTEED 1883

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. 1173Fare v. Michael C., 442 U.S. 707, 725 (1979). 1174 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). 1175This 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.’’ 469 U.S. at 

342 n.9. 1176 467 U.S. 253 (1984). 

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 . . . .’’ 1173 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. 1174 Instead, a simple 

reasonableness standard governs all searches of students’ persons 

and effects by school authorities. 1175

The Court ruled in Schall v. Martin 1176 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 

1884 AMENDMENT 14—RIGHTS GUARANTEED 

1177See SAMUEL M. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE SYSTEM, ch. 4, ′′Waiver of Jurisdiction′′ (2d ed. 1989). 1178 492 U.S. 361 (1989). 1179Thompson v. Oklahoma, 487 U.S. 815 (1988). 1180See analysis of Eighth Amendment principles, under ‘‘Capital Punishment,’’ 

supra. 1181Only 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). 

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. 

Each state has a procedure by which juveniles may be tried as 

adults. 1177 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, 1178 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. 1179 In weighing validity under the 

Eighth Amendment, the Court has looked to state practice to determine whether a consensus against execution exists. 1180 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 court processes 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, sexual 

psychopathy, and the like. Inasmuch as the deprivation of liberty 

is as severe as that experienced by juveniles adjudged delinquent, 

can be accompanied with harm to reputation, it is surprising that 

the Court has only recently dealt with the issue. 1181

AMENDMENT 14—RIGHTS GUARANTEED 1885

1182 422 U.S. 563 (1975). The Court bypassed ‘‘the difficult issues of constitutional law’’ raised by the lower courts’ resolution of the case, that is, the right to 

treatment of the involuntarily committed, discussed under ‘‘Liberty Interests of Retarded and Mentally Ill: Commitment and Treatment,’’ supra. 

1183 422 U.S. at 576. 

1184 422 U.S. 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. § 1983. See Wood v. 

Strickland, 420 U.S. 308 (1975); Scheuer v. Rhodes, 416 U.S. 232 (1974). 

1185O’Connor v. Donaldson, 422 U.S. 563, 573 (1975). 

1186Zinermon v. Burch, 494 U.S. 113 (1990). 

In O’Connor v. Donaldson, 1182 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.’’ 1183 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. 1184 Left to 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’’ 1185 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. 1186

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 existence 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. 

1886 AMENDMENT 14—RIGHTS GUARANTEED 

1187 Addington v. Texas, 441 U.S. 418 (1979). See also Vitek v. Jones, 445 U.S. 

480 (1980) (transfer of prison inmate to mental hospital). 1188 442 U.S. 584 (1979). See also Secretary of Public Welfare v. Institutionalized 

Juveniles, 442 U.S. 640 (1979). 1189 442 U.S. at 598-617. The dissenters agreed on this point. Id. at 626–37. 1190 442 U.S. at 617-20. The dissenters would have required a preconfinement 

hearing. Id. at 637–38. 1191 442 U.S. at 617. The dissent would have mandated a formal postadmission 

hearing. Id. at 625–26. 1192Shelley 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 Court therefore imposed a standard of ‘‘clear and convincing’’ 

evidence. 1187

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. 1188 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. 1189 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. 1190 Left

to future resolution was the question of the due process requirements for postadmission review of the necessity for continued confinement. 1191

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.’’ 1192 The Amendment by its express terms provides that ‘‘[n]o 

AMENDMENT 14—RIGHTS GUARANTEED 1887

the same whether a State or the National Government is concerned. See CBS v. 

Democratic Nat’l Comm., 412 U.S. 94 (1973). 1193 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 ‘‘State Action,’’ infra. 1194 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). 1195Terry 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. 1196 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. 

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.’’ 1193 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. 1194

‘‘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. 1195 Certainly,

state legislation commanding a discriminatory result is state action 

condemned by the first section of the Fourteenth Amendment, and 

is void. 1196 But the difficulty for the Court has begun when the 

conduct complained of is not so clearly the action of a State but is, 

perhaps, the action of a minor state official not authorized or perhaps forbidden by state law so to act, or is, perhaps on the other 

hand, the action of a private party who nonetheless has some relationship with governmental authority. 

The continuum of state action ranges from obvious legislated 

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1888 AMENDMENT 14—RIGHTS GUARANTEED 

1197 Ex parte Virginia, 100 U.S. 339, 346–47 (1880). 1198Lugar 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). 1199 ‘‘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). 

nificantly related to 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.’’ 1197

‘‘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.’’ 1198 That the doctrine 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, 1199 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 

AMENDMENT 14—RIGHTS GUARANTEED 1889

1200 Brown v. Board of Education, 347 U.S. 483 (1954). 1201See ‘‘Brown’s Aftermath,’’ supra. 1202 Compare Washington v. Seattle School Dist., 458 U.S. 457 (1982), with

Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527 (1982). 1203Keyes 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). 1204 413 U.S. at 208-13. 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). 

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. 

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. 1200 The

aftermath in the South involved not so much state action as the determination of the remedies necessary to achieve a unitary system. 1201 But if racial segregation is not the result of state action 

in some aspect, then its existence is not subject to constitutional 

remedy. 1202 Distinguishing between the two situations has occasioned much controversy. 

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.’’ 1203 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 school in a system is de jure segregated to be entitled to a system-wide desegregation plan. 1204 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 

1890 AMENDMENT 14—RIGHTS GUARANTEED 

1205 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). 1206Milliken v. Bradley, 418 U.S. 717, 744–45 (1974). 1207 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). 1208 118 U.S. 356 (1886). 1209Screws 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 

can form the basis for a judicial finding of intentional discrimination. 1205

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.’’ 1206 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. 

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. 1207

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, 1208 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. 1209 ‘‘Misuse of power, posVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00220 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 1891

Nat’l 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). Cf. Screws v. 

United States, 325 U.S. at 147–48. 1210 United States v. Classic, 313 U.S. 299, 326 (1941). 1211 Cf. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). 1212Lombard 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. 1213Griffin 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). 1214 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. 1215 334 U.S. 1 (1948). 1216 334 U.S. at 13-14. 

sessed 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.’’ 1210 When the denial of equal protection is not commanded by law or by administrative regulation 

but is nonetheless accomplished through police enforcement of 

‘‘custom’’ 1211 or through hortatory admonitions by public officials to 

private parties to act in a discriminatory manner, 1212 the action is 

state action. When a State clothes a private party with official authority, he may not engage in conduct forbidden the State. 1213

Beyond this point 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. 1214 Of notable importance and 

a subject of controversy since it was decided is Shelley v. 

Kraemer. 1215 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.’’ 1216 Establishing that the precedents 

1892 AMENDMENT 14—RIGHTS GUARANTEED 

1217 334 U.S. at 19. In Hurd v. Hodge, 334 U.S. 24 (1948), the Court outlawed 

judicial enforcement of restrictive covenants in the District of Columbia as violative 

of civil rights legislation and public policy. Barrows v. Jackson, 346 U.S. 249 (1953), 

held that damage actions for violations of racially restrictive covenants would not 

be judicially entertained. 1218 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). 1219 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 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. 

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. . . .’’ 

‘‘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.’’ 1217

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. 1218 But the Court has experienced no difficulty 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. 1219 It

may be that the substantive rule that is being enforced is the dispositive issue, rather than the mere existence of state action. Thus, 

AMENDMENT 14—RIGHTS GUARANTEED 1893

1220 396 U.S. 435 (1970). The matter had previously been before the Court in 

Evans v. Newton, 382 U.S. 296 (1966). 

1221 396 U.S. 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 Pennsylvania v. Board of Trustees, 353 U.S. 230 (1957), discussed infra.

1222 387 U.S. 369 (1967). The decision was 5-to-4, Justices Harlan, Black, Clark, 

and Stewart dissenting. Id. at 387. 

1223See, e.g., 387 U.S. at 377 (language suggesting both lines of reasoning). 

in Evans v. Abney, 1220 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. 1221

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, 1222 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 ordinary 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. 1223 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 

1894 AMENDMENT 14—RIGHTS GUARANTEED 

1224 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. 1225Washington 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. 1226 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). 1227 Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). 1228 365 U.S. at 722. 1229Smith v. Allwright, 321 U.S. 649 (1944). 

other ordinance would become effective when passed, except that it 

could be petitioned to referendum. 1224

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. 1225 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.’’ 1226 It is 

thus not impermissible to overturn a previous governmental decision, or to defeat the effort initially to arrive at such a decision, 

simply because the state action may conceivably encourage private 

discrimination.

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 involved in it.’’ 1227 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.’’ 1228

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. 1229 Although the City of Philadelphia was actVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00224 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 1895

1230Pennsylvania 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). 1231 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). 1232 Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). 1233See, e.g., the various opinions in Bell v. Maryland, 378 U.S. 226 (1964). 1234 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 bylaws. Id. at 177–79. 

ing 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. 1230 When state courts on petition of interested 

parties removed the City of Macon as trustees of a segregated park 

that had been 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. 1231 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. 1232

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 

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. 1233 The basics of an answer 

came in Moose Lodge No. 107 v. Irvis, 1234 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 

1896 AMENDMENT 14—RIGHTS GUARANTEED 

1235 407 U.S. at 173. 1236 407 U.S. at 176-77. 1237 407 U.S. at 174-75. 1238 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974) (under the due 

process clause). 1239Powe v. Miles, 407 F.2d. 73, 81 (2d Cir. 1968). See also NCAA v. Tarkanian, 

488 U.S. 179 (1988) (where individual state has minimal influence over national college athletic association’s activities, the application of association rules leading to 

a state university’s suspending its basketball coach could not be ascribed to the 

state.). But see Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001) (where statewide public school scholastic association is 

‘‘overwhelmingly’’ composed of public school officials for that state, this 

‘‘entwinement’’ is sufficient to ascribe actions of association to state). 

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.’’’ 1235 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.’’ 1236 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. 1237

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.’’ 1238 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.’’ 1239 Therefore, the Court 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 

AMENDMENT 14—RIGHTS GUARANTEED 1897

1240 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. 1241 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351–58 (1974). On the 

due process limitations on the conduct of public utilities, see Memphis Light, Gas 

& Water Div. v. Craft, 436 U.S. 1 (1978). 1242Flagg Bros. v. Brooks, 436 U.S. 149, 156 (1978) (due process). 1243 436 U.S. 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). 1244 American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999). 1245 Blum v. Yaretsky, 457 U.S. 991 (1982). 

own weight on the side of the proposed practice by ordering it’’) 1240

operated to make the utility’s action the State’s action. 1241 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. . . 

.’’ 1242 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 his charges out of the proceeds, his actions are not governmental action and need not follow the dictates 

of the due process clause. 1243 Or, where a state worker’s compensation statute was amended to allow, but not require, an insurer to 

suspend payment for medical treatment while the necessity of the 

treatment was being evaluated by an independent evaluator, this 

action was not fairly attributable to the state, and thus pre-deprivation notice of the suspension was not required. 1244 In the context 

of regulated nursing home situations, in which the homes were 

closely regulated and state officials reduced or withdrew Medicaid 

benefits paid to patients when they were discharged or transferred 

to institutions providing a lower level of care, the Court found that 

the actions of the homes in discharging or transferring were not 

thereby rendered the actions of the government. 1245

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 function.’’ This rationale is one of those which emerges from the various 

1898 AMENDMENT 14—RIGHTS GUARANTEED 

1246 345 U.S. 461 (1953). 1247 326 U.S. 501 (1946). 1248 326 U.S. at 506. 1249See 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. 1250 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974). 1251Flagg Bros. v. Brooks, 436 U.S. 149, 157–159 (1978). 1252 Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982). 1253 American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999). 1254 Blum v. Yaretsky, 457 U.S. 991, 1011–1012 (1982). 1255Flagg Bros. v. Brooks, 436 U.S. 149, 157 (1978) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974)). 1256 Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982). 1257 Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). 

opinions in Terry v. Adams. 1246 In Marsh v. Alabama, 1247 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.’’ 1248 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. 1249

Attempts to apply such a theory to other kinds of private conduct, such as to private utilities, 1250 to private utilization of permissive state laws to secure property claimed to belong to creditors, 1251 to the operation of schools for ‘‘problem’’ children referred 

by public institutions, 1252 to private insurance companies providing 

worker’s compensation coverage, 1253 and to the operations of nursing homes the patients of which are practically all funded by public 

resources, 1254 proved unavailing. The ‘‘public function’’ doctrine is 

to be limited to a delegation of ‘‘a power ‘traditionally exclusively 

reserved to the State.’’’ 1255 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.’’ 1256 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. 

In finding state action in the racially discriminatory use of peremptory challenges by a private party during voir dire in a civil 

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AMENDMENT 14—RIGHTS GUARANTEED 1899

1258Lugar v. Edmondson Oil Corp., 457 U.S. 922 (1982). 1259 Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620–22 (1991) (citations 

omitted). 1260 500 U.S. at 624, 625. 1261 500 U.S. at 628. 1262 500 U.S. at 639, 643. 1263Georgia v. McCollum, 505 U.S. 42 (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). 

volving garnishment and attachment. 1258 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.’’ 1259 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. 1260 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.’’ 1261 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.’’ 1262

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. 1263 The

same generalities apply with at least equal force: there is overt and 

1900 AMENDMENT 14—RIGHTS GUARANTEED 

1264Polk County v. Dodson, 454 U.S. 512 (1981). 1265 505 U.S. at 54. 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 65-66. 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 69-70. 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. 1266 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). 1267 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). 1268On 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

significant governmental assistance in creating and structuring the 

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 1264

holding that a public defender was not a state actor when engaged 

in general representation of a criminal defendant was distinguished, the Court emphasizing that ‘‘exercise of a peremptory 

challenge differs significantly from other actions taken in support 

of a defendant’s defense,’’ since it involves selection of persons to 

wield governmental power. 1265

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,’’ 1266 and (2) ‘‘a State normally 

can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must be deemed to be 

that of the State.’’ 1267

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. 1268 However the question might have 

AMENDMENT 14—RIGHTS GUARANTEED 1901

cf. New York City Jaycees v. United States Jaycees, 512 F.2d 856 (2d Cir. 1976); 

Greenya v. George Washington Univ., 512 F.2d 556 (D.C. Cir.), cert. denied, 423 

U.S. 995 (1975). 1269 457 U.S. 830 (1982). 1270 457 U.S. 991 (1982). 1271 457 U.S. at 1011. 1272 489 U.S. 189, 197 (1989). 1273 Estelle v. Gamble, 429 U.S. 97 (1976). 1274 Youngberg v. Romeo, 457 U.S. 307 (1982). 

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, 1269 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, 1270 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.’’ 1271

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 1272 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, 1273 and for failure to 

ensure reasonable safety for involuntarily committed mental patients, 1274 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 

1902 AMENDMENT 14—RIGHTS GUARANTEED 

1275 489 U.S. at 201. 1276 489 U.S. at 202. 1277 489 U.S. at 203. 1278For 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). 1279 413 U.S. 455 (1973). 

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.’’ 1275 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.’’ 1276 ‘‘[I]t is well to remember . . . that the 

harm was inflicted not by the State of Wisconsin, but by [the 

child’s] father.’’ 1277

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. 1278 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. 

Thus, in Norwood v. Harrison, 1279 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 

AMENDMENT 14—RIGHTS GUARANTEED 1903

1280Gilmore v. City of Montgomery, 417 U.S. 556, 568–69 (1974) (quoting Norwood v. Harrison, 413 U.S. 455, 466, 467 (1973)). 1281Gilmore v. City of Montgomery, 417 U.S. 556, 570 (1974). 1282 417 U.S. 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. 1283Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 

(1976). See id. at 46, 63–64 (Justice Brennan concurring and dissenting). 

other invidious discriminations.’’ 1280 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.’’ 1281 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. 1282

It should be noted, however, that the Court has interposed, 

without mentioning these cases, a potentially significant barrier to 

utilization of the principle set out in them. In a 1976 decision, 

which it has expanded since, it held that plaintiffs, seeking 

disallowal of governmental tax benefits accorded to institutions 

that allegedly discriminated against complainants and thus involved the government in their actions, must in order to bring the 

suit show that revocation of the benefit would cause the institutions to cease the complained-of conduct. 1283

1904 AMENDMENT 14—RIGHTS GUARANTEED 

1284Slaughter-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). 1285 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). 1286Santa 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 chs. 9, 10, and pp. 

566–84 (1968). 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. 1287 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). 1288 City of Newark v. New Jersey, 262 U.S. 192 (1923); Williams v. Mayor of 

Baltimore, 289 U.S. 36 (1933). 1289See 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). 

‘‘Person’’.—In the case in which it was first called upon to interpret this clause, the Court doubted whether ‘‘any action of a 

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.’’ 1284 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. 1285 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.’’ 1286

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. . .’’ 1287 The only qualification is that 

a municipal corporation cannot invoke the clause against its 

State. 1288

‘‘Within Its Jurisdiction’’.—Persons ‘‘within its jurisdiction’’ 

are entitled to equal protection from a State. Largely because Article IV, § 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. 1289 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 

AMENDMENT 14—RIGHTS GUARANTEED 1905

1290 Blake v. McClung, 172 U.S. 239, 261 (1898); Sully v. American Nat’l Bank, 

178 U.S. 289 (1900). 1291Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262 U.S. 544 

(1923). 1292 Hillsborough v. Cromwell, 326 U.S. 620 (1946). 1293Wheeling 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). 1294The 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). 1295 Civil Rights Act of 1866, ch. 31, 14 Stat. 27, now in part 42 U.S.C. §§ 1981, 

1982. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422–37 (1968). 1296 As in fact much of the legislation which survived challenge in the courts was 

repealed in 1894 and 1909. 28 Stat. 36; 35 Stat. 1088. See R. CARR, FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR A SWORD 45–46 (1947). 1297TENBROEK, 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 

assets of an insolvent corporation, 1290 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 

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. 1291

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. 1292 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. 1293

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 section 1 of the Fourteenth Amendment. 1294 Important to its sponsors was the desire to 

provide a firm constitutional basis for already-enacted civil rights 

legislation, 1295 and, by amending the Constitution, to place repeal 

beyond the accomplishment of a simple majority in a future Congress. 1296 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. 1297 While the Court 

1906 AMENDMENT 14—RIGHTS GUARANTEED 

extensive analysis of the legislative history of the Amendment with no conclusive 

results. Brown v. Board of Education, 347 U.S. 483, 489–90 (1954). 1298Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 81 (1873). 1299 In Buck v. Bell, 274 U.S. 200, 208 (1927), Justice Holmes characterized the 

equal protection clause as ‘‘the last resort of constitutional arguments.’’ 1300See Yick Wo v. Hopkins, 118 U.S. 356 (1886) (discrimination against Chinese on the West Coast). 1301 Vacco v. Quill, 521 U.S. 793 (1997) (assisted suicide prohibition does not violate Equal Protection Clause by distinguishing between terminally ill patients on 

life-support systems who are allowed to direct the removal of such systems and patients who are not on life support systems and are not allowed to hasten death by 

self-administering prescribed drugs). 1302Tigner v. Texas, 310 U.S. 141, 147 (1980). 1303 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). 1304 Barrett v. Indiana, 229 U.S. 26 (1913). 

early recognized that African Americans were the primary intended 

beneficiaries of the protections thus adopted, 1298 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 

came to be applicable to all classifications by legislative and other 

official bodies, though not with much initial success, 1299 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. 

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. 1300 It is still most validly applied there, although 

it appears in many other contexts as well. 1301 A more active review 

has been developed for classifications based on a ‘‘suspect’’ indicium 

or affecting a ‘‘fundamental’’ interest. 

‘‘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.’’ 1302 The mere fact of classification will not void legislation, 1303 then, because in the exercise of its powers a legislature 

has considerable discretion in recognizing the differences between 

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AMENDMENT 14—RIGHTS GUARANTEED 1907

1305 Barbier v. Connolly, 113 U.S. 27, 32 (1885). 1306Ferguson v. Skrupa, 372 U.S. 726, 732 (1963); Williamson v. Lee Optical 

Co., 348 U.S. 483, 489 (1955). 1307 220 U.S. 61, 78–79 (1911), quoted in full in Morey v. Doud, 354 U.S. 457, 

463–64 (1957). Classifications which are purposefully discriminatory fall before the 

equal protection clause without more. E.g., Barbier v. Connolly, 113 U.S. 27, 30 

(1885); Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886). Cf. New York City Transit 

Auth. v. Beazer, 440 U.S. 568, 593 n.40 (1979). Explicit in all the formulations is 

that a legislature must have had a permissible purpose, a requirement which is seldom failed, given the leniency of judicial review. But see Zobel v. Williams, 457 U.S. 

55, 63–64 (1982), and id. at 65 (Justice Brennan concurring). 

nating 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.’’ 1305 Or, more 

succinctly, ‘‘statutes create many classifications which do not deny 

equal protection; it is only ‘invidious discrimination’ which offends 

the Constitution.’’ 1306

How then is the line between permissible and invidious classification to be determined? In Lindsley v. Natural Carbonic Gas 

Co., 1307 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 

1908 AMENDMENT 14—RIGHTS GUARANTEED 

1308F.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). 1309 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). 1310 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.’’ 1311 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). 1312Williamson 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). 1313 City of New Orleans v. Dukes, 427 U.S. 297, 303–04 (1976); City of Pittsburgh v. Alco Parking Corp., 417 U.S. 369 (1974). 1314Dandridge 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). 1315 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 

similarly circumstanced shall be treated alike.’’ 1308 Use of the latter standard did in fact result in some invalidations. 1309

But then, coincident with the demise of substantive due process in the area of economic regulation, 1310 the Court reverted to the 

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. 1311 Strengthening the deference was the recognition of discretion in the legislature not to try to deal with an evil or a class of 

evils all within the scope of one enactment but to approach the 

problem piecemeal, to learn from experience, and to ameliorate the 

harmful results of two evils differently, resulting in permissible 

over- and under-inclusive classifications. 1312

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, 1313 and it has applied this relaxed 

standard to social welfare regulations. 1314 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, 1315 although it has 

AMENDMENT 14—RIGHTS GUARANTEED 1909

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). 1316 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. 1317 449 U.S. 166, 174–79 (1980). The quotation is at 176–77 n.10. The extent 

of deference is notable, inasmuch as the legislative history seemed clearly to establish that the purpose the Court purported to discern as the basis for the classification was not the congressional purpose at all. Id. at 186–97 (Justice Brennan dissenting). The Court observed, however, that it was ‘‘constitutionally irrelevant’’ 

whether the plausible basis was in fact within Congress’ reasoning, inasmuch as the 

Court has never required a legislature to articulate its reasons for enactng a statute. Id. at 179. For a continuation of the debate over actual purpose and conceivable 

justification, see Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 680–85 

(1981) (Justice Brennan concurring), and id. at 702–06 (Justice Rehnquist dissenting). Cf. Schweiker v. Wilson, 450 U.S. 221, 243–45 (1981) (Justice Powell dissenting). 1318 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. 1319 Justice Blackmun wrote the Court’s opinion in Wilson, Justice Rehnquist in 

Fritz.

usually ended up upholding the classification. Finally, purportedly 

applying the rational basis test, the Court has invalidated some 

classifications in the areas traditionally most subject to total deference. 1316

Attempts to develop a consistent principle have so far been unsuccessful. In Railroad Retirement Board v. Fritz, 1317 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, 1318 in an opinion written by a different Justice, 1319 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 

1910 AMENDMENT 14—RIGHTS GUARANTEED 

1320Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461–70 (1981). The 

quoted phrase is at 466. 1321 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). 

1322The 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. 1323 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. 

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. 1320

In short, it is uncertain which formulation of the rational basis 

standard the Court will adhere to. 1321 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. 1322 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.

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, 1323 concerning the wartime evacuation of JapaneseAmericans from the West Coast, in which the Court said that because only a single ethnic-racial group was involved the measure 

AMENDMENT 14—RIGHTS GUARANTEED 1911

1324 Brown v. Board of Education, 347 U.S. 483 (1954). 1325McLaughlin v. Florida, 379 U.S. 184, 192, 194 (1964). 1326Loving 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. 1327Personnel Administrator v. Feeney, 442 U.S. 256, 272 (1979), quoted in 

Washington v. Seattle School Dist., 458 U.S. 457, 485 (1982). 1328 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). 1329 Hunter v. Erickson, 393 U.S. 385 (1969); Washington v. Seattle School Dist., 

458 U.S. 457 (1982). 1330Graham v. Richardson, 403 U.S. 365, 371–72 (1971). 1331 Reed v. Reed, 404 U.S. 71 (1971); for the hint, see Eisenstadt v. Baird, 405 

U.S. 438, 447 n.7 (1972). 

was ‘‘immediately suspect’’ and subject to ‘‘rigid scrutiny.’’ The 

school segregation cases 1324 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 

because no ‘‘overriding statutory purpose’’ 1325 was shown and they 

were not necessary to some ‘‘legitimate overriding purpose.’’ 1326 ‘‘A

racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary 

justification.’’ 1327 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. 1328 A measure that 

does not draw a distinction explicitly on race but that 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. 1329

Toward the end of the Warren Court, there emerged a trend 

to treat classifications on the basis of nationality or alienage as 

suspect, 1330 to accord sex classifications a somewhat heightened 

traditional review while hinting that a higher standard might be 

appropriate if such classifications passed lenient review, 1331 and to 

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1912 AMENDMENT 14—RIGHTS GUARANTEED 

1332See 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). 1333 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). 1334San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973). 1335 411 U.S. 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. 1336 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). 1337 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 

consistently. 1332 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. 1333

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. 1334 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, 1335 a holding that 

has several times been strongly reaffirmed by the Court. 1336 But

the Court’s rejection of some form of intermediate scrutiny did not 

long survive. 

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.’’ 1337 And classifications that disadvantage illegitimates are 

AMENDMENT 14—RIGHTS GUARANTEED 1913

is clear from our recent cases.’’ Id. at 210, n.*. Justice Stevens wrote that in his 

view the two-tiered analysis does not describe a method of deciding cases ‘‘but rather is a method the Court has employed to explain decisions that actually apply a 

single standard in a reasonably consistent fashion.’’ Id. at 211, 212. Chief Justice 

Burger and Justice Rehnquist would employ the rational basis test for gender classification. Id. at 215, 217 (dissenting). Occasionally, because of the particular subject 

matter, the Court has appeared to apply a rational basis standard in fact if not in 

doctrine, E.g., Rostker v. Goldberg, 453 U.S. 57 (1981) (military); Michael M. v. Superior Court, 450 U.S. 464 (1981) (application of statutory rape prohibition to boys 

but not to girls). Four Justices in Frontiero v. Richardson, 411 U.S. 677, 684–87 

(1973), were prepared to find sex a suspect classification, and in Mississippi Univ. 

for Women v. Hogan, 458 U.S. 718, 724 n.9 (1982), the Court appeared to leave open 

the possibility that at least some sex classifications may be deemed suspect. 1338Mills 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. 1339 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). 1340Massachusetts 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, 501 U.S. 452 (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’’). 1341 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985); See discussion supra.

subject to a similar though less exacting scrutiny of purpose and 

fit. 1338 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. 1339

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. 1340 While resisting creation 

of new suspect or ‘‘quasi-suspect’’ classifications, however, the 

Court may nonetheless apply the Royster Guano rather than the 

Lindsley standard of rationality. 1341

The other phase of active review of classifications holds that 

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1914 AMENDMENT 14—RIGHTS GUARANTEED 

1342Kramer v. Union Free School Dist., 395 U.S. 621, 627 (1969); Shapiro v. 

Thompson, 394 U.S. 618, 638 (1969). 1343Shapiro v. Thompson, 394 U.S. at 660 (Justice Harlan dissenting). 1344 316 U.S. 535, 541 (1942). 1345 Reynolds v. Sims, 377 U.S. 533, 562 (1964). 1346 Carrington v. Rash, 380 U.S. 89 (1965); Harper v. Virginia Bd. of Elections, 

383 U.S. 663 (1966); Williams v. Rhodes, 393 U.S. 23 (1968). 1347 394 U.S. 618, 627, 634, 638 (1969). 1348Kramer v. Union Free School Dist., 395 U.S. 621 (1969); Cipriano v. City 

of Houma, 395 U.S. 701 (1969); City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970); 

Dunn v. Blumstein, 405 U.S. 330 (1972). 1349This indefiniteness has been a recurring theme in dissents. E.g., Shapiro v. 

Thompson, 394 U.S. 618, 655 (1969) (Justice Harlan); Weber v. Aetna Casualty & 

Surety Co., 406 U.S. 164, 177 (1972) (Justice Rehnquist). 1350 E.g., Dunn v. Blumstein, 405 U.S. 330 (1972). 1351 E.g., Shapiro v. Thompson, 394 U.S. 618 (1969). 1352 E.g., Tate v. Short, 401 U.S. 395 (1971). 1353Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942). 

ernment classifications which adversely affect them must be justified by a showing of a compelling interest necessitating the classification and by a showing that the distinctions are required to further the governmental purpose. The effect of applying the test, as 

in the other branch of active review, is to deny to legislative judgments the deference usually accorded them and to dispense with 

the general presumption of constitutionality usually given state 

classifications. 1342

It is thought 1343 that the ‘‘fundamental right’’ theory had its 

origins in Skinner v. Oklahoma ex rel. Williamson, 1344 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.’’ 1345 A stiffening of 

the traditional test could be noted in the opinion of the Court striking down certain restrictions on voting eligibility 1346 and the 

phrase ‘‘compelling state interest’’ was used several times in Justice Brennan’s opinion in Shapiro v. Thompson. 1347 Thereafter, the 

phrase was used in several voting cases in which restrictions were 

voided, and the doctrine was asserted in other cases. 1348

While no opinion of the Court attempted to delineate the process by which certain ‘‘fundamental’’ rights were differentiated from 

others, 1349 it was evident from the cases that the right to vote, 1350

the right of interstate travel, 1351 the right to be free of wealth distinctions in the criminal process, 1352 and the right of 

procreation 1353 were at least some of those interests that triggered 

AMENDMENT 14—RIGHTS GUARANTEED 1915

1354San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973). 

1355 411 U.S. at 30, 33-34. But see id. at 62 (Justice Brennan dissenting), 70, 

110–17 (Justices Marshall and Douglas dissenting). 

1356Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and id. at 66–68 (Justice 

Brennan concurring), 78–80 (Justice O’Connor concurring) (travel). 

1357Zablocki v. Redhail, 434 U.S. 374 (1978). 

1358Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980). 

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, 1354 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 regarded 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.’’ 1355 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. 

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. 1356 Thus, state limitation on the 

entry into marriage was soon denominated an incursion on a fundamental right which required a compelling justification. 1357 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 1358 —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 

1916 AMENDMENT 14—RIGHTS GUARANTEED 

1359 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).1360 457 U.S. 202 (1982). 1361See, 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). 1362Washington 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). 

grounds. 1359 And in Plyler v. Doe, 1360 the complete denial of education to the children of illegal aliens was found subject to intermediate scrutiny and invalidated. 

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. 

Testing Facially Neutral Classifications Which Impact on 

Minorities

A classification expressly upon the basis of race triggers strict 

scrutiny and ordinarily results in its invalidation; similarly, a classification that facially makes a distinction on the basis of sex, or 

alienage, or illegitimacy triggers the level of scrutiny appropriate 

to it. A classification that is ostensibly neutral but is an obvious 

pretext for racial discrimination or for discrimination on some 

other forbidden basis is subject to heightened scrutiny and ordinarily invalidation. 1361 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. 

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.’’ 1362 In reliVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00246 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 1917

1363The 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). 1364Griggs 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. § 1981, derived from the Civil Rights Act of 1866, 

proof of discriminatory intent is required). 1365See 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, 426 U.S. 229 (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). 

ance 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 1363 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 

that it is an insufficient response to demonstrate some rational 

basis for the challenged practices, 1364 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. 1365 These cases were disapproved in 

1918 AMENDMENT 14—RIGHTS GUARANTEED 

1366Washington v. Davis, 426 U.S. 229, 242 (1976). 1367 Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 

252 (1977). 1368 429 U.S. 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). 1369 Arlington Heights, 429 U.S. at 266. 

>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.’’ 1366

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 

in some detail how inquiry into motivation would work. 1367 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. 1368 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. 1369 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 

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AMENDMENT 14—RIGHTS GUARANTEED 1919

1370 429 U.S. 267-68. 1371Massachusetts 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. 1372 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. 

lege.’’ 1370 In most circumstances, a court is to look to the totality 

of the circumstances to ascertain intent. 

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 non-veterans, 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 

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 non-veterans to permit such a 

conclusion and there are women veterans. That the preference implicitly incorporated past official discrimination against women was 

held not to detract from the fact that rewarding veterans for their 

service to their country was a legitimate public purpose. Acknowledging that the consequences of the preference were foreseeable, 

the Court pronounced this fact insufficient to make the requisite 

showing of intent. ‘‘‘Discriminatory purpose’ . . . implies more than 

intent as volition or intent as awareness of consequences. . . . It 

implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in 

spite of,’ its adverse effects upon an identifiable group.’’ 1371

Moreover, in City of Mobile v. Bolden 1372 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 preVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00249 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1920 AMENDMENT 14—RIGHTS GUARANTEED 

1373White 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, 446 U.S. at 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. 1374 446 U.S. at 65-74. 1375 446 U.S. 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. 1376 By the Voting Rights Act Amendments of 1982, P.L. 97–205, 96 Stat. 131, 

42 U.S.C. § 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. 

1377 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. 1378 458 U.S. 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. at 618 (quoting Arlington Heights, 429 U.S. at 

266).1379The 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. 458 U.S. at 619 n.6. 

mised 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. 1373 But in the plurality opinion in 

Mobile, each of the factors, viewed ‘‘alone,’’ was deemed insufficient 

to show purposeful discrimination. 1374 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 

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. 1375 But, contemporaneously with Congress’ statutory rejection of the Mobile plurality standards, 1376 the Court, in Rogers v. Lodge, 1377 appeared to 

disavow much of Mobile and to permit the federal courts to find 

discriminatory purpose on the basis of ‘‘circumstantial evidence’’ 1378 that is more reminiscent of pre- Washington v. Davis 

cases than of the more recent decisions. 

Rogers v. Lodge was also a multimember electoral district case 

brought under the equal protection clause 1379 and the Fifteenth 

Amendment. The fact that the system operated to cancel out or diVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00250 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 1921

1380 458 U.S. at 618 (quoting Washington v. Davis, 426 U.S. 229, 242 (1976)). 

1381 458 U.S. at 623-24. 

1382 458 U.S. at 624-27. 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 singleseat requirements and the absence of residency requirements. 

1383 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 504–07. 

lute 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.’’ 1380 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.’’ 1381 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 segregation 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. 1382 As for the district court’s application of the test, the Court reviewed it under the deferential 

‘‘clearly erroneous’’ standard and affirmed it. 

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. 1383 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 

1922 AMENDMENT 14—RIGHTS GUARANTEED 

1384 430 U.S. 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). 1385 Castaneda v. Partida, 430 U.S. 482, 494, 497–99 (1977). 1386Davidson v. City of New Orleans, 96 U.S. 97, 106 (1878). 1387Philadelphia Fire Ass’n v. New York, 119 U.S. 110 (1886); Santa Clara 

County v. Southern Pacific R.R., 118 U.S. 394 (1886). 1388 Bell’s Gap R.R. v. Pennsylvania, 134 U.S. 232, 237 (1890) (emphasis supplied). 1389The 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.’’ 134 U.S. 

at 237. 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). 

not random. 1384 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. 1385 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 beara heavy and substantial burden in showing discriminatory racial and other animus. 

TRADITIONAL EQUAL PROTECTION: ECONOMIC 

REGULATION AND RELATED EXERCISES OF THE 

POLICE POWER 

Taxation

At the outset, the Court did not regard the equal protection 

clause as having any bearing on taxation. 1386 It soon, however, 

took jurisdiction of cases assailing specific tax laws under this provision, 1387 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.’’ 1388 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 that remain valid 

today. 1389 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 inVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00252 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 1923

1390Louisville 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 passthrough to consumers of oil and gas severance tax). 

Chain stores: a privilege tax graduated according to the number of stores maintained, Tax Comm’rs v. Jackson, 283 U.S. 527 (1931); Fox v. Standard Oil Co., 294 

U.S. 87 (1935); a license tax based on the number of stores both within and without 

the State, Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412 (1937) (distinguishing Louis K. Liggett Co. v. Lee, 288 U.S. 517 (1933)). 

Electricity: municipal systems may be exempted, Puget Sound Co. v. Seattle, 

291 U.S. 619 (1934); that portion of electricity produced which is used for pumping 

water for irrigating lands may be exempted, Utah Power & Light Co. v. Pfost, 286 

U.S. 165 (1932). 

Insurance companies: license tax measured by gross receipts upon domestic life 

insurance companies from which fraternal societies having lodge organizations and 

insuring lives of members only are exempt, and similar foreign corporations are subject to a fixed and comparatively slight fee for the privilege of doing local business 

of the same kind. Northwestern Life Ins. Co. v. Wisconsin, 247 U.S. 132 (1918). 

Oleomargarine: classified separately from butter. Magnano Co. v. Hamilton, 292 

U.S. 40 (1934). 

Peddlers: classified separately from other vendors. Caskey Baking Co. v. Virginia, 313 U.S. 117 (1941). 

Public utilities: a gross receipts tax at a higher rate for railroads than for other 

public utilities, Ohio Tax Cases, 232 U.S. 576 (1914); a gasoline storage tax which 

places a heavier burden upon railroads than upon common carriers by bus, Nashville C. & St. L. Ry. v. Wallace, 288 U.S. 249 (1933); a tax on railroads measured 

by gross earnings from local operations, as applied to a railroad which received a 

larger net income than others from the local activity of renting, and borrowing cars, 

Illinois Cent. R.R. v. Minnesota, 309 U.S. 157 (1940); a gross receipts tax applicable 

only to public utilities, including carriers, the proceeds of which are used for relieving the unemployed, New York Rapid Transit Corp. v. New York, 303 U.S. 573 

(1938).

Wine: exemption of wine from grapes grown in the State while in the hands of 

the producer, Cox v. Texas, 202 U.S. 446 (1906). 

Laws imposing miscellaneous license fees have been upheld as follows: 

Cigarette dealers: taxing retailers and not wholesalers. Cook v. Marshall County, 196 U.S. 261 (1905). 

Commission merchants: requirements that dealers in farm products on commission procure a license, Payne v. Kansas, 248 U.S. 112 (1918). 

Elevators and warehouses: license limited to certain elevators and warehouses 

on right-of-way of railroad, Cargill Co. v. Minnesota, 180 U.S. 452 (1901); a license 

validating, because of inequality, state laws imposing income, gross 

receipts, sales and license taxes. 

Classification for Purpose of Taxation.—The power of the 

State to classify for purposes of taxation is ‘‘of wide range and flexibility.’’ 1390 A State may adjust its taxing system in such a way as 

1924 AMENDMENT 14—RIGHTS GUARANTEED 

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). 1391Quong 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). 1392Puget Sound Co. v. Seattle, 291 U.S. 619, 625 (1934). See City of Pittsburgh 

v. Alco Parking Corp., 417 U.S. 369 (1974). 1393 Colgate v. Harvey, 296 U.S. 404, 422 (1935). 1394Southern Ry. v. Greene Co., 216 U.S. 400, 417 (1910); Quaker City Cab Co. 

v. Pennsylvania, 277 U.S. 389, 400 (1928). 1395Keeney v. New York, 222 U.S. 525, 536 (1912); Tax Comm’rs v. Jackson, 283 

U.S. 527, 538 (1931). 1396Giozza v. Tierman, 148 U.S. 657, 662 (1893). 1397Louisville 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). 1398Stewart Dry Goods Co. v. Lewis, 294 U.S. 550 (1935). See also Valentine v. 

Great Atlantic & Pacific Tea Co., 299 U.S. 32 (1936). 1399Louis K. Liggett Co. v. Lee, 288 U.S. 517 (1933). 1400Quaker 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).

to favor certain industries or forms of industry 1391 and may tax different types of taxpayers differently, despite the fact that they compete. 1392 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.’’ 1393 Classification may not be arbitrary. It must be based on a real and substantial difference 1394 and

the difference need not be great or conspicuous, 1395 but there must 

be no discrimination in favor of one as against another of the same 

class. 1396 Also, discriminations of an unusual character are scrutinized with special care. 1397 A gross sales tax graduated at increasing rates with the volume of sales, 1398 a heavier license tax on each 

unit in a chain of stores where the owner has stores located in 

more than one country, 1399 and a gross receipts tax levied on corporations operating taxicabs, but not on individuals, 1400 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 

AMENDMENT 14—RIGHTS GUARANTEED 1925

1401Tax Comm’rs v. Jackson, 283 U.S. 527, 537 (1931). 1402 Colgate v. Harvey, 296 U.S. 404, 422 (1935). 1403Darnell v. Indiana, 226 U.S. 390, 398 (1912); Farmers Bank v. Minnesota, 

232 U.S. 516, 531 (1914). 1404Morf v. Bingaman, 298 U.S. 407, 413 (1936). 1405 Baltic Mining Co. v. Massachusetts, 231 U.S. 68, 88 (1913). See also Cheney

Brothers Co. v. Massachusetts, 246 U.S. 147, 157 (1918). 1406Philadelphia Fire Ass’n v. New York, 119 U.S. 110, 119 (1886). 1407 Hanover Fire Ins. Co. v. Harding, 272 U.S. 494, 511 (1926). 1408Southern Ry. v. Green, 216 U.S. 400, 418 (1910). 1409 Concordia Ins. Co. v. Illinois, 292 U.S. 535 (1934). 

prompted the adoption of the statute. 1401 If the evident intent and 

general operation of the tax legislation is to adjust the burden with 

a fair and reasonable degree of equality, the constitutional requirement is satisfied. 1402

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. 1403 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 

aptly defined nor because others, not of the class, are taxed improperly. 1404

Foreign Corporations and Nonresidents.—The equal protection clause does not require identical taxes upon all foreign and 

domestic corporations in every case. 1405 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. 1406 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,’’ 1407 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. 1408 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. 1409 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 

1926 AMENDMENT 14—RIGHTS GUARANTEED 

1410Lincoln Nat’l Life Ins. Co. v. Read, 325 U.S. 673 (1945). This decision was 

described as ‘‘an anachronism’’ in Western & Southern Life Ins. Co. v. State Bd. Of 

Equalization, 451 U.S. 648, 667 (1981), the Court reaffirming the rule that taxes 

discriminating against foreign corporations must bear a rational relation to a legitimate state purpose. 1411Wheeling Steel Corp. v. Glander, 337 U.S. 562, 571, 572 (1949). 1412 393 U.S. 117 (1968). 1413 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. 1414 470 U.S. at 880. 1415The 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). 

foreign but not from domestic corporations. 1410 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. 1411 The Court, in WHYY v. Glassboro 1412 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 corporations 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. 

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, 1413 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. 1414 However, the 

Court’s holding that the discriminatory purpose was invalid under 

equal protection analysis would also be a basis for invalidation 

under a different strand of Commerce Clause analysis. 1415

Income Taxes.—A state law which taxes the entire income of 

domestic corporations which do business in the State, including 

AMENDMENT 14—RIGHTS GUARANTEED 1927

1416F.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. 1417Shaffer v. Carter, 252 U.S. 37, 56, 57 (1920); Travis v. Yale & Towne Mfg. 

Co., 252 U.S. 60, 75, 76 (1920). 1418Welch v. Henry, 305 U.S. 134 (1938). 1419Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 288, 300 (1898). 1420 Billings v. Illinois, 188 U.S. 97 (1903). 1421 Campbell v. California, 200 U.S. 87 (1906). 1422Salomon v. State Tax Comm’n, 278 U.S. 484 (1929). 1423 Board of Educ. v. Illinois, 203 U.S. 553 (1906). 1424Maxwell v. Bugbee, 250 U.S. 525 (1919). 

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. 1416 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. 1417

A retroactive statute imposing a graduated tax at rates different 

from those in the general income tax law, on dividends received in 

a prior year which were deductible from gross income under the 

law in effect when they were received, does not violate the equal 

protection clause. 1418

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. 1419 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. 1420 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. 1421

Vested and contingent remainders may be treated differently. 1422

The exemption of property bequeathed to charitable or educational 

institutions may be limited to those within the State. 1423 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. 1424

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 

1928 AMENDMENT 14—RIGHTS GUARANTEED 

1425 Continental Baking Co. v. Woodring, 286 U.S. 352 (1932). 1426Dixie Ohio Express Co. v. State Revenue Comm’n, 306 U.S. 72, 78 (1939). 1427 Alward v. Johnson, 282 U.S. 509 (1931). 1428 Bekins Van Lines v. Riley, 280 U.S. 80 (1929). 1429Morf v. Bingaman, 298 U.S. 407 (1936). 1430 Clark v. Paul Gray, Inc., 306 U.S. 583 (1939). 1431 Carley & Hamilton v. Snook, 281 U.S. 66 (1930). 1432 Aero Mayflower Transit Co. v. Georgia Pub. Serv. Comm’n, 295 U.S. 285 

(1935). 1433F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). 1434Missouri v. Dockery, 191 U.S. 165 (1903). 

on carriers. 1425 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. 1426

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. 1427 Common motor carriers of 

freight operating over regular routes between fixed termini may be 

taxed at higher rates than other carriers, common and private. 1428

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. 1429 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. 1430 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; 1431 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. 1432

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, 1433 whether the exemption results from the terms of the statute itself or the conduct of a state official implementing state policy. 1434 A provision for the forfeiture of land for nonpayment of 

taxes is not invalid because the conditions to which it applies exist 

AMENDMENT 14—RIGHTS GUARANTEED 1929

1435Kentucky Union Co. v. Kentucky, 219 U.S. 140, 161 (1911). 1436 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). 1437Sunday 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). 1438 488 U.S. 336 (1989). 1439 Nordlinger v. Hahn, 505 U.S. 1 (1992). 1440 505 U.S. at 14-15. 1441 505 U.S. at 12-13. 1442Sioux City Bridge v. Dakota County, 260 U.S. 441, 446 (1923). 1443 Hillsborough v. Cromwell, 326 U.S. 620, 623 (1946); Allegheny Pittsburgh 

Coal Co. v. Webster County Comm’n, 488 U.S. 336 (1989). 

only in a part of the State. 1435 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. 1436 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 discrimination. 1437 More recently, however, the Court in Allegheny Pittsburgh Coal Co. v. Webster County Commission, 1438

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. 1439 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. 1440 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. 1441

An owner aggrieved by discrimination is entitled to have his 

assessment reduced to the common level. 1442 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. 1443 A corporation whose valuations 

were accepted by the assessing commission cannot complain that it 

1930 AMENDMENT 14—RIGHTS GUARANTEED 

1444St. Louis-San Francisco Ry v. Middlekamp, 256 U.S. 226, 230 (1921). 1445Memphis & Charleston Ry. v. Pace, 282 U.S. 241 (1931). 1446Kansas 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). 1447 Road Imp. Dist. v. Missouri Pac. R.R., 274 U.S. 188 (1927). 1448 Branson v. Bush, 251 U.S. 182 (1919). 1449 Columbus & Greenville Ry. v. Miller, 283 U.S. 96 (1931). 1450 Buck v. Bell, 274 U.S. 200, 208 (1927). 1451McGowan v. Maryland, 366 U.S. 420, 425–26 (1961). 

was taxed disproportionately, as compared with others, if the commission did not act fraudulently. 1444

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. 1445 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 

inequality. 1446 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. 1447 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. 1448 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. 1449

Police Power Regulation 

Classification.—Justice Holmes’ characterization of the equal 

protection clause as the ‘‘usual last refuge of constitutional arguments’’ 1450 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. 

‘‘[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.’’ 1451 The Court has made it 

AMENDMENT 14—RIGHTS GUARANTEED 1931

1452 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. 1453The ‘‘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. 427 U.S. at 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). 1454Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461–70 (1981). The 

quoted phrase is at 466 (emphasis by Court). Purporting to promote the purposes 

of resource conservation, easing solid waste disposal problems, and conserving energy, the legislature had banned plastic nonreturnable milk cartons but permitted 

all other nonplastic nonreturnable containers, such as paperboard cartons. The state 

court had thought the distinction irrational, but the Supreme Court thought the legislature could have believed a basis for the distinction existed. Courts will receive 

evidence that a distinction is wholly irrational. United States v. Carolene Products 

Co., 304 U.S. 144, 153–54 (1938). 

Classifications under police regulations have been held valid as follows: 

Advertising: discrimination between billboard and newpaper advertising of cigarettes, Packer Corp. v. Utah, 285 U.S. 105 (1932); prohibition of advertising signs 

on motor vehicles, except when used in the usual business of the owner and not 

used mainly for advertising, Fifth Ave. Coach Co. v. New York, 221 U.S. 467 (1911); 

prohibition of advertising on motor vehicles except notices or advertising of products 

of the owner, Railway Express Agency v. New York, 336 U.S. 106 (1949); prohibition 

clear that only the totally irrational classification in the economic 

field will be struck down, 1452 and it has held that legislative classifications that impact severely upon some businesses and quite favorably upon others may be saved through stringent deference to 

legislative judgment. 1453 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. 1454 The Court 

1932 AMENDMENT 14—RIGHTS GUARANTEED 

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. 

Cable Television: exemption from regulation under the Cable Communications 

Policy Act of facilities that serve only dwelling units under common ownership. FCC 

v. Beach Communications, 508 U.S. 307 (1993). Regulatory efficiency is served by 

exempting those systems for which the costs of regulation exceed the benefits to consumers, and potential for monopoly power is lessened when a cable system operator 

is negotiating with a single-owner. 

Cattle: a classification of sheep, as distinguished from cattle, in a regulation restricting the use of public lands for grazing. Bacon v. Walker, 204 U.S. 311 (1907). 

See also Omaechevarria v. Idaho, 246 U.S. 343 (1918). 

Cotton gins: in a State where cotton gins are held to be public utilities and their 

rates regulated, the granting of a license to a cooperative association distributing 

profits ratably to members and nonmembers does not deny other persons operating 

gins equal protection when there is nothing in the laws to forbid them to distribute 

their net earnings among their patrons. Corporation Comm’n v. Lowe, 281 U.S. 431 

(1930).

Debt adjustment business: operation only as incident to legitimate practice of 

law. Ferguson v. Skrupa, 372 U.S. 726 (1963). 

Eye glasses: law exempting sellers of ready-to-wear glasses from regulations forbidding opticians to fit or replace lenses without prescriptions from ophthalmologist 

or optometrist and from restrictions on solicitation of sale of eye glasses by use of 

advertising matter. Williamson v. Lee Optical Co., 348 U.S. 483 (1955). 

Fish processing: stricter regulation of reduction of fish to flour or meal than of 

canning. Bayside Fish Co. v. Gentry, 297 U.S. 422 (1936). 

Food: bread sold in loaves must be of prescribed standard sizes, Schmidinger 

v. Chicago, 226 U.S. 578 (1913); food preservatives containing boric acid may not 

be sold, Price v. Illinois, 238 U.S. 446 (1915); lard not sold in bulk must be put up 

in containers holding one, three or five pounds or some whole multiple thereof, Armour & Co. v. North Dakota, 240 U.S. 510 (1916); milk industry may be placed in 

a special class for regulation, Lieberman v. Van De Carr, 199 U.S. 552 (1906); vendors producing milk outside city may be classified separately, Adams v. Milwaukee, 

228 U.S. 572 (1913); producing and nonproducing vendors may be distinguished in 

milk regulations, St. John v. New York, 201 U.S. 633 (1906); different minimum and 

maximum milk prices may be fixed for distributors and storekeepers, Nebbia v. New 

York, 291 U.S. 502 (1934); price differential may be granted for sellers of milk not 

having a well advertised trade name, Borden’s Farm Products Co. v. Ten Eyck, 297 

U.S. 251 (1936); oleomargarine colored to resemble butter may be prohibited, Capital City Dairy Co. v. Ohio, 183 U.S. 238 (1902); table syrups may be required to 

be so labeled and disclose identity and proportion of ingredients, Corn Products Rfg. 

Co. v. Eddy, 249 U.S. 427 (1919) 

Geographical discriminations: legislation limited in application to a particular 

geographical or political subdivision of a State, Ft. Smith Co. v. Paving Dist., 274 

U.S. 387, 391 (1927); ordinance prohibiting a particular business in certain sections 

of a municipality, Hadacheck v. Sebastian, 239 U.S. 394 (1915); statute authorizing 

a municipal commission to limit the height of buildings in commercial districts to 

125 feet and in other districts to 80 to 100 feet, Welch v. Swasey, 214 U.S. 91 

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AMENDMENT 14—RIGHTS GUARANTEED 1933

acter shall dwell, L’Hote v. New Orleans, 177 U.S. 587, 595 (1900). And see North

v. Russell, 427 U.S. 328, 338 (1976). 

Hotels: requirement that keepers of hotels having over fifty guests employ night 

watchmen. Miller v. Strahl, 239 U.S. 426 (1915). 

Insurance companies: regulation of fire insurance rates with exemption for 

farmers mutuals, German Alliance Ins. Co. v. Kansas, 233 U.S. 389 (1914); different 

requirements imposed upon reciprocal insurance associations than upon mutual 

companies, Hoopeston Canning Co. v. Cullen, 318 U.S. 313 (1943); prohibition 

against life insurance companies or agents engaging in undertaking business, Daniel v. Family Ins. Co., 336 U.S. 220 (1949). 

Intoxicating liquors: exception of druggist or manufacturers from regulation. 

Lloyd v. Dollison, 194 U.S. 445 (1904); Eberle v. Michigan, 232 U.S. 700 (1914). 

Landlord-tenant: requiring trial no later than six days after service of complaint 

and limiting triable issues to the tenant’s default, provisions applicable in no other 

legal action, under procedure allowing landlord to sue to evict tenants for nonpayment of rent, inasmuch as prompt and peaceful resolution of the dispute is proper objective and tenants have other means to pursue other relief. Lindsey v. Normet, 

405 U.S. 56 (1972). 

Lodging houses: requirement that sprinkler systems be installed in buildings of 

nonfireproof construction is valid as applied to such a building which is safeguarded 

by a fire alarm system, constant watchman service and other safety arrangements. 

Queenside Hills Co. v. Saxl, 328 U.S. 80 (1946). 

Markets: prohibition against operation of private market within six squares of 

public market. Natal v. Louisiana, 139 U.S. 621 (1891). 

Medicine: a uniform standard of professional attainment and conduct for all 

physicians, Hurwitz v. North, 271 U.S. 40 (1926); reasonable exemptions from medical registration law. Watson v. Maryland, 218 U.S. 173 (1910); exemption of persons who heal by prayer from regulations applicable to drugless physicians, Crane 

v. Johnson, 242 U.S 339 (1917); exclusion of osteopathic physicians from public hospitals, Hayman v. Galveston, 273 U.S. 414 (1927); requirement that persons who 

treat eyes without use of drugs be licensed as optometrists with exception for persons treating eyes by use of drugs, who are regulated under a different statute, 

McNaughton v. Johnson, 242 U.S. 344 (1917); a prohibition against advertising by 

dentists, not applicable to other professions, Semler v. Dental Examiners, 294 U.S. 

608 (1935). 

Motor vehicles: guest passenger regulation applicable to automobiles but not to 

other classes of vehicles, Silver v. Silver, 280 U.S. 117 (1929); exemption of vehicles 

from other States from registration requirement, Storaasli v. Minnesota, 283 U.S. 

57 (1931); classification of driverless automobiles for hire as public vehicles, which 

are required to procure a license and to carry liability insurance, Hodge Co. v. Cincinnati, 284 U.S. 335 (1932); exemption from limitations on hours of labor for drivers of motor vehicles of carriers of property for hire, of those not principally engaged 

in transport of property for hire, and carriers operating wholly in metropolitan 

areas, Welch Co. v. New Hampshire, 306 U.S. 79 (1939); exemption of busses and 

temporary movements of farm implements and machinery and trucks making short 

hauls from common carriers from limitations in net load and length of trucks, 

Sproles v. Binford, 286 U.S. 374 (1932); prohibition against operation of uncertified 

carriers, Bradley v. Public Utility Comm’n, 289 U.S. 92 (1933); exemption from regulations affecting carriers for hire, of persons whose chief business is farming and 

dairying, but who occasionally haul farm and dairy products for compensation, 

Hicklin v. Coney, 290 U.S. 169 (1933); exemption of private vehicles, street cars and 

omnibuses from insurance requirements applicable to taxicabs, Packard v. Banton, 

264 U.S. 140 (1924). 

Peddlers and solicitors: a State may classify and regulate itinerant vendors and 

peddlers, Emert v. Missouri, 156 U.S. 296 (1895); may forbid the sale by them of 

drugs and medicines, Baccus v. Louisiana, 232 U.S. 334 (1914); prohibit drumming 

or soliciting on trains for business for hotels, medical practitioners, and the like, 

Williams v. Arkansas, 217 U.S. 79 (1910); or solicitation of employment to prosecute 

1934 AMENDMENT 14—RIGHTS GUARANTEED 

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). 

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 

AMENDMENT 14—RIGHTS GUARANTEED 1935

1455 Hartford Ins. Co. v. Harrison, 301 U.S. 459 (1937). 1456Smith v. Cahoon, 283 U.S. 553 (1931). 1457Mayflower 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). 1458Morey 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. 1459 Central State Univ. v. American Ass’n of Univ. Professors, 526 U.S. 124 

(1999) (upholding limitation on the authority of public university professors to bargain over instructional workloads). 1460 Holden v. Hardy, 169 U.S. 366 (1988). 1461 Bunting v. Oregon, 243 U.S. 426 (1917). 1462 Atkin v. Kansas, 191 U.S. 207 (1903). 1463Keokee Coke Co. v. Taylor, 234 U.S. 224 (1914). See also Knoxville Iron Co. 

v. Harbison, 183 U.S. 13 (1901). 1464McLean v. Arkansas, 211 U.S. 539 (1909). 1465Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922). 1466 Chicago, R.I. & P. Ry. v. Perry, 259 U.S. 548 (1922). 

permitted mutual companies to operate in this manner. 1455 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. 1456 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. 1457 In a decision since overruled, the Court struck down a law 

which exempted by name the American Express Company from the 

terms pertaining to the licensing, bonding, regulation, and inspection of ‘‘currency exchanges’’ engaged in the sale of money orders. 1458

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. 1459 Statutes limiting hours of labor for employees in mines, smelters, 1460 mills, factories, 1461 or on public 

works 1462 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. 1463 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. 1464 All corporations 1465

or public service corporations 1466 may be required to issue to employees who leave their service letters stating the nature of the 

1936 AMENDMENT 14—RIGHTS GUARANTEED 

1467Mountain Timber Co. v. Washington, 243 U.S. 219 (1917). 1468 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). 1469Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 

(1949). Neither is it a denial of equal protection for a city to refuse to withhold from 

its employees’ paychecks dues owing their union, although it withholds for taxes, 

retirement-insurance programs, saving programs, and certain charities, because its 

offered justification that its practice of allowing withholding only when it benefits 

all city or department employees is a legitimate method to avoid the burden of withholding money for all persons or organizations that request a checkoff. City of Charlotte v. Firefighters, 426 U.S. 283 (1976). 1470 E.g., Muller v. Oregon, 208 U.S. 412 (1908). 1471Goesaert v. Cleary, 335 U.S. 464 (1948). 1472Title VII, 78 Stat. 253, 42 U.S.C. § 2000e. On sex discrimination generally, 

see ‘‘Classifications Meriting Close Scrutiny—Sex,’’ supra. 

1473Mallinckrodt Works v. St. Louis, 238 U.S. 41 (1915). 1474 International Harvester Co. v. Missouri, 234 U.S. 199 (1914). 1475Tigner v. Texas, 310 U.S. 141 (1940) (overruling Connolly v. Union Sewer 

Pipe Co., 184 U.S. 540 (1902)). 1476Standard Oil Co. v. Tennessee, 217 U.S. 413 (1910). 

service and the cause of leaving even though other employers are 

not so required. 

Industries may be classified in a workmen’s compensation act 

according to the respective hazards of each, 1467 and the exemption 

of farm laborers and domestic servants does not render such an act 

invalid. 1468 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. 1469 At a time 

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 1470 and this solicitude continued into present times in the 

approval of laws which were more questionable, 1471 but passage of 

the sex discrimination provision of the 1964 Civil Rights Act has 

generally called into question all such protective legislation addressed solely to women. 1472

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, 1473 or to vendors of commodities but not to vendors of labor, 1474 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. 1475 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. 1476 A provision, superimposed upon the general antitrust 

law, for revocation of the licenses of fire insurance companies that 

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AMENDMENT 14—RIGHTS GUARANTEED 1937

1477 Carroll v. Greenwich Ins. Co., 199 U.S. 401 (1905). 1478Pacific 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). 1479Safeway Stores v. Oklahoma Grocers, 360 U.S. 334, 339–41 (1959). 1480 Yick Wo v. Hopkins, 118 U.S. 356 (1886). 1481Fischer v. St. Louis, 194 U.S. 361 (1904). 1482Gorieb v. Fox, 274 U.S. 603 (1927). 1483Wilson v. Eureka City, 173 U.S. 32 (1899). 1484Gundling v. Chicago, 177 U.S. 183 (1900). 1485Kotch v. Board of River Port Pilot Comm’rs, 330 U.S. 552 (1947). 

tion clause. 1477 A grant of monopoly privileges, if otherwise an appropriate exercise of the police power, is immune to attack under 

that clause. 1478 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. 1479

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 

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. 1480 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, 1481 or from building line restrictions. 1482 Written permission 

of the mayor or president of the city council may be required before 

any person shall move a building on a street. 1483 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. 1484 In a later case, 1485 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. 

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 

1938 AMENDMENT 14—RIGHTS GUARANTEED 

1486Dandridge 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). 

1487Dandridge v. Williams, 397 U.S. 471, 483–87 (1970). 

1488 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).

1489 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).

1490Department of Agriculture v. Moreno, 413 U.S. 528 (1973) (also questioning 

rationality).

this one, but we can find no basis for applying a different constitutional standard.’’ 1486 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. 1487 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 

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. 1488 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, 1489 acting to invalidate a provision 

only once and then on the premise that Congress was actuated by 

an improper purpose. 1490

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 

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AMENDMENT 14—RIGHTS GUARANTEED 1939

1491Lindsey 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. 1492 Eisenstadt v. Baird, 405 U.S. 438 (1972). 1493Stanley v. Illinois, 405 U.S. 645, 658 (1972). 1494Pace 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. 1495 Collins v. Johnston, 237 U.S. 502, 510 (1915); Pennsylvania v. Ashe, 302 

U.S. 51 (1937). 1496McDonald v. Massachusetts, 180 U.S. 311 (1901); Moore v. Missouri, 159 

U.S. 673 (1895); Graham v. West Virginia, 224 U.S. 616 (1912). 1497 Carlesi v. New York, 233 U.S. 51 (1914). 

trolled eviction actions than was available in other kinds of litigation. 1491

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. 1492 Also denying equal protection was a law affording 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. 1493

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. 1494 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. 1495 Heavier penalties may be imposed upon habitual criminals for like offenses, 1496 even after a 

pardon for an earlier offense, 1497 and such persons may be made 

1940 AMENDMENT 14—RIGHTS GUARANTEED 

1498 Ughbanks v. Armstrong, 208 U.S. 481 (1908). 1499Pennsylvania v. Ashe, 302 U.S. 51 (1937). 1500McGinnis v. Royster, 410 U.S. 263 (1973). Cf. Hurtado v. United States, 410 

U.S. 578 (1973). 1501Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942). 1502 Rinaldi v. Yeager, 384 U.S. 305 (1966). But see Fuller v. Oregon, 417 U.S. 

40 (1974) (imposition of reimbursement obligation for state-provided defense assistance upon convicted defendants but not upon those acquitted or whose convictions 

are reversed is objectively rational). 1503 James v. Strange, 407 U.S. 128 (1972). 1504Schilb v. Kuebel, 404 U.S. 357 (1971). 

ineligible for parole. 1498 A state law doubling the sentence on prisoners attempting to escape does not deny equal protection by subjecting prisoners who attempt to escape together to different sentences depending on their original sentences. 1499

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. 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. 1500

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. 1501 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. 1502 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. 1503 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. 1504 The

Court in the last several years has applied the clause strictly to 

AMENDMENT 14—RIGHTS GUARANTEED 1941

1505See ‘‘Poverty and Fundamental Interests: The Intersection of Due Process 

and Equal Protection—Generally,’’ supra. 1506Strauder v. West Virginia, 100 U.S. 303, 306–07 (1880). 1507Strauder v. West Virginia, 100 U.S. 303 (1880) (law limiting jury service to 

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 a Negro 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). 

prohibit numerous de jure and de facto distinctions based on wealth 

or indigency. 1505

EQUAL PROTECTION AND RACE 

Overview

The Fourteenth Amendment ‘‘is one of a series of constitutional 

provisions having a common purpose; namely, securing to a race recently emancipated, a race that through many generations had 

been held in slavery, all the civil rights that the superior race 

enjoy. The true spirit and meaning of the amendments . . . cannot 

be understood without keeping in view the history of the times 

when they were adopted, and the general objects they plainly 

sought to accomplish. At the time when they were incorporated 

into the Constitution, it required little knowledge of human nature 

to anticipate that those who had long been regarded as an inferior 

and subject race would, when suddenly raised to the rank of citizenship, 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.’’ 1506 Thus, a state law 

which on its face worked a discrimination against African Americans was void. 1507 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 

1942 AMENDMENT 14—RIGHTS GUARANTEED 

1508 Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (discrimination against 

Chinese). 1509Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 67–72 (1873); Strauder v. 

West Virginia, 100 U.S. 303, 307–08 (1880); Virginia v. Rives, 100 U.S. 313, 318 

(1880); Ex parte Virginia, 100 U.S. 339, 344–45 (1880). 1510 163 U.S. 537 (1896). 1511 Roberts v. City of Boston, 59 Mass. 198, 206 (1849). 1512Plessy 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. 1513 163 U.S. 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. 

between persons in similar circumstances, material to their rights, 

the denial of equal justice is still within the prohibition of the Constitution.’’ 1508

Education

Development and Application of ‘‘Separate But Equal’’.—

Cases decided soon after ratification of the Fourteenth Amendment 

may be read as precluding any state-imposed distinction based on 

race, 1509 but the Court in Plessy v. Ferguson 1510 adopted a principle first propounded in litigation attacking racial segregation in 

the schools of Boston, Massachusetts. 1511 Plessy concerned not 

schools but a state law requiring ‘‘equal but separate’’ facilities for 

rail transportation and requiring the separation of ‘‘white 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.’’ 1512 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.’’ 1513

AMENDMENT 14—RIGHTS GUARANTEED 1943

1514Gong Lum v. Rice, 275 U.S. 78 (1927). 1515 Cummings v. Richmond County Bd. of Educ., 175 U.S. 528 (1899). 1516 Berea College v. Kentucky, 211 U.S. 45 (1908). 1517Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). See also Sipuel v. 

Board of Regents, 332 U.S. 631 (1948). 1518Sweatt v. Painter, 339 U.S. 629 (1950). 1519McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950). 1520 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). 

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, 1514 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. 1515 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. 1516

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 

within the State. 1517 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. 1518 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. 1519

Brown v. Board of Education.—‘‘Separate but equal’’ was 

formally abandoned in Brown v. Board of Education, 1520 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 

1944 AMENDMENT 14—RIGHTS GUARANTEED 

1521 Brown v. Board of Education, 347 U.S. 483, 489–90, 492–95 (1954). 1522 Brown v. Board of Education, 349 U.S. 294, 300–01 (1955). 1523 Cooper v. Aaron, 358 U.S. 1 (1958). 1524 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). 

1525 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).

opportunity to succeed in life, that separation of the races in the 

schools solely on the basis of race must necessarily generate feelings of inferiority in the disfavored race adversely affecting education as well as other matters, and therefore that the equal protection clause was violated by such separation. ‘‘We conclude that 

in the field of public education the doctrine of ‘separate but equal’ 

has no place. Separate educational facilities are inherently unequal.’’ 1521

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 compliance 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.’’ 1522

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. 1523 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. 1524 The lower courts eventually began voiding these laws for 

discriminatory application, permitting class actions, 1525 and the 

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AMENDMENT 14—RIGHTS GUARANTEED 1945

1526McNeese v. Cahokia Bd. of Educ., 373 U.S. 668 (1963). 1527Griffin 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). 1528Goss v. Knoxville Bd. of Educ., 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. 1529 Northcross v. Board of Educ. of Memphis, 333 F.2d 661 (6th Cir. 1964). 1530The 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). 1531 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). 1532Pub. L. 88–352, 78 Stat. 252, 42 U.S.C. § 2000d et seq. (prohibiting discrimination in federally assisted programs). HEW guidelines were designed to afford 

guidance to state-local officials in interpretations of the law and were accepted as 

authoritative by the courts and utilized. Davis v. Board of School Comm’rs of Mobile 

County, 364 F.2d 896 (5th Cir. 1966); Kemp v. Beasley, 352 F.2d 14 (8th Cir. 1965). 1533 391 U.S. 430 (1968); Raney v. Gould Bd. of Educ., 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). 

ment. 1526 In the early 1960’s, various state practices—school closings, 1527 minority transfer plans, 1528 zoning, 1529 and the like—were 

ruled impermissible, and the Court indicated that the time was 

running out for full implementation of the Brown mandate. 1530

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. 1531 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 1532 led to a change of attitude in the lower 

courts and the Supreme Court. In Green v. School Board of New 

Kent County, 1533 the Court posited the principle that the only desegregation plan permissible is one which actually results in the 

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1946 AMENDMENT 14—RIGHTS GUARANTEED 

1534Green, 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. 

1535 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).

1536 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).

1537 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). 

firmative 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.’’ 1534 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 merging into one system of faculty, 1535 staff, and services, 

so that no school could be marked as either a ‘‘black’’ or a ‘‘white’’ 

school. 1536

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. 1537 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 

AMENDMENT 14—RIGHTS GUARANTEED 1947

1538 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 Feliciana 

Parish School Board, 396 U.S. 290 (1970); Northcross v. Board of Educ. of Memphis, 

397 U.S. 232 (1970); Dowell v. Board of Educ. of Oklahoma City, 396 U.S. 269 

(1969). 1539 402 U.S. 1 (1971); see also Davis v. Board of School Comm’rs of Mobile 

County, 402 U.S. 33 (1971). 1540McDaniel v. Barresi, 402 U.S. 39 (1971); North Carolina State Bd. of Educ. 

v. Swann, 402 U.S. 43 (1971). 1541 402 U.S. at 18. 1542 402 U.S. at 25-27. 1543 402 U.S. at 22-25. 

is to terminate dual school systems at once and to operate now and 

hereafter only unitary schools.’’ 1538

In the October 1970 Term the Court in Swann v. CharlotteMecklenburg Board of Education 1539 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. 1540 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 violation of substantive constitutional rights under the 

Equal Protection Clause is shown.’’ 1541 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. 1542 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. 1543

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 

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1948 AMENDMENT 14—RIGHTS GUARANTEED 

1544 402 U.S. at 27-29. 1545 402 U.S. at 29-31. 1546 402 U.S. 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. at 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. 1547The 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. 1548 418 U.S. 717 (1974). 

medial process, conscious assignment of students and drawing of 

boundaries on the basis of race is permissible. 1544 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. 1545 Finally, the Court 

indicated, once a unitary system has been established, no affirmative obligation rests on school boards to adjust attendance year by 

year to reflect changes in composition of neighborhoods so long as 

the change is solely attributable to private action. 1546

Northern Schools: Inter- and Intradistrict Desegregation.—The appearance in the Court of school cases from large metropolitan areas in which the separation of the races was not mandated by law but allegedly by official connivance through zoning of 

school boundaries, pupil and teacher assignment policies, and site 

selections, required the development of standards for determining 

when segregation was de jure and what remedies should be imposed when such official separation was found. 1547

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 1548 set aside a desegregation order which required the formulation of a plan for a 

metropolitan area including the City and 53 adjacent suburban 

AMENDMENT 14—RIGHTS GUARANTEED 1949

1549 418 U.S. at 745. 1550 418 U.S. at 741-42. 1551 418 U.S. 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. at 294, and in still others paired the two 

reasons. Id. at 296. 1552Milliken 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. 1553 418 U.S. 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). 

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. 1549 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.’’ 1550 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 

which would deprive the people of control of their schools through 

elected representatives. 1551 ‘‘The constitutional right of the Negro 

respondents residing in Detroit is to attend a unitary school system 

in that district.’’ 1552

‘‘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.’’ 1553 While this axiom caused little problem when 

1950 AMENDMENT 14—RIGHTS GUARANTEED 

1554When 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). 1555 413 U.S. 189 (1973). 1556 413 U.S. at 207-11. Justice Rehnquist argued that imposition of a districtwide 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). 

the violation consisted of statutorily mandated separation, 1554 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. 

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. 1555 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 

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. 1556

Keyes then was consistent with earlier cases requiring a showing of official complicity in segregation and limiting the remedy to 

AMENDMENT 14—RIGHTS GUARANTEED 1951

1557Of 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). 1558Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976). 1559 427 U.S. at 436. 1560Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 420 (1977) (quoting Hills 

v. Gautreaux, 425 U.S. 284, 294 (1976)). 1561Dayton 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. 

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. 1557 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.’’ 1558 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. 1559

Second, in the first Dayton case the lower courts had found 

three constitutional violations that had resulted in some pupil segregation, 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.’’’ 1560

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.’’ 1561 The Court then sent the case 

back to the district court for the taking of evidence, the finding of 

1952 AMENDMENT 14—RIGHTS GUARANTEED 

1562 Columbus Bd. of Educ. v. Penick, 443 U.S. 449 (1979); Dayton Bd. of Educ. 

v. Brinkman, 443 U.S. 526 (1979). 1563 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). 1564 443 U.S. at 461-65. 1565 443 U.S. at 465-67. 

the nature of the violations, and the development of an appropriate 

remedy.

Surprisingly, however, Keyes was reaffirmed and broadly applied in subsequent appeals of the Dayton case after remand and 

in an appeal from Columbus, Ohio. 1562 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 root and branch.’’ 1563 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. 1564

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. 1565

Reaffirmation of the breadth of federal judicial remedial powers came when, in a second appeal of the Detroit case, the Court 

AMENDMENT 14—RIGHTS GUARANTEED 1953

1566Milliken 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. 1567 495 U.S. 33 (1990). 1568 495 U.S. 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. 1569Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 30–31 

(1971). 1570Milliken v. Bradley, 418 U.S. 717, 744 (1974). 

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. 1566

The broad scope of federal courts’ remedial powers was more 

recently reaffirmed in Missouri v. Jenkins. 1567 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.’’ 1568

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, 1569 and subsequent cases declared the principle that 

the remedy must be no more extensive than the violation found. 1570

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 

1954 AMENDMENT 14—RIGHTS GUARANTEED 

1571 E.g., § 407(a) of the Civil Rights Act of 1964, 78 Stat. 248, 42 U.S.C. § 

2000c–6, construed to cover only de facto segregation in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 17–18 (1971); § 803 of the Education Amendments 

of 1972, 86 Stat. 372, 20 U.S.C. § 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. §§ 1701–1757, see especially § 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, § 108, 90 Stat. 1434 (1976), and § 101, 91 Stat. 1460, 42 U.S.C.§ 

2000d, upheld against facial attack in Brown v. Califano, 627 F.2d 1221 (D.C. Cir. 

1980). 1572See, 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). 1573Washington v. Seattle School Dist., 458 U.S. 457 (1982); Crawford v. Los 

Angeles Bd. of Educ., 458 U.S. 527 (1982). The decisions were in essence an application of Hunter v. Erickson, 393 U.S. 385 (1969). 

largely ineffectual. 1571 Stronger proposals, for statutes or for constitutional amendments, were introduced in Congress, but none 

passed both Houses. 1572

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 

remedies in Washington State and California. 1573 Voters in Washington, following a decision by the school board in Seattle to undertake a mandatory busing program, approved an initiative that prohibited school boards from assigning students to any but the nearest or next nearest school that offered the students’ course of study; 

there were so many exceptions, however, that the prohibition in effect applied only to busing for racial purposes. In California the 

state courts had interpreted the state constitution to require school 

systems to eliminate both de jure and de facto segregation. The voters approved an initiative that prohibited state courts from ordering busing unless the segregation was in violation of the Fourteenth Amendment, and a federal judge would be empowered to 

order it under United States Supreme Court precedents. 

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 

AMENDMENT 14—RIGHTS GUARANTEED 1955

1574Washington 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. 1575 Crawford v. Los Angeles Bd. of Educ., 458 U.S. 527, 535–40 (1982). 1576 498 U.S. 237 (1991). 1577 498 U.S. at 249-50. 1578 505 U.S. 717. 

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. 1574 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. 1575

Termination of Court Supervision.—With most school desegregation decrees having been entered decades ago, the issue 

arose 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 

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, 1576

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.’’ 1577 In United States v. Fordice, 1578 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 MisVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00285 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1956 AMENDMENT 14—RIGHTS GUARANTEED 

1579 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 § 4 of the Civil Rights Act of 

1875, 18 Stat. 335, 18 U.S.C. § 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 MexicanAmerican. 1580 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). 1581 Hollins v. Oklahoma, 295 U.S. 394 (1935); Avery v. Georgia, 345 U.S. 559 

(1953). 1582 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). 1583 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). 

sissippi’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. 

Juries

It has been established since Strauder v. West Virginia 1579 that

exclusion of an identifiable racial or ethnic group from a grand 

jury 1580 which indicts a defendant or a petit jury 1581 which tries 

him, or from both, 1582 denies a defendant of the excluded race 

equal protection and necessitates reversal of his conviction or dismissal of his indictment. 1583 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 exVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00286 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 1957

1584Powers v. Ohio, 499 U.S. 400, 415 (1991). Campbell v. Louisiana, 523 U.S. 

392 (1998) (grand jury). 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. 

1585 Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 329 (1970). 

1586 Carter v. Jury Comm’n of Greene County, 396 U.S. 320 (1970); Turner v. 

Fouche, 396 U.S. 346 (1970). 

1587 Norris v. Alabama, 294 U.S. 587 (1935); Patton v. Mississippi, 332 U.S. 463 

(1947); Hill v. Texas, 316 U.S. 400 (1942). 

1588Pierre 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). 

1589 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). 

1590 Avery v. Georgia, 345 U.S. 559 (1953) (names of whites and African Americans listed on differently colored paper for drawing for jury duty); Whitus v. Georgia, 385 U.S. 545 (1967) (jurors selected from county tax books, in which names of 

African Americans were marked with a ‘‘c’’). 

1591 Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 331–37 (1970), and 

cases cited. 

cluded on the basis of race. 1584 ‘‘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.’’ 1585 Thus, persons may bring 

actions seeking affirmative relief to outlaw discrimination in jury 

selection, instead of depending on defendants to raise the issue. 1586

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 1587 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 

for jury service. 1588 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. 1589 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, 1590 it has not outlawed 

discretionary selection pursuant to general standards of educational attainment and character which can be administered fairly. 1591 Similarly, it declined to rule that African Americans must 

1958 AMENDMENT 14—RIGHTS GUARANTEED 

1592 396 U.S. at 340-41. 1593 380 U.S. 202 (1965). 1594 476 U.S. 79, 96, 98 (1986). The principles were applied in Trevino v. Texas, 

503 U.S. 562 (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). 1595 Edmonson v. Leesville Concrete Co., 500 U.S. 614. 1596Georgia v. McCollum, 505 U.S. 42 (1992). 

be included on all-white jury commissions which administer the 

jury selection laws in some States. 1592

In Swain v. Alabama, 1593 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. 

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 

a neutral explanation related to the particular case,’’ but the explanation ‘‘need not rise to the level justifying exercise of a challenge 

for cause.’’ 1594 The Court has also extended Batson to apply to racially discriminatory use of peremptory challenges by private litigants in civil litigation, 1595 and by a defendant in a criminal 

case, 1596 the principal issue in these cases being the presence of 

state action, not the invalidity of purposeful racial discrimination. 

AMENDMENT 14—RIGHTS GUARANTEED 1959

1597 Rose v. Mitchell, 443 U.S. 545, 551 n.4 (1979). 

1598 Hobby v. United States, 468 U.S. 339 (1984). Note also that in this limited 

context where injury to the defendant was largely conjectural, the Court seemingly 

revived the same class rule, holding that a white defendant challenging on due process grounds exclusion of blacks as grand jury foremen could not rely on equal protection principles protecting blacks defendants from ‘‘the injuries of stigmatization 

and prejudice’’ associated with discrimination. Id. at 347. 

1599 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.

1600 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. 

1601 481 U.S. 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. 

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. 1597 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. 1598

Capital Punishment 

In McCleskey v. Kemp 1599 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 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. 1600 ‘‘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.’’ 1601 Also, the Court noted, there is not the same opportunity to rebut a statistical inference of discrimination; jurors may 

1960 AMENDMENT 14—RIGHTS GUARANTEED 

1602The 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. 1603 245 U.S. 60 (1917). See also Harmon v. Tyler, 273 U.S. 668 (1927); Richmond v. Deans, 281 U.S. 704 (1930). 1604Shelley 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). 1605 387 U.S. 369 (1967). 1606 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. 1607 Civil Rights Act of 1866, 14 Stat. 27, 42 U.S.C. § 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. § 3601 et seq. 1608See Hills v. Gautreaux, 425 U.S. 284 (1976). 1609Plessy v. Ferguson, 163 U.S. 537 (1896). 

not be required to testify as to their motives, and for the most part 

prosecutors are similarly immune from inquiry. 1602

Housing

Buchanan v. Warley 1603 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. 1604 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, 1605

though on somewhat ambiguous grounds, while a state constitutional requirement that decisions of local authorities to build lowrent housing projects in an area must first be submitted to referendum, although other similar decisions were not so limited, was 

found to accord with the equal protection clause. 1606 Private racial 

discrimination in the sale or rental of housing is subject to two federal laws prohibiting most such discrimination. 1607 Provision of 

publicly assisted housing, of course, must be on a nondiscriminatory basis. 1608

Other Areas of Discrimination 

Transportation.—The ‘‘separate but equal’’ doctrine won Supreme Court endorsement in the transportation context, 1609 and its 

passing in the education field did not long predate its demise in 

AMENDMENT 14—RIGHTS GUARANTEED 1961

1610Gayle 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). 1611McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 151 (1914). 1612Mitchell v. United States, 313 U.S. 80 (1941). 1613Morgan v. Virginia, 328 U.S. 373 (1946); Henderson v. United States, 339 

U.S. 816 (1950). 1614 364 U.S. 454 (1960). 1615 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). 1616 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. 1617 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. 

transportation as well. 1610 During the interval, the Court held invalid a state statute which permitted carriers to provide sleeping 

and dining cars for white persons only, 1611 held that a carrier’s provision of unequal, or nonexistent, first class accommodations to African Americans violated the Interstate Commerce Act, 1612 and

voided both state-required and privately imposed segregation of the 

races on interstate carriers as burdens on commerce. 1613 Boynton

v. Virginia 1614 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. 

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. 1615 A municipality could not operate a racially-segregated 

park pursuant to a will which left the property for that purpose 

and which specified that only whites could use the park, 1616 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. 1617 A municipality under court order to desegregate its publicly-owned swimVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00291 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1962 AMENDMENT 14—RIGHTS GUARANTEED 

1618Palmer 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. at 231. 1619Loving v. Virginia, 388 U.S. 1 (1967). 1620McLaughlin v. Florida, 379 U.S. 184 (1964). 1621Palmore v. Sidoti, 466 U.S. 429 (1984). 1622 Johnson v. Virginia, 373 U.S. 61 (1963). 1623 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). 1624Lee v. Washington, 390 U.S. 333 (1968); Wilson v. Kelley, 294 F. Supp. 1005 

(N.D.Ga.), aff’d, 393 U.S. 266 (1968). 1625 Anderson v. Martin, 375 U.S. 399 (1964). 1626Tancil 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 American in 

voting, tax and property records). 

ming pools was held to be entitled to close the pools instead, so 

long as it entirely ceased operation of them. 1618

Marriage.—Statutes which forbid the contracting of marriage 

between persons of different races are unconstitutional 1619 as are 

statutes which penalize interracial cohabitation. 1620 Similarly, a 

court may not deny custody of a child based on a parent’s remarriage to a person of another race and the presumed ‘‘best interests 

of the child’’ to be free from the prejudice and stigmatization that 

might result. 1621

Judicial System.—Segregation in courtrooms is unlawful and 

may not be enforced through contempt citations for disobedience 1622 or through other means. Treatment of parties to or witnesses in judicial actions based on their race is impermissible. 1623

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. 1624

Public Designation.—It is unconstitutional to designate candidates on the ballot by race 1625 and apparently any sort of designation by race on public records is suspect although not necessarily unlawful. 1626

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 

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AMENDMENT 14—RIGHTS GUARANTEED 1963

1627 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). 1628Title II, 78 Stat. 243, 42 U.S.C. § 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). 1629See ‘‘Federal Remedial Legislation,’’ infra. 1630 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). 1631 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). 1632While 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). 

tion in some aspect of the situation. 1627 Passage of the 1964 Civil 

Rights Act obviated any necessity to resolve the issue. 1628

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, 1629 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. 1630 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. 1631

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 

upon nonmembers of the class. 1632 While the Court in prior cases 

had accepted both the use of race and other suspect criteria as 

1964 AMENDMENT 14—RIGHTS GUARANTEED 

1633 E.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 22– 

25 (1971). 1634Programs 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. 1635The 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. 1636 430 U.S. 144 (1977). Chief Justice Burger dissented, id. at 180, and Justice 

Marshall did not participate. 1637 430 U.S. at 155-65. Joining this part of the opinion were Justices Brennan, 

Blackmun, and Stevens. 

valid factors in formulating remedies to overcome discrmination 1633

and the according of preferences to class members when the class 

had previously been the object of discrimination, 1634 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. 1635

In United Jewish Organizations v. Carey 1636 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. 

Justice White, delivering the judgment of the Court, based the 

result on alternative grounds. First, because the redistricting took 

place pursuant to the administration of the Voting Rights Act, the 

Justice argued that compliance with the Act necessarily required 

States to be race conscious in the drawing of lines so as not to dilute minority voting strength, that this requirement was not dependent upon a showing of past discrimination, and that the States 

retained discretion to determine just what strength minority voters 

needed in electoral districts in order to assure their proportional 

representation. Moreover, the creation of the certain number of districts in which minorities were in the majority was reasonable 

under the circumstances. 1637

AMENDMENT 14—RIGHTS GUARANTEED 1965

1638 430 U.S. 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. 1639 438 U.S. 265 (1978). 1640 78 Stat. 252, 42 U.S.C. § 2000d to 2000d–7. The Act bars discrimination on 

the ground of race, color, or national origin by any recipient of federal financial assistance. 1641 438 U.S. at 408-21 (Justices Stevens, Stewart, and Rehnquist and Chief Justice Burger). 

Second, Justice White wrote that, irrespective of what the Voting Rights Act may have required, what the State had done did not 

violate either the Fourteenth or the Fifteenth Amendment. This 

was so because the plan, even though it used race in a purposeful 

manner, represented no racial slur or stigma with respect to whites 

or any other race; the plan did not operate to minimize or unfairly 

cancel out white voting strength because as a class whites would 

be represented in the legislature in accordance with their proportion of the population in the jurisdiction. 1638

With the Court so divided, light on the constitutionality of affirmative action was anticipated in Regents of the University of 

California v. Bakke, 1639 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. 

Four Justices did not reach the constitutional question. In 

their view, Title VI of the Civil Rights Act of 1964 1640 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. 1641 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 proVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00295 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1966 AMENDMENT 14—RIGHTS GUARANTEED 

1642 438 U.S. at 284-87 (Justice Powell), 328–55 (Justices Brennan, White, Marshall, and Blackmun). 1643 438 U.S. 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. 1644 438 U.S. at 287-320. 1645See 438 U.S. at 319-20 (Justice Powell). 1646 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. 

scribed. 1642 They thus reached the constitutional issue but resolved 

it differently. Four Justices, in an opinion by Justice Brennan, argued that racial classifications designed to further remedial purposes were not foreclosed by the Constitution under appropriate 

circumstances. Even ostensibly benign racial classifications could 

be misused and produce stigmatizing effects; therefore, they must 

be searchingly scrutinized by courts to ferret out these instances. 

But benign racial preferences, unlike invidious discriminations, 

need not be subjected to strict scrutiny; instead, an intermediate 

scrutiny would do. As applied, then, this review would enable the 

Court to strike down any remedial racial classification that stigmatized any group, that singled out those least well represented in 

the political process to bear the brunt of the program, or that was 

not justified by an important and articulated purpose. 1643

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. 1644 Justice Powell thus joined the first group in agreeing that Bakke should be admitted, but he joined the second group 

in permitting the college to consider race to some degree in its admissions. 1645

Finally, in Fullilove v. Klutznick, 1646 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 

AMENDMENT 14—RIGHTS GUARANTEED 1967

1647 448 U.S. at 456-92. Justices White and Powell joined this opinion. Justice 

Powell also concurred in a separate opinion, id. at 495, which qualified to some extent his agreement with the Chief Justice. 1648 448 U.S. at 517. 1649 448 U.S. at 473-80. 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 5 of the Fourteenth 

Amendment with respect to state agencies. The Marshall plurality appeared to attach no significance in this regard to the fact that Congress was the acting party. 1650 448 U.S. at 484-85, 489 (Chief Justice Burger), 513–15 (Justice Powell). 

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. 1647 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.’’ 1648

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. 1649 Further, while the opinions emphasized the limited duration and magnitude of the set-aside program, they appeared to attach 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. 1650 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 

1968 AMENDMENT 14—RIGHTS GUARANTEED 

1651 448 U.S. at 484-89 (Chief Justice Burger), 514–515 (Justice Powell), 520– 

521 (Justice Marshall). 1652Guidance 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. 1653 476 U.S. 267 (1986). 1654 480 U.S. 149 (1987). 1655 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). 1656 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). 1657 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 concuroverinclusive, benefitting some minority members who had suffered 

no discrimination. 1651

The Court remains divided in ruling on constitutional challenges 1652 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, 1653 the Court invalidated 

a provision of a collective bargaining agreement giving minority 

teachers a preferential protection from layoffs; in United States v. 

Paradise, 1654 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. 1655 By contrast, a plurality of Justices in Paradise viewed the remedy in that case as affecting nonminorities less harshly than did the layoffs in Wygant, since the 

promotion quota would merely delay promotions of those affected, 

rather than cause the loss of their jobs. 1656

A clear distinction has been drawn between federal and state 

power to apply racial classifications. In City of Richmond v. J.A. 

Croson Co., 1657 the Court invalidated a minority set-aside requireVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00298 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 1969

ring opinion. Justice Scalia concurred separately; Justices Marshall, Brennan, and 

Blackmun dissented. 1658 497 U.S. 547 (1990). This was a 5–4 decision, Justice Brennan’s opinion of 

the Court being joined by Justices White, Marshall, Blackmun, and Stevens. Justice 

O’Connor wrote a dissenting opinion joined by the Chief Justice and by Justices 

Scalia and Kennedy, and Justice Kennedy added a separate dissenting opinion 

joined by Justice Scalia. 1659 497 U.S. at 564-65. 1660 488 U.S. at 501–02. 1661 488 U.S. at 506. 1662 488 U.S. at 508. 

ment 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 1658 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, raceconscious measures’’ that are ‘‘substantially related’’ to the achievement of an ‘‘important’’ governmental objective of broadcast diversity. 1659

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.’’ 1660 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 

discrimination against non-Blacks in the Richmond construction industry. 1661

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. 1662

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 conVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00299 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1970 AMENDMENT 14—RIGHTS GUARANTEED 

1663 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). 1664 497 U.S. at 563 & n.11. For the dissenting views of Justice O’Connor 

see id. at 606–07. See also Croson, 488 U.S. at 504 (opinion of Court). 1665 515 U.S. 200 (1995). This was a 5–4 decision. Justice O’Connor’s opinion of 

Court was joined by Chief Justice Rehnquist, and by Justices Kennedy, Thomas, 

and—to the extent not inconsistent with his own concurring opinion—Scalia. Justices Stevens, Souter, Ginsburg and Breyer dissented. 1666 515 U.S. at 227 (emphasis original). 

siders 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.’’ 1663

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. 1664 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. 

The distinction between federal and state power to apply racial 

classifications proved ephemeral. The Court ruled in Adarand Constructors, Inc. v. Pena 1665 that racial classifications imposed by federal law must be analyzed by the same strict scrutiny standard 

that is applied to evaluate state and local classifications based on 

race. The Court overruled Metro Broadcasting and, to the extent 

that it applied a review standard less stringent than strict scrutiny, Fullilove v. Klutznick. Strict scrutiny is to be applied regardless of the race of those burdened or benefited by the particular 

classification; there is no intermediate standard applicable to ‘‘benign’’ racial classifications. The underlying principle, the Court explained, is that the Fifth and Fourteenth Amendments protect persons, not groups. It follows, therefore, that classifications based on 

the group characteristic of race ‘‘should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection 

. . . has not been infringed.’’ 1666

AMENDMENT 14—RIGHTS GUARANTEED 1971

1667Graham 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. § 1981, protect resident aliens as well as citizens. 

Graham v. Richardson, 403 U.S. at 376–80. 1668 Yick Wo v. Hopkins, 118 U.S. 356 (1886). 1669McGready 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). 1670 320 U.S. 81, 100 (1943). 1671 323 U.S. 214, 216 (1944). 

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.’’ 1667 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. 1668 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. 1669 But in 

Hirabayashi v. United States, 1670 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, 1671 classifications based upon race and nationality were said to be suspect 

and subject to the ‘‘most rigid scrutiny.’’ These dicta resulted in a 

1972 AMENDMENT 14—RIGHTS GUARANTEED 

1672Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948). 1673 334 U.S. 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. 1674Graham v. Richardson, 403 U.S. 365, 372 (1971). 1675 413 U.S. 634 (1973). 1676 413 U.S. at 647-49. See also Foley v. Connelie, 435 U.S. 291, 296 (1978). 

Aliens can be excluded from voting, Skatfe v. Rorex, 553 P.2d 830 (Colo. 1976), appeal dismissed for lack of substantial federal question, 430 U.S. 961 (1977), and can 

be excluded from service on juries. Perkins v. Smith, 370 F. Supp. 134 (D.Md. 1974) 

(3-judge court), aff’d, 426 U.S. 913 (1976). 1677Sugarman v. Dougall, 413 U.S. 634, 647 (1973). Such state restrictions are 

‘‘not wholly immune from scrutiny under the Equal Protection Clause.’’ Id. at 648. 

1948 decision which appeared 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. 1672

‘‘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.’’ 1673

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. 1674 Thereafter, in a series of decisions, the 

Court adhered to its conclusion that alienage was a suspect classification and voided a variety of restrictions. More recently, however, it has created a major ‘‘political function’’ exception to strict 

scrutiny review, which shows some potential of displacing the previous analysis almost entirely. 

In Sugarman v. Dougall, 1675 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, 1676 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.’’ 1677 But a flat ban upon much of the State’s career public 

service, both of policy-making and non-policy-making jobs, ran 

AMENDMENT 14—RIGHTS GUARANTEED 1973

1678 Justice Rehnquist dissented. 413 U.S. at 649. In the course of the opinion, 

the Court held inapplicable the doctrine of ‘‘special public interest,’’ the idea that 

a State’s concern with the restriction of the resources of the State to the advancement and profit of its citizens is a valid basis for discrimination against out-of-state 

citizens and aliens generally, but it did not declare the doctrine invalid. Id. at 643– 

45. The ‘‘political function’’ exception is inapplicable to notaries public, who do not 

perform functions going to the heart of representative government. Bernal v. Fainter, 467 U.S. 216 (1984). 

1679 In re Griffiths, 413 U.S. 717 (1973). Chief Justice Burger and Justice 

Rehnquist dissented. Id. at 730, and 649 (Sugarman dissent also applicable to Griffiths).

1680 Examining Board v. Flores de Otero, 426 U.S. 572 (1976). Since the jurisdiction was Puerto Rico, the Court was not sure whether the requirement should be 

governed by the Fifth or Fourteenth Amendment but deemed the question immaterial since the same result would be achieved. The quoted expression is from Truax 

v. Raich, 239 U.S. 33, 41 (1915). 

1681 432 U.S. 1 (1977). 

afoul of the requirement that in achieving a valid interest through 

the use of a suspect classification the State must employ means 

that are precisely drawn in light of the valid purpose. 1678

State bars against the admission of aliens to the practice of 

law were also struck down, the Court holding that the State had 

not met the ‘‘heavy burden’’ of showing that its denial of admission 

to aliens was necessary to accomplish a constitutionally permissible 

and substantial interest. The State’s admitted interest in assuring 

the requisite qualifications of persons licensed to practice law could 

be adequately served by judging applicants on a case-by-case basis 

and in no sense could the fact that a lawyer is considered to be an 

officer of the court serve as a valid justification for a flat prohibition. 1679 Nor could Puerto Rico offer a justification for excluding 

aliens from one of the ‘‘common occupations of the community,’’ 

hence its bar on licensing aliens as civil engineers was voided. 1680

In Nyquist v. Mauclet, 1681 the Court seemed to expand the doctrine. Challenged was a statute that restricted the receipt of scholarships and similar financial support to citizens or to aliens who 

were applying for citizenship or who filed a statement affirming 

their intent to apply as soon as they became eligible. Therefore, 

since any alien could escape the limitation by a voluntary act, the 

disqualification was not aimed at aliens as a class, nor was it based 

on an immutable characteristic possessed by a ‘‘discrete and insular minority’’—the classification that had been the basis for declaring alienage a suspect category in the first place. But the Court 

voided the statute. ‘‘The important points are that § 661(3) is directed at aliens and that only aliens are harmed by it. The fact 

that the statute is not an absolute bar does not mean that it does 

1974 AMENDMENT 14—RIGHTS GUARANTEED 

1682 432 U.S. at 9. Chief Justice Burger and Justices Powell, Rehnquist, and 

Stewart dissented. Id. at 12, 15, 17. Justice Rehnquist’s dissent argued that the nature of the disqualification precluded it from being considered suspect. 1683Foley v. Connelie, 435 U.S. 291, 295 (1978). The opinion was by Chief Justice Burger and the quoted phrase was from his dissent in Nyquist v. Mauclet, 432 

U.S. 1, 14 (1977). Justices Marshall, Stevens, and Brennan dissented. Id. at 302, 

307.1684 435 U.S. at 295-96. Formally following Sugarman v. Dougall, supra, the 

opinion considerably enlarged the exception noted in that case; see also Nyquist v. 

Mauclet, 432 U.S. 1, 11 (1977) (emphasizing the ‘‘narrowness of the exception’’). 

Concurring in Foley, 435 U.S. at 300, Justice Stewart observed that ‘‘it is difficult 

if not impossible to reconcile the Court’s judgment in this case with the full sweep 

of the reasoning and authority of some of our past decisions. It is only because I 

have become increasingly doubtful about the validity of those decisions (in at least 

some of which I concurred) that I join the opinion of the Court in this case.’’ On 

the other hand, Justice Blackmun, who had written several of the past decisions, 

including Mauclet, concurred also, finding the case consistent. Id. 1685 435 U.S. at 297-98. In Elrod v. Burns, 427 U.S. 347 (1976), barring patronage dismissals of police officers, the Court had nonetheless recognized an exception 

for policymaking officers which it did not extend to the police. 

not discriminate against the class.’’ 1682 Two proffered justifications 

were held insufficient to meet the high burden imposed by the 

strict scrutiny doctrine. 

However, in the following Term, the Court denied that every 

exclusion of aliens was subject to strict scrutiny, ‘‘because to do so 

would ‘obliterate all the distinctions between citizens and aliens, 

and thus deprecate the historic values of citizenship.’’’ 1683 Upholding a state restriction against aliens qualifying as state policemen, 

the Court reasoned that the permissible distinction between citizen 

and alien is that the former ‘‘is entitled to participate in the processes of democratic decisionmaking. Accordingly, we have recognized ‘a State’s historic power to exclude aliens from participation 

in its democratic political institutions,’ . . . as part of the sovereign’s obligation ‘to preserve the basic conception of a political 

community.’’’ 1684 When a State acts thusly by classifying against 

aliens, its action is not subject to strict scrutiny but rather need 

only meet the rational basis test. It is therefore permissible to reserve to citizens offices having the ‘‘most important policy responsibilities,’’ a reservation drawn from Sugarman, but the critical factor in this case is the analysis finding that the police function is 

‘‘one of the basic functions of government.’’ ‘‘The execution of the 

broad powers vested’’ in police officers ‘‘affects members of the public significantly and often in the most sensitive areas of daily life. 

. . . Clearly the exercise of police authority calls for a very high degree of judgment and discretion, the abuse or misuse of which can 

have serious impact on individuals. The office of a policeman is in 

no sense one of ‘the common occupations of the community’. . . 

.’’ 1685

AMENDMENT 14—RIGHTS GUARANTEED 1975

1686 411 U.S. 68 (1979). The opinion, by Justice Powell, was joined by Chief Justice Burger and Justices Stewart, White, and Rehnquist. Dissenting were Justices 

Blackmun, Brennan, Marshall, and Stevens. The disqualification standard was of 

course, that held invalid as a disqualification for receipt of educational assistance 

in Nyquist v. Mauclet, 432 U.S. 1 (1977). 1687 Ambach v. Norwick, 441 U.S. 68, 75 (1979). 1688 441 U.S. at 75. 1689 441 U.S. at 75-80. The quotation, id. at 76, is from Sugarman v. Dougall, 

413 U.S. 634, 647 (1973). 1690 454 U.S. 432 (1982). Joining the opinion of the Court were Justices White, 

Powell, Rehnquist, O’Connor, and Chief Justice Burger. Dissenting were Justices 

Blackmun, Brennan, Marshall, and Stevens. Id. at 447. 1691 454 U.S. at 442. 1692 454 U.S. at 445. 

Continuing to enlarge the exception, the Court in Ambach v. 

Norwick 1686 upheld a bar to qualifying as a public school teacher 

for resident aliens who have not manifested an intention to apply 

for citizenship. The ‘‘governmental function’’ test took on added significance, the Court saying that the ‘‘distinction between citizens 

and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State.’’ 1687 Thus,

‘‘governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens.’’ 1688 Teachers, the Court thought, because of the role of public 

education in inculcating civic values and in preparing children for 

participation in society as citizens and because of the responsibility 

and discretion they have in fulfilling that role, perform a task that 

‘‘go[es] to the heart of representative government.’’ 1689 The citizenship requirement need only bear a rational relationship to the state 

interest, and the Court concluded it clearly did so. 

Then, in Cabell v. Chavez-Salido, 1690 the Court sustained a 

state law imposing a citizenship requirement upon all positions 

designated as ‘‘peace officers,’’ upholding in context that eligibility 

prerequisite for probation officers. First, the Court held that the extension of the requirement to an enormous range of people who 

were variously classified as ‘‘peace officers’’ did not reach so far nor 

was it so broad and haphazard as to belie the claim that the State 

was attempting to ensure that an important function of government be in the hands of those having a bond of citizenship. ‘‘[T]he 

classifications used need not be precise; there need only be a substantial fit.’’ 1691 As to the particular positions, the Court held that 

‘‘they, like the state troopers involved in Foley, sufficiently partake 

of the sovereign’s power to exercise coercive force over the individual that they may be limited to citizens.’’ 1692

Thus, the Court so far has drawn a tripartite differentiation 

with respect to governmental restrictions on aliens. First, it has 

disapproved the earlier line of cases and now would foreclose atVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00305 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
1976 AMENDMENT 14—RIGHTS GUARANTEED 

1693 454 U.S. at 438-39. 1694Thus, the statute in Chavez-Salido applied to such positions as toll-service 

employees, cemetery sextons, fish and game wardens, and furniture and bedding inspectors, and yet the overall classification was deemed not so ill-fitting as to require 

its voiding. 1695Plyler v. Doe, 457 U.S. 432 (1982). Joining the opinion of the Court were 

Justices Brennan, Marshall, Blackmun, Powell, and Stevens. Dissenting were Chief 

Justice Burger and Justices White, Rehnquist, and O’Connor. Id. at 242. 1696 In San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973), while holding 

that education is not a fundamental interest, the Court expressly reserved the question whether a total denial of education to a class of children would infringe upon 

a fundamental interest. Id. at 18, 25 n. 60, 37. The Plyler Court’s emphasis upon 

the total denial of education and the generally suspect nature of alienage classifications left ambiguous whether the state discrimination would have been subjected to 

strict scrutiny if it had survived intermediate scrutiny. Justice Powell thought the 

Court had rejected strict scrutiny, 457 U.S. at 238 n.2 (concurring), while Justice 

Blackmun thought it had not reached the question, id. at 235 n.3 (concurring). Indeed, their concurring opinions seem directed more toward the disability visited 

upon innocent children than the broader complex of factors set out in the opinion 

of the Court. Id. at 231, 236. 

tempts by the States to retain certain economic benefits, primarily 

employment and opportunities for livelihood, exclusively for citizens. Second, when government exercises principally its spending 

functions, such as those with respect to public employment generally and to eligibility for public benefits, its classifications with 

an adverse impact on aliens will be strictly scrutinized and usually 

fail. Third, when government acts in its sovereign capacity, when 

it acts within its constitutional prerogatives and responsibilities to 

establish and operate its own government, its decisions with respect to the citizenship qualifications of an appropriately designated class of public office holders will be subject only to traditional rational basis scrutiny. 1693 However, the ‘‘political function’’ 

standard is elastic, and so long as disqualifications are attached to 

specific occupations 1694 rather than to the civil service in general, 

as in Sugarman, the concept seems capable of encompassing the 

exclusion.

When confronted with a state statute that authorized local 

school boards to exclude from public schools alien children who 

were not legally admitted to the United States, the Court determined that an intermediate level of scrutiny was appropriate and 

found that the proffered justifications did not sustain the classification. 1695 Inasmuch as it was clear that the undocumented status of 

the children was not irrelevant to valid government goals and inasmuch as the Court had previously held that access to education 

was not a ‘‘fundamental interest’’ which triggered strict scrutiny of 

governmental distinctions relating to education, 1696 the Court’s decision to accord intermediate review was based upon an amalgam 

of at least three factors. First, alienage was a characteristic that 

AMENDMENT 14—RIGHTS GUARANTEED 1977

1697 457 U.S. at 223-24. 

1698 Rejected state interests included preserving limited resources for its lawful 

residents, deterring an influx of illegal aliens, avoiding the special burden caused 

by these children, and serving children who were more likely to remain in the State 

and contribute to its welfare. 457 U.S. at 227-30. 

provokes special judicial protection when used as a basis for discrimination. Second, the children were innocent parties who were 

having a particular onus imposed on them because of the misconduct of their parents. Third, the total denial of an education to 

these children would stamp them with an ‘‘enduring disability’’ 

that would harm both them and the State all their lives. 1697 The

Court evaluated each of the State’s attempted justifications and 

found none of them satisfying the level of review demanded. 1698 It

seems evident that Plyler v. Doe is a unique case and that whatever it may doctrinally stand for, a sufficiently similar factual situation calling for application of its standards is unlikely to be replicated.

Sex.—Shortly after ratification of the Fourteenth Amendment, 

the refusal of Illinois to license a woman to practice law was challenged before the Supreme Court, and the Court rejected the challenge in tones which prevailed well into the twentieth century. 

‘‘The civil law, as well as nature itself, has always recognized a 

wide difference in the respective spheres and destinies of man and 

woman. Man is, or should be, woman’s protector and defender. The 

natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. 

The constitution of the family organization, which is founded in the 

divine ordinance, as well as in the nature of things, indicates the 

domestic sphere as that which properly belongs to the domain and 

1978 AMENDMENT 14—RIGHTS GUARANTEED 

1699 Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873). The cases involving 

alleged discrimination against women contain large numbers of quaint quotations 

from unlikely sources. Upholding a law which imposed a fee upon all persons engaged in the laundry business, but excepting businesses employing not more than 

two women, Justice Holmes said: ‘‘If Montana deems it advisable to put a lighter 

burden upon women than upon men with regard to an employment that our people 

commonly regard as more appropriate for the former, the Fourteenth Amendment 

does not interfere by creating a fictitious equality where there is a real difference.’’ 

Quong Wing v. Kirkendall, 223 U.S. 59, 63 (1912). And upholding a law prohibiting 

most women from tending bar, Justice Frankfurter said: ‘‘The fact that women may 

now have achieved the virtues that men have long claimed as their prerogatives and 

now indulge in vices that men have long practiced, does not preclude the States 

from drawing a sharp line between the sexes, certainly in such matters as the regulation of the liquor traffic. . . . The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires 

them to keep abreast of the latest scientific standards.’’ Goesaert v. Cleary, 335 U.S. 

464, 466 (1948). 1700Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875) (privileges and immunities).1701Muller v. Oregon, 208 U.S. 412 (1908); Dominion Hotel v. Arizona, 249 U.S. 

265 (1919). 1702West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). 1703 E.g., Radice v. New York, 264 U.S. 292 (1924) (prohibiting night work by 

women in restaurants). A similar restriction set a maximum weight that women 

could be required to lift. 1704 Hoyt v. Florida, 368 U.S. 57, 62 (1961). 1705 Cronin v. Adams, 192 U.S. 108 (1904). 1706Goesaert v. Cleary, 335 U.S. 464 (1948). 

functions of womanhood.’’ 1699 On the same premise, a statute restricting the franchise to men was sustained. 1700

The greater number of cases have involved legislation aimed to 

protect women from oppressive working conditions, as by prescribing maximum hours 1701 or minimum wages 1702 or by restricting some of the things women could be required to do. 1703 A 1961 

decision upheld a state law which required jury service of men but 

which gave women the option of serving or not. ‘‘We cannot say 

that it is constitutionally impermissible for a State acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.’’ 1704 Another type of protective legislation for women that 

was sustained by the Court is that premised on protection of morals, as by forbidding the sale of liquor to women. 1705 In a highly 

controversial ruling, the Court sustained a state law which forbade 

the licensing of any female bartender, except for the wives or 

daughters of male owners. The Court purported to view the law as 

one for the protection of the health and morals of women generally, 

with the exception being justified by the consideration that such 

women would be under the eyes of a protective male. 1706

AMENDMENT 14—RIGHTS GUARANTEED 1979

1707Thus, title VII of the Civil Rights Act of 1964, 80 Stat. 662, 42 U.S.C. § 

2000e et seq., bans discrimination against either sex in employment. See, e.g., Phillips v. Martin-Marietta Corp., 400 U.S. 542 (1971); Dothard v. Rawlinson, 433 U.S. 

321 (1977); Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702 (1978); 

Arizona Governing Comm. for Tax Deferred Plans v. Norris, 463 U.S. 1073 (1983) 

(actuarially based lower monthly retirement benefits for women employees violates 

Title VII); Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (‘‘hostile environment’’ sex harassment claim is actionable). Reversing rulings that pregnancy discrimination is not reached by the statutory bar on sex discrimination, General Electric Co. v. Gilbert, 429 U.S. 125 (1976); Nashville Gas Co. v. Satty, 434 U.S. 136 

(1977), Congress enacted the Pregnancy Discrimination Act, Pub. L. 95–555 (1978), 

92 Stat. 2076, amending 42 U.S.C. § 2000e. The Equal Pay Act, 77 Stat. 56 (1963), 

amending the Fair Labor Standards Act, 29 U.S.C. § 206(d), generally applies to 

wages paid for work requiring ‘‘equal skill, effort, and responsibility.’’ See Corning

Glass Works v. Brennan, 417 U.S. 188 (1974). On the controversial issue of ‘‘comparable worth’’ and the interrelationship of title VII and the Equal Pay Act, see

County of Washington v. Gunther, 452 U.S. 161 (1981). 1708See, e.g., Roberts v. United States Jaycees, 468 U.S. 609 (1984) (state prohibition on gender discrimination in aspects of public accommodation, as applied to 

membership in a civic organization, is justified by compelling state interest). 1709On the Equal Rights Amendment, see discussion of ‘‘Ratification,’’ supra. 1710 404 U.S. 71 (1971). 

A wide variety of sex discrimination by governmental and private parties, including sex discrimination in employment and even 

the protective labor legislation previously sustained, is now proscribed by federal law. In addition, federal law requires equal pay 

for equal work. 1707 Some states have followed suit. 1708 While the 

proposed Equal Rights Amendment pended before the States and 

ultimately failed of ratification, 1709 the Supreme Court undertook 

a major evaluation of sex classification doctrine, first applying a 

‘‘heightened’’ traditional standard of review (with bite) to void a 

discrimination and then, after coming within a vote of making sex 

a suspect classification, settling upon an intermediate standard. 

These standards continue, with some uncertainties of application 

and some tendencies among the Justices both to lessen and to increase the burden of governmental justification, to provide the 

analysis for evaluation of sex classifications. 

In Reed v. Reed, 1710 the Court held invalid a state probate law 

which gave males preference over females when both were equally 

entitled to administer an estate. Because the statute ‘‘provides that 

different treatment be accorded to the applicants on the basis of 

their sex,’’ Chief Justice Burger wrote, ‘‘it thus establishes a classification subject to scrutiny under the Equal Protection Clause.’’ The 

Court proceeded to hold that under traditional equal protection 

standards—requiring a classification to be reasonable and not arbitrarily related to a lawful objective—the classification made was an 

arbitrary way to achieve the objective the State advanced in defense of the law, that is, to reduce the area of controversy between 

otherwise equally qualified applicants for administration. Thus, the 

1980 AMENDMENT 14—RIGHTS GUARANTEED 

1711 404 U.S. at 75-77. Cf. Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972). A 

statute similar to that in Reed was before the Court in Kirchberg v. Feenstra, 450 

U.S. 455 (1981) (invalidating statute giving husband unilateral right to dispose of 

jointly owned community property without wife’s consent). 1712 Craig v. Boren, 429 U.S. 190, 197 (1976); Califano v. Goldfarb, 430 U.S. 199, 

210–11 (1977) (plurality opinion); Califano v. Webster, 430 U.S. 313, 316–317 

(1977); Orr v. Orr, 440 U.S. 268, 279 (1979); Caban v. Mohammed, 441 U.S. 380, 

388 (1979); Massachusetts Personnel Adm’r v. Feeney, 442 U.S. 256, 273 (1979); 

Califano v. Westcott, 443 U.S. 76, 85 (1979); Wengler v. Druggists Mutual Ins. Co., 

446 U.S. 142, 150 (1980); Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 723–24 (1982). But see Michael

M. v. Superior Court, 450 U.S. 464, 468–69 (1981) (plurality opinion); id. at 483 

(Justice Blackmun concurring); Rostker v. Goldberg, 453 U.S. 57, 69–72 (1981). The 

test is the same whether women or men are disadvantaged by the classification, Orr 

v. Orr, 440 U.S. at 279; Caban v. Mohammed, 441 U.S. at 394; Mississippi Univ. 

for Women v. Hogan, 458 U.S. at 724, although Justice Rehnquist and Chief Justice 

Burger strongly argued that when males are disadvantaged only the rational basis 

test is appropriate. Craig v. Boren, 429 U.S. at 217, 218–21; Califano v. Goldfarb, 

430 U.S. at 224. That adoption of a standard has not eliminated difficulty in deciding such cases should be evident by perusal of the cases following. 1713 In Frontiero v. Richardson, 411 U.S. 677 (1973), four Justices were prepared 

to hold that sex classifications are inherently suspect and must therefore be subjected to strict scrutiny. Id. at 684–87 (Justices Brennan, Douglas, White, and Marshall). Three Justices, reaching the same result, thought the statute failed the traditional test and declined for the moment to consider whether sex was a suspect classification, finding that inappropriate while the Equal Rights Amendment was pending. Id. at 691 (Justices Powell and Blackmun and Chief Justice Burger). Justice 

Stewart found the statute void under traditional scrutiny and Justice Rehnquist dissented. Id. at 691. In Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 n.9 

(1982), Justice O’Connor for the Court expressly reserved decision whether a classification that survived intermediate scrutiny would be subject to strict scrutiny. 1714While their concurrences in Craig v. Boren, 429 U.S. 190, 210, 211 (1976), 

indicate some reticence about express reliance on intermediate scrutiny, Justices 

Powell and Stevens have since joined or written opinions stating the test and applying it. E.g., Caban v. Mohammed, 441 U.S. 380, 388 (1979) (Justice Powell writing 

the opinion of the Court); Parham v. Hughes, 441 U.S. 347, 359 (1979) (Justice Powell concurring); Califano v. Goldfarb, 430 U.S. 199, 217 (1977) (Justice Stevens concurring); Caban v. Mohammed, 441 U.S. at 401 (Justice Stevens dissenting). Chief 

Justice Burger and Justice Rehnquist have not clearly stated a test, although their 

deference to legislative judgment approaches the traditional scrutiny test. But

see Califano v. Westcott, 443 U.S. at 93 (joining Court on substantive decision). And

cf. Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 734–35 (1982) (Justice 

Blackmun dissenting). 

Court used traditional analysis but the holding seems to go somewhat further to say that not all lawful interests of a State may be 

advanced by a classification based solely on sex. 1711

It is now established that sex classifications, in order to withstand equal protection scrutiny, ‘‘must serve important governmental objectives and must be substantially related to achievement 

of those objectives.’’ 1712 Thus, after several years in which sex distinctions were more often voided than sustained without a clear 

statement of the standard of review, 1713 a majority of the Court 

has arrived at the intermediate standard which many had thought 

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AMENDMENT 14—RIGHTS GUARANTEED 1981

1715The test is thus the same as is applied to illegitimacy classifications, although with apparently more rigor when sex is involved. 1716Stanton v. Stanton, 421 U.S. 7 (1975). See also Stanton v. Stanton, 429 U.S. 

501 (1977). Assumptions about the traditional roles of the sexes afford no basis for 

support of classifications under the intermediate scrutiny standard. E.g., Orr v. Orr, 

440 U.S. 268, 279–80 (1979); Parham v. Hughes, 441 U.S. 347, 355 (1979); 

Kirchberg v. Feenstra, 450 U.S. 455 (1981). Justice Stevens in particular has been 

concerned whether legislative classifications by sex simply reflect traditional ways 

of thinking or are the result of a reasoned attempt to reach some neutral goal, 

e.g., Califano v. Goldfarb, 430 U.S. 199, 222–23 (1978) (concurring), and he will sustain some otherwise impermissible distinctions if he finds the legislative reasoning 

to approximate the latter approach. Caban v. Mohammed, 441 U.S. 380, 401 (1979) 

(dissenting). 1717Taylor v. Louisiana, 419 U.S. 522 (1975). The precise basis of the decision 

was the Sixth Amendment right to a representative cross section of the community, 

but the Court dealt with and disapproved the reasoning in Hoyt v. Florida, 368 U.S. 

57 (1961), in which a similar jury selection process was upheld against due process 

and equal protection challenge. 1718 511 U.S. 127 (1994). 

utory or administrative scheme to determine if the purpose or objective is permissible and, if it is, whether it is important. Then, 

having ascertained the actual motivation of the classification, the 

Court engages in a balancing test to determine how well the classification serves the end and whether a less discriminatory one 

would serve that end without substantial loss to the government. 1715

Some sex distinctions were seen to be based solely upon ‘‘old 

notions,’’ no longer valid if ever they were, about the respective 

roles of the sexes in society, and those distinctions failed to survive 

even traditional scrutiny. Thus, a state law defining the age of majority as 18 for females and 21 for males, entitling the male child 

to support by his divorced father for three years longer than the 

female child, was deemed merely irrational, grounded as it was in 

the assumption of the male as the breadwinner, needing longer to 

prepare, and the female as suited for wife and mother. 1716 Similarly, a state jury system that in effect excluded almost all women 

was deemed to be based upon an overbroad generalization about 

the role of women as a class in society, and the administrative convenience served could not justify it. 1717

Even when the negative ‘‘stereotype’’ which is evoked is that 

of a stereotypical male, the Court has evaluated this as potential 

gender discrimination. In J. E. B. v. Alabama ex rel. T. B., 1718 the

Court addressed a paternity suit where men had been intentionally 

excluded from a jury through peremptory strikes. The Court rejected as unfounded the argument that men, as a class, would be 

more sympathetic to the defendant, the putative father. The Court 

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1719 Craig v. Boren, 429 U.S. 190 (1976). 1720 429 U.S. at 198, 199-200, 201-04. 1721Orr v. Orr, 440 U.S. 268 (1979). 1722 440 U.S. at 280-83. An administrative convenience justification was not 

available, therefore. Id. at 281 & n.12. While such an argument has been accepted 

as a sufficient justification in at least some illegitimacy cases, Mathews v. Lucas, 

427 U.S. 495, 509 (1976), it has neither wholly been ruled out nor accepted in sex 

cases. In Lucas, 427 U.S. at 509–10, the Court interpreted Frontiero v. Richardson, 

411 U.S. 677 (1973), as having required a showing at least that for every dollar lost 

to a recipient not meeting the general purpose qualification a dollar is saved in administrative expense. In Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 152 

(1980), the Court said that ‘‘[i]t may be that there are levels of administrative conmine the litigants’ interest by tainting the proceedings, and in addition would harm the wrongfully excluded juror. 

Assumptions about the relative positions of the sexes, however, 

are not without some basis in fact, and sex may sometimes be a 

reliable proxy for the characteristic, such as need, with which it is 

the legislature’s actual intention to deal. But heightened scrutiny 

requires evidence of the existence of the distinguishing fact and its 

close correspondence with the condition for which sex stands as 

proxy. Thus, in the case which first expressly announced the intermediate scrutiny standard, the Court struck down a state statute 

that prohibited the sale of ‘‘non-intoxicating’’ 3.2 beer to males 

under 21 and to females under 18. 1719 Accepting the argument that 

traffic safety was an important governmental objective, the Court 

emphasized that sex is an often inaccurate proxy for other, more 

germane classifications. Taking the statistics offered by the State 

as of value, while cautioning that statistical analysis is a ‘‘dubious’’ 

business that is in tension with the ‘‘normative philosophy that 

underlies the Equal Protection Clause,’’ the Court thought the correlation between males and females arrested for drunk driving 

showed an unduly tenuous fit to allow the use of sex as a distinction. 1720

Invalidating an Alabama law imposing alimony obligations 

upon males but not upon females, the Court acknowledged that assisting needy spouses was a legitimate and important governmental objective and would then have turned to ascertaining 

whether sex was a sufficiently accurate proxy for dependency, so it 

could be said that the classification was substantially related to 

achievement of the objective. 1721 However, the Court observed that 

the State already conducted individualized hearings with respect to 

the need of the wife, so that with little additional burden needy 

males could be identified and helped. The use of the sex standard 

as a proxy, therefore, was not justified because it needlessly burdened needy men and advantaged financially secure women whose 

husbands were in need. 1722

AMENDMENT 14—RIGHTS GUARANTEED 1983

venience that will justify discriminations that are subject to heightened scrutiny . 

. . , but the requisite showing has not been made here by the mere claim that it 

would be inconvenient to individualize determinations about widows as well as widowers.’’ Justice Stevens apparently would demand a factual showing of substantial 

savings. Califano v. Goldfarb, 430 U.S. 199, 219 (1977) (concurring). 1723 Caban v. Mohammed, 441 U.S. 380 (1979). Four Justices dissented. Id. at 

394 (Justice Stewart), 401 (Justices Stevens and Rehnquist and Chief Justice Burger). For the conceptually different problem of classification between different groups 

of women on the basis of marriage or absence of marriage to a wage earner, see

Califano v. Boles, 443 U.S. 282 (1979). 1724Parham v. Hughes, 441 U.S. 347, 361 (1979). There was no opinion of the 

Court, but both opinions making up the result emphasized that the objective of the 

State, the avoidance of difficulties in proving paternity, was an important one which 

was advanced by the classification. The plurality opinion determined that the statute did not invidiously discriminate against men as a class; it was no overbroad generalization but proceeded from the fact that only men could legitimate children by 

unilateral action. The sexes were not similarly situated, therefore, and the classification recognized that. As a result, all that was required was that the means be 

a rational way of dealing with the problem of proving paternity. Id. at 353–58. Justice Powell found the statute valid because the sex-based classification was substantially related to the objective of avoiding problems of proof in proving paternity. He 

also emphasized that the father had it within his power to remove the bar by 

legitimating the child. Id. at 359. Justices White, Brennan, Marshall, and Blackmun, who had been in the majority in Caban, dissented. 

Various forms of discrimination between unwed mothers and 

unwed fathers received different treatment based on the Court’s 

perception of the justifications and presumptions underlying each. 

A New York law permitted the unwed mother but not the unwed 

father of an illegitimate child to block his adoption by withholding 

consent. Acting in the instance of one who acknowledged his parenthood and who had maintained a close relationship with his child 

over the years, the Court could discern no substantial relationship 

between the classification and some important state interest. Promotion of adoption of illegitimates and their consequent 

legitimation was important, but the assumption that all unwed fathers either stood in a different relationship to their children than 

did the unwed mother or that the difficulty of finding the fathers 

would unreasonably burden the adoption process was overbroad, as 

the facts of the case revealed. No barrier existed to the State dispensing with consent when the father or his location is unknown, 

but disqualification of all unwed fathers may not be used as a 

shorthand for that step. 1723

On the other hand, the Court sustained a Georgia statute 

which permitted the mother of an illegitimate child to sue for the 

wrongful death of the child but which allowed the father to sue 

only if he had legitimated the child and there is no mother. 1724

Similarly, the Court let stand, under the Fifth Amendment, a federal statute which required that in order for an illegitimate child 

born overseas to gain citizenship, a citizen father, unlike a citizen 

1984 AMENDMENT 14—RIGHTS GUARANTEED 

1725 Nguyen v. INS, 533 U.S. 53 (2001). See also Miller v. Albright, 523 U.S. 420 

(1998) (opinion by Justice Stevens, joined by Justice Rehnquist) (equal protection 

not violated where paternity of a child of a citizen mother is established at birth, 

but child of citizen father must establish paternity by age 18). 1726Frontiero v. Richardson, 411 U.S. 677 (1973). 1727 420 U.S. 636 (1975). 1728 430 U.S. 199 (1977). The dissent argued that whatever the classification utilized, social insurance programs should not automatically be subjected to heightened 

scrutiny but rather only to traditional rationality review. Id. at 224 (Justice 

Rehnquist with Chief Justice Burger and Justices Stewart and Blackmun). In 

Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142 (1980), voiding a state workers’ 

compensation provision identical to that voided in Goldfarb, only Justice Rehnquist 

continued to adhere to this view, although the others may have yielded only to 

precedent.

mother, must acknowledge or legitimate the child before the child’s 

18th birthday. 1725 The Court emphasized the ready availability of 

proof of a child’s maternity as opposed to paternity, but the dissent 

questioned whether such a distinction was truly justified under 

strict scrutiny considering the ability of modern techniques of DNA 

paternity testing to settle concerns about legitimacy. 

As in the instance of illegitimacy classifications, the issue of 

sex qualifications for the receipt of governmental financial benefits 

has divided the Court and occasioned close distinctions. A statutory 

scheme under which a serviceman could claim his spouse as a ‘‘dependent’’ for allowances while a servicewoman’s spouse was not 

considered a ‘‘dependent’’ unless he was shown in fact to be dependent upon her for more than one half of his support was held 

an invalid dissimilar treatment of similarly situated men and 

women, not justified by the administrative convenience rationale. 1726 In Weinberger v. Wiesenfeld, 1727 the Court struck down a 

Social Security provision that gave survivor’s benefits based on the 

insured’s earnings to the widow and minor children but gave such 

benefits only to the children and not to the widower of a deceased 

woman worker. Focusing not only upon the discrimination against 

the widower but primarily upon the discrimination visited upon the 

woman worker whose earnings did not provide the same support 

for her family that a male worker’s did, the Court saw the basis 

for the distinction resting upon the generalization that a woman 

would stay home and take care of the children while a man would 

not. Since the Court perceived the purpose of the provision to be 

to enable the surviving parent to choose to remain at home to care 

for minor children, the sex classification ill fitted the end and was 

invidiously discriminatory. 

But when in Califano v. Goldfarb 1728 the Court was confronted 

with a Social Security provision structured much as the benefit sections struck down in Frontiero and Wiesenfeld, even in the light of 

an express heightened scrutiny, no majority of the Court could be 

AMENDMENT 14—RIGHTS GUARANTEED 1985

1729 430 U.S. at 204-09, 212-17 (Justices Brennan, White, Marshall, and Powell). 

Congress responded by eliminating the dependency requirement but by adding a 

pension offset provision reducing spousal benefits by the amount of various other 

pensions received. Continuation in this context of the Goldfarb gender-based dependency classification for a five-year ‘‘grace period’’ was upheld in Heckler v. Mathews, 465 U.S. 728 (1984), as directly and substantially related to the important 

governmental interest in protecting against the effects of the pension offset the retirement plans of individuals who had based their plans on unreduced pre- Goldfarb 

payment levels. 1730 430 U.S. at 217. Justice Stevens adhered to this view in Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 154 (1980). Note the unanimity of the Court 

on the substantive issue, although it was divided on remedy, in voiding in Califano 

v. Westcott, 443 U.S. 76 (1979), a Social Security provision giving benefits to families with dependent children who have been deprived of parental support because 

of the unemployment of the father but giving no benefits when the mother is unemployed. 1731 453 U.S. 57 (1981). Joining the opinion of the Court were Justices 

Rehnquist, Stewart, Blackmun, Powell, and Stevens, and Chief Justice Burger. Dissenting were Justices White, Marshall, and Brennan. Id. at 83, 86. 

obtained for the reason for striking down the statute. The section 

provided that a widow was entitled to receive survivors’ benefits 

based on the earnings of her deceased husband, regardless of dependency, but payments were to go to the widower of a deceased 

wife only upon proof that he had been receiving at least half of his 

support from her. The plurality opinion treated the discrimination 

as consisting of disparate treatment of women wage-earners whose 

tax payments did not earn the same family protection as male 

wage earners’ taxes. Looking to the purpose of the benefits provision, the plurality perceived it to be protection of the familial unit 

rather than of the individual widow or widower and to be keyed to 

dependency rather than need. The sex classification was thus found 

to be based on an assumption of female dependency which illserved the purpose of the statute and was an ill-chosen proxy for 

the underlying qualification. Administrative convenience could not 

justify use of such a questionable proxy. 1729 Justice Stevens, concurring, accepted most of the analysis of the dissent but nonetheless came to the conclusion of invalidity. His argument was essentially that while either administrative convenience or a desire to 

remedy discrimination against female spouses could justify use of 

a sex classification, neither purpose was served by the sex classification actually used in this statute. 1730

Again, the Court divided closely when it sustained two instances of classifications claimed to constitute sex discrimination. 

In Rostker v. Goldberg, 1731 rejecting presidential recommendations, 

Congress provided for registration only of males for a possible future military draft, excluding women altogether. The Court discussed but did not explicitly choose among proffered equal protection standards, but it apparently applied the intermediate test of 

1986 AMENDMENT 14—RIGHTS GUARANTEED 

1732 453 U.S. at 69-72, 78-83. The dissent argued that registered persons would 

fill noncombat positions as well as combat ones and that drafting women would add 

to women volunteers providing support for combat personnel and would free up men 

in other positions for combat duty. Both dissents assumed without deciding that exclusion of women from combat served important governmental interests. Id. at 83, 

93. The majority’s reliance on an administrative convenience argument, it should be 

noted, id. at 81, was contrary to recent precedent. See supra. 1733 450 U.S. 464 (1981). Joining the opinion of the Court were Justices 

Rehnquist, Stewart, and Powell, and Chief Justice Burger, constituting only a plurality. Justice Blackmun concurred in a somewhat more limited opinion. Id. at 481. 

Dissenting were Justices Brennan, White, Marshall, and Stevens. Id. at 488, 496. 1734 450 U.S. at 470-74, 481. The dissents questioned both whether the pregnancy deterrence rationale was the purpose underlying the distinction and whether, 

if it was, the classification was substantially related to achievement of the goal. Id. 

at 488, 496. 

>Craig v. Boren. However, it did so in the context of its often-stated 

preference for extreme deference to military decisions and to congressional resolution of military decisions. Evaluating the congressional determination, the Court found that it has not been ‘‘unthinking’’ or ‘‘reflexively’’ based upon traditional notions of the differences between men and women; rather, Congress had extensively deliberated over its decision. It had found, the Court asserted, that the purpose of registration was the creation of a pool 

from which to draw combat troops when needed, an important and 

indeed compelling governmental interest, and the exclusion of 

women was not only ‘‘sufficiently but closely’’ related to that purpose because they were ill-suited for combat, could be excluded 

from combat, and registering them would be too burdensome to the 

military system. 1732

In Michael M. v. Superior Court, 1733 the Court did expressly 

adopt the Craig v. Boren intermediate standard, but its application 

of the test appeared to represent a departure in several respects 

from prior cases in which it had struck down sex classifications. 

Michael M. involved the constitutionality of a statute that punished 

males, but not females, for having sexual intercourse with a nonspousal person under 18 years of age. The plurality and the concurrence generally agreed, but with some difference of emphasis, that 

while the law was founded on a clear sex distinction it was justified 

because it did serve an important governmental interest, the prevention of teenage pregnancies. Inasmuch as women may become 

pregnant and men may not, women would be better deterred by 

that biological fact, and men needed the additional legal deterrence 

of a criminal penalty. Thus, the law recognized that for purposes 

of this classification men and women were not similarly situated, 

and the statute did not deny equal protection. 1734

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AMENDMENT 14—RIGHTS GUARANTEED 1987

1735 416 U.S. 351 (1974). 1736 416 U.S. at 355. 1737 419 U.S. 498 (1975). 1738Weinberger v. Wiesenfeld, 420 U.S. 636, 648 (1975); Califano v. Goldfarb, 

430 U.S. 199, 209 n.8 (1977) Orr v. Orr, 440 U.S. 268, 280–82 (1979); Wengler v. 

Druggists Mutual Ins. Co., 446 U.S. 142, 150–52 (1980). In light of the stiffened 

standard, Justice Stevens has called for overruling Kahn, Califano v. Goldfarb, 430 

U.S. at 223–24, but Justice Blackmun would preserve that case. Orr v. Orr, 440 

U.S. at 284. Cf. Regents of the Univ. of California v. Bakke, 438 U.S. 265, 302–03 

(1978) (Justice Powell; less stringent standard of review for benign sex classifications).

come the effects of past societal discrimination against women, 

have presented the Court with some difficulty. Although the first 

two cases were reviewed under apparently traditional rational 

basis scrutiny, the more recent cases appear to subject these classifications to the same intermediate standard as any other sex classification. Kahn v. Shevin 1735 upheld a state property tax exemption 

allowing widows but not widowers a $500 exemption. In justification, the State had presented extensive statistical data showing the 

substantial economic and employment disabilities of women in relation to men. The provision, the Court found, was ‘‘reasonably designed to further the state policy of cushioning the financial impact 

of spousal loss upon the sex for whom that loss imposes a disproportionately heavy burden.’’ 1736 And in Schlesinger v. 

Ballard, 1737 the Court sustained a provision requiring the mandatory discharge from the Navy of a male officer who has twice failed 

of promotion to certain levels, which in Ballard’s case meant discharge after nine years of service, whereas women officers were entitled to 13 years of service before mandatory discharge for want 

of promotion. The difference was held to be a rational recognition 

of the fact that male and female officers were dissimilarly situated 

and that women had far fewer promotional opportunities than men 

had.

Although in each of these cases the Court accepted the proffered justification of remedial purpose without searching inquiry, 

later cases caution that ‘‘the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against 

any inquiry into the actual purposes underlying a statutory 

scheme.’’ 1738 Rather, after specifically citing the heightened scrutiny that all sex classifications are subjected to, the Court looks to 

the statute and to its legislative history to ascertain that the 

scheme does not actually penalize women, that it was actually enacted to compensate for past discrimination, and that it does not 

reflect merely ‘‘archaic and overbroad generalizations’’ about 

women in its moving force. But where a statute is ‘‘deliberately enacted to compensate for particular economic disabilities suffered by 

1988 AMENDMENT 14—RIGHTS GUARANTEED 

1739 Califano v. Webster, 430 U.S. 313, 316–18, 320 (1977). There was no doubt 

that the provision sustained in Webster had been adopted expressly to relieve past 

societal discrimination. The four Goldfarb dissenters concurred specially, finding no 

difference between the two provisions. Id. at 321. 1740 458 U.S. 718 (1982). Joining the opinion of the Court were Justices 

O’Connor, Brennan, White, Marshall, and Stevens. Dissenting were Chief Justice 

Burger and Justices Blackmun, Powell, and Rehnquist. Id. at 733, 735. 1741 458 U.S. at 728. 1742 458 U.S. at 730. In addition to obligating the State to show that in fact 

there was existing discrimination or effects from past discrimination, the Court also 

appeared to take the substantial step of requiring the State ‘‘to establish that the 

legislature intended the single-sex policy to compensate for any perceived discrimination.’’ Id. at 730 n.16. A requirement that the proffered purpose be the actual one 

and that it must be shown that the legislature actually had that purpose in mind 

would be a notable stiffening of equal protection standards. 1743 In the major dissent, Justice Powell argued that only a rational basis standard ought to be applied to sex classifications that would ‘‘expand women’s choices,’’ 

but that the exclusion here satisfied intermediate review because it promoted diverwomen,’’ it serves an important governmental objective and will be 

sustained if it is substantially related to achievement of that objective. 1739

Many of these lines of cases converged in Mississippi University for Women v. Hogan, 1740 in which the Court stiffened and applied its standards for evaluating claimed benign distinctions benefiting women and additionally appeared to apply the intermediate 

standard itself more strictly. The case involved a male nurse who 

wished to attend a female-only nursing school located in the city 

in which he lived and worked; if he could not attend this particular 

school he would have had to commute 147 miles to another nursing 

school which did accept men, and he would have had difficulty 

doing so and retaining his job. The State defended on the basis 

that the female-only policy was justified as providing ‘‘educational 

affirmative action for females.’’ Recitation of a benign purpose, the 

Court said, was not alone sufficient. ‘‘[A] State can evoke a compensatory purpose to justify an otherwise discriminatory classification 

only if members of the gender benefited by the classification actually suffer a disadvantage related to the classification.’’ 1741 But

women did not lack opportunities to obtain training in nursing; instead they dominated the field. In the Court’s view, the state policy 

did not compensate for discriminatory barriers facing women, but 

it perpetuated the stereotype of nursing as a woman’s job. 

‘‘[A]lthough the State recited a ‘benign, compensatory purpose,’ it 

failed to establish that the alleged objective is the actual purpose 

underlying the discriminatory classification.’’ 1742 Even if the classification was premised on the proffered basis, the Court concluded, 

it did not substantially and directly relate to the objective, because 

the school permitted men to audit the nursing classes and women 

could still be adversely affected by the presence of men. 1743

AMENDMENT 14—RIGHTS GUARANTEED 1989

sity of educational opportunity and was premised on the belief that single-sex colleges offer ‘‘distinctive benefits’’ to society. Id. at 735, 740 (emphasis by Justice), 

743. The Court noted that because the State maintained no other single-sex public 

university or college, the case did not present ‘‘the question of whether States can 

provide ‘separate but equal’ undergraduate institutions for males and females,’’ id. 

at 720 n.1, although Justice Powell thought the decision did preclude such institutions. Id. at 742–44. See Vorchheimer v. School Dist. of Philadelphia, 532 F. 2d 880 

(3d Cir. 1976) (finding no equal protection violation in maintenance of two singlesex high schools of equal educational offerings, one for males, one for females), aff’d 

by an equally divided Court, 430 U.S. 703 (1977) (Justice Rehnquist not participating). 1744 United States v. Virginia, 518 U.S. 515 (1996). 1745 414 U.S. 632 (1974). Justice Powell concurred on equal protection grounds. 

Id. at 651. See also Turner v. Department of Employment Security, 423 U.S. 44 

(1975).

In a 1996 case, the Court required that a state demonstrate 

‘‘exceedingly persuasive justification’’ for gender discrimination. 

When a female applicant challenged the exclusion of women from 

the historically male-only Virginia Military Institute (VMI), the 

State of Virginia defended the exclusion of females as essential to 

the nature of training at the military school. 1744 The State argued 

that the VMI program, which included rigorous physical training, 

deprivation of personal privacy, and an ‘‘adversative model’’ that 

featured minute regulation of behavior, would need to be unacceptably modified to facilitate the admission of women. While recognizing that women’s admission would require accommodation such 

as different housing assignments and physical training programs, 

the Court found that the reasons set forth by the State were not 

‘‘exceedingly persuasive,’’ and thus the State did not meet its burden of justification. The Court also rejected the argument that a 

parallel program established by the State at a private women’s college served as an adequate substitute, finding that the program 

lacked the military-style structure found at VMI, and that it did 

not equal VMI in faculty, facilities, prestige or alumni network. 

Another area presenting some difficulty is that of the relationship of pregnancy classifications to gender discrimination. In Cleveland Board of Education v. LaFluer, 1745 a case decided upon due 

process grounds, two school systems requiring pregnant school 

teachers to leave work four and five months respectively before the 

expected childbirths were found to have acted arbitrarily and irrationally in establishing rules not supported by anything more 

weighty than administrative convenience buttressed with some possible embarrassment of the school boards in the face of pregnancy. 

On the other hand, the exclusion of pregnancy from a state financed program of payments to persons disabled from employment 

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1746Geduldig v. Aiello, 417 U.S. 484 (1974). The Court denied that the classification was based upon ‘‘gender as such.’’ Classification was on the basis of pregnancy, 

and while only women can become pregnant, that fact alone was not determinative. 

‘‘The program divides potential recipients into two groups—pregnant woman and 

nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes.’’ Id. at 496 n.20. For a rejection of a similar attempted distinction, see Nyquist v. Mauclet, 432 U.S. 1, 9 (1977); and Trimble v. 

Gordon, 430 U.S. 762, 774 (1977). See also Phillips v. Martin-Marietta Corp., 400 

U.S. 542 (1971). The Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), now extends protection to pregnant women. 1747The first cases set the stage for the lack of consistency. Compare Levy v. 

Louisiana, 391 U.S. 68 (1968), and Glona v. American Guar. & Liab. Ins. Co., 391 

U.S. 73 (1968), invalidating laws which precluded wrongful death actions in cases 

involving the child or the mother when the child was illegitimate, in which scrutiny 

was strict, with Labine v. Vincent, 401 U.S. 532 (1971), involving intestate succession, in which scrutiny was rational basis, and Weber v. Aetna Casualty & Surety 

Co., 406 U.S. 164 (1972), involving a workmen’s compensation statute distinguishing 

between legitimates and illegitimates, in which scrutiny was intermediate. 1748Mathews v. Lucas, 427 U.S. 495, 503–06 (1976); Trimble v. Gordon, 430 U.S. 

762, 766–67 (1977); Lalli v. Lalli, 439 U.S. 259, 265 (1978). Scrutiny in previous 

cases had ranged from negligible, Labine v. Vincent, 401 U.S. 532 (1971), to something approaching strictness, Jiminez v. Weinberger, 417 U.S. 628, 631–632 (1974). 

Mathews itself illustrates the uncertainty of statement, suggesting at one point that 

the Labine standard may be appropriate, 401 U.S. at 506, and at another that the 

standard appropriate to sex classifications is to be used, id. at 510, while observing 

a few pages earlier that illegitimacy is entitled to less exacting scrutiny than either 

race or sex. Id. at 506. Trimble settles on intermediate scrutiny but does not assess 

the relationship between its standard and the sex classification standard. See

Parham v. Hughes, 441 U.S. 347 (1979), and Caban v. Mohammed, 441 U.S. 380 

(1979) (both cases involving classifications reflecting both sex and illegitimacy interests).

gram with rates low enough to permit the participation of low-income workers at affordable levels. 1746 The absence of supportable 

reasons in one case and their presence in the other may well have 

made the significant difference. 

Illegitimacy.—After wrestling in a number of cases with the 

question of the permissibility of governmental classifications 

disadvantaging illegitimates and the standard for determining 

which classifications are sustainable, the Court arrived at a standard difficult to state and even more difficult to apply. 1747 Although

‘‘illegitimacy is analogous in many respects to the personal characteristics that have been held to be suspect when used as the basis 

of statutory differentiations,’’ the analogy is ‘‘not sufficient to require ‘our most exacting scrutiny.’’’ The scrutiny to which it is entitled is intermediate, ‘‘not a toothless [scrutiny],’’ but somewhere between that accorded race and that accorded ordinary economic classifications. Basically, the standard requires a determination of a legitimate legislative aim and a careful review of how well the classification serves, or ‘‘fits,’’ the aim. 1748 The common rationale of all 

the illegitimacy cases is not clear, is in many respects not wholly 

AMENDMENT 14—RIGHTS GUARANTEED 1991

1749The major inconsistency arises from three 5-to-4 decisions. Labine v. Vincent, 401 U.S. 532 (1971), was largely overruled by Trimble v. Gordon, 430 U.S. 762 

(1977), which itself was substantially limited by Lalli v. Lalli, 439 U.S. 259 (1978). 

Justice Powell was the swing vote for different disposition of the latter two cases. 

Thus, while four Justices argued for stricter scrutiny and usually invalidation of 

such classifications, Lalli v. Lalli, 439 U.S. at 277 (Justices Brennan, White, Marshall, and Stevens dissenting), and four favor relaxed scrutiny and usually sustaining the classifications, Trimble v. Gordon, 430 U.S. at 776, 777 (Chief Justice 

Burger and Justices Stewart, Blackmun, and Rehnquist dissenting), Justice Powell 

applied his own intermediate scrutiny and selectively voided and sustained. See

Lalli v. Lalli, supra, (plurality opinion by Justice Powell). 1750 A classification that absolutely distinguishes between legitimates and 

illegitimates is not alone subject to such review; one that distinguishes among classes of illegitimates is also subject to it, Trimble v. Gordon, 430 U.S. 762, 774 (1977), 

as indeed are classifications based on other factors. E.g., Nyquist v. Mauclet, 432 

U.S. 1, 9 (1977) (alienage). 1751Labine v. Vincent, 401 U.S. 532 (1971). Weber v. Aetna Casualty & Surety 

Co., 406 U.S. 164, 170 (1972), had confined the analysis of Labine to the area of 

state inheritance laws in expanding review of illegitimacy classifications. 1752 430 U.S. 762 (1977). Chief Justice Burger and Justices Stewart, Blackmun, 

and Rehnquist dissented, finding the statute ‘‘constitutionally indistinguishable’’ 

from the one sustained in Labine. Id. at 776. Justice Rehnquist also dissented separately. Id. at 777. 

consistent, 1749 but the theme that seems to be imposed on them by 

the more recent cases is that so long as the challenged statute does 

not so structure its conferral of rights, benefits, or detriments that 

some illegitimates who would otherwise qualify in terms of the 

statute’s legitimate purposes are disabled from participation, the 

imposition of greater burdens upon illegitimates or some classes of 

illegitimates than upon legitimates is permissible. 1750

Intestate succession rights for illegitimates has divided the 

Court over the entire period. At first adverting to the broad power 

of the States over descent of real property, the Court employed relaxed scrutiny to sustain a law denying illegitimates the right to 

share equally with legitimates in the estate of their common father, 

who had acknowledged the illegitimates but who had died intestate. 1751 Labine was strongly disapproved, however, and virtually 

overruled in Trimble v. Gordon, 1752 which found an equal protection violation in a statute allowing illegitimate children to inherit 

by intestate succession from their mothers but from their fathers 

only if the father had ‘‘acknowledged’’ the child and the child had 

been legitimated by the marriage of the parents. The father in 

Trimble had not acknowledged his child, and had not married the 

mother, but a court had determined that he was in fact the father 

and had ordered that he pay child support. Carefully assessing the 

purposes asserted to be the basis of the statutory scheme, the 

Court found all but one to be impermissible or inapplicable, and 

that one not served closely enough by the restriction. First, it was 

impermissible to attempt to influence the conduct of adults not to 

1992 AMENDMENT 14—RIGHTS GUARANTEED 

1753 430 U.S. at 768-70. While this purpose had been alluded to in Labine v. Vincent, 401 U.S. 532, 538 (1971), it was rejected as a justification in Weber v. Aetna 

Casualty & Surety Co., 406 U.S. 164, 173, 175 (1972). Visiting consequences upon 

the parent appears to be permissible. Parham v. Hughes, 441 U.S. 347, 352–53 

(1979).

1754Trimble v. Gordon, 430 U.S. 762, 774–76 (1977). The Court cited the failure 

of the state court to rely on this purpose and its own examination of the statute. 

1755 430 U.S. at 773-74. This justification had been prominent in Labine v. Vincent, 401 U.S. 532, 539 (1971), and its absence had been deemed critical in Weber 

v. Aetna Casualty & Surety Co., 406 U.S. 164, 170–71 (1972). The Trimble Court

thought this approach ‘‘somewhat of an analytical anomaly’’ and disapproved it. 

However, the degree to which one could conform to the statute’s requirements and 

the reasonableness of those requirements in relation to a legitimate purpose are 

prominent in Justice Powell’s reasoning in subsequent cases. Lalli v. Lalli, 439 U.S. 

259, 266–74 (1978); Parham v. Hughes, 441 U.S. 347, 359 (1979) (concurring). See

also Nyquist v. Mauclet, 432 U.S. 1 (1977) (alienage); Mississippi Univ. for Women 

v. Hogan, 458 U.S. 718, 723 n.8 (1982) (sex); and compare id. at 736 (Justice Powell 

dissenting).

1756Trimble v. Gordon, 430 U.S. 762, 770–73 (1977). The result is in effect a balancing one, the means-ends relationship must be a substantial one in terms of the 

advantages of the classification as compared to the harms of the classification 

means. Justice Rehnquist’s dissent is especially critical of this approach. Id. at 777, 

781–86. Also not interfering with orderly administration of estates is application of 

Trimble in a probate proceeding ongoing at the time Trimble was decided; the fact 

that the death had occurred prior to Trimble was irrelevant. Reed v. Campbell, 476 

U.S. 852 (1986). 

engage in illicit sexual activities by visiting the consequences upon 

the offspring. 1753 Second, the assertion that the statute mirrored 

the assumed intent of decedents, in that, knowing of the statute’s 

operation, they would have acted to counteract it through a will or 

otherwise, was rejected as unproved and unlikely. 1754 Third, the 

argument that the law presented no insurmountable barrier to 

illegitimates inheriting since a decedent could have left a will, married the mother, or taken steps to legitimate the child, was rejected 

as inapposite. 1755 Fourth, the statute did address a substantial 

problem, a permissible state interest, presented by the difficulties 

of proving paternity and avoiding spurious claims. However, the 

court thought the means adopted, total exclusion, did not approach 

the ‘‘fit’’ necessary between means and ends to survive the scrutiny 

appropriate to this classification. The state court was criticized for 

failing ‘‘to consider the possibility of a middle ground between the 

extremes of complete exclusion and case-by-case determination of 

paternity. For at least some significant categories of illegitimate 

children of intestate men, inheritance rights can be recognized 

without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws.’’ 1756

Because the state law did not follow a reasonable middle ground, 

it was invalidated. 

AMENDMENT 14—RIGHTS GUARANTEED 1993

1757 439 U.S. 259 (1978). The four Trimble dissenters joined Justice Powell in 

the result, although only two joined his opinion. Justices Blackmun and Rehnquist 

concurred because they thought Trimble wrongly decided and ripe for overruling. Id. 

at 276. The four dissenters, who had joined the Trimble majority with Justice Powell, thought the two cases were indistinguishable. Id. at 277. 1758 Illustrating the difficulty are two cases in which the fathers of illegitimate 

children challenged statutes treating them differently than mothers of such children 

were treated. In Parham v. Hughes, 441 U.S. 347 (1979), the majority viewed the 

distinction as a gender-based one rather than as an illegitimacy classification and 

sustained a bar to a wrongful death action by the father of an illegitimate child who 

had not legitimated him; in Caban v. Mohammed, 441 U.S. 380 (1980), again viewing the distinction as a gender-based one, the majority voided a state law permitting 

the mother but not the father of an illegitimate child to block his adoption by refusing to consent. Both decisions were 5-to-4. 

A reasonable middle ground was discerned, at least by Justice 

Powell, in Lalli v. Lalli, 1757 concerning a statute which permitted 

legitimate children to inherit automatically from both their parents, while illegitmates could inherit automatically only from their 

mothers, and could inherit from their intestate fathers only if a 

court of competent jurisdiction had, during the father’s lifetime, entered an order declaring paternity. The child tendered evidence of 

paternity, including a notarized document in which the putative father, in consenting to his marriage, referred to him as ‘‘my son’’ 

and several affidavits by persons who stated that the elder Lalli 

had openly and frequently acknowledged that the younger Lalli 

was his child. In the prevailing view, the single requirement of 

entry of a court order during the father’s lifetime declaring the 

child as his met the ‘‘middle ground’’ requirement of Trimble; it 

was addressed closely and precisely to the substantial state interest of seeing to the orderly disposition of property at death by establishing proof of paternity of illegitimate children and avoiding 

spurious claims against intestate estates. To be sure, some 

illegitimates who were unquestionably established as children of 

the decreased would be disqualified because of failure of compliance, but individual fairness is not the test. The test rather is 

whether the requirement is closely enough related to the interests 

served to meet the standard of rationality imposed. Also, no doubt 

the State’s interest could have been served by permitting other 

kinds of proof, but that too is not the test of the statute’s validity. 

Hence, the balancing necessitated by the Court’s promulgation of 

standards in such cases caused it to come to different results on 

closely related fact patterns, making predictability quite difficult 

but perhaps manageable. 1758

The Court’s difficulty in arriving at predictable results has extended outside the area of descent of property. Thus, a Texas child 

support law affording legitimate children a right to judicial action 

to obtain support from their fathers while not affording the right 

1994 AMENDMENT 14—RIGHTS GUARANTEED 

1759Gomez v. Perez, 409 U.S. 535, 538 (1978) (emphasis supplied). Following the 

decision, Texas authorized illegitimate children to obtain support from their fathers. 

But the legislature required as a first step that paternity must be judicially determined, and imposed a limitations period within which suit must be brought of one 

year from birth of the child. If suit is not brought within that period the child could 

never obtain support at any age from his father. No limitation was imposed on the 

opportunity of a natural child to seek support, up to age 18. In Mills v. Habluetzel, 

456 U.S. 91 (1982), the Court invalidated the one-year limitation. While a State has 

an interest in avoiding stale or fraudulent claims, the limit must not be so brief as 

to deny such children a reasonable opportunity to show paternity. Similarly, a 2- 

year statute of limitations on paternity and support actions was held to deny equal 

protection to illegitimates in Pickett v. Brown, 462 U.S. 1 (1983), and a 6-year limit 

was struck down in Clark v. Jeter, 486 U.S. 456 (1988). In both cases the Court 

pointed to the fact that increasingly sophisticated genetic tests are minimizing the 

‘‘lurking problems with respect to proof of paternity’’ referred to in Gomez, 409 U.S. 

at 538. Also, the state’s interest in imposing the 2-year limit was undercut by exceptions (e.g., for illegitimates receiving public assistance), and by different treatment 

for minors generally; similarly, the importance of imposing a 6-year limit was belied 

by that state’s more recent enactment of a non-retroactive 18-year limit for paternity and support actions. 1760 Jiminez v. Weinberger, 417 U.S. 628 (1974). But cf. Califano v. Boles, 443 

U.S. 282 (1979). See also New Jersey Welfare Rights Org. v. Cahill, 411 U.S. 619 

(1973) (limiting welfare assistance to households in which parents are ceremonially 

married and the children are legitimate or adopted denied illegitimate children 

equal protection); Richardson v. Davis, 409 U.S. 1069 (1972), aff’g, 342 F. Supp. 588 

(D. Conn.) (3-judge court), and Richardson v. Griffin, 409 U.S. 1069 (1972), aff’g, 346 

F. Supp. 1226 (D. Md.) (3-judge court) (Social Security provision entitling illegitimate children to monthly benefit payments only to extent that payments to widow 

and legitimate children do not exhaust benefits allowed by law denies illegitimates 

equal protection). 

to illegitimate children denied the latter equal protection. ‘‘A State 

may not invidiously discriminate against illegitimate children by 

denying them substantial benefits accorded children generally. We 

therefore hold that once a State posits a judicially enforceable right 

on behalf of children to needed support from their natural fathers 

there is no constitutionally sufficient justification for denying such 

an essential right to a child simply because its natural father has 

not married its mother.’’ 1759

Similarly, a federal Social Security provision was held invalid 

which made eligible for benefits, because of an insured parent’s disability, all legitimate children as well as those illegitimate children 

capable of inheriting personal property under state intestacy law 

and those children who were illegitimate only because of a nonobvious defect in their parents’ marriage, regardless of whether 

they were born after the onset of the disability, but which made all 

other illegitimate children eligible only if they were born prior to 

the onset of disability and if they were dependent upon the parent 

prior to the onset of disability. The Court deemed the purpose of 

the benefits to be to aid all children and rejected the argument that 

the burden on illigitimates was necessary to avoid fraud. 1760

AMENDMENT 14—RIGHTS GUARANTEED 1995

1761Mathews v. Lucas, 427 U.S. 495 (1976). It can be seen that the only difference between Jiminez and Lucas is that in the former the Court viewed the benefits as owing to all children and not just to dependents, while in the latter the benefits were viewed as owing only to dependents and not to all children. But it is not 

clear that in either case the purpose determined to underlie the provision of benefits 

was compelled by either statutory language or legislative history. For a particularly 

good illustration of the difference such a determination of purpose can make and 

the way the majority and dissent in a 5-to-4 decision read the purpose differently, 

see Califano v. Boles, 443 U.S. 282 (1979). 

1762Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50–51 (1959). 1763 Article I, § 2, cl. 1 (House of Representatives); Seventeenth Amendment 

(Senators); Article II, § 1, cl. 2 (presidential electors); Article I, § 4, cl. 1 (times, 

places, and manner of holding elections). 

However, in a second case, an almost identical program, providing benefits to children of a deceased insured, was sustained because its purpose was found to be to give benefits to children who 

were dependent upon the deceased parent and the classifications 

served that purpose. Presumed dependent were all legitimate children as well as those illegitimate children who were able to inherit 

under state intestacy laws, who were illegitimate only because of 

the technical invalidity of the parent’s marriage, who had been acknowledged in writing by the father, who had been declared to be 

the father’s by a court decision, or who had been held entitled to 

the father’s support by a court. Illegitimate children not covered by 

these presumptions had to establish that they were living with the 

insured parent or were being supported by him when the parent 

died. According to the Court, all the presumptions constituted an 

administrative convenience which was a permissible device because 

those illegitimate children who were entitled to benefits because 

they were in fact dependent would receive benefits upon proof of 

the fact and it was irrelevant that other children not dependent in 

fact also received benefits. 1761

Fundamental Interests: The Political Process 

‘‘The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised. . . , absent of course the discrimination which the Constitution condemns.’’ 1762 The Constitution provides that the qualifications of electors in congressional elections are to be determined by 

reference to the qualifications prescribed in the States for the electors of the most numerous branch of the legislature, and the States 

are authorized to determine the manner in which presidential electors are selected. 1763 The second section of the Fourteenth Amendment provides for a proportionate reduction in a State’s representation in the House when it denies the franchise to its qualified male 

1996 AMENDMENT 14—RIGHTS GUARANTEED 

1764Fourteenth Amendment, § 2. Justice Harlan argued that the inclusion of 

this provision impliedly permitted the States to discriminate with only the prescribed penalty in consequence and that therefore the equal protection clause was 

wholly inapplicable to state election laws. Reynolds v. Sims, 377 U.S. 533, 589 

(1964) (dissenting); Carrington v. Rash, 380 U.S. 89, 97 (1965) (dissenting); Oregon 

v. Mitchell, 400 U.S. 112, 152 (1970) (concurring and dissenting). Justice Brennan 

undertook a rebuttal of this position in Oregon v. Mitchell, 400 U.S. at 229, 250 

(concurring and dissenting). But see Richardson v. Ramirez, 418 U.S. 24 (1974), 

where § 2 was relevant in precluding an equal protection challenge. 

1765Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 51 (1959). 

1766 Reynolds v. Sims, 377 U.S. 533, 561–62 (1964). 

citizens 1764 and specific discriminations on the basis of race, sex, 

and age are addressed in other Amendments. ‘‘We do not suggest 

that any standards which a State desires to adopt may be required 

of voters. But there is wide scope for exercise of its jurisdiction. 

Residence requirements, age, previous criminal record . . . are obvious examples indicating factors which a State may take into consideration in determining the qualification of voters. The ability to 

read and write likewise has some relation to standards designed to 

promote intelligent use of the ballot.’’ 1765

The perspective of this 1959 opinion by Justice Douglas has 

now been revolutionized. ‘‘Undoubtedly, the right of suffrage is a 

fundamental matter in a free and democratic society. Especially 

since the right to exercise the franchise in a free and unimpaired 

manner is preservative of other basic civil and political rights, any 

alleged infringement of the rights of citizens to vote must be carefully and meticulously scrutinized.’’ 1766 ‘‘Any unjustified discrimination in determining who may participate in political affairs or in 

the selection of public officials undermines the legitimacy of representative government. . . . Statutes granting the franchise to residents on a selective basis always pose the danger of denying some 

citizens any effective voice in the governmental affairs which substantially affect their lives. Therefore, if a challenged state statute 

grants the right to vote to some bona fide residents of requisite age 

and citizenship and denies the franchise to others, the Court must 

determine whether the exclusions are necessary to promote a compelling state interest.’’ 

‘‘And, for these reasons, the deference usually given to the 

judgment of legislators does not extend to decisions concerning 

which resident citizens may participate in the election of legislators 

and other public officials. . . . [W]hen we are reviewing statutes 

which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional 

approval given state classifications if the Court can conceive of a 

AMENDMENT 14—RIGHTS GUARANTEED 1997

1767Kramer v. Union Free School Dist., 395 U.S. 621, 626–28 (1969). See

also Hill v. Stone, 421 U.S. 289, 297 (1975). But cf. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978). 1768Thus, in San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 34–35 nn.74 & 

78 (1973), a major doctrinal effort to curb the ‘‘fundamental interest’’ side of the 

‘‘new’’ equal protection, the Court acknowledged that the right to vote did not come 

within its prescription that rights to be deemed fundamental must be explicitly or 

implicitly guaranteed in the Constitution. Nontheless, citizens have a ‘‘constitutionally protected right to participate in elections’’ which is protected by the equal 

protection clause. Dunn v. Blumstein, 405 U.S. 330, 336 (1972). The franchise is the 

guardian of all other rights. Reynolds v. Sims, 377 U.S. 533, 562 (1964). 1769Dunn v. Blumstein, 405 U.S. 330 (1972). Justice Blackmun concurred specially, id. at 360, Chief Justice Burger dissented, id. at 363, and Justices Powell and 

Rehnquist did not participate. The voided statute imposed a requirement of one year 

in the State and three months in the county. The Court did not indicate what duration less than ninety days would be permissible, although it should be noted that 

in the Voting Rights Act Amendments of 1970, 84 Stat. 316, 42 U.S.C. § 1973aa– 

1, Congress prescribed a thirty-day period for purposes of voting in presidential elections. Note also that it does not matter whether one travels interstate or intrastate. 

Hadnott v. Amos, 320 F. Supp. 107 (M.D. Ala. 1970), aff’d, 405 U.S. 1035 (1972). 1770Marston v. Lewis, 410 U.S. 679 (1973). Registration was by volunteer workers who made statistically significant errors requiring corrections by county record-

‘rational basis’ for the distinctions made are not applicable.’’ 1767

Using this analytical approach, the Court has established a regime 

of close review of a vast range of state restrictions on the eligibility 

to vote, on access to the ballot by candidates and parties, and on 

the weighing of votes cast through the devices of apportionment 

and districting. Changes in Court membership over the years has 

led to some relaxation in the application of principles, but even as 

the Court has drawn back in other areas it has tended to preserve, 

both doctrinally and in fact, the election cases. 1768

Voter Qualifications.—A State may require residency as a 

qualification to vote but since durational residency requirements 

impermissibly restrict the right to vote and penalize the assertion 

of the constitutional right to travel they are invalid. 1769 The Court 

indicated that the States have a justified interest in preventing 

fraud and in facilitating determination of the eligibility of potential 

registrants and granted that durational residency requirements 

furthered these interests, but, it said, the State had not shown that 

the requirements were ‘‘necessary,’’ that is that the interests could 

not be furthered by means which imposed a lesser burden on the 

right to vote. Other asserted interests—knowledgeability of voters, 

common interests, intelligent voting—were said either not to be 

served by the requirements or to be impermissible interests. 

A 50-day durational residency requirement was sustained in 

the context of the closing of the registration process at 50 days 

prior to elections and of the mechanics of the State’s registration 

process. The period, the Court found, was necessary to achieve the 

State’s legitimate goals. 1770

1998 AMENDMENT 14—RIGHTS GUARANTEED 

ers before certification. Primary elections were held in the fall, thus occupying the 

time of the recorders, so that a backlog of registrations had to be processed before 

the election. A period of 50 days rather than 30, the Court thought, was justifiable. 

However, the same period was upheld for another State on the authority of Marston 

in the absence of such justification, but it appeared that plaintiffs had not controverted the State’s justifying evidence. Burns v. Fortson, 410 U.S. 686 (1973). Justices Brennan, Douglas, and Marshall dissented in both cases. Id. at 682, 688. 1771 Evans v. Cornman, 398 U.S. 419 (1970). 1772 Carrington v. Rash, 380 U.S. 89 (1965). 1773 Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966). Justices Black, 

Harlan, and Stewart dissented. Id. at 670, 680. Poll tax qualifications had previously been upheld in Breedlove v. Suttles, 302 U.S. 277 (1937); and Butler v. 

Thompson, 341 U.S. 937 (1951). 1774Kramer v. Union Free School Dist., 395 U.S. 621 (1969). The Court assumed 

without deciding that the franchise in some circumstances could be limited to those 

‘‘primarily interested’’ or ‘‘primarily affected’’ by the outcome, but found that the restriction permitted some persons with no interest to vote and disqualified others 

with an interest. Justices Stewart, Black, and Harlan dissented. Id. at 594. 1775 Cipriano v. City of Houma, 395 U.S. 701 (1969). Justices Black, Harlan, and 

Stewart concurred specially. Id. at 707. 1776 City of Phoenix v. Kolodziejski, 399 U.S. 204 (1970). Justice Stewart and 

Chief Justice Burger dissented. Id. at 215. In Hill v. Stone, 421 U.S. 289 (1975), 

the Court struck down a limitation on the right to vote on a general obligation bond 

issue to persons who have ‘‘rendered’’ or listed real, mixed, or personal property for 

taxation in the election district. It was not a ‘‘special interest’’ election since a general obligation bond issue is a matter of general interest. 

A State that exercised general criminal, taxing, and other jurisdiction over persons on certain federal enclaves within the State, 

the Court held, could not treat these persons as nonresidents for 

voting purposes. 1771 A statute which provided that anyone who entered military service outside the State could not establish voting 

residence in the State so long as he remained in the military was 

held to deny to such a person the opportunity such as all non-military persons enjoyed of showing that he had established residence. 1772 Restricting the suffrage to those persons who had paid 

a poll tax was an invidious discrimination because it introduced a 

‘‘capricious or irrelevant factor’’ of wealth or ability to pay into an 

area in which it had no place. 1773 Extending this ruling, the Court 

held that the eligibility to vote in local school elections may not be 

limited to persons owning property in the district or who have children in school, 1774 and denied States the right to restrict the voteto 

property owners in elections on the issuance of revenue bonds 1775

or general obligation bonds. 1776

However, the Court held that because the activities of a water 

storage district fell so disproportionately on landowners as a group, 

a limitation of the franchise in elections for the district’s board of 

directors to landowners, whether resident or not and whether natural persons or not, excluding non-landowning residents and lessees of land, and weighing the votes granted according to assessed 

AMENDMENT 14—RIGHTS GUARANTEED 1999

1777Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 719 (1973). See

also Associated Enterprises v. Toltec Watershed Improv. Dist., 410 U.S. 743 (1973) 

(limitation of franchise to property owners in the creation and maintenance of district upheld). Justices Douglas, Brennan, and Marshall dissented in both cases. Id. 

at 735, 745. 1778 410 U.S. at 727-28. 1779 410 U.S. at 730, 732. Thus, the Court posited reasons that might have 

moved the legislature to adopt the exclusions. 1780 451 U.S. 355 (1981). Joining the opinion of the Court were Justices Stewart, 

Powell, Rehnquist, Stevens, and Chief Justice Burger. Dissenting were Justices 

White, Brennan, Marshall, and Blackmun. Id. at 374. 1781The water district cases were distinguished in Quinn v. Millsap, 491 U.S. 

95. 109 (1989), the Court holding that a ‘‘board of freeholders’’ appointed to recommend a reorganization of local government had a mandate ‘‘far more encompassing’’ than land use issues, since its recommendations ‘‘affect[ ] all citizens . . 

. regardless of land ownership.’’ 

valuation of land, comported with equal protection standards. 1777

Adverting to the reservation in prior local governmental unit election cases 1778 that some functions of such units might be so specialized as to permit deviation from the usual rules, the Court then 

proceeded to assess the franchise restrictions according to the traditional standards of equal protection rather than by those of strict 

scrutiny. 1779 Also narrowly approached was the issue of the effect 

of the District’s activities, the Court focusing upon the assessments 

against landowners as the sole means of paying expenses rather 

than additionally noting the impact upon lessees and nonlandowning residents of such functions as flood control. The approach taken in this case seems different in great degree from that 

in prior cases and could in the future alter the results in other 

local government cases. These cases were extended somewhat in 

Ball v. James, 1780 in which the Court sustained a system in which 

voting eligibility was limited to landowners and votes were allocated to these voters on the basis of the number of acres they 

owned. The entity was a water reclamation district which stores 

and delivers water to 236,000 acres of land in the State and subsidizes its water operations by selling electricity to hundreds of 

thousands of consumers in a nearby metropolitan area. The entity’s 

board of directors was elected through a system in which the eligibility to vote was as described above. The Court thought the entity 

was a specialized and limited form to which its general franchise 

rulings did not apply. 1781

Finding that prevention of ‘‘raiding’’—the practice whereby voters in sympathy with one party vote in another’s primary election 

in order to distort that election’s results—is a legitimate and valid 

state goal, as one element in the preservation of the integrity of the 

electoral process, the Court sustained a state law requiring those 

voters eligible at that time to register to enroll in the party of their 

2000 AMENDMENT 14—RIGHTS GUARANTEED 

1782 Rosario v. Rockefeller, 410 U.S. 752 (1973). Justices Powell, Douglas, Brennan, and Marshall dissented. Id. at 763. 1783Kusper v. Pontikes, 414 U.S. 51 (1973). Justices Blackmun and Rehnquist 

dissented. Id. at 61, 65. 1784Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). Although 

independents were allowed to register in a party on the day before a primary, the 

state’s justifications for ‘‘protect[ing] the integrity of the Party against the Party 

itself’’ were deemed insubstantial. Id. at 224. 1785 457 U.S. 1 (1982). See also Fortson v. Morris, 385 U.S. 231 (1966) (legislature could select Governor from two candidates having highest number of votes cast 

when no candidate received majority); Sailors v. Board of Elections, 387 U.S. 105 

(1967) (appointment rather than election of county school board); Valenti v. Rockefeller, 292 F. Supp. 851 (S.D.N.Y. 1968) (three-judge court), aff’d, 393 U.S. 405 

(1969) (gubernatorial appointment to fill United States Senate vacancy). 

choice at least 30 days before the general election in order to be 

eligible to vote in the party’s next primary election, 8 to 11 months 

hence. The law did not impose a prohibition upon voting but merely imposed a time deadline for enrollment, the Court held, and it 

was because of the plaintiffs’ voluntary failure to register that they 

did not meet the deadline. 1782 But a law which prohibited a person 

from voting in the primary election of a political party if he has 

voted in the primary election of any other party within the preceding 23 months was subjected to strict scrutiny and was voided, 

inasmuch as it constituted a severe restriction upon a voter’s right 

to associate with the party of his choice by requiring him to forgo 

participation in at least one primary election in order to change 

parties. 1783 A less restrictive ‘‘closed primary’’ system was also invalidated, the Court finding insufficient justification for a state’s 

preventing a political party from allowing independents to vote in 

its primary. 1784

It must not be forgotten, however, that it is only when a State 

extends the franchise to some and denies it to others that a ‘‘right 

to vote’’ arises and is protected by the equal protection clause. If 

a State chooses to fill an office by means other than through an 

election, neither the equal protection clause nor any other constitutional provision prevents it from doing so. Thus, in Rodriguez v. 

Popular Democratic Party, 1785 the Court unanimously sustained a 

Puerto Rico statute which authorized the political party to which 

an incumbent legislator belonged to designate his successor in office until the next general election upon his death or resignation. 

Neither the fact that the seat was filled by appointment nor the 

fact that the appointment was by the party, rather than by the 

Governor or some other official, raised a constitutional question. 

The right of unconvicted jail inmates and convicted 

misdemeanants (who typically are under no disability) to vote by 

absentee ballot remains unsettled. In an early case applying rational basis scrutiny, the Court held that the failure of a State to proVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00330 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
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1786McDonald v. Board of Election Comm’rs, 394 U.S. 802 (1969). But see 

Goosby v. Osser, 409 U.S. 512 (1973) (McDonald does not preclude challenge to absolute prohibition on voting). 

1787O’Brien v. Skinner, 414 U.S. 524 (1974). See American Party of Texas v. 

White, 415 U.S. 767, 794–95 (1974). 

1788Turner v. Fouche, 396 U.S. 346, 362–63 (1970) (voiding a property qualification for appointment to local school board). See also Chappelle v. Greater Baton 

Rouge Airport Dist., 431 U.S. 159 (1977) (voiding a qualification for appointment as 

airport commissioner of ownership of real or personal property that is assessed for 

taxes in the jurisdiction in which airport is located); Quinn v. Millsap, 491 U.S. 95 

(1989) (voiding property ownership requirement for appointment to board authorized to propose reorganization of local government). Cf. Snowden v. Hughes, 321 

U.S. 1 (1944). 

1789 405 U.S. 134, 142–44 (1972). 

vide for absentee balloting by unconvicted jail inmates, when absentee ballots were available to other classes of voters, did not deny 

equal protection when it was not shown that the inmates could not 

vote in any other way. 1786 Subsequently, the Court held unconstitutional a statute denying absentee registration and voting rights 

to persons confined awaiting trial or serving misdemeanor sentences, but it is unclear whether the basis was the fact that persons confined in jails outside the county of their residences could 

register and vote absentee while those confined in the counties of 

their residences could not, or whether the statute’s jumbled distinctions among categories of qualified voters on no rational standard 

made it wholly arbitrary. 1787

Access to the Ballot.—The equal protection clause applies to 

state specification of qualifications for elective and appointive office. While one may ‘‘have no right’’ to be elected or appointed to 

an office, all persons ‘‘do have a federal constitutional right to be 

considered for public service without the burden of invidiously discriminatory disqualification. The State may not deny to some the 

privilege of holding public office that it extends to others on the 

basis of distinctions that violate federal constitutional 

guarantees.’’ 1788 In Bullock v. Carter, 1789 the Court utilized a somewhat modified form of the strict test in passing upon a filing fee 

system for primary election candidates which imposed the cost of 

the election wholly on the candidates and which made no alternative provision for candidates unable to pay the fees; the reason 

for application of the standard, however, was that the fee system 

deprived some classes of voters of the opportunity to vote for certain candidates and it worked its classifications along lines of 

wealth. The system itself was voided because it was not reasonably 

connected with the State’s interest in regulating the ballot and did 

not serve that interest and because the cost of the election could 

2002 AMENDMENT 14—RIGHTS GUARANTEED 

1790 405 U.S. at 144-49. 1791Lubin v. Panish, 415 U.S. 709, 716 (1974). 1792 Concurring, Justices Blackmun and Rehnquist suggested that a reasonable 

alternative would be to permit indigents to seek write-in votes without paying a filing fee, 415 U.S. at 722, but the Court indicated this would be inadequate. Id. at 

719 n.5. 1793 457 U.S. 957 (1982). A plurality of four contended that save in two circumstances—ballot access classifications based on wealth and ballot access classifications imposing burdens on new or small political parties or independent candidates—limitations on candidate access to the ballot merit only traditional rational 

basis scrutiny, because candidacy is not a fundamental right. The plurality found 

both classifications met the standard. Id. at 962–73 (Justices Rehnquist, Powell, 

O’Connor, and Chief Justice Burger). Justice Stevens concurred, rejecting the plurality’s standard, but finding that inasmuch as the disparate treatment was based 

solely on the State’s classification of the different offices involved, and not on the 

characteristics of the persons who occupy them or seek them, the action did not violate the equal protection clause. Id. at 973. The dissent primarily focused on the 

First Amendment but asserted that the classifications failed even a rational basis 

test. Id. at 976 (Justices Brennan, White, Marshall, and Blackmun). 

be met out of the state treasury, thus avoiding the discrimination. 1790

Recognizing the state interest in maintaining a ballot of reasonable length in order to promote rational voter choice, the Court 

observed nonetheless that filing fees alone do not test the genuineness of a candidacy or the extent of voter support for an aspirant. 

Therefore, effectuation of the legitimate state interest must be 

achieved by means that do not unfairly or unnecessarily burden the 

party’s or the candidate’s ‘‘important interest in the continued 

availability of political opportunity. The interests involved are not 

merely those of parties or individual candidates; the voters can assert their preferences only through candidates or parties or both 

and it is this broad interest that must be weighed in the balance.’’ 

‘‘[T]he process of qualifying candidates for a place on the ballot 

may not constitutionally be measured solely in dollars.’’ 1791 In the 

absence of reasonable alternative means of ballot access, the Court 

held, a State may not disqualify an indigent candidate unable to 

pay filing fees. 1792

In Clements v. Fashing, 1793 the Court sustained two provisions 

of state law, one that barred certain officeholders from seeking 

election to the legislature during the term of office for which they 

had been elected or appointed, but that did not reach other officeholders whose terms of office expired with the legislators’ terms 

and did not bar legislators from seeking other offices during their 

terms, and the other that automatically terminated the terms of 

certain officeholders who announced for election to other offices, 

but that did not apply to other officeholders who could run for another office while continuing to serve. The Court was splintered in 

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1794 393 U.S. 23 (1968). ‘‘[T]he totality of the Ohio restrictive laws taken as a 

whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause.’’ Id. at 34. Justices Douglas and Harlan would have relied solely on the First Amendment, id. at 

35, 41, while Justices Stewart and White and Chief Justice Warren dissented. Id. 

at 48, 61, 63. 1795Moore v. Ogilvie, 394 U.S. 814 (1969) (overruling MacDougall v. Green, 335 

U.S. 281 (1948)). 1796 Jenness v. Fortson, 403 U.S. 431 (1971). 1797Storer v. Brown, 415 U.S. 724 (1974); American Party of Texas v. White, 

415 U.S. 767 (1974); Illinois State Bd. of Elections v. Socialist Workers Party, 440 

U.S. 173 (1979). And see Indiana Communist Party v. Whitcomb, 414 U.S. 441 

(1974) (impermissible to condition ballot access upon a political party’s willingness 

to subscribe to oath that party ‘‘does not advocate the overthrow of local, state or 

national government by force or violence,’’ opinion of Court based on First Amendment, four Justices concurring on equal protection grounds). 

such a way, however, that it is not possible to derive a principle 

from the decision applicable to other fact situations. 

In Williams v. Rhodes, 1794 a complex statutory structure which 

had the effect of keeping off the ballot all but the candidates of the 

two major parties was struck down under the strict test because it 

deprived the voters of the opportunity of voting for independent 

and third-party candidates and because it seriously impeded the 

exercise of the right to associate for political purposes. Similarly, 

a requirement that an independent candidate for office in order to 

obtain a ballot position must obtain 25,000 signatures, including 

200 signatures from each of at least 50 of the State’s 102 counties, 

was held to discriminate against the political rights of the inhabitants of the most populous counties, when it was shown that 

93.4% of the registered voters lived in the 49 most populous counties. 1795 But to provide that the candidates of any political organization obtaining 20% or more of the vote in the last gubernatorial 

or presidential election may obtain a ballot position simply by winning the party’s primary election while requiring candidates of 

other parties or independent candidates to obtain the signatures of 

less than five percent of those eligible to vote at the last election 

for the office sought is not to discriminate unlawfully, inasmuch as 

the State placed no barriers of any sort in the way of obtaining signatures and since write-in votes were also freely permitted. 1796

Reviewing under the strict test the requirements for qualification of new parties and independent candidates for ballot positions, 

the Court recognized as valid objectives and compelling interests 

the protection of the integrity of the nominating and electing process, the promotion of party stability, and the assurance of a modicum of order in regulating the size of the ballot by requiring a 

showing of some degree of support for independents and new parties before they can get on the ballot. 1797 ‘‘[T]o comply with the 

2004 AMENDMENT 14—RIGHTS GUARANTEED 

1798Storer v. Brown, 415 U.S. 724, 746 (1974). 1799 415 U.S. at 730 (quoting Williams v. Rhodes, 393 U.S. 23, 30 (1968)). 1800 American Party of Texas v. White, 415 U.S. 767, 783 (1974). In Storer v. 

Brown, 415 U.S. 724, 738–40 (1974), the Court remanded so that the district court 

could determine whether the burden imposed on an independent party was too severe, it being required in 24 days in 1972 to gather 325,000 signatures from a pool 

of qualified voters who had not voted in that year’s partisan primary elections. See

also Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) 

(voiding provision that required a larger number of signatures to get on ballot in 

subdivisions than statewide). 1801 American Party of Texas v. White, 415 U.S. 767, 788–91 (1974). The percentages varied with the office but no more than 500 signatures were needed in any 

event.

First and Fourteenth Amendments the State must provide a feasible opportunity for new political organizations and their candidates to appear on the ballot.’’ 1798 Decision whether or not a state 

statutory structure affords a feasible opportunity is a matter of degree, ‘‘very much a matter of ‘consider[ing] the facts and circumstances behind the law, the interest which the State claims to 

be protecting, and the interest of those who are disadvantaged by 

the classification.’’’ 1799

Thus, in order to assure that parties seeking ballot space command a significant, measurable quantum of community support, 

Texas was upheld in treating different parties in ways rationally 

constructed to achieve this objective. Candidates of parties whose 

gubernatorial choice polled more than 200,000 votes in the last 

general election had to be nominated by primary elections and 

went on the ballot automatically, because the prior vote adequately 

demonstrated support. Candidates whose parties polled less than 

200,000 but more than 2 percent could be nominated in primary 

elections or in conventions. Candidates of parties not coming within 

either of the first two categories had to be nominated in conventions and could obtain ballot space only if the notarized list of participants at the conventions totalled at least one percent of the 

total votes cast for governor in the last preceding general election 

or, failing this, if in the 55 succeeding days a requisite number of 

qualified voters signed petitions to bring the total up to one percent 

of the gubernatorial vote. ‘‘[W]hat is demanded may not be so 

exessive or impractical as to be in reality a mere device to always, 

or almost always, exclude parties with significant support from the 

ballot,’’ but the Court thought that one percent, or 22,000 signatures in 1972, ‘‘falls within the outer boundaries of support the 

State may require.’’ 1800 Similarly, independent candidates can be 

required to obtain a certain number of signatures as a condition to 

obtain ballot space. 1801 A State may validly require that each voter 

participate only once in each year’s nominating process and it may 

therefore disqualify any person who votes in a primary election 

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1802 415 U.S. at 785-87. 1803Storer v. Brown, 415 U.S. 724, 728–37 (1974). Dissenting, Justices Brennan, 

Douglas and Marshall thought the state interest could be adequately served by a 

shorter time period than a year before the primary election, which meant in effect 

17 months before the general election. Id. at 755. 1804Munro v. Socialist Workers Party, 479 U.S. 189 (1986). 1805 American Party of Texas v. White, 415 U.S. 767, 794–95 (1974). Upheld, 

however, was state financing of the primary election expenses that excluded convention expenses of the small parties. Id. at 791–94. But the major parties had to hold 

conventions simultaneously with the primary elections the cost of which they had 

to bear. For consideration of similar contentions in the context of federal financing 

of presidential elections, see Buckley v. Valeo, 424 U.S. 1, 93–97 (1976). 1806 Anderson v. Celebrezze, 460 U.S. 780 (1983). State interests in assuring 

voter education, treating all candidates equally (candidates participating in a party 

primary also had to declare candidacy in March), and preserving political stability, 

were deemed insufficient to justify the substantial impediment to independent candidates and their supporters. 1807See discussion, supra. Applicability of the doctrine to cases of this nature 

was left unresolved in Smiley v. Holm, 285 U.S. 355 (1932), and Wood v. Broom, 

287 U.S. 1 (1932), was supported by only a plurality in Colegrove v. Green, 328 U.S. 

549 (1946), but became the position of the Court in subsequent cases. Cook v. 

Fortson, 329 U.S. 675 (1946); Colegrove v. Barrett, 330 U.S. 804 (1947); MacDougall 

v. Green, 335 U.S. 281 (1948); South v. Peters, 339 U.S. 276 (1950); Hartsfield v. 

Sloan, 357 U.S. 916 (1958). 1808 369 U.S. 186 (1962). 1809 376 U.S. 1 (1964). Striking down a county unit system of electing a governor, the Court, in an opinion by Justice Douglas, had already coined a variant 

from signing nominating or supporting petitions for independent 

parties or candidates. 1802 Equally valid is a state requirement that 

a candidate for elective office, as an independent or in a regular 

party, must not have been affiliated with a political party, or with 

one other than the one of which he seeks its nomination, within 

one year prior to the primary election at which nominations for the 

general election are made. 1803 So too, a state may limit access to 

the general election ballot to candidates who received at least 1% 

of the primary votes cast for the particular office. 1804 But it is impermissible to print the names of the candidates of the two major 

parties only on the absentee ballots, leaving off independents and 

other parties. 1805 Also invalidated was a requirement that independent candidates for President and Vice-President file nominating petitions by March 20 in order to qualify for the November 

ballot. 1806

Apportionment and Districting.—Prior to 1962, attacks in 

federal courts on the drawing of boundaries for congressional and 

legislative election districts or the apportionment of seats to previously existing units ran afoul of the ‘‘political question’’ doctrine. 1807 But Baker v. Carr 1808 reinterpreted the doctrine in considerable degree and opened the federal courts to voter complaints 

founded on unequally populated voting districts. Wesberry v. Sanders 1809 found in Article I, § 2, of the Constitution a command that 

2006 AMENDMENT 14—RIGHTS GUARANTEED 

phrase of the more popular ‘‘one man, one vote.’’ ‘‘The conception of political equality 

from the Declaration of Independence to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one 

person, one vote.’’ Gray v. Sanders, 372 U.S. 368, 381 (1963). 1810 Reynolds v. Sims, 377 U.S. 533 (1964); WMCA, Inc. v. Lomenzo, 377 U.S. 

633 (1964); Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656 (1964); 

Davis v. Mann, 377 U.S. 678 (1964); Roman v. Sincock, 377 U.S. 695 (1964); Lucas 

v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713 (1964). In the last case, 

the Court held that approval of the apportionment plan in a vote of the people was 

insufficient to preserve it from constitutional attack. ‘‘An individual’s constitutionally protected right to cast an equally weighed vote cannot be denied even by 

a vote of a majority of a State’s electorate, if the apportionment scheme adopted by 

the voters fails to measure up to the requirements of the Equal Protection Clause.’’ 

Id. at 736. Justice Harlan dissented wholly, denying that the equal protection clause 

had any application at all to apportionment and districting and contending that the 

decisions were actually the result of a ‘‘reformist’’ nonjudicial attitude on the part 

of the Court. 377 U.S. at 589. Justices Stewart and Clark dissented in two and concurred in four cases on the basis of their view that the equal protection clause was 

satisfied by a plan that was rational and that did not systematically frustrate the 

majority will. 377 U.S. at 741, 744. 1811 Reynolds v. Sims, 377 U.S. 533, 568 (1964). 1812 377 U.S. at 577. 

in the election of Members of the House of Representatives districts 

were to be made up of substantially equal numbers of persons. In 

six decisions handed down on June 15, 1964, the Court required 

the alteration of the election districts for practically all the legislative bodies in the United States. 1810

‘‘We hold that, as a basic constitutional standard, the Equal 

Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population 

basis. Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with the votes of citizens living 

in other parts of the State.’’ 1811 What was required was that each 

State ‘‘make an honest and good faith effort to construct districts, 

in both houses of its legislature, as nearly of equal population as 

is practicable. We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number 

of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.’’ 1812

Among the principal issues raised by these decisions were 

which units were covered by the principle, to what degree of 

exactness population equality had to be achieved, and to what 

other elements of the apportionment and districting process the 

equal protection clause extended. 

The first issue has largely been resolved, although some few 

problem areas persist. It has been held that a school board the 

members of which were appointed by boards elected in units of disparate populations and which exercised only administrative powers 

AMENDMENT 14—RIGHTS GUARANTEED 2007

1813Sailors v. Board of Education, 387 U.S. 105 (1967). 1814 390 U.S. 474 (1968). Justice Harlan continued his dissent from the Reynolds 

line of cases, id. at 486, while Justices Fortas and Stewart called for a more discerning application and would not have applied the principle to the county council 

here. Id. at 495, 509. 1815 397 U.S. 50 (1970). The governmental body here was the board of trustees 

of a junior college district. Justices Harlan and Stewart and Chief Justice Burger 

dissented. Id. at 59, 70. 1816The Court observed that there might be instances ‘‘in which a State elects 

certain functionaries whose duties are so far removed from normal governmental activities and so disproportionately affect different groups that a popular election in 

compliance with Reynolds supra, might not be required. . . .’’ Id. at 56. For cases 

involving such units, see Salyer Land Co. v. Tulare Water Storage Dist., 410 U.S. 

719 (1973); Associated Enterprises v. Toltec Watershed Imp. Dist., 410 U.S. 743 

(1973); Ball v. James, 451 U.S. 355 (1981). Judicial districts need not comply with 

Reynolds. Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) (three-judge court), 

aff’d. per curiam, 409 U.S. 1095 (1973). 1817 385 U.S. 440, 443–44 (1967). See also Kilgarlin v. Hill, 386 U.S. 120 (1967). 1818Kirkpatrick v. Preisler, 385 U.S. 450 (1967); Duddleston v. Grills, 385 U.S. 

455 (1967). 

rather than legislative powers was not subject to the principle of 

the apportionment ruling. 1813 Avery v. Midland County 1814 held

that when a State delegates lawmaking power to local government 

and provides for the election by district of the officials to whom the 

power is delegated, the districts must be established of substantially equal populations. But in Hadley v. Junior College District, 1815 the Court abandoned much of the limitation which was 

explicit in these two decisions and held that whenever a State 

chooses to vest ‘‘governmental functions’’ in a body and to elect the 

members of that body from districts, the districts must have substantially equal populations. The ‘‘governmental functions’’ should 

not be characterized as ‘‘legislative’’ or ‘‘administrative’’ or necessarily important or unimportant; it is the fact that members of 

the body are elected from districts which triggers the application. 1816

The second issue has been largely but not precisely resolved. 

In Swann v. Adams, 1817 the Court set aside a lower court ruling 

‘‘for the failure of the State to present or the District Court to articulate acceptable reasons for the variations among the populations of the various legislative districts. . . . De minimis deviations are unavoidable, but variations of 30% among senate districts and 40% among house districts can hardly be deemed de

minimis and none of our cases suggests that differences of this 

magnitude will be approved without a satisfactory explanation 

grounded on acceptable state policy.’’ Two congressional district 

cases were disposed of on the basis of Swann, 1818 but when the 

Court ruled that no congressional districting could be approved 

without a ‘‘good-faith effort to achieve precise mathematical equalVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00337 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
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1819Kirkpatrick v. Preisler, 394 U.S. 526, 530–31 (1969); Wells v. Rockefeller, 

394 U.S. 542 (1969). The Court has continued to adhere to this strict standard for 

congressional districting, voiding a plan in which the maximum deviation between 

largest and smallest district was 0.7%, or 3,674 persons. Karcher v. Daggett, 462 

U.S. 725 (1983) (rejecting assertion that deviations less than estimated census error 

are necessarily permissible). 1820The Court relied on Swann in disapproving of only slightly smaller deviations (roughly 28% and 25%) in Whitcomb v. Chavis, 403 U.S. 124, 161–63 (1971). 

In Connor v. Williams, 404 U.S. 549, 550 (1972), the Court said of plaintiffs’ reliance 

on Preisler and Wells that ‘‘these decisions do not squarely control the instant appeal since they do not concern state legislative apportionment, but they do raise 

substantial questions concerning the constitutionality of the District Court’s plan as 

a design for permanent apportionment.’’ 1821 403 U.S. 182 (1971). 1822 It should also be noted that while the Court has used total population figures for purposes of computing variations between districts, it did approve in Burns 

v. Richardson, 384 U.S. 73 (1966), the use of eligible voter population as the basis 

for apportioning in the context of a State with a large transient military population, 

but with the caution that such a basis would be permissible only so long as the results did not diverge substantially from that obtained by using a total population 

base. Merely discounting for military populations was disapproved in Davis v. 

Mann, 377 U.S. 678, 691 (1964), but whether some more precise way of distinguishing between resident and nonresident population would be constitutionally permissible is unclear. Kirkpatrick v. Preisler, 394 U.S. 526, 534 (1969); Hadley v. Junior College Dist., 397 U.S. 50, 57 n.9 (1970). 1823 New York City Bd. of Estimate v. Morris, 489 U.S. 688 (1989). Under the 

plan each of the City’s five boroughs was represented on the board by its president 

and each of these members had one vote; three citywide elected officials (the mayor, 

the comptroller, and the president of the city council) were also placed on the board 

and given two votes apiece (except that the mayor had no vote on the acceptance 

or modification of his budget proposal). The Court also ruled that, when measuring 

population deviation for a plan that mixes at-large and district representation, the 

at-large representation must be taken into account. Id. at 699–701. 

ity’’ or the justification of ‘‘each variance, no matter how small,’’ 1819

it did not then purport to utilize this standard in judging legislative apportionment and districting. 1820 And in Abate v. Mundt 1821

the Court approved a plan for apportioning a county governing 

body which permitted a substantial population disparity, explaining that in the absence of a built-in bias tending to favor any particular area or interest, a plan could take account of localized factors in justifying deviations from equality which might in other circumstances cause the invalidation of a plan. 1822 The total population deviation allowed in Abate was 11.9%; the Court refused, 

however, to extend Abate to approve a total deviation of 78% resulting from an apportionment plan providing for representation of 

each of New York City’s five boroughs on the New York City Board 

of Estimate. 1823

Nine years after Reynolds v. Sims, the Court reexamined the 

population equality requirement of the apportionment cases. Relying upon language in prior decisions that distinguished state legislative apportionment from congressional districting as possibly justifying different standards of permissible deviations from equality, 

AMENDMENT 14—RIGHTS GUARANTEED 2009

1824Mahan v. Howell, 410 U.S. 315, 320–25 (1973). 1825 410 U.S. at 325-30. The Court indicated that a 16.4% deviation ‘‘may well 

approach tolerable limits.’’ Id. at 329. Dissenting, Justices Brennan, Douglas, and 

Marshall would have voided the plan; additionally, they thought the deviation was 

actually 23.6% and that the plan discriminated geographically against one section 

of the State, an issue not addressed by the Court. In Chapman v. Meier, 420 U.S. 

1, 21–26 (1975), holding that a 20% variation in a court-developed plan was not justified, the Court indicated that such a deviation in a legislatively-produced plan 

would be quite difficult to justify. See also Summers v. Cenarrusa, 413 U.S. 906 

(1973) (vacating and remanding for further consideration the approval of a 19.4% 

deviation). But see Voinovich v. Quilter, 507 U.S. 146 (1993) (vacating and remanding for further consideration the rejection of a deviation in excess of 10% intended 

to preserve political subdivision boundaries). In Brown v. Thomson, 462 U.S. 835 

(1983), the Court held that a consistent state policy assuring each county at least 

one representative can justify substantial deviation from population equality when 

only the marginal impact of representation for the state’s least populous county was 

challenged (the effect on plaintiffs, voters in larger districts, was that they would 

elect 28 of 64 members rather than 28 of 63), but there was indication in Justice 

O’Connor’s concurring opinion that a broader-based challenge to the plan, which 

contained a 16% average deviation and an 89% maximum deviation, could have succeeded. 1826Gaffney v. Cummings, 412 U.S. 735, 745 (1973). The maximum deviation 

was 7.83%. The Court did not precisely indicate at what point a deviation had to 

be justified, but it applied the de minimis standard in White v. Regester, 412 U.S. 

755 (1973), in which the maximum deviation was 9.9%. ‘‘Very likely, larger differences between districts would not be tolerable without justifications.’’ Id. at 764. 

Justices Brennan, Douglas, and Marshall dissented. See also Brown v. Thomson, 

462 U.S. 835, 842 (1983): ‘‘Our decisions have established, as a general matter, that 

an apportionment plan with a maximum population deviation under 10% falls within [the] category of minor deviations [insufficient to make out a prima facie case].’’

the Court held that more flexibility is constitutionally permissible 

with respect to the former than to the latter. 1824 But it was in determining how much greater flexibility was permissible that the 

Court moved in new directions. First, applying the traditional 

standard of rationality rather than the strict test of compelling necessity, the Court held that a maximum 16.4% deviation from 

equality of population was justified by the State’s policy of maintaining the integrity of political subdivision lines, or according representation to subdivisions qua subdivisions, because the legislature was responsible for much local legislation. 1825 Second, just as 

the first case ‘‘demonstrates, population deviations among districts 

may be sufficiently large to require justification but nonetheless be 

justified and legally sustainable. It is now time to recognize . . . 

that minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of 

invidious discrimination under the Fourteenth Amendment so as to 

require justification by the State.’’ 1826 This recognition of a de

minimis deviation, below which no justification was necessary, was 

mandated, the Court felt, by the margin of error in census statistics, by the population change over the ten-year life of an apportionment, and by the relief it afforded federal courts able thus to 

2010 AMENDMENT 14—RIGHTS GUARANTEED 

1827Gaffney v. Cummings, 412 U.S. 735, 748 (1973). By contrast, the Court has 

held that estimated margin of error for census statistics does not justify deviation 

from population equality in congressional districting. Karcher v. Daggett, 462 U.S. 

725 (1983). 1828 Chapman v. Meier, 420 U.S. 1, 21–27 (1975). The Court did say that courtordered reapportionment of a state legislature need not attain the mathematical 

preciseness required for congressional redistricting. Id. at 27 n.19. Apparently, 

therefore, the Court’s reference to both ‘‘de minimis’’ variations and ‘‘approximate 

population equality’’ must be read as referring to some range approximating the 

Gaffney principle. See also Connor v. Finch, 431 U.S. 407 (1977). 1829Gomillion v. Lightfoot, 364 U.S. 339 (1960); Wright v. Rockefeller, 376 U.S. 

52 (1964); Sims v. Baggett, 247 F. Supp. 96 (M.D. Ala. 1965) (three-judge court). 

Hunt v. Cromartie, 526 U.S. 541 (1999). 1830Miller v. Johnson, 515 U.S. 900 (1995) (drawing congressional district lines 

in order to comply with § 5 of the Voting Rights Act as interpreted by the Department of Justice not a compelling governmental interest). 1831Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. Reno, 509 U.S. 630 (1993). 

See also Shaw v. Hunt, 517 U.S. 899 (1996) (creating an unconventionally-shaped 

majority-minority congressional district in one portion of state in order to alleviate 

effect of fragmenting geographically compact minority population in another portion 

of state does not remedy a violation of § 2 of Voting Rights Act, and is thus not 

a compelling governmental interest). 1832 Bush v. Vera, 517 U.S. 952, 979 (1996) (opinion of Justice O’Connor, joined 

by Chief Justice Rehnquist and Justice Kennedy) (also involving congressional districts).

avoid over-involvement in essentially a political process. The ‘‘goal 

of fair and effective representation’’ is furthered by eliminating 

gross population variations among districts, but it is not achieved 

by mathematical equality solely. Other relevant factors are to be 

taken into account. 1827 But when a judicially-imposed plan is to be 

formulated upon state default, it ‘‘must ordinarily achieve the goal 

of population equality with little more than de minimis variation’’

and deviations from approximate population equality must be supported by enunciation of historically significant state policy or 

unique features. 1828

Gerrymandering and the permissible use of multimember districts present examples of the third major issue. It is clear that racially based gerrymandering is unconstitutional under the Fifteenth Amendment, at least when it is accomplished through the 

manipulation of district lines. 1829 Even if racial gerrymandering is 

intended to benefit minority voting populations, it is subject to 

strict scrutiny under the Equal Protection Clause if racial considerations are the dominant and controlling rationale in drawing district lines. 1830 Showing that a district’s ‘‘bizarre’’ shape departs 

from traditional districting principles such as compactness, contiguity, and respect for political subdivision lines may serve to reinforce such a claim, 1831 although a plurality of the Justices would 

not preclude the creation of ‘‘reasonably compact’’ majority-minority 

districts in order to remedy past discrimination or to comply with 

the requirements of the Voting Rights Act of 1965. 1832 On the other 

AMENDMENT 14—RIGHTS GUARANTEED 2011

1833 Easley v. Cromartie, 532 U.S. 234 (2001). 1834 E.g., WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (S.D.N.Y. 1965) (three-judge 

court), aff’d, 382 U.S. 4 (1965); Sincock v. Gately, 262 F. Supp. 739 (D. Del. 1967) 

(three-judge court). 1835Gaffney v. Cummings, 412 U.S. 735, 751, 754 (1973). 1836 478 U.S. 109 (1986). The vote on justiciability was 6–3, with Justice White’s 

opinion of the Court being joined by Justices Brennan, Marshall, Blackmun, Powell, 

and Stevens. This represented an apparent change of view by 3 of the majority Justices, who just 2 years earlier had denied that ‘‘the existence of noncompact or gerrymandered districts is by itself a constitutional violation.’’ Karcher v. Daggett, 466 

U.S. 910, 917 (1983) (Justice Brennan, joined by Justices White and Marshall, dissenting from denial of stay in challenge to district court’s rejection of a remedial districting plan on the basis that it contained ‘‘an intentional gerrymander’’). 1837Only Justices Powell and Stevens thought the Indiana redistricting plan 

void; Justice White, joined by Justices Brennan, Marshall, and Blackmun, thought 

the record inadequate to demonstrate continuing discriminatory impact, and Justice 

O’Connor, joined by Chief Justice Burger and by Justice Rehnquist, would have 

ruled that partisan gerrymandering is nonjusticiable as constituting a political question not susceptible to manageable judicial standards. 

hand, the Court appears to have more recently weakened a challenger’s ability to establish Equal Protection claims by showing 

both a strong deference to a legislature’s articulation of legitimate 

political explanations for districting decisions, and by allowing for 

a strong correlation between race and political affiliation. 1833

Partisan gerrymandering raises more difficult issues. Several 

lower courts ruled that the issue was beyond judicial cognizance, 1834 and the Supreme Court itself, upholding an apportionment plan frankly admitted to have been drawn with the intent to 

achieve a rough approximation of the statewide political strengths 

of the two parties, recognized the goal as legitimate and observed 

that, while the manipulation of apportionment and districting is 

not wholly immune from judicial scrutiny, ‘‘we have not ventured 

far or attempted the impossible task of extirpating politics from 

what are the essentially political processes of the sovereign 

States.’’ 1835

More recently, however, in a decision of potentially major import reminiscent of Baker v. Carr, the Court in Davis v. 

Bandemer 1836 ruled that partisan gerrymandering in state legislative redistricting is justiciable under the Equal Protection Clause. 

But although the vote was 6 to 3 in favor of justiciability, a majority of Justices could not agree on the proper test for determining 

whether particular gerrymandering is unconstitutional, and the 

lower court’s holding of unconstitutionality was reversed by vote of 

7 to 2. 1837 Thus, while courthouse doors are now ajar for claims of 

partisan gerrymandering, it is unclear what it will take to succeed 

on the merits. 

On the justiciability issue, the Court viewed the ‘‘political question’’ criteria as no more applicable than they had been in Baker

2012 AMENDMENT 14—RIGHTS GUARANTEED 

1838 377 U.S. 533, 565–66 (1964). This phrase has had a life of its own in the 

commentary. See D. Alfange, Jr., Gerrymandering and the Constitution: Into the 

Thorns of the Thicket at Last, 1986 SUP. CT. REV. 175, and sources cited therein. 

It is not clear from its original context, however, that the phrase was coined with 

such broad application in mind. 1839The quotation is from the Baker v. Carr measure for existence of a political 

question, 369 U.S. 186, 217 (1962). 1840 478 U.S. at 133. Joining in this part of the opinion were Justices Brennan, 

Marshall, and Blackmun. 1841 478 U.S. at 173. A similar approach had been proposed in Justice Stevens’ 

concurring opinion in Karcher v. Daggett, 462 U.S. 725, 744 (1983). 1842Fortson v. Dorsey, 379 U.S. 433, 439 (1965); Burns v. Richardson, 384 U.S. 

73, 88–89 (1965); Kilgarlin v. Hill, 386 U.S. 120, 125 n.3 (1967). 1843 403 U.S. 124 (1971). Justice Harlan concurred specially, id. at 165, and Justices Douglas, Brennan, and Marshall, dissented, finding racial discrimination in 

the operation of the system. Id. at 171. 

v. Carr. Because Reynolds v. Sims had declared ‘‘fair and effective 

representation for all citizens’’ 1838 to be ‘‘the basic aim of legislative 

apportionment,’’ and because racial gerrymandering issues had 

been treated as justiciable, the Court viewed the representational 

issues raised by partisan gerrymandering as indistinguishable. 

Agreement as to the existence of ‘‘judicially discoverable and manageable standards for resolving’’ gerrymandering issues, however, 

did not result in a consensus as to what those standards are. 1839

While a majority of Justices agreed that discriminatory effect as 

well as discriminatory intent must be shown, there was significant 

disagreement as to what constitutes discriminatory effect. Justice 

White’s plurality opinion suggested that there need be ‘‘evidence of 

continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the 

political process.’’ 1840 Moreover, continued frustration of the chance 

to influence the political process can not be demonstrated by the 

results of only one election; there must be a history of disproportionate results or a finding that such results will continue. Justice 

Powell, joined by Justice Stevens, did not formulate a strict test, 

but suggested that ‘‘a heavy burden of proof’’ should be required, 

and that courts should look to a variety of factors as they relate 

to ‘‘the fairness of a redistricting plan’’ in determining whether it 

contains invalid gerrymandering. Among these factors are the 

shapes of the districts, adherence to established subdivision lines, 

statistics relating to vote dilution, the nature of the legislative 

process by which the plan was formulated, and evidence of intent 

revealed in legislative history. 1841

It had been thought that the use of multimember districts to 

submerge racial, ethnic, and political minorities might be treated 

differently, 1842 but in Whitcomb v. Chavis 1843 the Court, while 

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1844 412 U.S. 755, 765–70 (1973). 1845 ‘‘To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. 

The plaintiffs’ burden is to produce evidence to support findings that the political 

processes leading to nomination and election were not equally open to participation 

by the group in question—that its members had less opportunity than did other 

residents in the district to participate in the political processes and to elect legislators of their choice.’’ 412 U.S. at 765-66. 1846 446 U.S. 55 (1980). 

ards of proof and definitional analysis as to raise the possibility 

that it might be beyond judicial review. In Chavis the Court held 

that inasmuch as the multimember districting represented a state 

policy of more than 100 years observance and could not therefore 

be said to be motivated by racial or political bias, only an actual 

showing that the multimember delegation in fact inadequately represented the allegedly submerged minority would suffice to raise a 

constitutional question. But the Court also rejected as impermissible the argument that any interest group had any sort of right 

to be represented in a legislative body, in proportion to its members’ numbers or on some other basis, so that the failure of that 

group to elect anyone merely meant that alone or in combination 

with other groups it simply lacked the strength to obtain enough 

votes, whether the election be in single-member or in multimember 

districts. That fact of life was not of constitutional dimension, 

whether the group was composed of blacks, or Republicans or 

Democrats, or some other category of persons. Thus, the submerging argument was rejected, as was the argument of a voter in 

another county that the Court should require uniform single-member districting in populous counties because voters in counties 

which elected large delegations in blocs had in effect greater voting 

power than voters in other districts; this argument the Court found 

too theoretical and too far removed from the actualities of political 

life.

Subsequently, and surprisingly in light of Chavis, the Court in 

White v. Regester 1844 affirmed a district court invalidation of the 

use of multimember districts in two Texas counties on the ground 

that, when considered in the totality of the circumstances of discrimination in registration and voting and in access to other political opportunities, such use denied African Americans and Mexican 

Americans the opportunity to participate in the election process in 

a reliable and meaningful manner. 1845

Doubt was cast on the continuing vitality of White v. 

Regester, however, by the badly split opinion of the Court in City

of Mobile v. Bolden. 1846 A plurality undermined the earlier case in 

two respects, although it is not at all clear that a majority of the 

2014 AMENDMENT 14—RIGHTS GUARANTEED 

1847 446 U.S. at 65-68 (Justices Stewart, Powell, Rehnquist, and Chief Justice 

Burger). On intent versus impact analysis, see discussion supra. Justices Blackmun 

and Stevens concurred on other grounds, id. at 80, 83, and Justices White, Brennan, 

and Marshall dissented. Id. at 94, 103. Justice White agreed that purposeful discrimination must be found, id. at 101, while finding it to have been shown, Justice 

Blackmun assumed that intent was required, and Justices Stevens, Brennan, and 

Marshall would not so hold. 1848 446 U.S. at 68-74. Four Justices rejected this view of the plurality, while 

Justice Stevens also appeared to do so but followed a mode of analysis significantly 

different than that of any other Justice. 1849 458 U.S. 613 (1982). Joining the opinion of the Court were Justices White, 

Brennan, Marshall, Blackmun, O’Connor, and Chief Justice Burger. Dissenting were 

Justices Powell and Rehnquist, id. at 628, and Justice Stevens. Id. at 631. 1850On the legislation, see ‘‘Congressional Definition of Fourteenth Amendment 

Rights,’’ supra. 1851 478 U.S. 30, 50–51 (1986). Use of multimember districting for purposes of 

political gerrymandering was at issue in Davis v. Bandemer, 478 U.S. 109 (1986), 

decided the same day as Gingles, but there was no agreement as to the appropriate 

constitutional standard. A plurality led by Justice White relied on the Whitcomb v. 

Chavis reasoning, suggesting that proof that multimember districts were constructed for the advantage of one political party falls short of the necessary showing 

of deprivation of opportunity to participate in the electoral process. 478 U.S. at 136– 

37. Two Justices thought the proof sufficient for a holding of invalidity, the minority 

party having won 46% of the vote but only 3 of 21 seats from the multimember districts, and ‘‘the only discernible pattern [being] the appearance of these districts in 

Court had been or could be assembled on either point. First, the 

plurality argued that an intent to discriminate on the part of the 

redistricting body must be shown before multimember districting 

can be held to violate the equal protection clause. 1847 Second, the 

plurality read White v. Regester as being consistent with this principle and the various factors developed in that case to demonstrate 

the existence of unconstitutional discrimination to be in fact indicia 

of intent; however, the plurality seemingly disregarded the totality 

of circumstances test utilized in Regester and evaluated instead 

whether each factor alone was sufficient proof of intent. 1848

Again switching course, the Court in Rogers v. Lodge 1849 approved the findings of the lower courts that a multimember electoral system for electing a county board of commissioners was 

being maintained for a racially discriminatory purpose, although it 

had not been instituted for that purpose. Applying a totality of the 

circumstances test, and deferring to lower court factfinding, the 

Court, in an opinion by one of the Mobile dissenters, canvassed a 

range of factors which it held could combine to show a discriminatory motive, and largely overturned the limitations which the Mobile plurality had attempted to impose in this area. With the enactment of federal legislation specifically addressed to the issue of 

multimember districting and dilution of the votes of racial minorities, however, it may be that the Court will have little further opportunity to develop the matter in the context of constitutional litigation. 1850 In Thornburg v. Gingles, 1851 the Court held that multiVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00344 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
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areas where their winner-take-all aspects can best be employed to debase [one 

party’s] voting strength,’’ (id. at 179–80, Justices Powell and Stevens), and three 

Justices thought political gerrymandering claims to be nonjusticiable. 1852 E.g., Reynolds v. Sims, 377 U.S. 533, 586–87 (1964); Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 195–200 (1972); White v. Weiser, 412 

U.S. 783, 794–95 (1973); Upham v. Seamon, 456 U.S. 37, 41–42 (1982). When courts 

draw their own plans, the court is held to tighter standards than is a legislature 

and has to observe smaller population deviations and utilize single-member districts 

more than multimember ones. Connor v. Johnson, 402 U.S. 690, 692 (1971); Chapman v. Meier, 420 U.S. 1, 14–21 (1975); Wise v. Lipscomb, 437 U.S. 535, 540 (1978). 

Cf. Mahan v. Howell, 410 U.S. 315, 333 (1973). 

1853 E.g., Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187 (1972) 

(reduction of numbers of members); Whitcomb v. Chavis, 403 U.S. 124, 160–61 

(1971) (disregard of policy of multimember districts not found unconstitutional); 

White v. Weiser, 412 U.S. 783, 794–95 (1973); Upham v. Seamon, 406 U.S. 37 

(1982). But see Karcher v. Daggett, 466 U.S. 910 (1983) (denying cert. over dissent’s 

suggestion that court-adopted congressional districting plan had strayed too far from 

the structural framework of the legislature’s invalidated plan). 1854 531 U.S. 98 (2000). 

member districting violates § 2 of the Voting Rights Act by diluting 

the voting power of a racial minority when that minority is ‘‘sufficiently large and geographically compact to constitute a majority in 

a single-member district,’’ when it is politically cohesive, and when 

block voting by the majority ‘‘usually’’ defeats preferred candidates 

of the minority. 

Finally, it should be said that the Court has approved the discretionary exercise of equity powers by the lower federal courts in 

drawing district boundaries and granting other relief in districting 

and apportionment cases, 1852 although that power is bounded by 

the constitutional violations found, so that courts do not have carte

blanche, and they should ordinarily respect the structural decisions 

made by state legislatures and the state constitutions. 1853

Counting and Weighing of Votes.—In Bush v. Gore, 1854 a

case of dramatic result but of perhaps limited significance for equal 

protection, the Supreme Court ended a ballot dispute which arose 

during the year 2000 presidential election. The Florida Supreme 

Court had ordered a partial manual recount of the Florida vote for 

Presidential Electors, requiring that all ballots which contained a 

‘‘clear indication of the intent of the voter’’ be counted, but allowing 

the relevant counties to determine what physical characteristics of 

a ballot would satisfy this test. The Court held that the Equal Protection Clause would be violated by allowing arbitrary and disparate methods of discerning voter intent in the recounting of ballots. The decision was surprising to many as a lack of uniformity 

in voting standards and procedures is inherent in the American 

system of decentralized voting administration. The Court, however, 

limited its holding to ‘‘the present circumstances,’’ where ‘‘a state 

court with the power to assure uniformity’’ fails to provide ‘‘miniVerDate Aug<10>2004 00:59 Sep 21, 2004 Jkt 077500 PO 00000 Frm 00345 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
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1855 531 U.S. at 109. 1856 372 U.S. 368 (1963). 1857 403 U.S. 1 (1971). 1858Saenz v. Roe, 526 U.S. 489 (1999). ‘‘For the purposes of this case, we need 

not identify the source of [the right to travel] in the text of the Constitution. The 

right of free ingress and regress to and from’ neighboring states which was expressly mentioned in the text of the Article of Confederation, may simply have been 

conceived from the beginning to be a necessary concomitant of the stronger Union 

the Constitution created.’’’ Id. at 501 (citations omitted). 1859Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1868) (‘‘without some provision 

. . . removing from citizens of each State the disabilities of alienage in other States, 

and giving them equality of privilege with citizens of those States, the Republic 

mal procedural safeguards.’’ 1855 Citing the ‘‘many complexities’’ of 

application of equal protection ‘‘in election processes generally,’’ the 

Court distinguished the many situations where disparate treatment of votes results from different standards being applied by different local jurisdictions. 

In cases where votes are given more or less weight by operation of law, it is not the weighing of votes itself which may violate 

the 14th Amendment, but the manner in which it is done. Gray v. 

Sanders, 1856 for instance, struck down the Georgia county unit system under which each county was allocated either two, four, or six 

votes in statewide elections and the candidate carrying the county 

received those votes. Since there were a few very populous counties 

and scores of poorly-populated ones, the rural counties in effect 

dominated statewide elections and candidates with popular majorities statewide could be and were defeated. But Gordon v. Lance 1857

approved a provision requiring a 60 percent affirmative vote in a 

referendum election before constitutionally prescribed limits on 

bonded indebtedness or tax rates could be exceeded. The Court acknowledged that the provision departed from strict majority rule 

but stated that the Constitution did not prescribe majority rule; it 

instead proscribed discrimination through dilution of voting power 

or denial of the franchise because of some class characteristic— 

race, urban residency, or the like—while the provision in issue was 

neither directed to nor affected any identifiable class. 

The Right to Travel 

The doctrine of the ‘‘right to travel’’ actually encompasses three 

separate rights, of which two have been notable for the uncertainty 

of their textual support. The first is the right of a citizen to move 

freely between states, a right venerable for its longevity, but still 

lacking a clear doctrinal basis. 1858 The second, expressly addressed 

by the first sentence of Article IV, provides a citizen of one State 

who is temporarily visiting another state the ‘‘Privileges and Immunities’’ of a citizen of the latter state. 1859 The third is the right 

AMENDMENT 14—RIGHTS GUARANTEED 2017

would have constituted little more than a league of States; it would not have constituted the Union which now exists.’’). 1860Saenz v. Roe, 526 U.S. 489, 502–03 (1999). 1861Dunn v. Blumstein, 405 U.S. 330, 334 (1972). Inasmuch as the right to travel is implicated by state distinctions between residents and nonresidents, the relevant constitutional provision is the privileges and immunities clause, Article IV, § 

2, cl. 1. 1862 Intrastate travel is protected to the extent that the classification fails to 

meet equal protection standards in some respect. Compare Hadnott v. Amos, 320 F. 

Supp. 107 (M.D. Ala. 1970) (three-judge court), aff’d. per curiam, 405 U.S. 1035 

(1972), with Arlington County Bd. v. Richards, 434 U.S. 5 (1977). The same principle applies in the commerce clause cases, in which discrimination may run against 

in-state as well as out-of-state concerns. Cf. Dean Milk Co. v. City of Madison, 340 

U.S. 349 (1951). 1863Shapiro v. Thompson, 394 U.S. 618, 629–31, 638 (1969); Dunn v. Blumstein, 

405 U.S. 330, 338–42 (1972); Memorial Hospital v. Maricopa County, 415 U.S. 250 

(1974); Jones v. Helms, 452 U.S. 412, 420–21 (1981). See also Oregon v. Mitchell, 

400 U.S. 112, 236–39 (1970) (Justices Brennan, White, and Marshall), and id. at 

285–92 (Justices Stewart and Blackmun and Chief Justice Burger). 1864Shapiro v. Thompson, 394 U.S. 618, 634 (1969) (emphasis by Court); 

Graham v. Richardson, 403 U.S. 365, 375–76 (1971). 1865 Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868); Edwards v. California, 314 

U.S. 160 (1941) (both cases in context of direct restrictions on travel). The source 

of the right to travel and the reasons for reliance on the equal protection clause are 

of a new arrival to a state, who establishes citizenship in that 

state, to enjoy the same rights and benefits as other state citizens. 

This right is most often invoked in challenges to durational residency requirements, which require that persons reside in a state 

for a specified period of time before taking advantage of the benefits of that state’s citizenship. 

Durational Residency Requirements.—Challenges to 

durational residency requirements have traditionally been made 

under the Equal Protection Clause of the Fourteenth Amendment. 

In 1999, however, a majority of the Supreme Court approved a doctrinal shift, so that state laws which distinguished between their 

own citizens based on how long they had been in the state would 

be evaluated instead under the Privileges or Immunities Clause of 

the Fourteenth Amendment. 1860 The Court did not, however, question the continuing efficacy of the earlier cases. 

A durational residency requirement creates two classes of persons: those who have been within the State for the prescribed period and those who have not been. 1861 But persons who have moved 

recently, at least from State to State, 1862 have exercised a right 

protected by the Constitution of the United States, and the 

durational residency classification either deters the exercise of the 

right or penalizes those who have exercised the right. 1863 Any such 

classification is invalid ‘‘unless shown to be necessary to promote 

a compelling governmental interest.’’ 1864 The constitutional right to 

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questions puzzled over and unresolved by the Court. United States v. Guest, 383 

U.S. 745, 758, 759 (1966), and id. at 763–64 (Justice Harlan concurring and dissenting), id. at 777 n.3 (Justice Brennan concurring and dissenting); Shapiro v. 

Thompson, 394 U.S. 618, 629–31 (1969), and id. at 671 (Justice Harlan dissenting); 

San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 31–32 (1973); Jones v. Helms, 

452 U.S. 412, 417–19 (1981); Zobel v. Williams, 457 U.S. 55, 60 & n.6 (1982), and 

id. at 66–68 (Justice Brennan concurring), 78–81 (Justice O’Connor concurring). 1866 394 U.S. 618 (1969). 1867The durational residency provision established by Congress for the District 

of Columbia was also voided. 394 U.S. at 641-42. 1868 394 U.S. at 627-33. Gaddis v. Wyman, 304 F. Supp. 717 (N.D.N.Y. 1969), 

aff’d sub nom. Wyman v. Bowens, 397 U.S. 49 (1970), struck down a provision construed so as to bar only persons who came into the State solely to obtain welfare 

assistance. 1869 394 U.S. at 633–38. Shapiro was reaffirmed in Graham v. Richardson, 403 

U.S. 365 (1971) (striking down durational residency requirements for aliens applying for welfare assistance), and in Memorial Hospital v. Maricopa County, 415 U.S. 

250 (1974) (voiding requirement of one year’s residency in county as condition to indigent’s receiving nonemergency hospitalization or medical care at county’s expense). When Connecticut and New York reinstituted the requirements, pleading a 

financial emergency as the compelling state interest, they were summarily rebuffed. 

Rivera v. Dunn, 329 F. Supp. 554 (D. Conn. 1971), aff’d per curiam, 404 U.S. 1054 

(1972); Lopez v. Wyman, Civ. No. 1971–308 (W.D.N.Y. 1971), aff’d per curiam, 404 

U.S. 1055 (1972). The source of the funds, state or federal, is irrelevant to application of the principle. Pease v. Hansen, 404 U.S. 70 (1971). 1870 405 U.S. 330 (1972). But see Marston v. Lewis, 410 U.S. 679 (1973), and 

Burns v. Fortson, 410 U.S. 686 (1973). Durational residency requirements of five 

and seven years respectively for candidates for elective office were sustained in 

Kanapaux v. Ellisor, 419 U.S. 891 (1974), and Sununu v. Stark, 420 U.S. 958 (1975). 

cently that the strict standard of equal protection review has been 

applied to nullify those durational residency provisions which have 

been brought before the Court. 

Thus, in Shapiro v. Thompson, 1866 durational residency requirements conditioning eligibility for welfare assistance on one 

year’s residence in the State 1867 were voided. If the purpose of the 

requirements was to inhibit migration by needy persons into the 

State or to bar the entry of those who came from low-paying States 

to higher-paying ones in order to collect greater benefits, the Court 

said, the purpose was impermissible. 1868 If on the other hand the 

purpose was to serve certain administrative and related governmental objectives—the facilitation of the planning of budgets, the 

provision of an objective test of residency, minimization of opportunity for fraud, and encouragement of early entry of new residents 

into the labor force—the requirements were rationally related to 

the purpose but they were not compelling enough to justify a classification which infringed on a fundamental interest. 1869 Similarly,

in Dunn v. Blumstein, 1870 where the durational residency requirements denied the franchise to newcomers, the assertion of such administrative justifications was constitutionally insufficient to justify the classification. The Privileges or Immunities Clause of the 

Fourteenth Amendment was the basis for striking down a CaliVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00348 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
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1871Saenz v. Roe, 526 U.S. 489, 505 (1999). 1872 419 U.S. 393 (1975). Justices Marshall and Brennan dissented on the merits. Id. at 418. 1873 419 U.S. at 409. But the Court also indicated that the plaintiff was not absolutely barred from the state courts, but merely required to wait for access (which 

was true in the prior cases as well and there held immaterial), and that possibly 

the state interests in marriage and divorce were more exclusive and thus more immune from federal constitutional attack than were the matters at issue in the previous cases. The Court also did not indicate whether it was using strict or traditional scrutiny. 1874Starns v. Malkerson, 326 F. Supp. 234 (D.Minn. 1970), aff’d per curiam, 401 

U.S. 985 (1971). Cf. Vlandis v. Kline, 412 U.S. 441, 452 & n.9 (1973), and id. at 

456, 464, 467 (dicta). In Memorial Hospital v. Maricopa County, 415 U.S. 250, 256 

(1974), the Court, noting the results, stated that ‘‘some waiting periods . . . may not 

be penalties’’ and thus would be valid. 1875Saenz v. Roe, 526 U.S. at 505 (1999). 

fornia law which limited welfare benefits for California citizens 

who had resided in the state for less than a year to the level ifof 

benefits which they would have received in the State of their prior 

residence. 1871

However, a state one-year durational residency requirement 

for the initiation of a divorce proceeding was sustained in Sosna v. 

Iowa. 1872 While it is not clear what the precise basis of the ruling 

is, it appears that the Court found that the State’s interest in requiring that those who seek a divorce from its courts be genuinely 

attached to the State and its desire to insulate divorce decrees from 

the likelihood of collateral attack justified the requirement. 1873

Similarly, durational residency requirements for lower in-state tuition at public colleges have been held constitutionally justifiable, 

again, however, without a clear statement of reason. 1874 More recently, the Court has attempted to clarify these cases by distinguishing situations where a state citizen is likely to ‘‘consume’’ benefits within a state’s borders (such as the provision of welfare) from 

those where citizens of other states are likely to establish residency 

just long enough to acquire some portable benefit, and then return 

to their original domicile to enjoy them (such as obtaining a divorce 

decree or paying the in-state tuition rate for a college education). 1875

A state scheme for returning to its residents a portion of the 

income earned from the vast oil deposits discovered within Alaska 

foundered upon the formula for allocating the dividends; that is, 

each adult resident received one unit of return for each year of residency subsequent to 1959, the first year of Alaska’s statehood. The 

law thus created fixed, permanent distinctions between an ever-increasing number of classes of bona fide residents based on how long 

they had been in the State. The differences between the durational 

residency cases previously decided did not alter the bearing of the 

2020 AMENDMENT 14—RIGHTS GUARANTEED 

1876Zobel v. Williams, 457 U.S. 55 (1982). Somewhat similar was the Court’s invalidation on equal protection grounds of a veterans preference for state employment limited to persons who were state residents when they entered military service; four Justices also thought the preference penalized the right to travel. Attorney 

General of New York v. Soto-Lopez, 476 U.S. 898 (1986). 1877La Tourette v. McMaster, 248 U.S. 465 (1919), upholding a two-year residence requirement to become an insurance broker, must be considered of questionable validity. Durational periods for admission to the practice of law or medicine or 

other professions have evoked differing responses by lower courts. 1878 E.g., McCarthy v. Philadelphia Civil Service Comm’n, 424 U.S. 645 (1976) 

(ordinance requiring city employees to be and to remain city residents upheld). 

See Memorial Hospital v. Maricopa County, 415 U.S. 250, 255 (1974). See also Martinez v. Bynum, 461 U.S. 321 (1983) (bona fide residency requirement for free tuition to public schools). 1879 Jones v. Helms, 452 U.S. 412 (1981) (statute made it a misdemeanor to 

abandon a dependent child but a felony to commit the offense and then leave the 

State). 1880 434 U.S. 374 (1978). 1881 Although the Court’s due process decisions have broadly defined a protected 

liberty interest in marriage and family, no previous case had held marriage to be 

a fundamental right occasioning strict scrutiny. 434 U.S. at 396-397 (Justice Powell 

concurring).

right to travel principle upon the distribution scheme, but the 

Court’s decision went off on the absence of any permissible purpose 

underlying the apportionment classification and it thus failed even 

the rational basis test. 1876

Unresolved still are issues such as durational residency requirements for occupational licenses and other purposes. 1877 Too, it 

should be noted that this line of cases does not apply to state residency requirements themselves, as distinguished from durational 

provisions, 1878 and the cases do not inhibit the States when, having 

reasons for doing so, they bar travel by certain persons. 1879

Marriage and Familial Relations 

In Zablocki v. Redhail, 1880 importing into equal protection 

analysis the doctrines developed in substantive due process, the 

Court identified the right to marry as a ‘‘fundamental interest’’ 

that necessitates ‘‘critical examination’’ of governmental restrictions which ‘‘interfere directly and substantially’’ with the right. 1881

Struck down was a statute that prohibited any resident under an 

obligation to support minor children from marrying without a court 

order; such order could only be obtained upon a showing that the 

support obligation had been and was being complied with and that 

the children were not and were not likely to become public charges. 

The plaintiff was an indigent wishing to marry but prevented from 

doing so because he was not complying with a court order to pay 

support to an illegitimate child he had fathered, and because the 

child was receiving public assistance. Applying ‘‘critical examination,’’ the Court observed that the statutory prohibition could not 

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1882 434 U.S. at 388. Although the passage is not phrased in the usual compelling interest terms, the concurrence and the dissent so viewed it without evoking 

disagreement from the Court. Id. at 396 (Justice Powell), 403 (Justice Stevens), 407 

(Justice Rehnquist). Justices Powell and Stevens would have applied intermediate 

scrutiny to void the statute, both for its effect on the ability to marry and for its 

impact upon indigents. Id. at 400, 406 n.10. 1883 434 U.S. at 386-87. Chief Justice Burger thought the interference here was 

‘‘intentional and substantial,’’ whereas the provision in Jobst was neither. Id. at 391 

(concurring). 1884 434 U.S. 47 (1977). 

be sustained unless it was justified by sufficiently important state 

interests and was closely tailored to effectuate only those interests. 1882 Two interests were offered that the Court was willing to 

accept as legitimate and substantial: requiring permission under 

the circumstances furnished an opportunity to counsel applicants 

on the necessity of fulfilling support obligations, and the process 

protected the welfare of children who needed support, either by 

providing an incentive to make support payments or by preventing 

applicants from incurring new obligations through marriage. The 

first interest was not served, the Court found, there being no provision for counseling and no authorization of permission to marry 

once counseling had taken place. The second interest was found not 

to be effectuated by the means. Alternative devices to collect support existed, the process simply prevented marriage without delivering any money to the children, and it singled out obligations incurred through marriage without reaching any other obligations. 

Other restrictions that relate to the incidents of or prerequisites for marriage were carefully distinguished by the Court 

as neither entitled to rigorous scrutiny nor put in jeopardy by the 

decision. 1883 For example, in Califano v. Jobst, 1884 a unanimous 

Court sustained a Social Security provision that revoked disabled 

dependents’ benefits of any person who married, except when the 

person married someone who was also entitled to receive disabled 

dependents’ benefits. Plaintiff, a recipient of such benefits, married 

someone who was also disabled but not qualified for the benefits, 

and his benefits were terminated. He sued, alleging that distinguishing between classes of persons who married eligible persons 

and who married ineligible persons infringed upon his right to 

marry. The Court rejected the argument, finding that benefit entitlement was not based upon need but rather upon actual dependency upon the insured wage earner; marriage, Congress could have 

assumed, generally terminates the dependency upon a parent-wage 

earner. Therefore, it was permissible as an administrative convenience to make marriage the terminating point but to make an exception when both marriage partners were receiving benefits, as a 

means of lessening hardship and recognizing that dependency was 

2022 AMENDMENT 14—RIGHTS GUARANTEED 

1885 434 U.S. at 54. See also Mathews v. De Castro, 429 U.S. 181 (1976) (provision giving benefits to a married woman under 62 with dependent children in her 

care whose husband retires or becomes disabled but denying them to a divorced 

woman under 62 with dependents represents a rational judgment by Congress with 

respect to likely dependency of married but not divorced women and does not deny 

equal protection); Califano v. Boles, 443 U.S. 282 (1979) (limitation of certain Social 

Security benefits to widows and divorced wives of wage earners does not deprive 

mother of illegitimate child who was never married to wage earner of equal protection).1886See, e.g., Quilloin v. Walcott, 434 U.S. 246 (1978) (State’s giving to father 

of legitimate child who is divorced or separated from mother while denying to father 

of illegitimate child a veto over the adoption of the child by another does not under 

the circumstances deny equal protection. The circumstances were that the father 

never exercised custody over the child or shouldered responsibility for his supervision, education, protection, or care, although he had made some support payments 

and given him presents). Accord, Lehr v. Robertson, 463 U.S. 248 (1983). 1887 517 U.S. 620 (1996). 1888 Evans v. Romer, 854 P.2d 1270 (Colo. 1993). 1889 517 U.S. at 634, quoting Department of Agriculture v. Moreno, 413 U.S. 528, 

534 (1973). 

likely to continue. The marriage rule was therefore not to be strictly scrutinized or invalidated ‘‘simply because some persons who 

might otherwise have married were deterred by the rule or because 

some who did marry were burdened thereby.’’ 1885

It seems obvious, therefore, that the determination of marriage 

and familial relationships as fundamental will be a fruitful beginning of litigation in the equal protection area. 1886

Sexual Orientation 

In Romer v. Evans, 1887 the Supreme Court struck down a state 

constitutional amendment which both overturned local ordinances 

prohibiting discrimination against homosexuals, lesbians or bisexuals, and prohibited any state or local governmental action to 

either remedy discrimination or to grant preferences based on sexual orientation. The Court declined to follow the lead of the Supreme Court of Colorado, which had held that the amendment infringed on gays’ and lesbians’ fundamental right to participate in 

the political process. 1888 The Court also rejected the application of 

the heightened standard reserved for suspect classes, and sought 

only to establish whether the legislative classification had a rational relation to a legitimate end. 

The Court found that the amendment failed even this restrained review. Animus against a class of persons was not considered by the Court as a legitimate goal of government: ‘‘[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to 

harm a politically unpopular group cannot constitute a legitimate governmental interest.’’ 1889 The Court then rejected arguVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00352 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
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1890San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973). 1891 351 U.S. 12 (1956). The opinion of the court was joined by Justices Black, 

Douglas, and Clark, and Chief Justice Warren. Justice Frankfurter concurred. Id. 

at 20. Justices Burton, Minton, Reed, and Harlan dissented. Id. at 26, 29. 1892 351 U.S. at 17, 18, 19. Although Justice Black was not explicit, it seems 

clear that the system was found to violate both the due process and the equal protection clauses. Justice Frankfurter’s concurrence dealt more expressly with the 

premise of the Black opinion. ‘‘It does not face actuality to suggest that Illinois affords every convicted person, financially competent or not, the opportunity to take 

an appeal, and that it is not Illinois that is responsible for disparity in material circumstances. Of course, a State need not equalize economic conditions. . . . But when 

a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted 

ments that the amendment protected the freedom of association 

rights of landlords and employers, or that it would conserve resources in fighting discrimination against other groups. The Court 

found that the scope of the law was unnecessarily broad to achieve 

these stated purposes, and that no other legitimate rationale existed for such a restriction. 

Poverty and Fundamental Interests: The Intersection of Due 

Process and EqualProtection 

Generally.—Whatever may be the status of wealth distinctions per se as a suspect classification, 1890 there is no doubt that 

when the classification affects some area characterized as or considered to be fundamental in nature in the structure of our polity— 

the ability of criminal defendants to obtain fair treatment throughout the system, the right to vote, to name two examples—then the 

classifying body bears a substantial burden in justifying what it 

has done. The cases begin with Griffin v. Illinois, 1891 surely one of 

the most seminal cases in modern constitutional law. There, the 

State conditioned full direct appellate review, review as to which 

all convicted defendants were entitled, on the furnishing of a bill 

of exceptions or report of the trial proceedings, in the preparation 

of which the stenographic transcript of the trial was usually essential. Only indigent defendants sentenced to death were furnished 

free transcripts; all other convicted defendants had to pay a fee to 

obtain them. ‘‘In criminal trials,’’ Justice Black wrote in the plurality opinion, ‘‘a State can no more discriminate on account of poverty than on account of religion, race, or color.’’ While the State 

was not obligated to provide an appeal at all, when it does so it 

may not structure its system ‘‘in a way that discriminates against 

some convicted defendants on account of their poverty.’’ The system’s fault was that it treated defendants with money differently 

than it treated defendants without money. ‘‘There can be no equal 

justice where the kind of trial a man gets depends on the amount 

of money he has.’’ 1892

2024 AMENDMENT 14—RIGHTS GUARANTEED 

indigent persons, forsooth erroneously convicted, from securing such a review merely by disabling them from bringing to the notice of an appellate tribunal errors of 

the trial court which would upset the conviction were practical opportunity for review not foreclosed.’’ Id. at 23. 1893 372 U.S. 353 (1963). Justice Clark dissented, protesting the Court’s ‘‘new 

fetish for indigency,’’ id. at 358, 359, and Justices Harlan and Stewart dissented. 

Id. at 360. 1894 372 U.S. at 357-58. 1895Griffin v. Illinois, 351 U.S. 12, 34, 35 (1956). 1896Douglas v. California, 372 U.S. 353, 361 (1963). 

The principle of Griffin was extended in Douglas v. California, 1893 in which the court held to be a denial of due process and 

equal protection a system whereby in the first appeal as of right 

from a conviction counsel was appointed to represent indigents only 

if the appellate court first examined the record and determined 

that counsel would be of advantage to the appellant. ‘‘There is lacking that equality demanded by the Fourteenth Amendment where 

the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without 

merit, is forced to shift for himself.’’ 1894

From the beginning, Justice Harlan opposed reliance on the 

equal protection clause at all, arguing that a due process analysis 

was the proper criterion to follow. ‘‘It is said that a State cannot 

discriminate between the ‘rich’ and the ‘poor’ in its system of criminal appeals. That statement of course commands support, but it 

hardly sheds light on the true character of the problem confronting 

us here. . . . All that Illinois has done is to fail to alleviate the consequences of differences in economic circumstances that exist wholly apart from any state action.’’ A fee system neutral on its face 

was not a classification forbidden by the equal protection clause. 

‘‘[N]o economic burden attendant upon the exercise of a privilege 

bears equally upon all, and in other circumstances the resulting 

differentiation is not treated as an invidious classification by the 

State, even though discrimination against ‘indigents’ by name 

would be unconstitutional.’’ 1895 As he protested in Douglas: ‘‘The 

States, of course, are prohibited by the Equal Protection Clause 

from discriminating between ‘rich’ and ‘poor’ as such in the formulation and application of their laws. But it is a far different thing 

to suggest that this provision prevents the State from adopting a 

law of general applicability that may affect the poor more harshly 

than it does the rich, or, on the other hand, from making some effort to redress economic imbalances while not eliminating them entirely.’’ 1896

AMENDMENT 14—RIGHTS GUARANTEED 2025

1897 372 U.S. at 363-67. 1898 Evitts v. Lucey, 469 U.S. 387, 405 (1985) (holding that due process requires 

that counsel provided for appeals as of right must be effective). 1899 Rinaldi v. Yeager, 384 U.S. 305, 310 (1966). 1900Draper v. Washington, 372 U.S. 487, 496 (1963). 1901 Burns v. Ohio, 360 U.S. 252 (1959); Douglas v. Green, 363 U.S. 192 (1960). 1902Smith v. Bennett, 365 U.S. 708 (1961). 1903Griffin v. Illinois, 351 U.S. 12 (1956); Eskridge v. Washington State Bd. of 

Prison Terms & Paroles, 357 U.S. 214 (1958) (unconstitutional to condition free 

transcript upon trial judge’s certification that ‘‘justice will thereby be promoted’’); 

Draper v. Washington, 372 U.S. 487 (1963) (unconstitutional to condition free transcript upon judge’s certification that the allegations of error were not ‘‘frivolous’’); 

Lane v. Brown, 372 U.S. 477 (1963) (unconstitutional to deny free transcript upon 

determination of public defender that appeal was in vain); Long v. District Court, 

Due process furnished the standard, Justice Harlan felt, for determining whether fundamental fairness had been denied. Where 

an appeal was barred altogether by the imposition of a fee, the line 

might have been crossed to unfairness, but on the whole he did not 

see that a system which merely recognized differences between and 

among economic classes, which as in Douglas made an effort to 

ameliorate the fact of the differences by providing appellate scrutiny of cases of right, was a system which denied due process. 1897

The Court has reiterated that both due process and equal protection concerns are implicated by restrictions on indigents’ exercise of the right of appeal. ‘‘In cases like Griffin and Douglas, due 

process concerns were involved because the States involved had set 

up a system of appeals as of right but had refused to offer each defendant a fair opportunity to obtain an adjudication on the merits 

of his appeal. Equal protection concerns were involved because the 

State treated a class of defendants—indigent ones—differently for 

purposes of offering them a meaningful appeal.’’ 1898

Criminal Procedure.—‘‘[I]t is now fundamental that, once established, . . . avenues [of appellate review] must be kept free of 

unreasoned distinctions that can only impede open and equal access to the courts.’’ 1899 ‘‘In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as 

that given appellants with funds. . . .’’ 1900 No State may condition 

the right to appeal 1901 or the right to file a petition for habeas corpus 1902 or other form of postconviction relief upon the payment of 

a docketing fee or some other type of fee when the petitioner has 

no means to pay. Similarly, although the States are not required 

to furnish full and complete transcripts of their trials to indigents 

when exerpted versions or some other adequate substitute is available, if a transcript is necessary to adequate review of a conviction, 

either on appeal or through procedures for postconviction relief, the 

transcript must be provided to indigent defendants or to others unable to pay. 1903 This right may not be denied by drawing a felonyVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00355 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
2026 AMENDMENT 14—RIGHTS GUARANTEED 

385 U.S. 192 (1966) (indigent prisoner entitled to free transcript of his habeas corpus proceeding for use on appeal of adverse decision therein); Gardner v. California, 

393 U.S. 367 (1969) (on filing of new habeas corpus petition in appellate court upon 

an adverse nonappealable habeas ruling in a lower court where transcript was needed, one must be provided an indigent prisoner). See also Rinaldi v. Yeager, 384 U.S. 

305 (1966). For instances in which a transcript was held not to be needed, see Britt

v. North Carolina, 404 U.S. 266 (1971); United States v. MacCollom, 426 U.S. 317 

(1976). 1904Williams v. Oklahoma City, 395 U.S. 458 (1969); Mayer v. City of Chicago, 

404 U.S. 189 (1971). 1905Douglas v. California, 372 U.S. 353 (1963); Swenson v. Bosler, 386 U.S. 258 

(1967); Anders v. California, 386 U.S. 738 (1967); Entsminger v. Iowa, 386 U.S. 748 

(1967). A rule requiring a court-appointed appellate counsel to file a brief explaining 

reasons why he concludes that a client’s appeal is frivolous does not violate the client’s right to assistance of counsel on appeal. McCoy v. Court of Appeals, 486 U.S. 

429 (1988). The right is violated if the court allows counsel to withdraw by merely 

certifying that the appeal is ‘‘meritless’’ without also filing an Anders brief supporting the certification. Penson v. Ohio, 488 U.S. 75 (1988). But see Smith v. Robbins, 528 U.S. 259 (2000) (upholding California law providing that appellate counsel 

may limit his or her role to filing a brief summarizing the case and record and requesting the court to examine record for non-frivolous issues). On the other hand, 

since there is no constitutional right to counsel for indigent prisoners seeking 

postconviction collateral relief, there is no requirement that withdrawal be justified 

in an Anders brief if a state has provided counsel for postconviction proceedings. 

Pennsylvania v. Finley, 481 U.S. 551 (1987) (counsel advised the court that there 

were no arguable bases for collateral relief). 1906 Evitts v. Lucey, 469 U.S. 387 (1985). 1907 Ross v. Moffitt, 417 U.S. 600 (1974). See also Fuller v. Oregon, 417 U.S. 40 

(1974) (statute providing, under circumscribed conditions, that indigent defendant, 

who receives state-compensated counsel and other assistance for his defense, who 

misdemeanor distinction or by limiting it to those cases in which 

confinement is the penalty. 1904 A defendant’s right to counsel is to 

be protected as well as the similar right of the defendant with 

funds. 1905 The right to counsel on appeal necessarily means the 

right to effective assistance of counsel. 1906

But, deciding a point left unresolved in Douglas, the Court 

held that neither the due process nor the equal protection clause 

required a State to furnish counsel to a convicted defendant seeking, after he had exhausted his appeals of right, to obtain discretionary review of his case in the State’s higher courts or in the 

United States Supreme Court. Due process fairness does not require that after an appeal has been provided the State must always 

provide counsel to indigents at every stage. ‘‘Unfairness results 

only if indigents are singled out by the State and denied meaningful access to that system because of their poverty.’’ That essentially 

equal protection issue was decided against the defendant in the 

context of an appellate system in which one appeal could be taken 

as of right to an intermediate court, with counsel provided if necessary, and in which further appeals might be granted not primarily upon any conclusion about the result below but upon considerations of significant importance. 1907 Not even death row inmates 

AMENDMENT 14—RIGHTS GUARANTEED 2027

is convicted, and who subsequently becomes able to repay costs, must reimburse 

State for costs of his defense in no way operates to deny him assistance of counsel 

or the equal protection of the laws). 1908Murray v. Giarratano, 492 U.S. 1 (1989) (upholding Virginia’s system under 

which ‘‘unit attorneys’’ assigned to prisons are available for some advice prior to the 

filing of a claim, and a personal attorney is assigned if an inmate succeeds in filing 

a petition with at least one non-frivolous claim). 1909 Johnson v. Avery, 393 U.S. 483 (1969). 1910 Younger v. Gilmore, 404 U.S. 15 (1971); Bounds v. Smith, 430 U.S. 817 

(1977). 1911 399 U.S. 235 (1970). 1912 401 U.S. 395 (1971). The Court has not yet treated a case in which the permissible sentence is ‘‘$30 or 30 days’’ or some similar form where either confinement 

or a fine will satisfy the State’s penal policy. 1913 383 U.S. 663, 666 (1966). The poll tax required to be paid as a condition 

of voting was $1.50 annually. Justices Black, Harlan, and Stewart dissented. Id. at 

670, 680. 

have a constitutional right to an attorney to prepare a petition for 

collateral relief in state court. 1908

This right to legal assistance, especially in the context of the 

constitutional right to the writ of habeas corpus, means that in the 

absence of other adequate assistance, as through a functioning public defender system, a State may not deny prisoners legal assistance of another inmate 1909 and it must make available certain 

minimal legal materials. 1910

The Criminal Sentence.—A convicted defendant may not be 

imprisoned solely because of his indigency. Williams v. Illinois 1911

held that it was a denial of equal protection for a State to extend 

the term of imprisonment of a convicted defendant beyond the statutory maximum provided because he was unable to pay the fine 

which was also levied upon conviction. And Tate v. Short 1912 held

that in situations in which no term of confinement is prescribed for 

an offense but only a fine, the court may not jail persons who cannot pay the fine, unless it is impossible to develop an alternative, 

such as installment payments or fines scaled to ability to pay. Willful refusal to pay may, however, be punished by confinement. 

Voting.—Treatment of indigency in a civil type of ‘‘fundamental interest’’ analysis came in Harper v. Virginia Board of Elections, 1913 in which it was held that ‘‘a State violates the Equal Protection Clause . . . whenever it makes the affluence of the voter or 

payment of any fee an electoral standard. Voter qualifications have 

no relation to wealth nor to paying or not paying this or any other 

tax.’’ The Court emphasized both the fundamental interest in the 

right to vote and the suspect character of wealth classifications. 

‘‘[W]e must remember that the interest of the State, when it comes 

to voting, is limited to the power to fix qualifications. Wealth, like 

race, creed, or color, is not germane to one’s ability to participate 

2028 AMENDMENT 14—RIGHTS GUARANTEED 

1914 383 U.S. at 668. The Court observed that ‘‘the right to vote is too precious, 

too fundamental to be so burdened or conditioned.’’ Id. at 670. 1915 405 U.S. 134 (1972). 1916Lubin v. Panish, 415 U.S. 709 (1974). Note that the Court indicated that 

Bullock was decided on the basis of restrained review. Id. at 715. 1917 Bearden v. Georgia, 461 U.S. 660 (1983). 1918 401 U.S. 371 (1971). 

intelligently in the electoral process. Lines drawn on the basis of 

wealth or property, like those of race . . . are traditionally 

disfavored.’’ 1914

The two factors—classification in effect along wealth lines and 

adverse effect upon the exercise of the franchise—were tied together in Bullock v. Carter 1915 in which the setting of high filing 

fees for certain offices was struck down upon analysis by a stricter 

standard than the traditional equal protection standard but apparently a somewhat lesser standard than the compelling state interest test. The Court held that the high filing fees were not rationally 

related to the State’s interest in allowing only serious candidates 

on the ballot since some serious candidates could not pay the fees 

while some frivolous candidates could and that the State could not 

finance the costs of holding the elections from the fees when the 

voters were thereby deprived of their opportunity to vote for candidates of their preferences. 

Extending Bullock, the Court has held it impermissible for a 

State to deny indigents, and presumably other persons unable to 

pay filing fees, a place on the ballot for failure to pay filing fees, 

however reasonable in the abstract the fees may be. A State must 

provide such persons a reasonable alternative for getting on the 

ballot. 1916 Similarly, a sentencing court in revoking probation must 

consider alternatives to incarceration if the reason for revocation is 

the inability of the indigent to pay a fine or restitution. 1917

Access to Courts.—In Boddie v. Connecticut, 1918 Justice Harlan carried a majority of the Court with him in utilizing a due process analysis to evaluate the constitutionality of a State’s filing fees 

in divorce actions which a group of welfare assistance recipients attacked as preventing them from obtaining divorces. The Court 

found that when the State monopolized the avenues to a pacific 

settlement of a dispute over a fundamental matter such as marriage—only the State could terminate the marital status—then it 

denied due process by inflexibly imposing fees which kept some 

persons from using that avenue. Justice Harlan’s opinion averred 

that a facially neutral law or policy which did in fact deprive an 

individual of a protected right would be held invalid even though 

as a general proposition its enforcement served a legitimate governmental interest. The opinion concluded with a cautioning obserVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00358 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 2029

1919 409 U.S. 434 (1973). 1920 409 U.S. at 443-46. The equal protection argument was rejected by utilizing 

the traditional standard of review, bankruptcy legislation being placed in the area 

of economics and social welfare, and the use of fees to create a self-sustaining bankruptcy system being considered to be a rational basis. Dissenting, Justice Stewart 

argued that Boddie required a different result, denied that absolute preclusion of 

alternatives was necessary, and would have evaluated the importance of an interest 

asserted rather than providing that it need be fundamental. Id. at 451. Justice Marshall’s dissent was premised on an asserted constitutional right to be heard in court, 

a constitutional right of access regardless of the interest involved. Id. at 458. Justices Douglas and Brennan concurred in Justice Stewart’s dissent, as indeed did 

Justice Marshall. 1921Ortwein v. Schwab, 410 U.S. 656 (1973). The division was the same 5-to4 that prevailed in Kras . See also Lindsey v. Normet, 405 U.S. 56 (1972). But cases 

involving the Boddie principle do continue to arise. Little v. Streater, 452 U.S. 1 

(1981) (in paternity suit that State required complainant to initiate, indigent defendant entitled to have State pay for essential blood grouping test); Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (recognizing general right of apvation that the case was not to be taken as establishing a general 

right to access to the courts. 

The Boddie opinion left unsettled whether a litigant’s interest 

in judicial access to effect a pacific settlement of some dispute was 

an interest entitled to some measure of constitutional protection as 

a value of independent worth or whether a litigant must be seeking 

to resolve a matter involving a fundamental interest in the only 

forum in which any resolution was possible. Subsequent decisions 

established that the latter answer was the choice of the Court. In 

United States v. Kras, 1919 the Court held that the imposition of filing fees which blocked the access of an indigent to a discharge of 

his debts in bankruptcy denied the indigent neither due process 

nor equal protection. The marital relationship in Boddie was a fundamental interest, the Court said, and upon its dissolution depended associational interests of great importance; however, an interest in the elimination of the burden of debt and in obtaining a 

new start in life, while important, did not rise to the same constitutional level as marriage. Moreover, a debtor’s access to relief in 

bankruptcy had not been monopolized by the government to the 

same degree as dissolution of a marriage; one may, ‘‘in theory, and 

often in actuality,’’ manage to resolve the issue of his debts by 

some other means, such as negotiation. While the alternatives in 

many cases, such as Kras, seem barely likely of successful pursuit, 

the Court seemed to be suggesting that absolute preclusion was a 

necessary element before a right of access could be considered. 1920

Subsequently, on the initial appeal papers and without hearing 

oral argument, the Court summarily upheld the application to 

indigents of filing fees that in effect precluded them from appealing 

decisions of a state administrative agency reducing or terminating 

public assistance. 1921

2030 AMENDMENT 14—RIGHTS GUARANTEED 

pointed counsel in indigent parents when State seeks to terminate parental status, 

but using balancing test to determine that right was not present in this case). 

1922 519 U.S. 102 (1996). 

1923 519 U.S. at 106. See Boddie v. Connecticut, 401 U.S. 371 (1971). 

1924Mayer v. Chicago, 404 U.S. 189 (1971). 

1925 519 U.S. at 121 (quoting Santosky v. Kramer, 455 U.S. 745, 756 (1982)). 

1926 411 U.S. 1 (1973). The opinion by Justice Powell was concurred in by the 

Chief Justice and Justices Stewart, Blackmun, and Rehnquist. Justices Douglas, 

Brennan, White, and Marshall dissented. Id. at 62, 63, 70. 

The continuing vitality of Griffin v. Illinois, however, is seen 

in the case of M.L.B. v. S.L.J., 1922 where the Court considered 

whether a state seeking to terminate the parental rights of an indigent must pay for the preparation of the transcript required for 

pursuing an appeal. Unlike in Boddie, the State, Mississippi, had 

afforded the plaintiff a trial on the merits, and thus the ‘‘monopolization’’ of the avenues of relief alleged in Boddie was not at issue. 

As in Boddie, however, the Court focused on the substantive due 

process implications of the state limiting ‘‘[c]hoices about marriage, 

family life, and the upbringing of children,’’ 1923 while also referencing cases establishing a right of equal access to criminal appellate review. Noting that even a petty offender had a right to 

have the state pay for the transcript needed for an effective appeal, 1924 and that the forced dissolution of parental rights was 

‘‘more substantial than mere loss of money,’’ 1925 the Court ordered 

Mississippi to provide the plaintiff the court records necessary to 

pursue her appeal. 

Educational Opportunity.—Making even clearer its approach in de facto wealth classification cases, the Court in San Antonio School District v. Rodriguez 1926 rebuffed an intensive effort 

with widespread support in lower court decisions to invalidate the 

system prevalent in 49 of the 50 States of financing schools primarily out of property taxes, with the consequent effect that the 

funds available to local school boards within each state were widely 

divergent. Plaintiffs had sought to bring their case within the strict 

scrutiny—compelling state interest doctrine of equal protection review by claiming that under the tax system there resulted a de

facto wealth classification that was ‘‘suspect’’ or that education was 

a ‘‘fundamental’’ right and the disparity in educational financing 

could not therefore be justified. The Court held, however, that 

there was neither a suspect classification nor a fundamental interest involved, that the system must be judged by the traditional restrained standard, and that the system was rationally related to 

AMENDMENT 14—RIGHTS GUARANTEED 2031

1927 411 U.S. at 44-55. Applying the rational justification test, Justice White 

would have found that the system did not use means rationally related to the end 

sought to be achieved. Id. at 63. 

1928 411 U.S. at 20. But see id. at 70, 117–24 (Justices Marshall and Douglas 

dissenting).

the State’s interest in protecting and promoting local control of 

education. 1927

Important as the result of the case is, the doctrinal implications are far more important. The attempted denomination of 

wealth as a suspect classification failed on two levels. First, the 

Court noted that plaintiffs had not identified the ‘‘class of disadvantaged ‘poor’’’ in such a manner as to further their argument. 

That is, the Court found that the existence of a class of poor persons, however defined, did not correlate with property-tax-poor districts; neither as an absolute nor as a relative consideration did it 

appear that tax-poor districts contained greater numbers of poor 

persons than did property-rich districts, except in random instances. Second, the Court held, there must be an absolute deprivation of some right or interest rather than merely a relative one before the deprivation because of inability to pay will bring into play 

strict scrutiny. ‘‘The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared 

two distinguishing characteristics: because of their impecunity they 

were completely unable to pay for some desired benefit, and as a 

consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.’’ 1928 No such class had been 

identified here and more importantly no one was being absolutely 

denied an education; the argument was that it was a lower quality 

education than that available in other districts. Even assuming 

that to be the case, however, it did not create a suspect classification.

Education is an important value in our society, the Court 

agreed, being essential to the effective exercise of freedom of expression and intelligent utilization of the right to vote. But a right 

to education is not expressly protected by the Constitution, continued the Court, nor should it be implied simply because of its undoubted importance. The quality of education increases the effectiveness of speech or the ability to make informed electoral choice 

but the judiciary is unable to determine what level of quality would 

be sufficient. Moreover, the system under attack did not deny educational opportunity to any child, whatever the result in that case 

might be; it was attacked for providing relative differences in 

2032 AMENDMENT 14—RIGHTS GUARANTEED 

1929 411 U.S. at 29-39. But see id. at 62 (Justice Brennan dissenting), 70, 110– 

17 (Justices Marshall and Douglas dissenting). 1930 Cf. Plyler v. Doe, 457 U.S. 202 (1982). The case is also noted for its proposition that there were only two equal protection standards of review, a proposition 

even the author of the opinion has now abandoned. 1931 487 U.S. 450 (1988). This was a 5–4 decision, with Justice O’Connor’s opinion of the Court being joined by Chief Justice Rehnquist and Justices White, Scalia, 

and Kennedy, and with Justices Marshall, Brennan, Stevens, and Blackmun dissenting. 1932 487 U.S. at 462. The plaintiff child nonetheless continued to attend school, 

so the requirement was reviewed as an additional burden but not a complete obstacle to her education. 1933 432 U.S. 464 (1977). 1934 432 U.S. at 470-71. 

spending and those differences could not be correlated with differences in educational quality. 1929

Rodriguez clearly promised judicial restraint in evaluating 

challenges to the provision of governmental benefits when the effect is relatively different because of the wealth of some of the recipients or potential recipients and when the results, what is obtained, vary in relative degrees. Wealth or indigency is not a per

se suspect classification but it must be related to some interest that 

is fundamental, and Rodriguez doctrinally imposed a considerable 

barrier to the discovery or creation of additional fundamental interests. As the decisions reviewed earlier with respect to marriage and 

the family reveal, that barrier has not held entirely firm, but within a range of interests, such as education, 1930 the case remains 

strongly viable. Relying on Rodriguez and distinguishing Plyler, the 

Court in Kadrmas v. Dickinson Public Schools 1931 rejected an indigent student’s equal protection challenge to a state statute permitting school districts to charge a fee for school bus service, in the 

process rejecting arguments that either ‘‘strict’’ or ‘‘heightened’’ 

scrutiny is appropriate. Moreover, the Court concluded, there is no 

constitutional obligation to provide bus transportation, or to provide it for free if it is provided at all. 1932

Abortion.—Rodriguez furnished the principal analytical basis 

for the Court’s subsequent decision in Maher v. Roe, 1933 holding

that a State’s refusal to provide public assistance for abortions that 

were not medically necessary under a program that subsidized all 

medical expenses otherwise associated with pregnancy and childbirth did not deny to indigent pregnant women equal protection of 

the laws. As in Rodriguez, it was held that the indigent are not a 

suspect class. 1934 Again, as in Rodriguez and in Kras, it was held 

that when the State has not monopolized the avenues for relief and 

the burden is only relative rather than absolute, a governmental 

failure to offer assistance, while funding alternative actions, is not 

AMENDMENT 14—RIGHTS GUARANTEED 2033

1935 432 U.S. at 471-74. See also Harris v. McRae, 448 U.S. 297, 322–23 (1980). 

Total deprivation was the theme of Boddie and was the basis of concurrences by 

Justices Stewart and Powell in Zablocki v. Redhail, 434 U.S. 374, 391, 396 (1978), 

in that the State imposed a condition indigents could not meet and made no exception for them. The case also emphasized that Dandridge v. Williams, 397 U.S. 471 

(1970), imposed a rational basis standard in equal protection challenges to social 

welfare cases. But see Califano v. Goldfarb, 430 U.S. 199 (1977), where the majority 

rejected the dissent’s argument that this should always be the same. 

undue governmental interference with a fundamental right. 1935 Expansion of this area of the law of equal protection seems especially 

limited.

SECTION 2. Representatives shall be apportioned among the 

several States according to their respective numbers, counting 

the whole number of persons in each State, excluding Indians 

not taxed. But when the right to vote at any election for the 

choice of electors for President and Vice President of the United 

States, Representatives in Congress, the Executive and Judicial 

officers of a State, or the members of the Legislature thereof, 

is denied to any of the male inhabitants of such State, being 

twenty-one years of age, and citizens of the United States, or 

in any way abridged, except for participation in rebellion, or 

other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens 

shall bear to the whole number of male citizens twenty-one 

years of age in such State. 

APPORTIONMENT OF REPRESENTATION 

With the abolition of slavery by the Thirteenth Amendment, 

the African Americans formerly counted as three-fifths of persons 

would be fully counted in the apportionment of seats in the House 

of Representatives, increasing as well the electoral vote, there appeared the prospect that politically the readmitted Southern States 

would gain the advantage in Congress when combined with Democrats from the North. Inasmuch as the South was adamantly opposed to African American suffrage, all the congressmen would be 

elected by whites. Many wished to provide for the enfranchisement 

of the African American and proposals to this effect were voted on 

in both the House and the Senate, but only a few Northern States 

2034 AMENDMENT 14—RIGHTS GUARANTEED 

1936See generally J. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT

(1956). 1937Saunders v. Wilkins, 152 F.2d 235 (4th Cir. 1945), cert. denied, 328 U.S. 870 

(1946). 1938The section did furnish a basis to Justice Harlan to argue that inasmuch 

as § 2 recognized a privilege to discriminate subject only to the penalty provided, 

the Court was in error in applying § 1 to questions relating to the franchise. Compare Oregon v. Mitchell, 400 U.S. 112, 152 (1970) (Justice Harlan concurring and 

dissenting), with id. at 229, 250 (Justice Brennan concurring and dissenting). The 

language of the section recognizing 21 as the usual minimum voting age no doubt 

played some part in the Court’s decision in Oregon v. Mitchell as well. It should 

also be noted that the provision relating to ‘‘Indians not taxed’’ is apparently obsolete now in light of an Attorney General ruling that all Indians are subject to taxation. 39 Op. Att’y Gen. 518 (1940). 1939 418 U.S. 24 (1974). Justices Marshall, Douglas, and Brennan dissented. Id. 

at 56, 86. 

permitted African Americans to vote and a series of referenda on 

the question in Northern States revealed substantial white hostility to the proposal. Therefore, a compromise was worked out, to 

effect a reduction in the representation of any State which discriminated against males in the franchise. 1936

No serious effort was ever made in Congress to effectuate § 2, 

and the only judicial attempt was rebuffed. 1937 With subsequent 

constitutional amendments adopted and the utilization of federal 

coercive powers to enfranchise persons, the section is little more 

than an historical curiosity. 1938

However, in Richardson v. Ramirez, 1939 the Court relied upon 

the implied approval of disqualification upon conviction of crime to 

uphold a state law disqualifying convicted felons for the franchise 

even after the service of their terms. It declined to assess the state 

interests involved and to evaluate the necessity of the rule, holding 

rather that because of § 2 the equal protection clause was simply 

inapplicable.

SECTIONS 3 AND 4. No Person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United 

States, or under any State, who, having previously taken an 

oath, as a member of Congress, or as an officer of the United 

States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution 

of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies 

AMENDMENT 14—RIGHTS GUARANTEED 2035

1940 E.g., and notably, the Private Act of December 14, 1869, ch.1, 16 Stat. 607. 1941 Ch. 193, 17 Stat. 142. 1942 Act of June 6, 1898, ch. 389, 30 Stat. 432. Legislation by Congress providing 

for removal was necessary to give effect to the prohibition of § 3, and until removed 

in pursuance of such legislation persons in office before promulgation of the Fourteenth Amendment continued to exercise their functions lawfully. Griffin’s Case, 11 

Fed. Cas. 7 (C.C.D.Va. 1869) (No. 5815). Nor were persons who had taken part in 

the Civil War and had been pardoned by the President before the adoption of this 

Amendment precluded by this section from again holding office under the United 

States. 18 Op. Att’y Gen. 149 (1885). On the construction of ‘‘engaged in rebellion,’’ 

see United States v. Powell, 27 Fed. Cas. 605 (C.C.D.N.C. 1871) (No. 16,079). 

1943Perry v. United States, 294 U.S. 330, 354 (1935), in which the Court concluded that the Joint Resolution of June 5, 1933, insofar as it attempted to override 

the gold-clause obligation in a Fourth Liberty Loan Gold Bond ‘‘went beyond the 

thereof. But congress may by a vote of two thirds of each 

House, remove such disability. 

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions 

and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor 

any State shall assume or pay any debt or obligation incurred 

in aid of insurrection or rebellion against the United States, or 

any claim for the loss or emancipation of any slave; but all such 

debts, obligations and claims shall be held illegal and void. 

DISQUALIFICATION AND PUBLIC DEBT 

The right to remove disabilities imposed by this section was exercised by Congress at different times on behalf of enumerated individuals. 1940 In 1872, the disabilities were removed, by a blanket 

act, from all persons ‘‘except Senators and Representatives of the 

Thirty-sixth and Thirty-seventh Congresses, officers in the judicial, 

military and naval service of the United States, heads of departments, and foreign ministers of the United States.’’ 1941 Twenty-six

years later, Congress enacted that ‘‘the disability imposed by section 3 . . . incurred heretofore, is hereby removed.’’ 1942

Although § 4 ‘‘was undoubtedly inspired by the desire to put 

beyond question the obligations of the Government issued during 

the Civil War, its language indicates a broader connotation. . . . 

‘[T]he validity of the public debt’. . . [embraces] whatever concerns 

the integrity of the public obligations,’’ and applies to government 

bonds issued after as well as before adoption of the Amendment. 1943

2036 AMENDMENT 14—RIGHTS GUARANTEED 

congressional power.’’ On a Confederate bond problem, see Branch v. Haas, 16 F. 

53 (C.C.M.D. Ala. 1883) (citing Hanauer v. Woodruff, 82 U.S. (15 Wall.) 439 (1873), 

and Thorington v. Smith, 75 U.S. (8 Wall.) 1 (1869)). See also The Pietro 

Campanella, 73 F. Supp. 18 (D. Md. 1947). 1944 Civil Rights Act of 1866, ch. 31, 14 Stat. 27; the Enforcement Act of 1870, 

ch. 114, 16 Stat. 140; Act of February 28, 1871, ch. 99, 16 Stat. 433; the Ku Klux 

Klan Act of 1871, ch. 22, 17 Stat. 13; Civil Rights Act of 1875; 18 Stat. 335. The 

modern provisions surviving of these statutes are 18 U.S.C. §§ 241, 242, 42 U.S.C.§§ 

1981–83, 1985–1986, and 28 U.S.C. § 1343. Two lesser statutes were the Slave Kidnapping Act of 1866, ch. 86, 14 Stat. 50, and the Peonage Abolition Act, ch. 187, 

14 Stat. 546, 18 U.S.C. §§ 1581–88, and 42 U.S.C.§ 1994. 1945See generally R. CARR, FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST FOR

A SWORD (1947). 1946For cases under 18 U.S.C. §§ 241 and 242 in their previous codifications, 

see United States v. Mosley, 238 U.S. 383 (1915); United States v. Gradwell, 243 

U.S. 476 (1917); United States v. Bathgate, 246 U.S. 220 (1918); United States v. 

Wheeler, 254 U.S. 281 (1920). The resurgence of the use of these statutes began 

with United States v. Classic, 313 U.S. 299 (1941), and Screws v. United States, 325 

U.S. 91 (1945). 1947The 1957 and 1960 Acts primarily concerned voting; the public accommodations provisions of the 1964 Act and the housing provisions of the 1968 Act were 

premised on the commerce power. 1948 United States v. Guest, 383 U.S. 745 (1966); Katzenbach v. Morgan, 384 

U.S. 641 (1966). The development of congressional enforcement powers in these 

cases was paralleled by a similar expansion of the enforcement powers of Congress 

with regard to the Thirteenth Amendment, Jones v. Alfred H. Mayer Co., 392 U.S. 

409 (1968). South Carolina v. Katzenbach, 383 U.S. 301 (1966). 

SECTION 5. The Congress shall have power to enforce, by 

appropriate legislation, the provisions of this article. 

ENFORCEMENT

Generally

In the aftermath of the Civil War, Congress, in addition to proposing to the States the Thirteenth, Fourteenth, and Fifteenth 

Amendments, enacted seven statutes designed in a variety of ways 

to implement the provisions of these Amendments. 1944 Several of 

these laws were general civil rights statutes which broadly attacked racial and other discrimination on the part of private individuals and groups as well as by the States, but the Supreme 

Court declared unconstitutional or rendered ineffective practically 

all of these laws over the course of several years. 1945 In the end, 

Reconstruction was abandoned and with rare exceptions no cases 

were brought under the remaining statutes until fairly recently. 1946

Beginning with the Civil Rights Act of 1957, however, Congress 

generally acted pursuant to its powers under the commerce 

clause 1947 until Supreme Court decisions indicated an expansive 

concept of congressional power under the Civil War Amendments, 1948 which culminated in broad provisions against private inVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00366 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
AMENDMENT 14—RIGHTS GUARANTEED 2037

1949 82 Stat. 73, 18 U.S.C. § 245. The statute has yet to receive its constitutional 

testing. 1950On the ‘‘state action’’ doctrine in the context of the direct application of § 

1 of the Fourteenth Amendment, see discussion supra. 1951 529 U.S. 528, 617-27 (2000). 1952Pub. L. No. 103–322, § 40302, 108 Stat. 1941, 42 U.S.C. § 13981. 1953 529 U.S. at 621 (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948), for the 

proposition that the Amendment ‘‘erects no shield against merely private conduct, 

however discriminatory or wrongful’’). 1954This holding may have broader significance for federal civil rights law. For 

instance, 42 U.S.C. § 1985(3) (a civil statute paralleling the criminal statute held 

unconstitutional in United States v. Harris) lacks a ‘‘color of law’’ requirement. Although the requirement was read into it in Collins v. Hardyman, 341 U.S. 651 

(1951), to avoid constitutional problems, it was read out again in Griffin v. 

Breckenridge, 403 U.S. 88, 97 (1971) (while it might be ‘‘difficult to conceive of what 

might constitute a deprivation of the equal protection of the laws by private persons 

. . . there is nothing inherent in the phrase that requires the action working the 

deprivation to come from the State’’). What the unanimous Court held in Griffin was 

that an ‘‘intent to deprive of equal protection, or equal privileges and immunities, 

means that there must be some racial, or perhaps otherwise class-based, invidiously 

discriminatory animus behind the conspirators’ action.’’ Id. at 102. As so construed, 

the statute was held constitutional as applied in the complaint before the Court on 

the basis of the Thirteenth Amendment and the right to travel; there was no necessity therefore, to consider Congress’ powers under § 5 of the 14th Amendment. Id. 

at 107. 

terference with civil rights in the 1968 legislation. 1949 The story of 

these years is largely an account of the ‘‘state action’’ doctrine in 

terms of its limitation on congressional powers; 1950 lately, it is the 

still-unfolding history of the lessening of the doctrine combined 

with a judicial vesting of discretion in Congress to reinterpret the 

scope and content of the rights guaranteed in these three constitutional amendments. 

The Court, however, ultimately rejected this expansion of the 

powers of Congress in United States v. Morrison. 1951 In Morrison, the Court invalidated a provision of the Violence Against 

Women Act 1952 that established a federal civil remedy for victims 

of gender-motivated violence. The case involved a university student who brought a civil action against other students who allegedly raped her. The argument was made that there was a pervasive bias against victims of gender-motivated violence in state justice systems, and that the federal remedy would offset and deter 

this bias. The Court first reaffirmed the state action requirement 

for legislation passed under the Fourteenth Amendment, 1953 dismissing the dicta in Guest, and reaffirming the precedents of the 

Civil Rights Cases and United States v. Harris. The Court also rejected the assertion that the legislation was ‘‘corrective’’ of bias in 

the courts, as the suits are not directed at the State or any state 

actor, but rather at the individuals committing the criminal 

acts. 1954

2038 AMENDMENT 14—RIGHTS GUARANTEED 

The lower courts have been quite divided with respect to what constitutes a 

non-racial, class-based animus, and what constitutional protections must be threatened before a private conspiracy can be reached under § 1985(3). See, e.g., Action 

v. Gannon, 450 F.2d 1227 (8th Cir. 1971); Dombrowski v. Dowling, 459 F.2d 190 

(7th Cir. 1972); Great American Fed. S. & L. Ass’n v. Novotny, 584 F.2d 1235 (3d 

Cir. 1978) (en banc), rev’d, 442 U.S. 366 (1979); Scott v. Moore, 680 F.2d 979 (5th 

Cir. 1982) (en banc). The Court’s decision in Morrison, however, appears to preclude 

the use of § 1985(3) in relation to Fourteenth Amendment rights absent some state 

action. 1955Section 3 of the Civil Rights Act of 1866, 14 Stat. 27, 28 U.S.C. § 1443. 

See Virginia v. Rives, 100 U.S. 313, 318 (1880); Strauder v. West Virginia, 100 U.S. 

303 (1880). The statute is of limited utility because of the interpretation placed on 

it almost from the beginning. Compare Georgia v. Rachel, 384 U.S. 780 (1966), 

with City of Greenwood v. Peacock, 384 U.S. 808 (1966). 

1956 18 U.S.C. §§ 241, 242. See Screws v. United States, 325 U.S. 91 (1945); Williams v. United States, 341 U.S. 97 (1951); United States v. Guest, 383 U.S. 745 

(1966); United States v. Price, 383 U.S. 787 (1966); United States v. Johnson, 390 

U.S. 563 (1968). 1957 42 U.S.C. § 1983. See Monroe v. Pape, 365 U.S. 167 (1961); see also 42

U.S.C. § 1985(3), construed in Griffin v. Breckenridge, 403 U.S. 88 (1971). 1958 Ex parte Virginia, 100 U.S. 339 (1880). 1959 United States v. Price, 383 U.S. 787 (1966). 1960 Both 18 U.S.C. § 242 and 42 U.S.C. § 1983 contain language restricting application to deprivations under color of state law, whereas 18 U.S.C. § 241 lacks 

such language. The newest statute, 18 U.S.C. § 245, contains, of course, no such language. On the meaning of ‘‘custom’’ as used in the ‘‘under color of’’ phrase, see

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). 1961 E.g., the problem of ‘‘specific intent’’ in Screws v. United States, 325 U.S. 

91 (1945), and Williams v. United States, 341 U.S. 97 (1951), and the problem of 

what ‘‘right or privilege’’ is ‘‘secured’’ to a person by the Constitution and laws of 

the United States, which divided the Court in United States v. Williams, 341 U.S. 

70 (1951), and which was resolved in United States v. Price, 383 U.S. 787 (1966). 1962 18 Stat. 335, §§ 1, 2. 

State Action 

In enforcing by appropriate legislation the Fourteenth Amendment guarantees against state denials, Congress has the discretion 

to adopt remedial measures, such as authorizing persons being denied their civil rights in state courts to remove their cases to federal courts, 1955 and to provide criminal 1956 and civil 1957 liability for 

state officials and agents 1958 or persons associated with them 1959

who violate protected rights. These statutory measures designed to 

eliminate discrimination ‘‘under color of law’’ 1960 present no problems of constitutional foundation, although there may well be other 

problems of application. 1961 But the Reconstruction Congresses did 

not stop with statutory implementation of rights guaranteed 

against state infringement, moving as well against private interference.

Thus, in the Civil Rights Act of 1875 1962 Congress had proscribed private racial discrimination in the admission to and use of 

inns, public conveyances, theaters, and other places of public 

AMENDMENT 14—RIGHTS GUARANTEED 2039

1963 109 U.S. 3 (1883). The Court also rejected the Thirteenth Amendment foundation for the statute, a foundation revived by Jones v. Alfred H. Mayer Co., 392 

U.S. 409 (1968). 1964 109 U.S. at 11. Justice Harlan’s dissent reasoned that Congress had the 

power to protect rights secured by the Fourteenth Amendment against invasion by 

both state and private action, but also viewed places of public accommodation as 

serving a quasi-public function which satisfied the state action requirement in any 

event. Id. at 46–48, 56–57. 1965 92 U.S. 542 (1876). The action was pursuant to § 6 of the 1870 Enforcement 

Act, ch. 114, 16 Stat. 140, the predecessor of 18 U.S.C. § 241. 1966 106 U.S. 629 (1883). The case held unconstitutional a provision of § 2 of the 

1871 Act, ch. 22, 17 Stat. 13. 1967See also Baldwin v. Franks, 120 U.S. 678 (1887); Hodges v. United States, 

203 U.S. 1 (1906); United States v. Wheeler, 254 U.S. 281 (1920). Under the Fifteenth Amendment, see James v. Bowman, 190 U.S. 127 (1903). 1968 United States v. Cruikshank, 92 U.S. 542, 552–53, 556 (1876). The rights 

which the Court assumed the United States could protect against private interference were the right to petition Congress for a redress of grievances and the right 

to vote free of interference on racial grounds in a federal election. 1969 Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Classic, 313 U.S. 

299 (1941). 1970Logan v. United States, 144 U.S. 263 (1892). 

amusement. The Civil Rights Cases 1963 found this enactment to be 

beyond Congress’ power to enforce the Fourteenth Amendment. It 

was observed that § 1 was prohibitory only upon the States and did 

not reach private conduct. Therefore, Congress’ power under § 5 to 

enforce § 1 by appropriate legislation was held to be similarly limited. ‘‘It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation, or State action, of the 

kind referred to. It does not authorize Congress to create a code of 

municipal law for the regulation of private rights; but to provide 

modes of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment.’’ 1964

The holding in this case had already been preceded by United

States v. Cruikshank 1965 and by United States v. Harris 1966 in

which the Federal Government had prosecuted individuals for killing and injuring African Americans. The Amendment did not increase the power of the Federal Government vis-a-vis individuals, 

the Court held, only with regard to the States themselves. 1967

Cruikshank did, however, recognize a small category of federal 

rights which Congress could protect against private deprivation, 

rights which the Court viewed as deriving particularly from one’s 

status as a citizen of the United States and which Congress had 

a general police power to protect. 1968 These rights included the 

right to vote in federal elections, general and primary, 1969 the right 

to federal protection while in the custody of federal officers, 1970 and

2040 AMENDMENT 14—RIGHTS GUARANTEED 

1971 In re Quarles, 158 U.S. 532 (1895). See also United States v. Waddell, 112 

U.S. 76 (1884) (right to homestead). 1972 United States v. Guest, 383 U.S. 745 (1966); Griffin v. Breckenridge, 403 

U.S. 88 (1971). 1973 341 U.S. 70 (1951). 1974 383 U.S. 787 (1966) (due process clause). 1975 383 U.S. 745 (1966) (equal protection clause). 1976 Justice Brennan’s opinion, 383 U.S. at 774, was joined by Chief Justice Warren and Justice Douglas. His statement that ‘‘[a] majority of the members of the 

Court expresses the view today that § 5 empowers Congress to enact laws punishing 

all conspiracies to interfere with the exercise of Fourteenth Amendment rights, 

whether or not state officers or others acting under the color of state law are implicated in the conspiracy,’’ id. at 782 (emphasis by the Justice), was based upon the 

language of Justice Clark, joined by Justices Black and Fortas, id. at 761, that inasmuch as Justice Brennan reached the issue the three Justices were also of the view 

‘‘that there now can be no doubt that the specific language of § 5 empowers the Congress to enact laws punishing all conspiracies—with or without state action—that 

interfere with Fourteenth Amendment rights.’’ Id. at 762. In the opinion of the 

Court, Justice Stewart disclaimed any intention of speaking of Congress’ power 

under § 5. Id. at 755. 

the right to inform federal officials of violations of federal law. 1971

The right of interstate travel is a basic right derived from the Federal Constitution which Congress may protect. 1972 In United States 

v. Williams, 1973 in the context of state action, the Court divided 

four-to-four over whether the predecessor of 18 U.S.C. § 241 in its 

reference to a ‘‘right or privilege secured . . . by the Constitution 

or laws of the United States’’ encompassed rights guaranteed by 

the Fourteenth Amendment, or was restricted to those rights 

‘‘which Congress can beyond doubt constitutionally secure against 

interference by private individuals.’’ This issue was again reached 

in United States v. Price 1974 and United States v. Guest, 1975 again

in the context of state action, in which the Court concluded that 

the statute included within its scope rights guaranteed by the due 

process and equal protection clauses. 

Inasmuch as both Price and Guest concerned conduct which the 

Court found implicated with sufficient state action, it did not then 

have to reach the question of § 241’s constitutionality when applied 

to private action interfering with rights not the subject of a general 

police power. But Justice Brennan, responding to what he apparently intepreted as language in the opinion of the Court construing 

Congress’ power under § 5 of the Fourteenth Amendment to be limited by the state action requirement, appended a lengthy statement, which a majority of the Justices joined, arguing that Congress’ power was broader. 1976 ‘‘Although the Fourteenth Amendment itself . . . ‘speaks to the State or to those acting under the 

color of its authority,’ legislation protecting rights created by that 

Amendment, such as the right to equal utilization of state facilities, 

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AMENDMENT 14—RIGHTS GUARANTEED 2041

1977 383 U.S. at 782. 1978 383 U.S. at 777-79, 784. 1979 109 U.S. 3, 13–14 (1883). 1980 Cf. Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803). 1981 383 U.S. 745, 783 and n.7 (1966) (concurring and dissenting). 1982 384 U.S. 641 (1966). Besides the ground of decision discussed here, Morgan 

also advanced an alternative ground for upholding the statute. That is, Congress 

might have overridden the state law not because the law itself violated the equal 

protection clause but because being without the vote meant the class of persons was 

subject to discriminatory state and local treatment and giving these people the balcers participate. Rather, § 5 authorizes Congress to make laws that 

it concludes are reasonably necessary to protect a right created by 

and arising under that Amendment; and Congress is thus fully empowered to determine that punishment of private conspiracies 

interfering with the exercise of such a right is necessary to its full 

protection.’’ 1977 The Justice throughout the opinion refers to ‘‘Fourteenth Amendment rights,’’ by which he meant rights which, in the 

words of 18 U.S.C. § 241, are ‘‘secured . . . by the Constitution,’’ 

i.e., by the Fourteenth Amendment through prohibitory words addressed only to governmental officers. Thus, the equal protection 

clause commands that all ‘‘public facilities owned or operated by or 

on behalf of the State,’’ be available equally to all persons; that access is a right granted by the Constitution, and § 5 is viewed ‘‘as 

a positive grant of legislative power, authorizing Congress to exercise its discretion in fashioning remedies to achieve civil and political equality for all citizens.’’ Within this discretion is the ‘‘power 

to determine that in order adequately to protect the right to equal 

utilization of state facilities, it is also appropriate to punish other 

individuals’’ who would deny such access. 1978

Congressional Definition of Fourteenth Amendment Rights 

In the Civil Rights Cases, 1979 the Court observed that ‘‘the legislation which Congress is authorized to adopt in this behalf is not 

general legislation upon the rights of the citizen, but corrective legislation,’’ that is, laws to counteract and overrule those state laws 

which§ 1 forbade the States to adopt. And the Court was quite 

clear that under its responsibilities of judicial review, it was the 

body which would determine that a state law was impermissible 

and that a federal law passed pursuant to § 5 was necessary and 

proper to enforce § 1. 1980 But in United States v. Guest, 1981 Justice

Brennan protested that this view ‘‘attributes a far too limited objective to the Amendment’s sponsors,’’ that in fact ‘‘the primary purpose of the Amendment was to augment the power of Congress, not 

the judiciary.’’ 

In Katzenbach v. Morgan, 1982 Justice Brennan, this time 

speaking for the Court, in effect overrode the limiting view and 

2042 AMENDMENT 14—RIGHTS GUARANTEED 

lot would afford a means of correcting that situation. The statute therefore was an 

appropriate means to enforce the equal protection clause under ‘‘necessary and proper’’ standards. Id. at 652–653. A similar ‘‘necessary and proper’’ approach underlay 

South Carolina v. Katzenbach, 383 U.S. 301 (1966), under the Fifteenth Amendment’s enforcement clause. 1983 79 Stat. 439, 42 U.S.C. § 1973b(e). 1984 384 U.S. at 648. 1985Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959). 1986Katzenbach v. Morgan, 384 U.S. 641, 653–56 (1966). 1987 384 U.S. at 668. Justice Stewart joined this dissent. 

posited a doctrine by which Congress was to define the substance 

of what the legislation enacted pursuant to § 5 must be appropriate 

to. That is, in upholding the constitutionality of a provision of the 

Voting Rights Act of 1965 1983 barring the application of English literacy requirements to a certain class of voters, the Court rejected 

a state argument ‘‘that an exercise of congressional power under § 

5 . . . that prohibits the enforcement of a state law can only be sustained if the judicial branch determines that the state law is prohibited by the provisions of the Amendment that Congress sought 

to enforce.’’ 1984 Inasmuch as the Court had previously upheld an 

English literacy requirement under equal protection challenge, 1985

acceptance of the argument would have doomed the federal law. 

But, said Justice Brennan, Congress itself might have questioned 

the justifications put forward by the State in defense of its law and 

might have concluded that instead of being supported by acceptable 

reasons the requirements were unrelated to those justifications and 

discriminatory in intent and effect. The Court would not evaluate 

the competing considerations which might have led Congress to its 

conclusion; since Congress ‘‘brought a specially informed legislative 

competence’’ to an appraisal of voting requirements, ‘‘it was Congress’ prerogative to weigh’’ the considerations and the Court would 

sustain the conclusion if ‘‘we perceive a basis upon which Congress 

might predicate a judgment’’ that the requirements constituted invidious discrimination. 1986

In dissent, Justice Harlan protested that ‘‘[i]n effect the Court 

reads § 5 of the Fourteenth Amendment as giving Congress the 

power to define the substantive scope of the Amendment. If that indeed be the true reach of§ 5, then I do not see why Congress should 

not be able as well to exercise its § 5 ‘discretion’ by enacting statutes so as in effect to dilute equal protection and due process decisions of this Court.’’ 1987 Justice Brennan rejected this reasoning. 

‘‘We emphasize that Congress’ power under § 5 is limited to adopting measures to enforce the guarantees of the Amendment; § 5 

grants Congress no power to restrict, abrogate, or dilute these 

AMENDMENT 14—RIGHTS GUARANTEED 2043

1988 384 U.S. at 651 n.10. Justice O’Connor for the Court quoted and reiterated 

Justice Brennan’s language in Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 

731–33 (1982). 1989 82 Stat. 73, 18 U.S.C. § 245. See S. Rep. No. 721, 90th Congress, 1st Sess. 

6–7 (1967). See also 82 Stat. 81, 42 U.S.C. § 3601 et seq. 1990Title II, Omnibus Safe Streets and Crime Control Act, 82 Stat. 210, 18 

U.S.C. §§ 3501, 3502. See S. Rep. No. 1097, 90th Congress, 2d Sess. 53–63 (1968). 

The cases which were subjects of the legislation were Miranda v. Arizona, 384 U.S. 

436 (1966), and United States v. Wade, 388 U.S. 218 (1967), insofar as federal criminal trials were concerned. 1991Titles II and III of the Voting Rights Act Amendments of 1970, 84 Stat. 316, 

42 U.S.C. §§ 1973aa–1, 1973bb. 1992Oregon v. Mitchell, 400 U.S. 112 (1970). 1993 400 U.S. at 229, 278-81 (Justices Brennan, White, and Marshall), id. at 135, 

141–44 (Justice Douglas). 1994 400 U.S. at 152, 204-09 (Justice Harlan). 1995 400 U.S. at 119, 126-31 (Justice Black). 1996The age reduction provision could be sustained ‘‘only if Congress has the 

power not only to provide the means of eradicating situations that amount to a violation of the Equal Protection Clause, but also to determine as a matter of substantive constitutional law what situations fall within the ambit of the clause, and 

what state interests are ‘compelling.’’’ 400 U.S. at 296 (Justices Stewart and Blackmun and Chief Justice Burger). In their view, Congress did not have that power and 

Morgan did not confer it. But in voting to uphold the residency and absentee provision, the Justices concluded that ‘‘Congress could rationally conclude that the imposition of durational residency requirements unreasonably burdens and sanctions the 

guarantees.’’ 1988 Congress responded, however, in both fashions. On 

the one hand, in the 1968 Civil Rights Act it relied on Morgan in

expanding federal powers to deal with private violence that is racially motivated, and to some degree in outlawing most private 

housing discrimination; 1989 on the other hand, it enacted provisions 

of law purporting to overrule the Court’s expansion of the self-incrimination and right-to-counsel clauses of the Bill of Rights, expressly invoking Morgan. 1990

Congress’ power under Morgan returned to the Court’s consideration when several States challenged congressional legislation 1991

lowering the voting age in all elections to 18 and prescribing residency and absentee voting requirements for the conduct of presidential elections. In upholding the latter provision and in dividing 

over the former, the Court revealed that Morgan‘s vitality was in 

some considerable doubt, at least with regard to the reach which 

many observers had previously seen. 1992 Four Justices accepted 

Morgan in full, 1993 while one Justice rejected it totally 1994 and another would have limited it to racial cases. 1995 The other three Justices seemingly restricted Morgan to its alternate rationale in passing on the age reduction provision but the manner in which they 

dealt with the residency and absentee voting provision afforded 

Congress some degree of discretion in making substantive decisions 

about what state action is discriminatory above and beyond the judicial view of the matter. 1996

2044 AMENDMENT 14—RIGHTS GUARANTEED 

privilege of taking up residence in another State’’ without reaching an independent 

determination of their own that the requirements did in fact have that effect. Id. 

at 286. 1997See discussion of City of Rome v. United States, 446 U.S. 156, 173–83 

(1980), under the Fifteenth Amendment, infra. See also Fullilove v. Klutznick, 448 

U.S. 448, 476–78 (1980) (plurality opinion by Chief Justice Burger), and id. at 500– 

02 (Justice Powell concurring). 1998The Voting Rights Act Amendments of 1982, Pub. L. 97–205, 96 Stat. 131, 

amending 42 U.S.C. § 1973, were designed to overturn City of Mobile v. Bolden, 446 

U.S. 55 (1980). A substantial change of direction in Rogers v. Lodge, 458 U.S. 613 

(1982), handed down coextensively with congressional enactment, seems to have 

brought Congress and the Court into essential alignment, thus avoiding a possible 

constitutional conflict. 1999See The Human Life Bill: Hearings Before the Senate Judiciary Subcommittee on Separation of Powers, 97th Congress, lst sess. (1981). An elaborate 

constitutional analysis of the bill appears in Estreicher, Congressional Power and 

Constitutional Rights: Reflections on Proposed ‘Human Life’ Legislation, 68 VA. L. 

REV. 333 (1982). 

2000 521 U.S. 507 (1997). 2001Pub. L. 103–141, 107 Stat. 1488, 42 U.S.C. § 2000bb et. seq. 2002 494 U.S. 872 (1990). 2003 521 U.S. at 533. 

More recent decisions read broadly Congress’ power to make 

determinations that appear to be substantive decisions with respect 

to constitutional violations. 1997 Acting under both the Fourteenth 

and Fifteenth Amendments, Congress has acted to reach state electoral practices that ‘‘result’’ in diluting the voting power of minorities, although the Court apparently requires that it be shown that 

electoral procedures must have been created or maintained with a 

discriminatory animus before they may be invalidated under the 

two Amendments. 1998 Moreover, movements have been initiated in 

Congress by opponents of certain of the Court’s decisions, notably 

the abortion rulings, to utilize § 5 powers to curtail the rights the 

Court has derived from the due process clause and other provisions 

of the Constitution. 1999 The case of City of Boerne v. Flores, 2000

however, illustrates that the Court will not always defer to Congress’s determination as to what legislation is appropriate to ‘‘enforce’’ the provisions of the Fourteenth Amendment. In Flores, the 

Court held that the Religious Freedom Restoration Act, 2001 which

expressly overturned the Court’s narrowing of religious protections 

under Employment Division v. Smith, 2002 exceeded congressional 

power under section 5 of the Fourteenth Amendment. Although the 

Court allowed that Congress’s power to legislate to deter or remedy 

constitutional violations may include prohibitions on conduct that 

is not itself unconstitutional, the Court also held that there must 

be ‘‘a congruence and proportionality’’ between the means adopted 

and the injury to be remedied. 2003 Unlike the pervasive suppression of the African American vote in the South which led to the 

passage of the Voting Rights Act, there was no similar history of 

AMENDMENT 14—RIGHTS GUARANTEED 2045

2004 521 U.S. at 532-33. The Court found that the Religious Freedom Restoration 

Act was ‘‘so far out of proportion to a supposed remedial or preventive object that 

it cannot be understood as responsive to, or designed to prevent, unconstitutional 

behavior.’’ Id. 2005Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (Article I powers 

may not be used to abrogate a state’s Eleventh Amendment immunity, but 

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), holding that Congress may abrogate Eleventh Amendment immunity in exercise of Fourteenth Amendment enforcement 

power, remains good law). See discussion pp. 1533–37. 2006 527 U.S. 627 (1999). 2007 527 U.S. at 639–46. See also College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999) (Trademark Remedy 

Clarification Act amendment to Lanham Act subjecting states to suits for false advertising is not a valid exercise of Fourteenth Amendment power; neither the right 

to be free from a business competitor’s false advertising nor a more generalized 

right to be secure in one’s business interests qualifies as a ‘‘property’’ right protected 

by the Due Process Clause). 2008 528 U.S. 62 (2000). Again, the issue of the Congress’s power under § 5 of 

the Fourteenth Amendment arose because sovereign immunity prevents private actions against states from being authorized under Article I powers such as the commerce clause. 

religious persecution constituting an ‘‘egregious predicate’’ for the 

far-reaching provision of the Religious Freedom Restoration Act. 

Also, unlike the Voting Rights Act, the Religious Freedom Restoration Act contained no geographic restrictions or termination 

dates. 2004

A reinvigorated Eleventh Amendment jurisprudence has led to 

a spate of decisions applying the principles the Court set forth in 

Boerne, as litigants precluded from arguing that a state’s sovereign 

immunity has been abrogated under Article I congressional powers 2005 seek alternative legislative authority in section 5. For instance, in Florida Prepaid Postsecondary Education Expense Board 

v. College Savings Bank, 2006 a bank which had patented a financial 

method designed to guarantee investors sufficient funds to cover 

the costs of college tuition sued the State of Florida for administering a similar program, arguing that the state’s sovereign immunity had been abrogated by Congress in exercise of its Fourteenth Amendment enforcement power. The Court, however, held 

that application of the federal patent law to the states was not 

properly tailored to remedy or prevent due process violations. The 

Court noted that Congress had identified no pattern of patent infringement by the states, nor a systematic denial of state remedy 

for such violations such as would constitute a deprivation of property without due process. 2007

A similar result was reached regarding the application of the 

Age Discrimination in Employment Act to state agencies in Kimel

v. Florida Board of Regents. 2008 In determining that the Act did 

not meet the ‘‘congruence and proportionality’’ test, the Court foVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00375 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
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2009See, e.g., Gregory v. Ashcroft, 501 U.S. 452 (1991) (applying rational basis 

test to uphold mandatory retirement age of 70 for state judges). 2010 528 U.S. at 86, quoting City of Boerne, 521 U.S. at 532. 2011 531 U.S. 356 (2001). 2012 42 U.S.C. §§ 12111 - 12117. 2013 42 U.S.C. § 12112(a). 2014 42 U.S.C. § 12112(b) (5) (A). 2015 473 U.S. 432 (1985). 2016 As Justice Breyer pointed out in the dissent, however, the Court seemed determined to accord Congress a degree of deference more commensurate with review 

of an agency action, discounting portions of the legislative history as based on secondary source materials, unsupported by evidence and not relevant to the inquiry 

at hand. 

cused not just on whether state agencies had engaged in age discrimination, but on whether states had engaged in unconstitutional 

age discrimination. This was a particularly difficult test to meet, as 

the Court has generally rejected constitutional challenges to age 

discrimination by states, finding that there is a rational basis for 

states to use age as a proxy for other qualities, abilities and characteristics. 2009 Noting the lack of a sufficient legislative record establishing broad and unconstitutional state discrimination based on 

age, the Court found that the ADEA, as applied to the states, was 

‘‘so out of proportion to a supposed remedial or preventive object 

that it cannot be understood as responsive to or designed to prevent unconstitutional behavior.’’ 2010

Despite what was considered by many to be a better developed 

legislative record, the Court in Board of Trustees of the University 

of Alabama v. Garrett 2011 also rejected the recovery of money damages against states, this time under the Americans with Disabilities Act of 1990 (ADA). 2012 The ADA prohibits employers, including states, from ‘‘discriminating against a qualified individual with 

a disability’’ 2013 and requires employers to ‘‘make reasonable accommodations [for] . . . physical or mental limitations . . . . unless 

[to do so]. . . would impose an undue hardship on the . . . business.’’ 2014 Although the Court had previously overturned discriminatory legislative classifications based on disability in City of 

Cleburne v. Cleburne Living Center, 2015 the Court had held that determinations of when states had violated the Equal Protection 

clause in such cases were to be made under the relatively deferential standard of rational basis review. Thus, failure of an employer 

to provide the kind ‘‘reasonable accommodations’’ required under 

the ADA would not generally rise to the level of a violation of 

the14th Amendment, and instances thereof did not qualify as a 

‘‘history and pattern of unconstitutional employment discrimination.’’ Thus, according the Court, not only did the legislative history 

developed by the Congress not establish a pattern of unconstitutional discrimination against the disabled by states, 2016 but the reVerDate Jul<13>2004 05:44 Jul 13, 2004 Jkt 000000 PO 00000 Frm 00376 Fmt 8222 Sfmt 8222 \\GSDDPC41\YOURS-AND-MINE\CON046.SGM CON046
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quirements of the ADA would be out of proportion to the alleged 

offenses.